State v. Dhaliwal

• Decision Date: 16 November 2020
• Docket Number: No. 79416-7-I,79416-7-I
• Parties: STATE OF WASHINGTON, Respondent, v. JAGMEET SINGH DHALIWAL, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JAGMEET SINGH DHALIWAL, Appellant.

No. 79416-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 16, 2020

UNPUBLISHED OPINION

HAZELRIGG, J. — Jagmeet S. Dhaliwal and his brother, Sukhdev Dhaliwal,¹ were both charged with assault in the second degree and assault in the fourth degree. Following a joint bench trial, Jagmeet was convicted on both counts. He argues that there was insufficient evidence to support his conviction for assault in the second degree and that the court erred in denying a defense motion to dismiss due to government misconduct under CrR 8.3(b). Jagmeet fails to demonstrate prejudice from the mismanagement such that reversal is required and we find that sufficient evidence supports the conviction. Accordingly, we affirm.

FACTS

Brothers Jagmeet and Sukhdev Dhaliwal, were both charged with assaulting two men after they learned of a rumor circulating about their sister. Theywere charged identically: assault in the second degree by strangulation, or alternatively by reckless infliction of bodily harm, of Kanwar Sidhu² and assault in the fourth degree alleged to have been committed against Manjot Mann. The brothers were jointly tried as codefendants and waived their right to a jury. The bench trial resulted in convictions of assault in the fourth degree for both brothers and Jagmeet alone was convicted of the assault in the second degree charge, a most serious or "strike" offense, under the substantial bodily harm prong.

The charges arose from an incident that occurred one evening in the fall of 2017, when Sukhdev was employed as an officer with the Bellingham Police Department. Jagmeet and Sukhdev became aware that Sidhu was alleged to have made derogatory statements about their younger sister. The brothers discussed their concern about the rumors and decided to reach out to Jagmeet's friend, D.J. Heer, to setup a meeting for them with Sidhu. Heer reached out to a friend of Sidhu's, Mann, to arrange a meeting at Heer's trucking business where Sidhu was employed.

When the Dhaliwal brothers arrived and approached the business office, Heer sent Mann out to meet them. There was a brief altercation between the brothers and Mann, which was partially captured on security footage. Mann testified at trial that when he exited the business to meet the brothers, Jagmeet grabbed him by the collar and Sukhdev round house punched him in the temple. The brothers thought Mann was Sidhu as Jagmeet had forgotten his glasses and could not see clearly, and Sukhdev was meeting Sidhu for the first time and wouldnot have recognized him. Upon the realization that Mann was not Sidhu, the brothers disengaged and all three men entered the business together.

At this point, trial testimony diverged as to who instigated the conflict that ensued. All witnesses agreed that there was a fight, which resulted in Sidhu's assault. Sidhu and Mann testified Sukhdev punched Sidhu while Jagmeet held his legs and possibly kicked him. Mann testified that neither brother stopped the assault against Sidhu until Mann and Heer intervened to pull the brothers off of him. Sidhu testified he thought the brothers stopped on their own. Mann's testimony was inconsistent at trial as to whether Sukhdev or Jagmeet initiated the assault. Sukhdev and Heer both testified that Jagmeet was the only one assaulting Sidhu, which was stopped by Heer and Sukhdev pulling Jagmeet out of the fight. Jagmeet provided statements consistent with Sukhdev's version of events to Bellingham Police Deputy Chief Scott Grunhurd³ as part of an internal affairs investigation regarding Sukhdev's involvement in the assault.

After the fight broke up, the Dhaliwal brothers left momentarily. However, they soon returned with a mutual acquaintance, Sunny Gill, on speakerphone to confirm that it was Sidhu who had been spreading rumors about the Dhaliwals' sister. The brothers then left, warning Sidhu to stop with the rumors.

Sidhu left the business and drove to his friend, Raj Sangha's, house. Hours later, when Mann got off work at Heer's trucking business, Mann and Sidhu called 911 and then went to the hospital. Sidhu's face was injured with swelling and bruising around the right eye, which he testified resulted in total loss of vision forfive days. Photographs taken at the time also show some bruising to Sidhu's neck, which were the basis for the strangulation allegation underlying the assault in the second degree charge.

After ten days, testimony from 26 witnesses that was at times inconsistent and contradictory, and a midtrial investigation of possible collusion between Sidhu and Sangha, the trial concluded on September 20, 2018. The judge found Jagmeet guilty of assault in the second degree under the substantial bodily harm prong and assault in the fourth degree. Sukhdev was acquitted of the strike offense, but convicted of assault in the fourth degree based on the altercation with Mann before the brothers entered the business office. Jagmeet was sentenced on December 10, 2018 and timely filed a notice of appeal.

The following procedural facts are not contained in the record on appeal, but are undisputed by the parties. The State failed to procure findings of fact and conclusions of law after the bench trial. The judge who heard the bench trial retired on February 28, 2019. After Jagmeet's opening brief was filed in this court, the State realized the lapse and set a hearing in the trial court to enter findings of fact and conclusions of law. Jagmeet moved for a stay of entry, which was denied by a commissioner of this court. The trial court hearing was conducted on October 30, 2019 with attorneys present for the State and both defendants. The retired judge appeared pro tem and imposed the costs of his appearance on the State as a result of its oversight in timely obtaining the findings and conclusions after trial.

ANALYSIS

I. Findings of Fact and Conclusions of Law After Bench Trial

Jagmeet first challenges the delayed entry of findings of fact and conclusions of law long after the bench trial had concluded and seeks reversal on that basis. CrR 6.1(d) explicitly requires "[i]n a case tried without a jury, the court shall enter findings of fact and conclusions of law." The purpose of this rule is to facilitate appellate review. State v. Head, 136 Wn.2d 619, 622 N.1, 964 P.2d 1187 (1998). Oral rulings by the trial court do not cure the absence of formal written findings of fact and conclusions of law. Id. at 622. While strongly disfavored, submission of findings of fact and conclusions of law may occur if a party is not prejudiced by the late entry. See State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984). "The practice of entering findings after the appellant has framed the issues in the opening brief has the appearance of unfairness and burdens the court with motions to supplement the record." Id.

Jagmeet alleges a disparity by reviewing courts as to the strict application of various Criminal Rules and Rules of Appellate Procedure, but offers no authority for his proposition that we should disregard case law that allows for late entry of findings and conclusions in the absence of a showing of prejudice. "For example, a defendant might be able to show prejudice resulting from the lack of written findings and conclusions where there is strong indication that findings ultimately entered have been 'tailored' to meet issues raised on appeal." Head, 136 Wn.2d at 624-25. A panel of this court recently found prejudice and reversed a manifest injustice disposition in a juvenile conviction in State v. I.N.A. based on theprosecutor's failure to timely procure findings of fact and conclusions of law. 9 Wn. App.2d 422, 446 P.3d 175 (2019). The prejudice in I.N.A. was compounded by the fact that when ordered by this court to obtain the necessary findings for the appeal, the prosecutor did so by means of an ex parte hearing without notice to defense. Id.

In briefing, the State acknowledges that the burden to timely enter findings of fact and conclusions of law after a bench trial rests with the trial court and the prevailing party under CrR 6.1(d), but then boldly argues that Jagmeet "could and should have made efforts to resolve this issue with either trial or appellate counsel prior to filing his opening brief and chose not to do so." This argument is not only inconsistent with the law, it demonstrates a fundamental misunderstanding of the role of the defense in criminal proceedings. To suggest that counsel for a defendant somehow had an obligation to assist the State in securing a conviction of their client is offensive to the very notions of justice underpinning our fundamentally adversarial legal system. The State's flawed argument contradicts the duties of defense counsel under the Rules of Professional Conduct and, if counsel is appointed, the Standards for Indigent Defense. The defense had no duty to advise the State of such a lapse nor take steps to correct it.

While the delay here clearly highlights the policy reasons underlying CrR 6.1(d), the facts before us do not support a conclusion that the findings were tailored as described in Head, nor are they as egregious as those in I.N.A. where the validity of the juvenile's sentence was directly implicated and findings were entered ex parte. Head, 136 Wn.2d at 624-25; I.N.A., 9 Wn. App.2d 422. Here,the State properly gave notice to defense counsel for both brothers and the court heard argument from the parties. Further, our comparison of the oral findings at the conclusion of trial and the written findings entered ten months after sentencing does not suggest that they were tailored to the issues raised in Jagmeet's opening brief. Jagmeet fails to demonstrate prejudice as a result of the late entry of findings and conclusions sufficient to warrant reversal and remand for a new trial.⁴

II. Sufficiency of the Evidence

Jagmeet next asserts that the evidence was insufficient to...