State v. Dunn, No. 32065-7-II (WA 5/9/2006)
| Decision Date | 09 May 2006 |
| Docket Number | No. 32065-7-II,32065-7-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. ALFRED EDWARD DUNN, JR., Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 03-1-04246-5. Judgment or order under review. Date filed: 07/02/2004. Judge signing: Hon. Vicki Hogan.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Alfred Edward Dunn, Jr. appeals his conviction of second degree possession of stolen property for knowingly possessing a stolen access device. We affirm.
Lynn Shannon learned that someone had made unauthorized charges to her American Express card account, including a $250 charge from Comcast.1 Shannon's card had previously expired, and she had not received the replacement card American Express sent in the mail. Shannon contacted Comcast, and it informed her that Alfred Dunn had charged his bill to her American Express account. Dunn lived approximately two blocks away from Shannon. Shannon reported the alleged theft to the police.
Deputy Allen Myron received Shannon's report. He testified that Dunn's address matched the address of a charity that he was investigating, Wheels of Hope. He obtained a court order to access Dunn's Comcast account information and verified that Shannon's card had been used to pay $250 on Dunn's account. Additionally, at trial, William Crews, a Comcast investigator, testified that Shannon's American Express card number had been used over the internet to pay Dunn's Comcast bill.
In September 2003, Dunn met with Deputy Myron at his office and ultimately confessed to using Shannon's card. The State charged Dunn with one count of second degree possession of stolen property for knowingly possessing a stolen access device.
Prior to trial, the court held a CrR 3.5 hearing. Deputy Myron testified that Dunn had met him at his office to discuss the credit card fraud. Dunn denied any knowledge of the fraud; Deputy Myron then read Dunn his Miranda2 rights. Shortly thereafter, Dunn admitted using the card. Deputy Myron further testified that Dunn had stated, `I didn't take it out of a mailbox.' Report of Proceedings (RP) (Jan. 20, 2004) at 16. Deputy Myron stated that Dunn's remark had been spontaneous and not in response to questioning. He then arrested Dunn.
Deputy Myron testified similarly on cross-examination but stated that he was unsure whether Dunn had commented on the mailbox before or after being handcuffed. On redirect, the prosecutor asked Deputy Myron whether Dunn had made any admissions `{p}rior to being Mirandized.' RP (Jan. 20, 2004) at 30. Deputy Myron responded, `Again, from what I can recall, looking at my report here, the only statement that he made is that `I didn't take it out of the mailbox.'' RP (Jan. 20, 2004) at 30.
The court concluded that Dunn had made the statement regarding the mailbox before his Miranda warnings and, consequently, the statement was inadmissible at trial. But, the court concluded that Dunn had made the bulk of his admissions after being read his rights, and those statements were admissible. The court did not enter written findings of fact and conclusions of law. The case proceeded to trial; the trial court declared a mistrial when the State presented evidence of Dunn's criminal history.
Prior to retrial, the trial court held a second CrR 3.5 hearing to determine the admissibility of Dunn's pretrial statements. At the hearing, Dunn argued that the CrR 3.5 issues that had been decided previously were binding in his second trial. The court rejected this claim, stating that because the preceding trial court's original ruling had not been reduced to writing and because there had been a mistrial, it was obligated to make a new CrR 3.5 ruling.
At the second CrR 3.5 hearing, Deputy Myron again testified that he had read Dunn his rights after Dunn denied any involvement in a credit card fraud. Deputy Myron testified that he then asked Dunn to answer his questions truthfully and Dunn spontaneously stated `if I take it out of the mailbox, or out of a mailbox.' 1 RP (May 11, 2004) at 15. The court ruled that all of Dunn's pretrial statements, including the mailbox comment, had been made after his rights were read and were admissible.
Trial commenced on May 11, 2004. At trial, Deputy Myron testified that he began questioning Dunn about a credit card fraud and that Dunn stated that he `did not steal {the card} from a mailbox.' 2 RP (May 12, 2004) at 60. At that point, Deputy Myron determined that he had probable cause to arrest Dunn because he had yet not mentioned that Shannon's American Express card had likely been stolen from her mailbox. Deputy Myron further testified that Dunn had told him `a couple of different stories' regarding why he had Shannon's card. 2 RP at 60. Deputy Myron testified that Dunn had stated that he was `walking his dog and found {the card} on the side of the road' and that Dunn stated that an individual who worked for his charity had 2 RP at 60-61.
Deputy Myron also testified that Dunn admitted that he had unsuccessfully attempted to use the card to make phone and light bill payments. Dunn initially denied having cable TV, but then confessed to Deputy Myron that he had used Shannon's card to pay his Comcast bill. Dunn told Deputy Myron that he had paid someone $20 to pay the bill online and then he had shredded the card. Deputy Myron testified that while Dunn was in a holding cell, he overheard Dunn tell his wife that he had been arrested for `that credit card thing that you told me not to do.' 2 RP at 63.
Diane Wilkins testified that she was Dunn's payee and was responsible for paying Dunn's bills with his social security disability income. She stated that after paying Dunn's basic living expenses, there generally was not enough money left over to pay his cable TV bill. She further stated that Dunn had a computer and access to the internet.
Dunn's wife, Vicki Dunn, also testified. She stated that she had found Shannon's card and used it to pay their cable TV bill over the telephone. The jury found Dunn guilty as charged.
Dunn first contends that the doctrine of collateral estoppel barred the trial court from conducting a second CrR 3.5 hearing. He argues that the court's CrR 3.5 ruling in his first trial was a `final judgment on the merits' on the admissibility of his pretrial statements and was binding during his second trial. Br. of Appellant at 14. In response, the State argues that the doctrine of collateral estoppel does not apply. The State is correct.
The doctrine of collateral estoppel bars relitigation between the same parties on an issue of ultimate fact that has been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The doctrine applies to criminal and civil litigation. State v. Cleveland, 58 Wn. App. 634, 638-40, 794 P.2d 546, review denied, 115 Wn.2d 1029 (1990).
Collateral estoppel applies where: (1) the issues presented in both cases are identical; (2) there was a final judgment on the merits in the first action; (3) the party against whom the doctrine is asserted was a party to or in privity with a party to the prior action; and (4) application of the doctrine does not work an injustice against the party to whom it is applied. State v. Barnes, 85 Wn. App. 638, 650, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997). The burden of proof is on the party asserting collateral estoppel. Barnes, 85 Wn. App. at 650-51.
Dunn fails to establish the second prong of the test. A judgment is the `final determination of the rights of the parties in the action and includes any decree and order from which an appeal lies.' CR 54(a)(1); see also State v. Harrison, 148 Wn.2d 550, 61 P.3d 1104 (2003). Here, Dunn's first trial resulted in a mistrial; thus, no final judgment and sentence was entered. Also, the first trial court did not enter findings of fact and conclusions of law; thus its oral decision had no binding or final effect. See State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324 (1966); Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963). Accordingly, the court did not err in conducting a new CrR 3.5 hearing.
Dunn further asserts that the prosecutor committed prosecutorial misconduct by knowingly presenting false testimony by Deputy Myron during the second CrR 3.5 hearing. He argues that Deputy Myron `changed' his testimony regarding whether the statements about the mailbox were made after he had read Dunn his rights and, consequently, the prosecutor had a duty to correct Deputy Myron's testimony. Br. of Appellant at 12.
In order to establish prosecutorial misconduct, Dunn must prove that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only when "there is a substantial likelihood the instances of misconduct affected the jury's verdict." Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). Here, there is no evidence that Deputy Myron testified falsely. Deputy Myron testified consistently, on direct and cross-examination, at both CrR 3.5 hearings that he had given Miranda warnings to Dunn after Dunn had generally denied any knowledge of the credit card fraud and that Dunn had made the statement regarding the mailbox after his rights had been read. The only inconsistency in Deputy Myron's testimony came on redirect examination during the first CrR 3.5...
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