State v. French

• Decision Date: 17 August 2006
• Docket Number: No. 78569-4.,78569-4.
• Parties: STATE of Washington, Respondent, v. James FRENCH, Appellant.
• Court: Washington Supreme Court

141 P.3d 54

157 Wn.2d 593

STATE of Washington, Respondent, v. James FRENCH, Appellant.

No. 78569-4.

Supreme Court of Washington, En Banc.

Argued June 13, 2006.

Decided August 17, 2006.

COPYRIGHT MATERIAL OMITTED

Sheryl Gordon McCloud, Attorney at Law, Seattle, for Appellant.

Kimberley Robert Farr, Michael C. Kinnie, Clark Co Pros Attys Office, Vancouver, for Respondent.

C. JOHNSON, J.

¶ 1 This case involves the issue of whether the common law fugitive disentitlement doctrine applies where a defendant absconds after conviction but before sentencing. If the doctrine applies, a defendant has waived his or her right to appeal the conviction, and we do not need to address any claimed trial court errors relating to James French's (French) convictions. If the doctrine does not apply, we must address the issues pertaining to both French's convictions and sentence.

¶ 2 The issues include: (1) whether the trial court erred when it declined to reopen the case for the purpose of presenting additional evidence of a witness' motive to lie and, if so, whether the error violated the defendant's right to present a defense; (2) whether the trial court erred in refusing to grant public funds to translate extradition documents into English under CrR 3.1(f); (3) whether the extradition treaty at issue applies in the context of a rape conviction and whether the defendant may individually claim protection under the treaty; and (4) whether the crime of child molestation is a lesser included offense to the crime of rape and whether any of the convictions violate principles of double jeopardy or constitute the "same criminal conduct." This case was transferred from the Court of Appeals under RAP 4.4.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Appellant French was convicted in 1995 of six counts: one count of first degree child molestation, two counts of first degree rape of a child, and three counts of second degree rape of a child, for raping and molesting his stepdaughter, Crystal Fleming, when she was between the ages of 9 and 14. Before the sentencing hearing, French fled to Mexico. He was apprehended in Mexico in 2005 and extradited to Washington under an extradition treaty between the United States and Mexico. French was sentenced to 192 months in prison on May 19, 2005. He is appealing both his convictions and sentence.

¶ 4 During trial, Crystal's mother, Theresa French-Flannery (French-Flannery), testified that she married French in October 1987. The couple resided in Vancouver, Washington, at what was referred to as the "F Street House" and then moved to the "Lake Crest House" in 1990. They operated a bail bonds business from their home. French-Flannery testified that she and French amicably divorced in March 1993. She testified that she wanted to open her own bail bonds business in California and needed French to act as a general agent and sponsor her business. Ultimately, French did not sponsor the business. Defense counsel cross-examined French-Flannery about these events and her bias against French arising from them. Additionally, a defense witness testified that French-Flannery was very upset when she learned that French would not help her. The State presented testimony from Crystal Fleming supporting the charged offenses and the defense cross-examined her.

¶ 5 Over the weekend following the close of the State's rebuttal case, French-Flannery engaged in conversations with a defense witness, Joseph Emington, and with French. The defense sought to reopen the case to present testimony about these incidents. In an offer of proof, defense counsel indicated that Emington would testify that French-Flannery asked Emington to call French on the phone and then got on the phone herself to speak with French. Emington would testify that French-Flannery, while on the phone with French, stated that she hoped and expected French would be acquitted and that she still loved French. A third party, an employee of French, would also testify that she listened in on the phone call between French and French-Flannery at French's request and heard French-Flannery make the same statements described above. Emington would also testify that during the course of the weekend, French-Flannery told him that if French had put money into a college trust fund for her children, "none of this would have occurred," and that she intended to file a civil suit against French when the criminal trial was over. Verbatim Report of Proceedings (VRP) at 988 (Nov. 13, 1995).

¶ 6 The State opposed reopening the case and presented its own offer of proof, based on the prosecutor's conversation with French-Flannery earlier that morning, indicating that French-Flannery admitted that she spoke with Emington and French over the weekend. However, French-Flannery would testify that she told Emington specifically that she did not intend to bring a civil suit against French. French-Flannery would also testify that when she attempted to speak with French on the telephone, he began yelling at her and then the conversation ended. The State argued that neither French-Flannery nor her daughter, Crystal Fleming, ever indicated that they had ulterior motives in bringing this action. The trial court agreed the disputed evidence could show motive or bias on the part of French-Flannery, Emington, and possibly Crystal Fleming, but declined to reopen testimony because the evidence did not relate directly to the sexual abuse allegations at issue and would be misleading or confusing, cause undue delay, and waste the court's time. The trial judge also noted that he was not sure some of the statements would be admissible under the rules of evidence and the record already contained evidence of motive or bias on the part of French-Flannery, Emington, and Crystal Fleming.

ISSUES

¶ 7 (A) Whether the fugitive disentitlement doctrine applies when a defendant absconds from the jurisdiction after conviction but before sentencing?

¶ 8 (B) Whether the defendant's right to present a defense was violated when the trial court declined to reopen the trial to allow two witnesses who had previously testified to present further testimony about statements made after the close of the State's rebuttal case that could qualify as impeachment evidence?

¶ 9 (C) Whether the trial court's denial of public funds for the translation of Mexican extradition documents violates CrR 3.1 and the due process and fair trial guaranties of the Washington and United States Constitutions?

¶ 10 (D) Whether the extradition treaty applies to crimes that do not include a mental intent element?

¶ 11 (E) Whether child molestation is a lesser included offense of rape and whether the defendant's convictions violated his double jeopardy rights or constitute the "same criminal conduct"?

ANALYSIS

The Fugitive Disentitlement Doctrine

¶ 12 The fugitive disentitlement doctrine is a common law rule which provides that one who flees a court's jurisdiction while on appeal waives his or her right to pursue that appeal. Washington courts first recognized the doctrine in State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). In that case, Handy was convicted of obtaining money under false pretenses and sentenced to two years in prison. Handy filed an appeal and later escaped from jail. This court, relying on cases from other jurisdictions, adopted the doctrine and explained that dismissal was appropriate because the defendant would not be available if the appeal were successful and a new trial ordered and would not be available for execution of the sentence if the appeal were not successful. The court ordered the appeal dismissed unless the defendant was returned to custody within 60 days. Handy, 27 Wash. at 470-71, 67 P. 1094.

¶ 13 More recently, the Court of Appeals expanded application of the doctrine. State v. Estrada, 78 Wash.App. 381, 896 P.2d 1307 (1995). In Estrada, the defendant was convicted of vehicular homicide, but fled the state before sentencing. Estrada was apprehended eight years later. After judgment and sentence, Estrada attempted to appeal his conviction based on alleged errors in his trial. The Court of Appeals held that by fleeing the jurisdiction, Estrada waived his right to appeal. The court adopted the analysis of the Second Circuit Court of Appeals and found the fugitive disentitlement doctrine applied for three reasons. First, a defendant demonstrates disrespect for the judicial process by fleeing from the jurisdiction; second, a court's refusal to consider claims of former fugitives tends to discourage escape and promote the orderly operation of the judicial process; and third, a defendant may prejudice the prosecution and benefit himself of herself by escaping for an extended period of time because the government must retry the defendant after memories have faded and evidence has been lost. Estrada, 78 Wash.App. at 383, 896 P.2d 1307 (citing United States v. Persico, 853 F.2d 134, 137 (2d Cir.1988)).

¶ 14 French argues that Estrada was wrongly decided because the analysis relied entirely on federal cases and failed to address the fundamental right to appeal criminal convictions guaranteed by article I, section 22 of the Washington Constitution.¹ He contends that in Washington, a defendant cannot be deemed to have waived the constitutional right to appeal unless the State can show the defendant made a knowing, intelligent, and voluntary waiver of that right. State v. Sweet, 90 Wash.2d 282, 286, 581 P.2d 579 (1978) (holding "there is no presumption in favor of the waiver of the right to appeal. The State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal."). French asserts that because there is no federal constitutional right to appeal, federal courts may rely on utilitarian and pragmatic concepts such as mootness and disrespect to the judiciary to justify using the fugitive disentitlement doctrine. He argues, however, that...