State v. Gassman

• Decision Date: 15 March 2011
• Docket Number: No. 28194–9–III.,28194–9–III.
• Citation: 248 P.3d 155,160 Wash.App. 600
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent and Cross–Appellant,v.Tyler W. GASSMAN, Appellant.

160 Wash.App. 600

248 P.3d 155

STATE of Washington, Respondent and Cross–Appellant,

v.Tyler W. GASSMAN, Appellant.

No. 28194–9–III.

Court of Appeals of Washington, Division 3.

March 15, 2011.

Janet G. Gemberling, Julia Anne Dooris, Gemberling & Dooris PS, Spokane, WA, for Appellant.Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent and Cross–Appellant.Jacqueline McMurtrie, UW Law Clinic–Innocence Project NW, Seattle, WA, Michael L. Cook, Karen S. Park, Mark J. Arnot, Schulte, Roth & Zabel, LLP, New York, NY, Amicus Curiae on behalf of the Innocence Network.BROWN, J.

[160 Wash.App. 605] ¶ 1 Tyler W. Gassman appeals his convictions for first degree robbery, two counts of first degree assault and two counts of drive-by shooting. He contends the trial court erred by denying his request for a new trial based on newly discovered evidence. The State cross-appeals, contending the court erred in imposing a mitigated exceptional sentence. In his statement of additional grounds for review (SAG), Mr. Gassman contends his convictions violate double jeopardy and the trial court erred in granting the State's motion to amend the information on the day of trial. We affirm.

FACTS

¶ 2 In April 2008, Clifford Berger and Joni Jeffries arranged with Eric Weskamp to purchase oxycontin from Anthony Kongchunji. About 10:00 p.m. on April 17, Mr. Kongchunji and several other men arrived at Mr. Berger and Ms. Jeffries' home. Mr. Kongchunji told Mr. Weskamp to come outside with the money. Mr. Weskamp got into Mr. Kongchunji's truck with Mr. Kongchunji and Matthew Dunham, a juvenile. Mr. Weskamp realized something was wrong and started to get out of the truck, but he was immediately “confronted by a bunch of people in bandannas and masks.” Report of Proceedings (RP) at 222.

¶ 3 The men beat Mr. Weskamp with the back of a shotgun and stuck a pistol in his mouth, chipping a tooth. The men stole Mr. Berger and Ms. Jeffries' money and left in the truck. Mr. Berger and a friend attempted to follow the men in the friend's car, but stopped when the men started firing at them.

¶ 4 Police later arrested Mr. Dunham on a separate oxycontin-related robbery and he identified the individuals involved in the incident at the Berger–Jeffries' home in exchange for a lesser sentence. Mr. Dunham identified Mr. Gassman as one of the men who participated in the robbery. Mr. Gassman's role was to rob Mr. Weskamp after Mr. Kongchunji called him out.

¶ 5 The State charged Mr. Gassman with first degree robbery; two counts of attempted first degree murder, or in the alternative, first degree assault; and two counts of drive-by shooting. The information stated that the events occurred “on or about April 15, 2008.” Clerk's Papers (CP) at 1–2.

¶ 6 On January 12, 2009, the State successfully requested to amend the information, changing the date of the occurrence from April 15 to April 17. Due to the lateness in amending the information, the court imposed $8,000 in sanctions against the State and continued the trial date to February 2, 2009.

¶ 7 Before Mr. Gassman's trial, Mr. Kongchunji pleaded guilty to the crime. Mr. Kongchunji received a 14–year sentence; Mr. Dunham received an 18–month sentence. Mr. Kongchunji originally acknowledged Mr. Gassman's involvement, but defense counsel believed Mr. Kongchunji was changing his story and hoped he would testify that Mr. Gassman was not involved. Mr. Kongchunji's attorney, however, informed Mr. Gassman's attorney that Mr. Kongchunji would not testify based on his Fifth Amendment privilege against self incrimination (Mr. Kongchunji was concerned about incrimination for other crimes if he testified).

¶ 8 At trial, Mr. Dunham testified he was, “a hundred percent confident” that Mr. Gassman was involved in the Berger–Jeffries robbery. RP at 365. He also related his plea agreement.

¶ 9 On February 17, 2009, a jury found Mr. Gassman guilty of first degree robbery, two counts of first degree assault, and two counts of drive-by shooting. The jury specially found Mr. Gassman was armed with a deadly weapon at the time of the robbery and the assaults.

¶ 10 The court sentenced Mr. Gassman to 129 months on all counts plus three 60–month firearm enhancements for a total sentence of 309 months. The court arrived at 129 months by imposing 129 months on one of the first degree assault counts and then running all other sentences concurrently to the 129–month sentence. Because the concurrent sentences resulted in a mitigated exceptional sentence, the trial court entered written findings of fact, finding the presumptive sentence was clearly excessive, Mr. Gassman was induced by others to commit the crime, and the victim more likely than not was the initiator.

¶ 11 On April 3, 2009, Mr. Gassman requested a new trial under CrR 7.8(b)(2), arguing newly discovered testimony from Mr. Kongchunji could exonerate him. Mr. Kongchunji provided an affidavit stating Mr. Gassman was not involved in any of the crimes, “includ[ing] the ... robbery of Eric Weskamp.” CP at 378. Mr. Gassman offered a letter from Mr. Kongchunji to a co-defendant's father stating that Mr. Gassman was “not involved with any of the alleged incidents and the reason I know this is because I was involved.” CP at 380. Mr. Kongchunji goes on to explain to the father the details of an unrelated April 21, 2008 robbery. Mr. Kongchunji claims he refused to testify at the trial on the April 21 robbery because he was threatened with additional charges if he changed his story from the one he previously told to police.

¶ 12 In his request for a new trial, Mr. Gassman offered Mr. Kongchunji's testimony from another trial where Mr. Kongchunji testified that he and Mr. Dunham had devised a plan while in jail to pin certain robberies on Mr. Gassman in order to protect Mr. Dunham's brother and their friend. The defendant in that case was found not guilty. Mr. Kongchunji made no reference to the Berger–Jeffries robbery.

¶ 13 The court filed a memorandum decision denying Mr. Gassman's motion. It found Mr. Kongchunji did not “vindicate Mr. Gassman or somehow suggest that Mr. Gassman did not commit the crimes for which he was convicted.” CP at 531. Further, “[t]here simply is no evidence presented by Mr. Gassman to support the notion that the jury verdict of February 17, 2009, would probably change if a new trial were granted.” CP at 531.

¶ 14 The court found Mr. Kongchunji was available to testify, and Mr. Gassman's lawyer “chose” not to call him. CP at 531. The court found if Mr. Kongchunji attempted to rely upon a Fifth Amendment privilege, “the Court could have compelled Mr. Kongchunji's testimony.” CP at 531. Lastly, the court found Mr. Kongchunji's testimony would have been cumulative or simply impeaching. The court noted the State could have called detectives to impeach Mr. Kongchunji's testimony regarding matters he disclosed to police with statements he made implicating Mr. Gassman. Mr. Gassman appealed and the State cross-appealed the mitigated exceptional sentence.

ANALYSIS

A. New Trial Motion

¶ 15 The issue is whether the trial court erred by abusing its discretion in denying Mr. Gassman's request for relief from judgment under CrR 7.8(b)(2). Mr. Gassman contends he should have been granted a new trial based on newly discovered evidence from Mr. Kongchunji. We disagree.

¶ 16 We review a CrR 7.8 ruling for an abuse of discretion, and will not reverse a denial absent an abuse of that discretion. State v. Swan, 114 Wash.2d 613, 641–42, 790 P.2d 610 (1990). The court abuses its discretion when it bases its decisions on untenable or unreasonable grounds. State v. Partee, 141 Wash.App. 355, 361, 170 P.3d 60 (2007). A trial court will not grant a new trial on the basis of newly discovered evidence unless the moving party demonstrates that the evidence “(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.” State v. Williams, 96 Wash.2d 215, 223, 634 P.2d 868 (1981). The absence of any one of these factors is grounds to deny a new trial. Id.

¶ 17 When considering whether newly discovered evidence will probably change the trial's outcome, the trial court considers the credibility, significance, and cogency of the proffered evidence. State v. Barry, 25 Wash.App. 751, 758, 611 P.2d 1262 (1980). Significantly, the standard is “probably change,” not just possibly change the outcome. Williams, 96 Wash.2d at 223, 634 P.2d 868. “[D]efendants seeking postconviction relief face a heavy burden and are in a significantly different situation than a person facing trial.” State v. Riofta, 166 Wash.2d 358, 369, 209 P.3d 467 (2009).

¶ 18 The trial court found Mr. Kongchunji's letter and testimony from a different trial did not specifically exonerate Mr. Gassman here. Mr. Kongchunji mentioned in his letter and affidavit that Mr. Gassman was not involved in the incident, but Mr. Kongchunji went on to discuss a different incident in his letter and then did not mention the Berger–Jeffries' incident in his later trial testimony. Moreover, if Mr. Kongchunji testified the State would be permitted to impeach his testimony with his prior statements incriminating Mr. Gassman; thus, rendering his testimony less credible and potentially more harmful to Mr. Gassman. “[I]n evaluating probative force of newly presented evidence ‘the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.’ ” Riofta, 166 Wash.2d at 372, 209 P.3d 467 (quoting Schlup v. Delo, 513 U.S. 298, 332, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

[160 Wash.App. 610] ¶ 19 Indeed, if Mr. Kongchunji was a recanting witness (he was not because he did not testify at Mr. Gassman's trial), the court would be required to assess his credibility. Se...