State v. Heller
| Decision Date | 24 February 2009 |
| Docket Number | 36802-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY S. HELLER, Appellant. |
Unpublished Opinion
Anthony S. Heller appeals his conviction for second degree burglary arguing that (1) the State violated his right to a timely trial, (2) jury instruction 11 violated his right to due process by allowing the jury to improperly infer Heller's intent to commit a crime, (3) sufficient evidence does not support his conviction, and (4) his counsel was ineffective. We agree with Heller that jury instruction 11 was improper and reverse. But because Heller's trial was timely and the evidence was sufficient to support the jury's guilty verdict as a matter of law, we reverse and remand for a new trial.
On January 7, 2007, at approximately 9:00 pm, Jaramie Smith heard an unfamiliar vehicle entering the parking lot of his apartment complex located at 101 North B Street. Shortly after entering the parking lot, the driver turned the car lights off and drove slowly through the parking lot. After about three minutes, Smith saw a man get out of the vehicle and walk between two of the apartment buildings towards the laundry room. Smith lost sight of the man as he walked between the buildings but, shortly thereafter, Smith heard banging noises coming from the laundry room. Smith testified that the noises sounded like "hitting something that had change in it . . . like metal on metal." 2 Report of Proceedings (RP) at 45.
The noise continued for about one and a half minutes before Smith decided to go to the laundry room to investigate. When Smith got to the back of the laundry room, he saw a man halfway through the laundry room window, with his chest on the windowsill and the lower half of his body hanging out of the window. Smith could not tell whether the man was crawling in or out the laundry room window. When Smith yelled "[w]hat are you doing, " the man pulled himself out of the window, looked at Smith, dropped something, and took off running. 2 RP at 42. Raymond Fuller, another resident of the apartment complex, heard the commotion and spoke with Smith while Fuller's girl friend called 911.
Officer John Wheeler responded to the 911 call. After taking pictures of the laundry room window, Wheeler checked the immediate area for a possible suspect. Based on one of the witnesses' descriptions, he was looking for a "black male wearing a blue baseball style hat, black jacket and blue jeans." 2 RP at 74. Shortly after beginning his search Wheeler spotted Heller, who matched the description. Wheeler approached Heller and Heller explained that he was walking from apartments located at 1015 Oakhurst Drive. Wheeler took Heller back to the 101 North B Street apartments where Smith identified Heller as the man he had seen halfway through the laundry room window. Fuller also identified Heller as the man he had seen drive into the parking lot and get out of the car.
After arresting Heller, Officer Wheeler noticed miscellaneous tools, including wrenches, inside Heller's vehicle Wheeler did not specifically remember seeing screwdrivers in the truck, but Heller later testified that he had several small- to medium-sized screwdrivers in the truck. Wheeler also testified that the laundry room window was a sliding window and that someone had knocked it off its track. Although there were two coin-operated machines inside the laundry room, there was no evidence that they had been tampered with. Procedural History
On January 19, 2007, [1] the State charged Heller with second degree burglary and arraigned him on January 29. On March 27 Heller filed a Knapstad[2] motion to dismiss the case with prejudice, arguing that there were no disputed facts and the undisputed facts failed to establish a prima facie case of his guilt. The trial court denied Heller's motion.
On April 5, Heller filed a motion to reconsider and a motion for a bill of particulars. The trial court denied Heller's motion to reconsider but agreed, since Heller's motion was untimely, to grant Heller's motion for a bill of particulars if Heller signed a waiver of time for trial. After the waiver, the last date the State could timely bring Heller to trial was July 10. A new trial date was set for June 19. On April 20, the State filed a bill of particulars.
On May 29, the State moved for a continuance based on the unavailability of the deputy prosecutor assigned to try the case. The assigned prosecutor and five other deputy prosecutors were going to be in South Carolina for training during the week of trial. Over Heller's objection, the trial court granted the State's motion and the trial was continued to July 17. Heller's jury trial began on July 17.
At trial, Heller testified that, on the evening of January 7, 2007, he went to a friend's house where he drank several beers. When Heller realized that he needed to relieve himself, he did not want to stop at a gas station because his "license [was] suspended[ ] and [he] had been drinking . . . and [he] didn't want to get stopped, so [he] pulled into . . . some apartments." 2 RP at 109-10. Heller further testified that he turned off his headlights when he drove into the parking lot out of habit and also because there were people in the parking lot and he did not want to shine the lights in their eyes. Heller also explained that he waited in the car for several minutes after he arrived because there were five or six people in the parking lot and he did not want to relieve himself in front of them.
After the residents left the parking lot, Heller testified that he walked between the buildings to relieve himself because he thought it was an alley. Heller further testified that when he "was relieving [him]self, and [he] leaned up on the window, . . . the window popped out open." 2 RP at 110. Heller stated that, after Smith asked him what he was doing, he ran because he thought Smith was holding something in his hand; Heller also testified that he lied to Officer Wheeler about where he had been that night because he had been drinking and his license was suspended. Heller also testified that he did not match the description of the suspect because he was wearing a light blue hat, a light blue shirt, blue jeans, and he was not wearing a jacket.
Over Heller's objection, the trial court gave jury instruction 11, which stated:
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Clerk's Papers (CP) at 112 (emphasis added).
On July 17, the jury found Heller guilty of second degree burglary. Heller timely appeals.
A criminal charge not brought to trial within the time limits of CrR 3.3 must be dismissed with prejudice. CrR 3.3(h). We review the application of the speedy trial rule de novo. State v. Carlyle, 84 Wn.App. 33, 35-36, 925 P.2d 635 (1996). We review the trial court's decision to grant or deny a motion for a continuance for abuse of discretion. State v. Johnson, 132 Wn.App. 400, 412-14, 132 P.3d 737 (2006), review denied, 159 Wn.2d 1006 (2007). We will not disturb the trial court's decision unless the appellant demonstrates that the trial court's decision was manifestly unreasonable, or exercised on untenable ground or for untenable reasons. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Heller argues that the trial court abused its discretion when it granted the State a continuance based on the unavailability of a prosecutor. Specifically, Heller argues that the trial court abused its discretion (1) because the State indicated it was prepared to go to trial shortly before asking for the continuance and (2) the State could have avoided the conflict if the prosecutor had declined to attend the training, since she was already "committed to [a] trial." Br. of Appellant at 7. We disagree.
Although the trial court is ultimately responsible for ensuring compliance with the timely trial period, the State bears the primary duty to bring the defendant to trial in a timely manner. CrR 3.3(a); State v. Jenkins, 76 Wn.App 378, 383, 884 P.2d 1356 (1994), review denied, 126 Wn.2d 1025 (1995). Under CrR 3.3, the court must set a criminal trial date within 60 days of arraignment for an in-custody defendant. CrR 3.3(b)(1)(i). When the applicable timely trial period has expired, the court must dismiss the charges if the defendant objects within 10 days of the date set for trial even if the defendant has not suffered prejudice. CrR 3.3 (d)(3), (h); State v. Swenson 150 Wn.2d 181, 187, 75 P.3d 513 (2003); State v. Striker, 87 Wn.2d 870, 875-77, 557 P.2d 847 (1976); State v. Earl, 97 Wn.App. 408, 410, 984 P.2d 427 (1999). But the timely trial rules contain several exceptions that extend the timely trial time beyond 60 days. Excluded periods under CrR 3.3(e) include continuances and delays due to unavoidable or unforeseen circumstances that are beyond the control of the court or of the parties. CrR 3.3(e)(3), (8).
When a prosecutor is unavailable, a trial court generally has the discretion to grant the State a continuance unless there is substantial prejudice to the defendant in the presentation of his case. State v. Raper, 47 Wn.App. 530, 535, 736 P.2d 680 (citing State v. Brown, 40 Wn.App. 91, 94 697 P.2d 583, review denied, 103 Wn.2d 1041 (1985)), review denied, 108 Wn.2d 1023 ...
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