State v. Johnson
| Decision Date | 05 March 2019 |
| Docket Number | No. 50064-7-II,50064-7-II |
| Parties | STATE OF WASHINGTON, Respondent, v. SHAUN CHRISTINE JOHNSON, Appellant. |
| Court | Washington Court of Appeals |
MAXA, C.J. - Shaun Johnson appeals her conviction of vehicular assault that arose from an accident in which her car went off the road and struck a pedestrian. The jury was instructed that to convict Johnson of vehicular assault they had to find that she was under the influence of any drug.
We hold that (1) the trial court did not err in denying her motion to suppress evidence related to her admission that she used methamphetamine despite a prior illegal search of her purse that revealed methamphetamine, (2) the trial court did not err in admitting opinion testimony (a) from a drug recognition expert (DRE) that Johnson was impaired by something other than pain medicine and (b) from a lay witness that Johnson's behavior was similar to the behavior of people she had seen who were under the influence of methamphetamine, (3) the trial court did not violate her confrontation rights by allowing the officer to testify about hearsay statements made by hospital staff about Johnson's pain medication, (4) the trial court's admission of certain testimony was not an improper judicial comment on the evidence, (5) the information was not deficient and the trial court did not err in its to-convict jury instruction even though neither identified the defendant's negligence as an element of vehicular assault, (6) the trial court did not err in rejecting a proposed jury instruction on DRE protocol, (7) Johnson's claim that prosecutor committed misconduct by introducing improper evidence and misstating the burden of proof in closing argument fails, and (8) defense counsel did not engage in ineffective assistance of counsel by not objecting to the alleged prosecutorial misconduct.
Accordingly, we affirm Johnson's conviction of vehicular assault.
In June 2013, Johnson drove off a road in Battle Ground and into a ditch. Johnson was injured in the accident.
One of the first people to come upon the accident scene was Karin Nelson. Nelson stayed with Johnson and kept her talking until paramedics arrived. Nelson thought Johnson was acting fidgety and paranoid. Johnson kept saying that she could not find her phone or her pot. Nelson previously had used methamphetamine and had observed others who were using methamphetamine. Nelson believed that Johnson was high and that Johnson's behavior was similar to the behavior of people she had seen who were under the influence of methamphetamine.
Deputy Tim Gosch arrived at the scene. Johnson's arm seemed to be broken and she was transported to the hospital. Gosch searched Johnson's purse to retrieve her driver's license and proof of insurance from her purse. He discovered baggies that contained suspected methamphetamine.
Later, a tow truck operator discovered 16-year-old Justin Carey in dense vegetation adjacent to the ditch. Carey had been waiting at a school bus stop and Johnson's car struck Carey as it left the road. Carey suffered serious injuries to both of his legs and ultimately one of his legs had to be amputated as a result of the accident.
A DRE, Deputy Chris Luque, was called to assess Johnson at the hospital. Gosch briefed Luque on what he knew from the accident scene, including that he had discovered methamphetamine in Johnson's purse. Luque saw Johnson approximately three hours after the accident. The hospital staff told Luque that Johnson had been administered Fentanyl and Dilaudid intravenously only a few minutes before he arrived.
Luque conducted a few steps of the standard DRE exam. He performed a horizontal gaze nystagmus (HGN) test, checked Johnson's pupil dilation, took her pulse, and checked her blood pressure on the vitals monitor. Luque found that Johnson did not have any nystagmus, but that her pupil dilation and blood pressure were normal and her pulse was elevated. He also noted that she was awake and alert. Luque believed that these results were unexpected because Johnson had just been given heavy narcotic medication. He expected her pupils to be constricted, her pulse and blood pressure to be down, and for Johnson to be groggy or sleepy.
Luque questioned Johnson after reading her the Miranda1 warnings and receiving her consent. Johnson told Luque that she had used methamphetamine and marijuana two days before the accident. However, she denied using any drugs within 24 hours of the accident.
Luque applied for a search warrant for Johnson's blood to test for drugs. His search warrant affidavit stated that Gosch had found methamphetamine in Johnson's purse and thatJohnson admitted using methamphetamine and marijuana two days before the accident. The affidavit also stated that Luque expected Johnson's vital signs to be low and for her to have difficulty staying awake based on the amount of narcotics she had been given. A district court judge issued the warrant.
Pursuant to the warrant, Johnson's blood was drawn later that day. Johnson's blood tested positive for methamphetamine.
The State charged Johnson with vehicular assault and possession of a controlled substance - methamphetamine. The amended information did not allege negligence as an element of vehicular assault. After her first trial, Johnson was convicted of both offenses.
On appeal, Division One of this court reversed the convictions based on a holding that Gosch's warrantless search of Johnson's purse was illegal. State v. Johnson, 75038-1-I (Wash. Ct. App. Jul. 18, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/750381.pdf. The court remanded for a new trial.2 Id.
On remand, Johnson filed a motion to suppress any testimony by Luque and Nelson that she was impaired or under the influence of methamphetamine and to suppress any testimony that her blood test showed the presence of methamphetamine. The trial court held a hearing on the motion.
Luque testified at the hearing that he was a DRE with hundreds of hours of experience over many years. He stated that he had been trained to identify when people were under the influence of different categories of drugs. Luque testified about his examination of Johnson andhis findings as discussed above. He acknowledged that he did not perform the entire 12-step DRE protocol. However, he believed based on his examination and observations that there was probable cause to suspect that Johnson was under the influence of some kind of drug.
Luque testified that he questioned Johnson about drug use and she told him that she had used methamphetamine two days earlier. Gosch had told Luque that he found methamphetamine in Johnson's purse. But Luque stated that he would have asked Johnson about illicit drug use even if he had not known about the methamphetamine in her purse.
The trial court issued written findings of fact and conclusions of law. The court found that Luque believed Johnson "was experiencing antagonistic effects of two or more different types of drugs . . . and suspected that she was under the influence of one or more drugs, other than the pain medications." Clerk's Papers at 165. The trial court ruled that Johnson's statements to Luque in the hospital were admissible and that the search warrant for Johnson's blood draw was supported by probable cause. Therefore, the court denied Johnson's suppression motion.
At trial, Gosch testified about his investigation of the accident. But he did not testify about his discovery of methamphetamine in Johnson's purse or about Johnson's admission to him that she had used methamphetamine.
Nelson testified that based on her own use of methamphetamine and her experience with people using methamphetamine, she believed that Johnson was high and that Johnson's behavior was similar to the behavior of people she had seen who were under the influence of methamphetamine.
Luque testified that the hospital staff told him Johnson had been administered narcotic medications a few minutes before he arrived at the hospital. Johnson objected that Luque was using a transcript of a prior proceeding to refresh his recollection when Luque could not recall what he had said in that proceeding. The court overruled the objection. Johnson did not object to the statements made by the hospital staff as hearsay.
Luque also testified that, based on his experience and observations, Johnson was under the influence of both a stimulant and the medical doses of narcotics given by the hospital staff. Luque testified that he applied for a search warrant because he believed that she was "impaired under something else besides the narcotic analgesics that were administered by the hospital staff." Report of Proceedings (RP) at 576.
Defense counsel asked Luque whether he had presented the search warrant affidavit to a judge in person or over the phone. Defense counsel also asked whether Johnson had consented to a blood draw, to which Luque testified that Johnson was cooperative and would have willingly provided her blood. The State then elicited testimony from Luque that accepting a suspect or witness's consent to take a blood draw was possible but subject to legal challenge. He stated that obtaining a search warrant was safer because it gets approved by a judge.
Carey's mother, Janette Chumley, testified that Carey now had a prosthetic leg. She testified that his prosthetic should be replaced every two years but that his insurance would not pay for it. Chumley testified over Johnson's relevance objection that it would cost them $90,000 to replace Carey's prosthetic leg.
Johnson proposed a jury instruction that listed all 12 steps of the DRE protocol, stated that the DRE must base his or her conclusions on the totality of the evaluation, and stated that ifin doubt the DRE must find that the driver is not under the influence. The trial court did not accept this proposed instruction.
The court...
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