State v. Lindberg

• Decision Date: 30 November 2021
• Docket Number: 54667-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. BILLY JAMES LINDBERG, Appellant.

STATE OF WASHINGTON, Respondent,
v.
BILLY JAMES LINDBERG, Appellant.

No. 54667-1-II

Court of Appeals of Washington, Division 2

November 30, 2021

UNPUBLISHED OPINION

VELJACIC, J.

A jury convicted Billy James Lindberg of one count of possession of a controlled substance and three counts of bail jumping. On appeal, Lindberg argues his possession conviction is void, and that the trial court erred when it allowed the State to impeach him with prior false statements made to police during two different arrests for this case. He also argues that the trial court erred by denying his request to submit a jury instruction on his affirmative defense to bail jumping. The State argues that the trial court correctly allowed Lindberg to be impeached because he "opened the door," and properly excluded the jury instruction because he failed to present a prima facie case on all elements of the affirmative defense.

We affirm Lindberg's bail jumping convictions, reverse the possession conviction, and remand for the trial court to vacate that conviction and resentence.

FACTS

On May 9, 2017, a police officer discovered Lindberg in a market parking lot after responding to a call of a suspicious vehicle. Lindberg was asleep in his car, which was running and parked in a handicapped parking spot. The officer looked into the car and saw a gun (that

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turned out to be a bb gun), and tin foil with a brown substance on it, that Lindberg later confirmed was heroin. The officer woke Lindberg and arrested him. The State charged Lindberg with one count of unlawful possession of a controlled substance pursuant to former RCW 69.50.4013(1) (2017).

Lindberg failed to appear for his arraignment on May 23, and the court issued a warrant. Lindberg did not voluntarily appear or surrender after failing to appear, but was instead arrested on May 27. He later testified that he had failed to appear on May 23 because his girlfriend was going to provide him a ride to court, but that she got into a car accident that damaged a tire and wheel rim on his car. Lindberg also testified that he called pretrial services and was told that he could quash his warrant by appearing at the sheriff's office on the following Tuesday. He planned to visit the sheriff's office to quash it, but he was arrested before he could do so. After this arrest, he was released a second time and required to appear on September 21.

He failed to appear and the court issued another bench warrant. Again, he did not voluntarily appear or surrender and was instead arrested on October 1. He later testified that he had failed to appear on September 21 because two large trees fell in his driveway and blocked his access to his car. He did not attempt to find an alternative means of traveling to court. When police contacted Lindberg on October 1 to arrest him, he initially provided a false name to avoid arrest. He was released a third time.

In January 2018, Lindberg violated his release conditions by testing positive for unprescribed drugs. The trial court issued a bench warrant, but such warrant did not cancel previously scheduled court hearings, including an omnibus hearing scheduled for February 22. Lindberg failed to appear for that hearing. He later testified that he missed his court date because he was in Spokane at a funeral on the February 22 court date, that his car broke down, and that

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there was snow on the roads preventing his return to the Olympia area. He then testified that the funeral was actually on February 1.

On July 15, 2019, police stopped a vehicle Lindberg was traveling in. Police detained Lindberg, who provided a false name to avoid arrest. The police recovered controlled substances from Lindberg, but that evidence was later suppressed when the trial court determined Lindberg's July 15 arrest was unconstitutional. The State amended Lindberg's charges to add three counts of bail jumping stemming from his failures to appear on September 21, 2017, February 22, 2018, and May 23, 2018.

During trial, Lindberg testified that he was not trying to avoid responsibility for the heroin charge. He testified, about why he had traveled to the market where he was initially contacted while asleep in the driver's seat. Lindberg had trouble remembering why he had visited the market, but said "I'm trying to be honest here, I really am." 1 Report of Proceedings (RP) at 376. The State then asked him, "Are you an honest person," to which Lindberg responded "I am." 1 RP at 377.

Later the State reminded Lindberg that he had stated he was an honest person, and went on to ask why he had provided a false name during his September 2017 arrest. Lindberg objected, claiming the question and answer were improper under ER 404, but the court overruled the objection. The State also asked Lindberg what name he had provided during his July 2019 arrest, and Lindberg objected, arguing that the court had ruled that the arrest was unconstitutional. The court sustained the objection. The State rephrased the question and asked, "You didn't want to be arrested again when the police contacted you, so you gave them a false name, correct?" 1 RP at 421. Lindberg objected again but the trial court overruled the objection and allowed him to answer; he replied "correct." 1 RP at 421.

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Lindberg moved for a mistrial based on the State's questioning. The trial court denied Lindberg's motion for a mistrial, concluding that Lindberg "opened the door" to the prior inconsistent statements when he stated he was honest and had not attempted to evade arrest. 2 RP at 448-49. The court also commented that whether Lindberg was in fact avoiding responsibility was made a central issue by the defense. The court recognized that Lindberg's conduct in providing a false name was probative of whether he was trying to avoid responsibility for the heroin charge. The court stated that the evidence was admissible under ER 404 for the purpose of showing that Lindberg knowingly failed to surrender and that its probative value outweighed its prejudicial effect.

Prior to conferencing on jury instructions, Lindberg proposed an instruction for the affirmative defense to bail jumping as to all three bail jumping charges. The trial court refused to submit the instruction to the jury, concluding that Lindberg had not made a prima facie case supporting that defense. The court relied on State v. Van Buren, No. 49866-9-II, (Wash.Ct.App. Feb. 27, 2018) (unpublished), https://www.courts.wa.gov/opinions/, in its ruling, concluding that Lindberg's reasons for failing to appear did not meet the definition of uncontrollable circumstances.

The jury convicted Lindberg of one count of unlawful possession and three counts of bail jumping. Lindberg appeals his convictions.

ANALYSIS

I. POSSESSION CONVICTION

In a recent decision, this state's Supreme Court held former RCW 69.50.4013 void because its lack of a mens rea requirement violates the due process clauses of the Washington and United States Constitutions. State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021). The court vacated

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Blake's conviction. Id. Any conviction based on that statute is also invalid because a judgment and sentence is invalid on its face when a defendant is convicted of a nonexistent crime. See In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004).^[1]

In a supplemental brief, Lindberg argues that his possession charge is...