State v. McSorley

• Decision Date: 26 July 2005
• Docket Number: No. 31297-2-II.,31297-2-II.
• Citation: 128 Wn. App. 598,116 P.3d 431
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Brian Leonard McSORLEY, Defendant.

116 P.3d 431

128 Wn. App. 598

STATE of Washington, Respondent, v. Brian Leonard McSORLEY, Defendant.

No. 31297-2-II.

Court of Appeals of Washington, Division Two.

July 26, 2005.

Donna Yumiko Masumoto, Attorney at Law, Tacoma, WA, for Respondent.

Rita Joan Griffith, Attorney at Law, Seattle, WA, for Appellant.

MORGAN, J.

¶ 1 Brian L. McSorley appeals his conviction for child luring. Through counsel, he claims that the trial court erred by instructing on an affirmative defense at the State's request and over his objection. Pro se, he claims that he received ineffective assistance from his trial counsel. Agreeing on both counts, we reverse and remand for new trial.

¶ 2 On the morning of May 21, 2003, D.J., then age ten, was waiting for his school bus at the end of his driveway. He saw a red Jeep pickup "drive down the road a couple times."¹ He did not know the man behind the wheel.

¶ 3 The pickup returned and stopped. The man opened his door and said something that sounded like, "Get in the truck."² According to, D.J.'s later testimony, "I didn't hear one of the words that he said. It pretty much sounded like, Get in the truck, or I'll hurt you, but it sounded — I heard, Get in the truck, or and then hurt you."³ D.J. could not see the man's "whole face," as the man "wasn't looking at [him]."⁴ D.J. ran back to his house and found his mother. He was upset, crying, and yelling that "some man pulled over and said to get in his truck or he was going to hurt" him.⁵

¶ 4 His mother walked him back to the school bus, which was then just arriving. He got on, told the driver what had happened, and was looking out the window when he saw the red Jeep pickup drive by again. The bus driver could not get the license number, but he had the school bus dispatcher broadcast the pickup's description over the school bus radio.

¶ 5 A second school bus driver was picking up students a short distance away when she saw a red Jeep pickup matching the description she had just heard over the radio. The pickup pulled into the parking lot of a post office, and the driver, a man, went into the post office. The bus driver pulled in behind the truck, obtained its license number, and notified the school bus dispatcher, who in turn notified the police.

¶ 6 Deputy Waterman heard over the police radio that a man who had tried to lure a child was driving a rust-colored Jeep pickup. Waterman spotted a matching vehicle, stopped it, and had the driver, McSorley, step out. He read McSorley his rights, to which McSorley "didn't respond. He just sat there."⁶ Waterman then asked McSorley what had happened that morning, and McSorley answered that "he was going to a doctor's office visit" and had "stopped at the post office."⁷ McSorley admitted having driven past a school bus stop, but he denied talking to any children.

¶ 7 While Waterman was talking to McSorley, Deputy Donato was interviewing D.J. at school. D.J. gave a description that matched McSorley, so Waterman arrested McSorley.

¶ 8 On May 23, 2003, the State charged McSorley with child luring in violation of RCW 9A.40.090. RCW 9A.40.090 provides in pertinent part:

A person commits the crime of luring if the person:

(1)(a) Orders, lures, or attempts to lure a minor . . . into a motor vehicle;

(b) Does not have the consent of the minor's parent or guardian . . .; and

(c) Is unknown to the child . . .

(2) It is a defense to luring, which the defendant must prove by a preponderance of the evidence, that the defendant's actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the minor.

Subsection (3)(a) defines a "minor" as a person under sixteen, and subsection (4) classifies the crime of luring as a Class C felony.

¶ 9 On November 18, 2003, the State moved in limine to exclude two prior "pranks"⁸ by D.J. In one instance, D.J. gestured "wildly" for a passing car to stop.⁹ The driver stopped, ran to help, and was "met with a torrent of profanity and laughs from [D.J.'s] friends hiding in the bushes."¹⁰ In the other instance, D.J. lay in the road with his bike, as if he had just been involved in a bike accident. When a driver stopped and ran to help, D.J. "jumped up, laughed, and did a little dance."¹¹ McSorley argued that he was entitled to cross-examine D.J. about both of these incidents and, if D.J. denied them, to call witnesses who would describe them. The trial court excluded both incidents.

¶ 10 On November 19, 2003, a jury trial started. D.J. identified McSorley on direct examination. But when asked on cross whether McSorley was "the same person that told you to get into the car," he said, "I don't know."¹²

¶ 11 During the State's case in chief, Detective Dogeagle testified that he had contacted Group Health to find out when McSorley's medical appointment was. According to Dogeagle's understanding, someone there had said that the appointment was not in the morning, but rather at 3:30 P.M. Much later, several weeks after verdict, the doctor's office said in writing that the appointment was at 10:30 A.M.

¶ 12 Taking the stand on his own behalf, McSorley said that on the morning of May 21, he intended to go to a morning doctor's appointment and run errands. He left home about 8 A.M. but soon realized he had forgotten his glucometer.¹³ He returned home to get it, so he twice drove past D.J.'s bus stop. He had seen D.J. at the bus stop, but he had not spoken to him. After retrieving the glucometer, he stopped at the post office.

¶ 13 When testimony ended, the State requested Instruction 5, which was based on RCW 9A.40.090(1), and Instruction 6, which was based on RCW 9A.40.090(2). Instruction 6 stated:

It is a defense to a charge of luring that:

(1) The defendant's actions were reasonable under the circumstances; and

(2) The defendant did not have any intent to harm the health, safety, or welfare of the minor.

This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.[¹⁴]

McSorley "most strenuously" objected to Instruction 6, in essence asserting that he had the right to control his defense, that the State could not force him to raise or rely on an affirmative defense, and that Instruction 6 would confuse the jury by imposing on him the burden of proving facts not in issue.¹⁵ The trial court overruled and gave Instruction 6.

¶ 14 On November 21, 2003, the jury found McSorley guilty. On December 26, 2003, McSorley orally moved for a new trial. The court denied the motion and imposed a sentence of six months in jail.

I.

¶ 15 McSorley argues that the trial court should not have given Instruction 6. He argues that the State had no right to compel him to rely on an affirmative defense, and that Instruction 6 imposed on him the burden of proving facts not in issue and on which there was no evidence.

¶ 16 In State v. Jones,¹⁶ the Washington Supreme Court considered whether a trial court could compel a defendant to raise and rely on the affirmative defense of insanity. Answering in the negative, the Jones court expressly recognized that every competent defendant "has a constitutional right to at least broadly control his own defense."¹⁷ Reasoning that a defendant's right to raise or waive the defense of insanity should be no different from a defendant's right to assert or waive other defenses like alibi or self defense, the Jones court observed that "courts do not impose these other defenses on unwilling defendants."¹⁸ Reasoning from Faretta v. California,¹⁹ in which the United States Supreme Court held that "the California courts [had] deprived [Faretta] of his constitutional right to conduct his own defense" when they had refused to accept his knowing and voluntary choice to represent himself rather than to have counsel,²⁰ the Jones court stated:

The language and reasoning of Faretta necessarily imply a right to personally control one's own defense. In particular, Faretta embodies "the conviction that a defendant has the right to decide, within limits, the type of defense he wishes to mount."[²¹]

Reasoning from North Carolina v. Alford,²² in which the United States Supreme Court held that the North Carolina courts had properly permitted Alford to plead guilty (and thus to waive all possible defenses) based on the State's evidence rather than his own admission of guilt, the Jones court commented that "[courts] should not force any defense on a defendant in a criminal case."²³

¶ 17 Based on Jones, Faretta, and Alford, and assuming without deciding that RCW 9A.40.090 is constitutional,²⁴ we hold that neither the State nor the trial court may compel a defendant to raise or rely on the affirmative defense stated in RCW 9A.40.090(2), and that the trial court erred by giving Instruction 6 over McSorley's objection. Hence, a new trial is required.²⁵

II.

¶ 18 Pro se, McSorley argues that trial counsel rendered ineffective assistance by not showing when his medical appointment was, and by not objecting when the State proposed to show, apparently incorrectly, when it was. He complains that by not talking to his doctor before trial, by not objecting to Dogeagle's hearsay, and by not seeking a short continuance to verify what Dogeagle said, defense counsel failed to present and argue accurate information, and allowed the State to present inaccurate information.

¶ 19 During the State's case in chief, Detective Dogeagle testified, without objection from defense counsel, that he had spoken to Group Health about whether McSorley had a doctor's appointment on May 21. He stated:

Q: . . . Detective, did you do any additional investigation on this case?

A: Yes.

Q: And what is that?

A: I contacted Group Health a couple days ago to find...