State v. Nason, 16868-9-III

• Decision Date: 25 May 1999
• Docket Number: No. 16868-9-III,16868-9-III
• Citation: 96 Wn.App. 686,981 P.2d 866
• Parties: STATE of Washington, Respondent, v. Joshua Jay NASON, Appellant.
• Court: Washington Court of Appeals

Page 866

96 Wn.App. 686

981 P.2d 866

STATE of Washington, Respondent, v. Joshua Jay NASON, Appellant.

No. 16868-9-III.

Court of Appeals of Washington,

Division 3,

Panel Eight.

May 25, 1999.

Publication Ordered and

Reconsideration Denied Aug. 5, 1999.

Scott A. Niebling, Spokane, WA., for Appellant.

Janet G. Gemberling, Spokane, WA., for Respondent.

BROWN, J.

The jury found Joshua Nason guilty of first degree child assault. Mr. Nason's appeal presents three issues. (1) Did the trial court fail to enforce an earlier plea agreement with a "no other charges" provision? (2) Was a Child Protective Services (CPS) investigator a "state agent" who failed to give pre-statement warnings? (3) Was the unanimity instruction given adequate? We decide the court correctly concluded no contract was formed rendering the plea agreement inapplicable. The CPS worker functioned as a state agent, however, the error admitting Mr. Nason's statement was harmless. Finally, the unanimity instruction was appropriate. Accordingly, we affirm.

FACTS

In August 1996, C.M. reported allegations of physical abuse and neglect of her grandson, D.H., to CPS in Spokane. CPS investigator Joseph Armstrong began an inquiry into the allegations which included burning, bruising, and biting.

At about the same time, Joshua Nason, D.H.'s father, was arrested on six unrelated informations. The offenses pertained to property crimes, delivery of a controlled substance, and malicious mischief. A few days During the jail interview, Mr. Nason, after inquiry, admitted that he had inflicted bite marks on D.H. as part of a game. Although the police had informed Mr. Armstrong that Mr. Nason was incarcerated, he did not notify the police prior to his meeting that he would be talking with Mr. Nason. Thereafter, however, Mr. Armstrong told the police, after their inquiry, about the interview. Mr. Armstrong did not give Mr. Nason the warnings of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

later, on September 3, 1996, after learning of Mr. Nason's incarceration from the police, Mr. Armstrong interviewed Mr. Nason about the dependency matter in order to prepare a fact-finding report.

In the fall of 1996, Mr. Nason's defense counsel negotiated a plea agreement with the deputy prosecutor on the charges that led to his arrest. On December 5, 1996, Mr. Nason entered a guilty plea on all the charges. The plea agreement partly stated "No Other Charges Will Be Filed" after listing cases the particular offense was to run concurrent with.

In a declaration, the deputy prosecutor who handled the six charges asserted this meant the State would not file any charges arising out of the files on which she was working. The deputy prosecutor was not aware of any allegations involving first degree child assault when she negotiated the plea. In the caption of each of the six informations is a reference to a specific police investigation file related to the particular charge.

About 12 days after his plea, Mr. Nason was charged in district court with first degree assault of a child. Mr. Nason sought specific performance of the plea agreement and the dismissal of the later filed charge. The trial judge found no meeting of the minds on the term "No Other Charges Will Be Filed" existed, held no contract was formed, and denied the motion to dismiss.

A CrR 3.5 hearing was held regarding the statements Mr. Nason made to Mr. Armstrong. The trial court held Mr. Nason's statements were admissible. The court reasoned Mr. Armstrong's questioning was a custodial interrogation but Mr. Armstrong was not a state agent, thus the statement was admissible.

At trial, the court ruled the State did not have to elect which of multiple acts was the principle assault. Rather, the court gave a standard unanimity instruction to the jury that informed the jury it had to unanimously determine which act was the principle assaultive act. The jury returned a verdict of guilty. Mr. Nason appealed.

ANALYSIS

A. Contract

The issue is whether the trial court erred by refusing to enforce the plea agreement's "no other charges" provision and concluding the parties did not have a contract.

"Plea agreements are contracts." State v. Sledge, 133 Wash.2d 828, 838, 947 P.2d 1199 (1997) (quoting State v. Mollichi, 132 Wash.2d 80, 91, 936 P.2d 408 (1997)). A contract is not formed unless there is mutual assent between the contracting parties. Ottgen v. Clover Park Technical College, 84 Wash.App. 214, 219, 928 P.2d 1119 (1996). Mutual assent must be gathered from the outward expression of the parties and not their unexpressed subjective intention. See City of Everett v. Sumstad's Estate, 95 Wash.2d 853, 855, 631 P.2d 366 (1981). We impute an intention corresponding to the reasonable meaning of a party's words and acts. Id.

When each party has a different understanding of a material term, a basis exists for a court to find no contract was formed. See Swanson v. Holmquist, 13 Wash.App. 939, 943, 539 P.2d 104 (1975). In accordance with this principle, the Restatement (Second) of Contracts, section 20(1) (1979), provides: "There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and (a) neither party knows or has reason to know the meaning attached by the other."

When there is uncertainty of meaning in the terms of the promise that the court cannot resolve, the promise is fatally ambiguous Here, the parties manifested the intent that "No Other Charges Will Be Filed." The State argues that the term applied solely to those cases that the deputy prosecuting attorney was handling for the State, inferring by custom and common understanding that the "other charges" must be related to the present charges arising from the corresponding police investigations. These case numbers were listed in section (f) of the plea agreement with the disputed term.

                and void.  Peoples Mortgage Co. v. Vista View Builders, 6 Wash.App. 744, 748, 496 P.2d 354 (1972);  see Flower City Painting Contractors, Inc. v. Gumina Constr.  Co., 591 F.2d 162, 164-65 (2d Cir.1979).  A court may look to parol evidence to explain the ambiguity and, if the meaning remains unclear, no contract is formed.  Peoples Mortgage, 6 Wash.App. at 748, 496 P.2d 354.   Questions of whether an ambiguity in a contract exists and the legal effect of a contract are issues of law reviewed de novo.  See Clevco, Inc. v. Municipality of Metro.  Seattle, 59 Wash.App. 536, 539, 799 P.2d 1183 (1990), review denied, 117 Wash.2d 1006, 815 P.2d 265 (1991)
                

Mr. Nason, by contrast, claims he intended to preclude all other charges currently pending because of the high offender score he would receive if sentenced on any further charge. Either of these interpretations is a plausible reading of the term "no other charges." In this situation, an ambiguity exists. See Flower City Painting, 591 F.2d at 164-65 (ambiguity was present where the parties' different interpretations of a contract were plausible).

Turning to extrinsic evidence, the deputy prosecutor intended the term to include only those charges arising from the pending files on which she was working. This meaning differs materially from the meaning Mr. Nason attached to the term. Furthermore, neither party has contended that the other knew or had reason to know of each other's intent. It follows that no contract was formed: "[T]he contracting parties here had different understandings of a material portion of the agreement. Since the document did not reflect a common understanding of an essential term of the agreement, that is, did not reflect a mutual intent or mutual assent to the term, there was no contract." Swanson, 13 Wash.App. at 943, 539 P.2d 104. Moreover, taken literally, Mr. Nason's position would lead to a conclusion that the provision gave a lifetime grant of immunity for all crimes, both past and present, a result clearly not intended.

Because there was no contract, Mr. Nason is not entitled to specific performance. See Brock v. Wright, 98 Or.App. 323, 778 P.2d 999 (1989) (where the defendant and prosecutor attached two different meanings to the term "cooperate" in the plea agreement, there was no meeting of the minds and thus no plea agreement to specifically enforce). The trial court did not err when it declined Mr. Nason's request for specific performance.

B. Statement

The issue is whether the trial court erred by admitting Mr. Nason's statement to Mr. Armstrong and concluding it did not violate CrR 3.5.

"Miranda warnings are designed to protect a defendant's right not to make incriminating statements while in the potentially coercive environment of custodial police interrogation." State v. D.R., 84 Wash.App. 832, 835, 930 P.2d 350, review denied, 132 Wash.2d 1015, 943 P.2d 662 (1997). The Miranda warnings are required when an interview or examination is (1) custodial (2) interrogation (3) by a state agent. State v. Post, 118 Wash.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992) (citing State v. Sargent, 111 Wash.2d 641, 649-53, 762 P.2d 1127 (1988)). If a defendant did not receive the Miranda warnings, any statements made during a custodial interrogation are presumed to be involuntary. See Sargent, 111 Wash.2d at 648, 762 P.2d 1127.

The State does not dispute that there was a custodial interrogation. The issue is thus whether Mr. Armstrong was a "state agent" for the purpose of the Miranda warnings. In Cates v. State, 776 S.W.2d 170, 171 (Tex.Cr.App.1989), an investigator for the Department of Human Resources interviewed the defendant in the county jail and obtained We conclude Mr. Armstrong's conduct was similar to that of the investigator in Cates. As in Cates, Mr. Nason's admissions were the result of Mr. Armstrong's attempt to gather evidence of abuse, and Mr. Armstrong also had a duty to turn over evidence of child abuse to law enforcement officials. Finally, as in Cates, Mr. Armstrong did...