State v. Osman

• Decision Date: 25 March 2010
• Docket Number: No. 82671-4.,82671-4.
• Citation: 229 P.3d 729
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Abdinasir A. OSMAN, Petitioner.

229 P.3d 729

STATE of Washington, Respondent, v. Abdinasir A. OSMAN, Petitioner.

No. 82671-4.

Supreme Court of Washington, En Banc.

Argued January 26, 2010.

Decided March 25, 2010.

Christine Anne Jackson, Attorney at Law, The Public Defender, Seattle, WA, for Petitioner.

Christina Miyamasu, King County Courthouse, Seattle, WA, for Respondent.

SANDERS, J.

¶ 1 We are asked to decide whether a missing portion of the electronic record of a suppression hearing—containing the end of the cross-examination of the defendant, the redirect examination, arguments from counsel, admission of an exhibit (to which the defense objected), and the trial court's findings of fact and conclusions of law—is "significant or material" under RALJ 5.4. Because the missing portion is material to an appeal here, the defendant is entitled to a new trial.

FACTS

¶ 2 According to the testimony of the arresting officer, the officer stopped a vehicle driven by Abdinasir Osman because the vehicle was swerving. The officer detected the odor of alcohol and observed that Osman was moving slowly, stumbling, and was argumentative; had bloodshot eyes and slurred speech; and a test of Osman's sight indicated he was intoxicated. The officer arrested Osman for driving under the influence of alcohol (DUI).

¶ 3 Osman testified that he was not drinking and did not understand the officer because he speaks Somali and knows only one or two words of English. He moved the district court to suppress statements he made after he was advised of his Miranda¹ rights were read and to suppress his refusal of a breath test, based upon this alleged language barrier. Osman also challenged whether the officer had reasonable suspicion to pull him over and probable cause to arrest him. The trial court suppressed Osman's refusal of a breath test, admitted his statements after Miranda warnings, and determined there was reasonable suspicion to pull him over and probable cause to arrest him. Osman was convicted of DUI at trial.

¶ 4 Osman appealed but, prior to briefing the issues, the district court informed him that a portion of the electronic record of the suppression hearing was missing. This portion included the end of the State's cross-examination of Osman, the defense's redirect examination, arguments of counsel, admission of an exhibit indicating his prior reckless driving conviction and sentence—to which defense counsel objected—as well as the trial court's oral findings of fact and conclusions of law.

¶ 5 Osman moved the superior court for a new trial under RALJ 5.4 due to the missing electronic record. The superior court remanded the issue to the district court. The district court held the missing portion was not significant or material and thus Osman was not entitled to a new trial. The superior court reviewed the issue de novo and reversed, holding that the missing portion was material. The Court of Appeals agreed with the district court that the missing portion was not material under an abuse of discretion standard of review and reversed. State v. Osman, 147 Wash.App. 867, 197 P.3d 1198 (2008).

STANDARD OF REVIEW

¶ 6 This court reviews the interpretation of court rules de novo. State v. Robinson, 153 Wash.2d 689, 693, 107 P.3d 90 (2005).

ANALYSIS

¶ 7 Three issues are disputed here: the scope of the court of limited jurisdiction's review on remand under RALJ 5.4 as to whether the electronic record is lost or missing and whether it is significant or material; the standard used to review that court's determination; and whether this lost record is significant or material.

I. Does RALJ 5.4 grant authority to a court of limited jurisdiction to determine only whether the electronic record is lost, or also whether the lost record is significant or material?

¶ 8 The language of RALJ 5.4 requires the court of limited jurisdiction to determine both whether the record is lost and whether it is significant or material. "The court of limited jurisdiction shall have the authority to determine whether or not significant or material portions of the electronic record have been lost or damaged...." RALJ 5.4 (emphasis added).

¶ 9 Osman argues the phrase "significant or material" should be read out of the statute because when the above sentence was first proposed to the Supreme Court, the drafter's intent was for the court of limited jurisdiction to decide only whether a portion of the record was missing.² See 4B KARL B. TEGLAND, WASHINGTON PRACTICE, RULES PRACTICE RALJ 5.4, at 259 (7th ed. 2008). Osman's argument fails for two reasons. First, the language of RALJ 5.4 unambiguously includes a "significant or material" determination by the court of limited jurisdiction; unambiguous language leaves no room to consult other sources. See State v. Theilken, 102 Wash.2d 271, 275, 684 P.2d 709 (1984) (When reviewing a statute, its clear language must be afforded its plain meaning, without resorting to rules of statutory construction.). Second, even if the rule were ambiguous, Osman's interpretation should not be adopted. "Court rules must be interpreted so that `no word, clause or sentence is superfluous, void or insignificant.'" State v. Dassow, 95 Wash.App. 454, 458, 975 P.2d 559 (1999) (quoting State v. Raper, 47 Wash.App. 530, 536, 736 P.2d 680 (1987)). Osman's interpretation renders the "significant or material" language meaningless.

II. What standard of review is used for a court of limited jurisdiction's determination of the materiality of a lost record under RALJ 5.4?

¶ 10 RALJ 5.4 does not specify the standard by which a superior court reviews a determination of the court of limited jurisdiction. Whether this review is de novo or for an abuse of discretion is an issue of first impression in this court. The superior court reviewed the trial court's entire determination de novo. The Court of Appeals applied an abuse of discretion standard.

¶ 11 As a practical matter, the trial court must make two distinct determinations when it considers materiality under RALJ 5.4. First, the trial court must determine the content of the lost record. Here, the trial court reviewed its notes and the docket, permitted the parties to speak on the issue, and then made a factual finding as to what generally was discussed during the missing portion of the record. Such a factual finding is based upon credibility determinations among the sources available and is subject to review for sufficiency of evidence. Here, neither party disputes the trial court's characterization of what the missing record contained.

¶ 12 The dispute is over the standard of review for the trial court's second determination where it concluded that the contents of the missing record were not significant or material pursuant to RALJ 5.4. That is a legal determination—whether the facts satisfy the requirements of the rule. Review is de novo. See State v. Frankenfield, 112 Wash.App. 472, 475, 49 P.3d 921 (2002)("Application of a court rule to a specific set of facts is a question which this court reviews de novo." (citing State v. Ledenko, 87 Wash. App. 39, 42, 940 P.2d 280 (1997))); cf. State v. Dearbone, 125 Wash.2d 173, 178, 883 P.2d 303 (1994) (de novo review of whether facts constituted "good cause").

¶ 13 The Court of Appeals identified three rationales to employ an abuse of discretion standard, none of which supports doing so. First, it stated de novo review "is contrary to the clear language of RALJ 5.4," Osman, 147 Wash.App. at 878, 197 P.3d 1198, but there is no such "clear language." RALJ 5.4 gives the court of limited jurisdiction "the authority to determine" whether the portions are lost and significant or material, but it is silent on what standard of review is appropriate.

¶ 14 Second, the Court of Appeals reasoned that a trial court exercises discretion to determine whether the missing record is material. Id. at 878-79, 197 P.3d 1198. Unfortunately the Court of Appeals did not elaborate on what discretion it envisioned was necessary in the trial court's determination. "Discretionary" is commonly defined as "involving an exercise or judgment and choice, not an implementation of a hard-and-fast rule," BLACK'S LAW DICTIONARY 534 (9th ed. 2009), and "discretion" as "the latitude of decision within which a court or judge decides questions arising in a particular case not expressly controlled by fixed rules of law according to the circumstances and according to the judgment of the court or judge. ...," WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 647 (2002). Discretion in judicial decisions is most often evidenced by a need for the court to balance or weigh competing interests or factors. See, e.g., State v. Boyd, 160 Wash.2d 424, 433, 158 P.3d 54 (2007) (recognizing the discretionary nature of the balance of interests inherent in discovery); State v. Downing, 151 Wash.2d 265, 273, 87 P.3d 1169 (2004) (discussing the balancing required in a trial court's exercise of discretion in granting a continuance). Here the trial court judge considered his personal notes, the docket entry, and counsels' representations to determine the content of the missing record. Having established the facts, the trial court was left with determining only whether those facts—the contents of the missing record—were "significant or material" to the appeal under RALJ 5.4. There is no discretion—no latitude in decision-making or weighing of interests—that the trial court could exercise in its materiality determination. Under RALJ 5.4 either those facts are "significant or material" or they are not; that legal determination requires de novo review.

¶ 15 Third, the Court of Appeals reasoned that "the trial court is in the best position to determine if the missing portion is significant or material and is grounds for a new trial."³ Osman, 147 Wash.App. at 878, 197 P.3d 1198. The trial court might have an advantage determining what was material to its decision. However, as discussed in the next section, the issue is whether the missing...