State v. Salgado-Mendoza
| Citation | 194 Wash.App. 234,373 P.3d 357 |
| Decision Date | 24 May 2016 |
| Docket Number | No. 46062-9-II,46062-9-II |
| Parties | State of Washington, Appellant, v. Ascension Salgado-Mendoza Respondent. |
| Court | Court of Appeals of Washington |
Christopher R. Ashcraft, Port Townsend City Prosecutor, Port Townsend, WA, for Petitioner.
Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Respondent.
PUBLISHED OPINION
JOHANSON
, J.
¶ 1 The State appeals a superior court order reversing Ascencion Salgado-Mendoza's district court jury trial conviction for driving under the influence (DUI).
The State argues that the superior court erred when it reversed the district court's denial of Salgado-Mendoza's motion to exclude a State toxicologist's testimony for governmental mismanagement under CrRLJ 8.3(b)
based on the State's failure to comply with CrRLJ 4.7(a). Because the prosecutor failed to take reasonable steps to ensure the timely disclosure of the testifying toxicologist's name under CrRLJ 4.7(d) and this failure forced Salgado-Mendoza to choose between his speedy trial rights and going to trial fully prepared, we hold that the district court erred when it denied Salgado-Mendoza's motion to exclude the toxicologist's testimony. We affirm the superior court's reversal of Salgado-Mendoza's district court conviction and remand to the district court for a new trial.
FACTS
¶ 2 On the evening of August 11, 2012, a Washington State Patrol trooper observed the vehicle Salgado-Mendoza was driving struggling to stay in its lane of travel for about five miles. The trooper stopped the vehicle.
¶ 3 While talking to Salgado-Mendoza, the trooper noticed a strong odor of intoxicants coming from the truck and observed that Salgado-Mendoza had bloodshot, watery, droopy eyes and was responding to the trooper's requests slowly and lethargically. Salgado-Mendoza admitted that he had recently consumed two beers. When Salgado-Mendoza started to get out of the vehicle, it started to roll backwards and the trooper asked him to apply the brakes; Salgado-Mendoza's response was delayed and he did not appear to notice that his vehicle was moving. Once outside the vehicle, the trooper could smell alcohol on Salgado-Mendoza's breath, and Salgado-Mendoza performed poorly on the voluntary field sobriety tests.
¶ 4 The trooper arrested Salgado-Mendoza for DUI. After his arrest, Salgado-Mendoza voluntarily submitted to breath tests. Two breath samples showed that his blood alcohol concentration was 0.103 and 0.104.
¶ 5 Several months before his district court trial date on the DUI charge, Salgado-Mendoza requested that the State disclose information about any and all expert witnesses the State intended to call at trial. In December 2012, the State filed a witness list providing the names of nine possible Washington State Patrol Crime Lab toxicologists, one of whom would testify at trial.1
¶ 6 On April 24, 2013, about two weeks before the May 9 trial date, Salgado-Mendoza filed a supplemental discovery demand requesting, in part, that the State disclose the names and other relevant information for all expert witnesses the State intended to call. The State apparently attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.
¶ 7 On May 6, three days before trial, Salgado-Mendoza filed a motion requesting that the district court dismiss the case or exclude the toxicologist's evidence based on governmental misconduct. In a supporting declaration, defense counsel asserted that despite numerous defense requests, the State had failed to disclose the name of the toxicologist who would testify and, instead, had provided a list of eight individuals, one of whom would testify.
¶ 8 Defense counsel further asserted that (1) the toxicologist was an indispensable witness because the technician prepared the “simulator solution” used in the breath test in this case, and (2) the State's failure to disclose which potential witness would testify was unduly burdensome because the defense would have to prepare to cross-examine eight individuals. Clerk's Papers (CP) at 40. Defense counsel also stated that even if the State asserted it had no control over the toxicology lab, the State's inability to identify the specific person or persons who would testify a week before the trial date was “simply mismanagement of human resources.” CP at 41.
¶ 9 On May 8, the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.
¶ 10 When the parties appeared for trial on May 9, Salgado-Mendoza argued his May 6 motion and asked the district court to exclude the toxicologist's testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. Salgado-Mendoza also suggested that extensive background checks were necessary in light of a recent “scandal” at the toxicology lab and the possibility that some of the proposed witnesses may have been involved in a related “cover up.” Report of Proceedings (RP) (May 9, 2013) at 23. He again characterized the State's failure to disclose a specific toxicology witness as governmental mismanagement.
¶ 11 During argument on this motion, the State disclosed that it had finally learned that Chris Johnston would be testifying. The State then argued that it was the defense's mismanagement that created the issue, rather than the late disclosure, because the State had provided a list of eight possible witnesses in time for the defense to prepare for trial. It also asserted that (1) the toxicology lab was overworked and understaffed, (2) the State had done its “due diligence” and had requested a shorter list earlier, but the lab was unable to comply, (3) the State was not required to call every witness on its witness list, and (4) it provided the defense with the name of the toxicologist who would testify as soon as that information was available. RP (May 9, 2013) at 31.
¶ 12 Agreeing that the toxicologist witnesses were “fungible” and that having to prepare for the eight potential witnesses was not unduly burdensome or prejudicial to the defense, the district court denied Salgado-Mendoza's motion. RP (May 9, 2013) at 22. The district court also commented that much of the problem was caused by the realities of lack of funding rather than governmental mismanagement. After the district court ruled, defense counsel stated that although he would normally seek a continuance under these circumstances, Salgado-Mendoza did not want to waive his speedy trial rights and it would be very difficult to reschedule the defense expert.
¶ 13 The trial began, and Johnston testified that day. During the trial, the district court also granted the State's motion to exclude a portion of a defense expert's testimony concerning the breath-alcohol testing machine. The jury found Salgado-Mendoza guilty of DUI.
¶ 14 Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist's testimony due to the State's violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert's testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial.
¶ 15 As to the toxicologist's testimony, the superior court stated in its memorandum opinion and order that (1) the lab's limited resources and busy schedule did not justify the State's failure to comply with the discovery rules and (2) dismissal would not have been an appropriate sanction because excluding the evidence would eliminate any possible prejudice caused by the governmental misconduct. The superior court also rejected the State's argument that the possible witnesses were interchangeable and noted that a continuance would not have been a reasonable option because “it appear[ed] likely that the same thing would have happened if a continuance was granted, i.e. the State would have provided 8 names, narrowed it down to 3 names the day before trial, and have one of the three show up for the new trial date.” CP at 59. And in response to the State's argument that it was not required to call all of the witnesses it had disclosed, the superior court rejected this argument because CrRLJ 4.7(a)(1)(i)
required the State to disclose the witnesses it intended to call, and the State never intended to call all eight witnesses.
¶ 16 The State moved for discretionary review of the superior court's decisions on the toxicologist's testimony and the defense expert's testimony. We granted review in part, but we limited our review to “whether state toxicologist witnesses are within the control of the prosecution's staff, ... and the larger issue [of] whether the superior court's decision regarding the [suppression of] the toxicologist's testimony is correct.” Ruling Granting Mot. for Discretionary Review (July 10, 2014), at 5.
ANALYSIS
¶ 17 The State argues that the superior court's decision that the State had engaged in governmental misconduct by violating the discovery rules is erroneous. It contends that the prosecutor was not required to disclose which toxicologist would testify until the day of trial because that information was not yet within her knowledge, possession, or control, as required under CrRLJ 4.7(a)(4)
. The State further contends that this information was under the State toxicologist's full control and that the toxicologist would not respond to subpoenas until the trial date is certain. We hold that the prosecutor violated the discovery rules by failing to take reasonable steps to obtain the name of its witness in a timely manner as required under CrRLJ 4.7(d)
and that this in turn amounted to governmental misconduct under CrRLJ 8.3(b).2 We further...
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State v. Salgado-Mendoza
...to the trial court's decision not to suppress the toxicologist's testimony, affirmed the superior court. See State v. Salgado-Mendoza , 194 Wash.App. 234, 238, 373 P.3d 357, review granted , 186 Wash.2d 1017, 383 P.3d 1028 (2016). The Court of Appeals held that (1) the prosecutor's failure ......