State v. Salgado-Mendoza, NO. 93293-0

• Court: United States State Supreme Court of Washington
• Writing for the Court: STEPHENS, J.
• Citation: 403 P.3d 45,189 Wash.2d 420
• Parties: STATE of Washington, Petitioner, v. Ascencion SALGADO-MENDOZA, Respondent.
• Decision Date: 12 October 2017
• Docket Number: NO. 93293-0

189 Wash.2d 420
403 P.3d 45

STATE of Washington, Petitioner,
v.
Ascencion SALGADO-MENDOZA, Respondent.

NO. 93293-0

Supreme Court of Washington.

Argued March 14, 2017
Filed Oct. 12, 2017

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. S.E., Olympia, WA, 98501-1311, for Petitioner.

Skylar Texas Brett, Law Office of Skylar Brett, P.O. Box 18084, Seattle, WA, 98118-0084, for Respondent.

Magda Rona Baker, Washington Defender Association, 110 Prefontaine Pl. S., Ste. 610, Seattle, WA, 98104-2626, Lauren D. McLane, Attorney at Law, P.O. Box 85110, Seattle, WA, 98145-1110, as Amicus Curiae on behalf of Washington Defender Association.

Peter B. Gonick, Washington Attorney General's Office, P.O. Box 40100, Olympia, WA, 98504-0100, Shelley Anne Williams, Criminal Justice—Criminal Litigation Unit Atty. General, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104-3188, as Amicus Curiae on behalf of Washington State Patrol.

STEPHENS, J.

189 Wash.2d 423

¶1 We are asked to decide whether the district court in Ascencion Salgado-Mendoza's 2013 trial for driving under the influence abused its discretion by refusing to suppress the testimony of the State's toxicology witness.

189 Wash.2d 424

The State initially disclosed the names of nine toxicologists from the Washington State Patrol toxicology laboratory, indicating its intent to call "one of the following." Clerk's Papers (CP) at 6. It whittled the list to three names the day before trial, but did not specify which toxicologist it would call until the morning of trial, noting that it provided the witness's name "as soon as we had it and that's all that we can do in terms of disclosure." Verbatim Report of Proceedings (VRP) (May 9, 2013) at 31. Salgado-Mendoza moved to suppress the toxicologist's testimony under CrRLJ 8.3(b) based on late disclosure, asking the court to "send a message to the state patrol crime lab and say

403 P.3d 48

this isn't okay anymore." Id. at 27. The court refused, finding no actual prejudice to the defense and observing that the practice of disclosing a list of available toxicologists rather than a specific witness was driven more by underfunding of the crime labs than by mismanagement.

¶2 Salgado-Mendoza appealed to the superior court, which found the district court had abused its discretion. The Court of Appeals affirmed, reasoning that the delayed disclosure violated the discovery rules and caused prejudice. We disagree. While the State's disclosure practice amounted to mismanagement within the meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice to justify suppression. The trial court considered all the circumstances, including the nature of the witness's testimony and the five months that counsel had to prepare following the State's initial disclosure. On this record, we cannot say the district court's ruling was "manifestly unreasonable" and thus an abuse of discretion. We reverse the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶3 In August 2012, Salgado-Mendoza was arrested on suspicion of driving under the influence (DUI). Salgado-Mendoza consented to a breath test, which revealed his blood alcohol concentration to be above the legal limit. The State

189 Wash.2d 425

charged Salgado-Mendoza with DUI, and trial was set in the district court of Jefferson County for May 9, 2013.

¶4 At trial, the State planned to call a toxicologist as an expert witness to testify regarding DUI testing procedures in Washington. Five months before trial, the State disclosed a list of nine potential toxicologist witnesses, only one of whom would testify. Two weeks before trial, Salgado-Mendoza filed a supplemental discovery request demanding, in part, that the State identify which toxicologist it actually intended to call. The State asserts that it attempted to comply. Salgado-Mendoza still had not received this information by May 6, 2013, three days before trial. Alleging governmental misconduct, he filed a CrRLJ 8.3(b) motion to dismiss the case or suppress the toxicologist's testimony. The day before trial, the State narrowed the list to three names. At 9:00 a.m. on the morning of trial, the State identified the toxicologist who would testify, indicating it had just received the name that morning.

¶5 Salgado-Mendoza asserted that the State's delayed disclosure was "a classic form of governmental misconduct." VRP at 25. Arguing that the need to interview and prepare for cross-examination of nine witnesses when only one will testify placed an undue burden on the defense, Salgado-Mendoza urged the court to dismiss—or at least to preclude the toxicologist's testimony.¹ In opposition, the State argued that five months was adequate time to prepare for each possible witness, the late disclosure was a result of the toxicology lab being "overworked and understaffed,"² and

189 Wash.2d 426

the prosecution had repeatedly contacted the toxicology lab to request that a specific toxicologist witness be identified. VRP at 30. The trial judge denied the motion and allowed the toxicologist's testimony. Id. at 35-36 (citing the toxicology lab's perennial staffing shortages and the five months Salgado-Mendoza had to prepare). The case proceeded to trial, where a jury found Salgado-Mendoza guilty.

¶6 Salgado-Mendoza appealed his DUI conviction to the superior court for Jefferson County. Finding that the State's late disclosure constituted governmental mismanagement and a violation of discovery rules, that court held that the district court abused its

403 P.3d 49

discretion by failing to suppress the toxicologist's testimony. The superior court additionally held the trial court abused its discretion by suppressing a portion of the defense expert's testimony regarding the breath alcohol testing machine used in testing Salgado-Mendoza. The superior court reversed the conviction and remanded the matter for a new trial.

¶7 The State moved for discretionary review. The Court of Appeals, accepting review only with respect 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 to "obtain the name of its witness in a timely manner" violated discovery rules and constituted governmental mismanagement, (2) this misconduct prejudiced Salgado-Mendoza, and (3) suppression of the toxicologist's testimony was the proper remedy. Id. at 243, 373 P.3d 357. Writing in dissent, Judge Worswick argued that the trial court's denial of Salgado-Mendoza's CrRLJ 8.3(b) motion did not constitute an abuse of discretion. Because Salgado-Mendoza's "bald assertion that he would have preferred to request a continuance" rather than proceed to trial unprepared was insufficient to meet the evidentiary

189 Wash.2d 427

burden of actual prejudice required for relief under CrRLJ 8.3(b), id. at 260, 373 P.3d 357 (Worswick, J. dissenting), it was not "manifestly unreasonable" for the district court to deny Salgado-Mendoza's motion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp. , 122 Wash.2d 299, 339, 858 P.2d 1054 (1993). We granted review.³

STANDARD OF REVIEW

¶8 We review a trial court's ruling on a CrRLJ 8.3(b) motion under the deferential abuse of discretion standard. See, e.g., State v. Michielli , 132 Wash.2d 229, 240, 937 P.2d 587 (1997). A court abuses its discretion when an " ‘order is manifestly unreasonable or based on untenable grounds.’ " In re Pers. Restraint of Rhome , 172 Wash.2d 654, 668, 260 P.3d 874 (2011) (internal quotation marks omitted) (quoting State v. Rafay , 167 Wash.2d 644, 655, 222 P.3d 86 (2009) ). A discretionary decision is " ‘manifestly unreasonable’ " or " ‘based on untenable grounds' " if it results from applying the wrong legal standard or is unsupported by the record. Id. (internal quotation marks omitted) (quoting Rafay , 167 Wash.2d at 655, 222 P.3d 86 ). A reviewing court may not find abuse of discretion simply because it would have decided the case differently—it must be convinced that " ‘no reasonable person would take the view adopted by the trial court.’ " State v. Perez-Cervantes , 141 Wash.2d 468, 475, 6 P.3d 1160 (2000) (quoting State v. Huelett , 92 Wash.2d 967, 969, 603 P.2d 1258 (1979) ).

ANALYSIS

¶9 Under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both misconduct and actual prejudice. In this case, Salgado-Mendoza can demonstrate misconduct within the meaning of the rule, but not actual

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prejudice. He can prove misconduct because a discovery violation need not be willful—simple mismanagement will suffice. Here, the State's failure to at least narrow the list of possible toxicology witnesses pretrial reflects mismanagement. However, Salgado-Mendoza cannot show prejudice that warrants complete...