State v. Sullivan (In re Sullivan)
| Decision Date | 21 August 2018 |
| Docket Number | c/w No. 35223-4-III,No. 33438-4-III,33438-4-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOSEPH PATRICK SULLIVAN, Appellant. In the Matter of the Personal Restraint of JOSEPH PATRICK SULLIVAN, Petitioner. |
SIDDOWAY, J. — The State prosecuted Joseph Sullivan for resisting arrest and for the third degree assault of a police officer, advancing the unusual theory that on the day of the crimes Mr. Sullivan anticipated a police encounter, and his wife and others gathered near the Grand Coulee Dam to see Mr. Sullivan stand up for his right to fish without interference by local police. Mr. Sullivan admits that upon being contacted by a Grand Coulee police officer and told he was trespassing, he asserted his right to fish and demanded that a federal marshal be called. He denies striking the officer and claims he only acted in self-defense, but the State persuaded the jury otherwise. He now raises 10 assignments of error and, in a personal restraint petition consolidated with the appeal, asks for a reference hearing to determine when certain "no trespassing" or "restricted area" signs were installed near the dam.
We find no error, no abuse of discretion, and no basis for collateral relief. We affirm the convictions and dismiss the petition.
On April 24, 2014, around lunchtime, Joseph Sullivan went fishing on the shoreline of the Columbia River below Grand Coulee Dam. Events occurring in the 10 days before his fishing outing are relevant to his convictions for resisting arrest and assaulting a police officer and to the jurors' weighing of some of the witness testimony.
On April 14, the Washington Department of Fish and Wildlife adopted an emergency rule that revised state recreational fishing regulation of an area from the Grand Coulee Dam downstream to the State Route 155 bridge. That section of water had been closed to public access and recreational fishing for over 13 years, for security reasons following the events of September 11, 2001. The emergency rule was to become effective the next day. On April 15, 2014, the public affairs officer for the United StatesBureau of Reclamation (BOR), which operates Grand Coulee Dam, sent electronic mail to approximately 500 Grand Coulee Power Office employees of the BOR, notifying them of the rule change.
On August 20 and 21, 2014, Tyler Mellick, who worked as an electrician at the dam, fished from an area of the shoreline affected by the state fishing rule change, but that was also located on BOR property near the dam that the agency treated as secure and posted as "restricted" or "no trespassing." He was contacted on both days by Officer Gary Moore of the Grand Coulee Police Department and told he could not fish in the posted area. The Grand Coulee Police Department was under contract to provide law enforcement services for the BOR.
On the first occasion, Mr. Mellick disagreed with Officer Moore but left as requested. The next day, however, he refused to leave, insisting he was within his rights. He asked, if the officer was going to press the point, that someone with the FBI or a U.S. Marshal, or someone else "with the authority of the federal government" be brought in. Report of Proceedings (RP)2 at 513-14. Mr. Mellick was arrested and charged with trespassing.
On April 21—the same day as Mr. Mellick's arrest—the BOR public affairs office again sent electronic mail to the 500 or so Power Office employees, clarifying that onboth sides of the river, access under state and tribal fishing rules would permit fishing from that part of the shoreline north of posted areas, but did not affect access restrictions on the areas posted "'Restricted Area No Unauthorized Personnel Beyond This Point'" and "'No Trespassing on Road or Riverbank'" on the west side of the river, and "'Restricted Area No Unauthorized Personnel Beyond this Point'" on the east side. Ex. 72.
At the time of Mr. Mellick's arrest, he was well acquainted with the appellant, Joseph Sullivan, and with Mr. Sullivan's wife, Kathy Tesch. He had been living off and on in a travel trailer that the couple allowed him to park on their property, near their home. Mr. Mellick provided Mr. Sullivan with a copy of the BOR public affairs officer's original April 15 e-mail about the change in state fishing rules opening access below Grand Coulee dam. Mr. Mellick denies that he ever told Mr. Sullivan about his arrest before Mr. Sullivan was himself arrested and charged in the matter now on appeal.
On April 24, when Mr. Sullivan traveled to the shoreline below the dam to go fishing, he characterizes it as a coincidence that a handful of his friends and family were watching from different vantage points when Officer Joe Higgs responded to a call that Mr. Sullivan was fishing in a restricted area. At Mr. Sullivan's trial, the State would characterize the presence of so many observers as part of a "setup." RP at 170.
Mr. Sullivan was accompanied to the dam on April 24 by his wife, who had never gone fishing with him before. They parked their pickup at the end of a service road, nextto a gate on which was mounted a sign that said "No Trespassing on Road or Riverbank." RP at 577-78; Ex. 51. His wife stayed near the pickup with a pair of binoculars that she occasionally used to watch him fish after he walked to the riverbank below.
Mr. Sullivan was watched by Mr. Mellick, who stood next to a fence line approximately 207 yards from where Mr. Sullivan was fishing. Mr. Mellick saw Ms. Tesch in the parking lot above the posted gate and said hello. When he saw Officer Higgs arrive at the dam site and head toward Mr. Sullivan, he called Mr. Sullivan on his cell phone to tell him about the arriving officer.
Mr. Sullivan was watched by Robert Fields, another employee at the dam, who was a close friend of Mr. Mellick's and an acquaintance of Mr. Sullivan. Mr. Fields claimed he had no advance indication of any trouble that day, but when "word spread . . . that there was a police presence outside," he "went out to watch the circus." RP at 466. Like Mr. Mellick, Mr. Fields believed that there should be no restriction on fishing in the area where Mr. Sullivan was fishing and was also of the belief that only federal law enforcement, not Grand Coulee police officers, should have jurisdiction at the dam site.
Finally, Mr. Sullivan was watched by Daniel Conant Sr. and his then 18-year-old son, who arrived at the west side of the dam as Officer Higgs walked down through riprap to contact Mr. Sullivan. The Conants were acquainted with Mr. Mellick and joined him at the fence line where he was watching Mr. Sullivan and Officer Higgs's approach. Mr. Mellick admits telling the Conants, "this could get very interesting," butdenies suggesting that anyone should film what was about to happen. RP at 524. Mr. Conant Sr. would later testify, however, that Mr. Mellick said "somebody might want to film this, this could be good," prompting both Mr. Conant and his son to pull out their cell phones and start recording the events about to transpire between Mr. Sullivan and Officer Higgs. RP at 567.
The beginning of the younger Mr. Conant's video, which was later posted on YouTube, captured the end of the cell phone conversation Mr. Mellick was having with Mr. Sullivan as Officer Higgs picked his way through riprap toward Mr. Sullivan on the shore:
MR. MELLICK: . . . he's comin' up, comin' up right behind you, I got you. He's comin' up on your six. Allright, he's got, he's probably got about a hundred yards to go. Bye.
Ex. 60, at 0 min., 0 sec. through 0 min., 15 sec.
We turn from explaining the presence of so many witnesses to recounting the police encounter itself. It was a dam security officer who, upon seeing Mr. Sullivan arrive and begin fishing in a restricted area by the dam, contacted the Grand Coulee Police Department, which dispatched Officer Higgs. When Officer Higgs arrived, dam security pointed out where Mr. Sullivan was fishing.
After Officer Higgs worked his way down to the water and approached Mr. Sullivan, he identified himself as a police officer and told Mr. Sullivan he was in a restricted area and was not allowed to be there. Mr. Sullivan claimed he was allowed tofish there and presented the officer with the April 15 BOR public affairs e-mail about the state fishing rule change. Officer Higgs reviewed it, but told Mr. Sullivan it was not the whole story. He told Mr. Sullivan that the area where he was standing was posted as restricted, pointing out the general direction of the signs. Mr. Sullivan asked for a fish and wildlife officer. Deciding that he would issue a written trespass warning to Mr. Sullivan at that point, Officer Higgs asked him for identification. Mr. Sullivan responded by asking for a federal marshal—just as Mr. Mellick had, when he was contacted by Officer Moore.
Officer Higgs explained that law enforcement for the site was contracted to his department and renewed his request for identification. He explained that Mr. Sullivan was already trespassing and if he did not produce identification it would turn into obstructing a law enforcement officer. When Mr. Sullivan continued to refuse to produce identification, Officer Higgs told Mr. Sullivan he was under arrest for trespassing and obstructing, and reached toward Mr. Sullivan's arm to place him under arrest. Mr. Sullivan responded by pulling his arm away and stepping to the officer's side. Officer Higgs told him not to pull away again, or he would be placed under arrest for resisting arrest as well. When Officer Higgs reached for his arm again, Mr. Sullivan, who is a martial arts grand master in the practice of Isshin-Ryu, an Okinawan style of karate, moved forward and punched the officer in the left thigh, just above the knee.
As Mr. Sullivan struck his leg, Officer Higgs grabbed the collar of Mr. Sullivan's jacket and turned, in an effort to pin him to the ground. A struggle ensued,...
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