State v. Sutherland

• Decision Date: 05 January 2001
• Docket Number: No. 24683-0-II.,24683-0-II.
• Citation: 104 Wash.App. 122,15 P.3d 1051
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jeffrey S. SUTHERLAND, Appellant.

15 P.3d 1051

104 Wash.App. 122

STATE of Washington, Respondent, v. Jeffrey S. SUTHERLAND, Appellant.

No. 24683-0-II.

Court of Appeals of Washington, Division 2.

January 5, 2001.

Thomas Edward Doyle, Robert Quillian, Hansville, Patricia Anne Pethick, Tacoma, for Appellant (Court Appointed).

Carol L. Case, Mason Co. Deputy Pros. Atty., Shelton, for Respondent.

SEINFELD, J.

Jeffrey S. Sutherland appeals from his conviction of felony hit and run. He challenges the sufficiency of the information, claiming it (1) failed to allege knowledge, (2) failed to specify required statutory duties, and (3) charged an offense barred by the statute of limitations. Because, even using a liberal construction of the information, the information fails to state the knowledge element of the offense, we dismiss the conviction.

FACTS

On May 21, 1995, Sutherland called 9-1-1 and reported a body on Cloquallum Road outside of Shelton. Then, after purchasing gas and stopping at a grocery store, he went home.

Darrin Lisk also drove down Cloquallum Road early that morning. He saw a body lying in the road, drove past it, turned around and drove past it again, and then told a neighbor to call 9-1-1. Lisk then went back and waited by the body until the paramedics and police arrived.

A later investigation established that the deceased was Matthew Saeger, who was killed when hit by a vehicle. Forensic investigators found Saeger's blood and tissue on Lisk's vehicle but determined that Lisk had driven through a pool of blood twice, which was consistent with his story that he had not struck Saeger.

A few days later, Detective Dwight Combs learned that Sutherland was frantically replacing parts on his pickup truck. Combs went to Sutherland's house where he examined the front end and underneath the bumper of Sutherland's truck for tissue, skin, or fabric. He found nothing suspicious and left.

In 1997, Detective John Huntington, who had taken over the case, received a telephone call from Caren Nolan. Nolan explained that she had been a passenger in Sutherland's car when he ran over Saeger on Cloquallum Road. She gave the officer information about the case that had not been released to the public and described Sutherland's vehicle as a 1972 Ford pickup. Detective Huntington's search for the vehicle led him to Timothy DeFlyer, who explained that he had sold most of the truck to a scrap processor.

DeFlyer disclosed several important facts. He said that shortly after the accident, Sutherland told him about driving over Saeger, explaining that Saeger was on his elbows and knees in the roadway, that he and Nolan had drugs in the car that Nolan threw out the window, and that he had cleaned up his truck the next day. DeFlyer also disclosed that shortly before Detective Huntington visited him in 1997, Sutherland had called and told him to get rid of any car parts from the Ford that he might have lying around. At that time, Sutherland said that he did not hit Saeger but that he had seen another car hit Saeger and speed away.

On May 18, 1998, the State charged Sutherland with felony hit and run, a violation of RCW 46.52.020. The information stated:

That said defendant, JEFFREY S. SUTHERLAND, in the County of Mason, State of Washington, on or about the 21st day of May, 1995, did commit FELONY HIT AND RUN, in that being the driver of a vehicle involved in an accident resulting in the death of Matthew Saeger, a human being, did fail to remain at the scene of the accident, contrary to RCW 46.52.020 and against the peace and dignity of the State of Washington.

Clerk's Papers at 39.

On March 1, 1999, the first day of trial, the State filed an amended information adding the phrase "injury to or" following the words "resulting in." The following colloquy preceded the amendment:

[DEPUTY PROSECUTOR]: Your Honor, the State at this point moves to amend the Information. In the Information it reads, I believe, that, "to-wit: causing the death of Matthew Saeger." It should read "injury or death." The Statute is Hit and Run injury or death. That's a felony.

The State's alleging that based on the evidence that Jeff Sutherland hit Matthew Saeger causing injury or death to Matt Saeger.

THE COURT: Defense.

[DEFENSE COUNSEL]: Your Honor, I don't believe there's a basis to object. That's the Statutory language, I believe.

THE COURT: What I would propose in the way of language would be the following. At line one, two, three, four.

"involved in an accident resulting in injury to or the death of"

So inserting after "in"

"resulting in injury to or the death of Matthew Saeger".

And counsel, perhaps you'd like to have your staff do an Amended Information and file that.

[DEPUTY PROSECUTOR]: Okay.

Report of Proceedings at 109.

In addition to the facts set out above, Nolan testified at trial that she and Sutherland had been together for about 13 years and had a child together. She waited so long to come forward because she was afraid, but she was no longer with Sutherland and needed to tell someone about the incident. She said that Sutherland had called her after learning that she had contacted Detective Huntington, telling her that she had "opened a can of worms" and "was going to regret it."

Nolan described the events of May 21, 1995, as follows. She said that she and Sutherland went to the grocery store between 2:00 and 3:00 a.m. As they were driving, she was looking out the window:

I was looking out at the lake and we were driving down the road and he hit something. And I thought it was a deer. And... he screamed, "Oh, my God. I think I just ran over somebody. I think I just hit a human."

Report of Proceedings at 115.

Nolan said that Sutherland swerved the truck to the left to avoid the object in the road but could not avoid it. She explained: "There was a thump, and there was like he was going over a speed bump, a big speed bump." Then

[h]e drove down the road and he went to turn around to see what it was that we hit. And he made me close my eyes because he wasn't sure. He thought it was a human. And so I closed my eyes. And he turned around and he just started saying, "Oh, my God, it was a human." He said, "We just ran over somebody." So we turned back around and we went into town.

Report of Proceedings at 117.

Sutherland called 9-1-1 at Nolan's urging, identifying himself as Joe or John Johnson and explaining that someone had been hit on Cloquallum Road. But Sutherland told Nolan they could not go back to the scene because they had drugs in the car.

The next morning Nolan and Sutherland went to a car wash where Sutherland power washed the underneath part of his truck. Nolan described the truck smell as "overpowering." Later that morning, Sutherland changed the bumper and grill.

Testifying on his own behalf, Sutherland admitted that he was on Cloquallum Road that night. He said he saw and touched the body, called 9-1-1, and left the scene. He explained, however, that there were three or four other vehicles there, that he could not provide any necessary medical care, and that he thought he had fulfilled his duties by calling in the accident. He said he used a false name because he did not see any reason to get involved and he denied telling DeFlyer that he killed Saeger. He also contradicted most of Nolan's testimony, claiming there were other vehicles at the scene, there were no drugs in the car, he did not power wash the truck the next day, and he did not change the bumper and grill.

Ed Wells, an accident reconstructionist, testified for the defense. He stated that the evidence did not show that Sutherland's truck struck Saeger. In his opinion, more than one vehicle struck Saeger. This was directly contrary to the State's expert testimony, which concluded that Saeger was struck once, was alive when struck, and died from the impact.

The jury found Sutherland guilty as charged. He now appeals, contending that (1) the charging information was defective because it failed to state that he knew he was in an accident and it did not list the duties required of a driver involved in an accident; (2) the trial court erred in allowing the State to amend the information on the morning of trial, thereby allowing it to charge an offense for which the statute of limitations had expired; and (3) trial counsel's failure to challenge the sufficiency of both of the informations denied Sutherland his right to effective assistance of counsel.

ANALYSIS

I. SUFFICIENCY OF THE INFORMATION

Article I, Section § 22 (amend.10) of the Washington Constitution provides in part: "In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him...." Amendment VI of the United States Constitution provides in part: "In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation...." CrR 2.1(a)(1) provides in part that "the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

"[T]he `essential elements' rule requires that a charging document allege facts supporting every element of the offense, in addition to adequately identifying the crime charged." State v. Leach, 113 Wash.2d 679, 689, 782 P.2d 552 (1989). It is sufficient to charge in the language of the statute if the statute defines the offense with certainty. State v. Elliott, 114 Wash.2d 6, 13, 785 P.2d 440 (1990). The primary goal of the "essential elements" rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against. State v. Kjorsvik, 117 Wash.2d 93, 101, 812 P.2d 86 (1991) (citing 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2, at 446 (1984); 1 Charles A. Wright, Federal Practice § 125, at 365 (2d ed.1982)). All essential elements of the charged crime, including nonstatutory elements, must be included in the charging document so that the defendant can properly prepare a defense....