State v. Weber

• Decision Date: 10 March 1983
• Docket Number: No. 48454-6,48454-6
• Citation: 659 P.2d 1102,99 Wn.2d 158
• Parties: The STATE of Washington, Respondent, v. Edward Lee WEBER, Petitioner.
• Court: Washington Supreme Court

Page 158

99 Wn.2d 158

659 P.2d 1102

The STATE of Washington, Respondent, v. Edward Lee WEBER, Petitioner.

No. 48454-6.

Supreme Court of Washington,

En Banc.

March 10, 1983.

Kirk L. Griffin, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Douglas B. Whalley, Deputy Pros. Atty., Seattle, for respondent.

CUNNINGHAM, Justice. ^*

Petitioner's case raised two issues. First, does our recent decision in State v. Taylor, 97 Wash.2d 724, 649 P.2d 633 (1982) deprive us of subject matter jurisdiction to hear cases involving felony flight prosecutions occurring prior to January 1, 1981? Second, did the trial judge err in denying petitioner's motion for mistrial? We hold subject matter jurisdiction exists. In addition, we find the trial judge did not abuse her discretion by denying petitioner's motion for mistrial. We therefore affirm.

Petitioner, Edward Lee Weber, was convicted of felony flight in violation of RCW 46.61.024. That statute provides:

Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.

The events leading to Weber's conviction are as follows: On December 16, 1979, Sergeant Orange of the Seattle Police Department observed Weber driving through a red light at 6th and James in Seattle. Sergeant Orange, the State's sole witness at trial, testified that he first spotted the petitioner's car as it went through the intersection against the light. It proceeded towards the freeway entrance. Sergeant Orange pulled into the intersection behind the vehicle and flipped on both his siren and lights. At that point Sergeant Orange, driving a marked patrol car, was 1 block behind Weber. There was just one vehicle between them. Sergeant Orange testified that after he turned on his emergency lights, Weber accelerated and pulled onto the freeway entrance. Weber cut across several lanes of traffic (without signaling) and entered the freeway. He moved to the outermost lane of the freeway and, again, accelerated. Sergeant Orange testified that in pursuing Weber, he clocked him at 75 miles per hour. Sergeant Orange also stated that he pursued the petitioner a distance of about 3 1/2 miles before Weber, without looking back, pulled over.

Weber testified at trial that he stopped at the light at 6th and James, let the traffic clear, and then proceeded through it while it was still red. He accelerated onto the freeway and continued south until he noticed the two blue lights of the police car and pulled over. Weber claimed that he didn't see the flashing blue lights until just before he pulled over. He also testified that he did not hear a siren--apparently because his car was old and noisy. After the arrest, the police discovered 28 grams of marijuana in petitioner's car.

The motion for mistrial stemmed from the testimony of Sergeant Orange. During his direct examination of Sergeant Orange, the prosecutor asked whether Weber had said anything about the occurrence. Orange responded by saying "[t]hat he [Weber] felt that he was in a lot of trouble for not stopping." Report of Proceedings, at 28. Defense counsel immediately objected to the statement. He argued that the statement should be suppressed because the prosecutor had failed to provide it to the defense before trial, as required by CrR 4.7. Sergeant Orange took part in this colloquy between counsel and the judge.

The trial judge ruled the State could not use the statement. The court also instructed the jury to disregard Sergeant Orange's testimony concerning this conversation with Weber. The prosecutor then resumed his direct examination of Sergeant Orange. During the following exchange, however, Sergeant Orange repeated the forbidden statement:

Q. ... After you advised him of his constitutional rights ... what if any statement did Mr. Weber make to you? A. That at the time, the reason he hadn't pulled over, he thought it was just a vehicle behind him with--[his] headlights had hit a blue tinted glass windshield and that was the reflection he was receiving. Q. Did he say anything else to you at that time? A. That he felt that he was in a lot of trouble for not stopping.

Report of Proceedings, at 41. Defense counsel objected, argued that Sergeant Orange had deliberately tainted the jury, and moved for a mistrial. The motion was denied but the trial judge again instructed the jury to disregard the statement.

The jury found Weber guilty as charged. Weber's conviction was affirmed by Division One of the Court of Appeals in an unpublished opinion, State v. Weber, 30 Wash.App. 1034 (1981). This court granted review. We affirm for the reasons discussed below.

I

At oral argument, petitioner Weber raised, for the first time, the issue of whether this court had subject matter jurisdiction over his case. He urged our decision in State v. Taylor, supra, required that we dismiss his case for want of jurisdiction. In Taylor, this court held felony flights committed between January 1, 1981 and April 16, 1981 were decriminalized by RCW 46.63.020. The decision was the result of the following events. The Legislature, by enacting RCW 46.63.020, decriminalized minor traffic offenses. That statute took effect January 1, 1981. The Legislature excepted, however, certain, more serious traffic offenses from the decriminalization. Felony flight was not among those exceptions. ¹ When the Legislature realized its error it amended RCW 46.63.020 and reinstated felony flight's status as a crime. The remedial act took effect April 16, 1981. Taylor recognized the Legislature's failure to except felony flight from the original version of RCW 46.63.020, and held that this omission resulted in its being decriminalized from that date to the date the remedial amendment took effect. Weber now argues that our decision in Taylor requires us to find that felony flights committed prior to January 1, 1981 were decriminalized by implication. Petitioner's claim is without merit.

Petitioner's argument clearly contradicts RCW 10.01.040. That statute provides:

No offense committed and no penalty of forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed ... shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act.

Petitioner urges, despite the clear language of this statute, that the case of State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970) justifies a contrary result. That case involved a change in the statutes pertaining to the illegal use of marijuana. This court held that the statute, which classified marijuana as a dangerous drug rather than a narcotic, would be applied retroactively. The holding in Zornes was based on language in the new statute which stated that the provisions of the chapter governing narcotics "shall not ever be applicable to any form of cannabis.' " (Italics ours.) Zornes, at 13, 475 P.2d 109. The court noted that

[i]f the act in question is to have only prospective effect, the words "not ever" preceding the words "be applicable" are unnecessary. We must assume that the legislature added these words for a purpose, and that purpose it would seem is to direct the courts to refrain from applying those provisions to offenses involving cannabis.

Zornes, at 13, 475 P.2d 109.

As evident by the language above, the court's holding in Zornes was strictly a matter of legislative interpretation, limited to the statute then before the court. Furthermore, Zornes is unlike the situation presented here. Unlike Zornes, nothing in RCW 46.63.020 suggests an intent to make the decriminalization retroactive. Absent such language, the case is clearly governed by the saving statute, RCW 10.01.040. Also, the decriminalization of felony flight was inadvertent, as is obvious by the Legislature's action in quickly amending the statute when the mistake was realized.

II

Petitioner next argues that Sergeant Orange's reference to inadmissible testimony so prejudiced his case that he was denied a fair trial. To support this argument, the petitioner asserts the police officer's repetition of the statement was deliberate and that the statement was the only evidence directly on the issue of whether he acted wilfully. He concludes, therefore, the statement necessarily tainted the proceeding.

The Court of Appeals rejected the notion that an intentional statement must be treated differently from an inadvertent one and evaluated the issue of prejudice under the constitutional harmless error standard. That standard requires that a court inquire as to whether any rational trier of fact could have found the defendant guilty "beyond a reasonable doubt." State v. Evans, 96 Wash.2d 1, 4, 633 P.2d 83 (1981).

The reasonable doubt analysis does not, however, lend itself to problems involving trial irregularity. In a harmless error case, two inquiries are made: First, was there an error of law implicating a constitutional or nonconstitutional right? Second, was the error prejudicial? Here, the legal error, if it exists, is that the petitioner's trial was unfair. Thus, the 2-part analysis...