State v. Gudgell

499 P.3d 229

STATE of Washington, Petitioner,

v.David GUDGELL, Respondent.

State of Washington, Petitioner,

v.Robert Gudgell, Respondent.

No. 54657-4-II consolidated with No. 54664-7-II

Court of Appeals of Washington, Division 2.

Filed November 23, 2021

Mark D. Mcclain, Attorney at Law, 1115 W Broadway Ave., Spokane, WA, 99260-2051, Benjamin J. Haslam, WA State Attorney General's Office, 1220 Main St. Ste. 510, Vancouver, WA, 98660-2964, for Petitioner.

Nathaniel Lauren Needham, Guy Glenn Law Firm, 12305 Sandridge Rd., Long Beach, WA, 98631-5701, Mark W. Muenster, Attorney at Law, 1010 Esther St., Vancouver, WA, 98660-3028, for Respondent.

PUBLISHED OPINION

Veljacic, J.

¶ 1 David and Robert Gudgell are captains on charter boats, the Westwind and the Katie Marie , and they used Pacific Salmon Charters (PSC) to book their passengers. The Gudgells were convicted in district court of unlawful recreational fishing in the second degree. The superior court then reversed the convictions. The State now seeks to overturn the superior court's order reversing the convictions.

¶ 2 The State argues that the superior court erred when it determined that the search warrant issued for the search of PSC and five boats was overbroad and inseverable, that no nexus existed between the records to be seized and the places to be searched, that the failure to give an accomplice instruction was not reversible error because a "captain's liability" instruction adequately informed the jury of the law of accomplice liability, and that even if the failure to give the accomplice instruction was error, the error was invited by the Gudgells and it was harmless.

¶ 3 We conclude that probable cause existed to obtain records from PSC relating to the Westwind (David Gudgell's boat), but not the Katie Marie (Robert Gudgell's boat). We also conclude that the warrant is severable despite its overbreadth. We further conclude that instructional error requires reversal. Accordingly, we affirm the superior court's reversal of the Gudgells’ convictions, but remand for a new trial with respect to David Gudgell.

FACTS

I. INITIAL INVESTIGATION

¶ 4 On May 11, 2017, while on a fishing expedition on the boat the Westwind , captained by David Gudgell and owned by PSC, Timothy Barry observed the crew of the Westwind engaged in high-grading of halibut, which involves continuing to fish after the daily catch limit is reached, and then throwing the smallest fish overboard at the end of the day to fall under the catch limit. Barry saw David Gudgell and a deckhand encourage the customers to continue fishing after the boat had reached its limit of one halibut per passenger. At the end of the day, the deckhand laid out 19 halibut on the deck, which exceeded the limit of 12 halibut (one for each passenger). The deckhand then threw the seven smallest halibut overboard. Three were clearly dead after having their gills cut, and four appeared to be dead. Barry reported what he had seen to the Department of Fish and Wildlife (WDFW). The investigating WDFW officer, Todd Dielman, obtained written statements from two other people who were on the Westwind on May 11, 2017, who confirmed Barry's report.

¶ 5 A month later, on the last day of the halibut season, WDFW arranged to have an undercover officer go on a halibut fishing trip on the boat Pacific Dream , captained by Thomas Merriman and Brian Cables and owned by Merriman. The officer booked and purchased a place on the Pacific Dream through PSC. The officer observed similar high-grading by the crew occurring on that trip, and the crew confirmed to the WDFW officer that they had engaged in high-grading.

II. AFFIDAVIT AND SEARCH WARRANT

¶ 6 The State obtained a warrant to search the PSC offices and five boats for "[a]ll passenger manifests contained in either a schedule book or an electronic storage device ... including passenger contact information" for all chartered halibut trips of the 2017 season. Clerk's Papers (CP) (David Dist. Ct.) at 235.¹ The warrant authorized the search of the Katie Marie , owned and captained by Robert Gudgell² and the Westwind , captained by David Gudgell but owned by PSC, as well as three other boats: the Pacific Dream , where high-grading had been observed, the Sarah Kay , and the MarB III . The warrant asserted that there was probable cause to believe that evidence of unlawful recreational fishing in the second degree and wastage of fish and wildlife could be found in the PSC offices and on the Katie Marie , the Westwind , the Pacific Dream , the Sarah Kay , and the MarB III .

¶ 7 Dielman's affidavit indicated that prior to being employed as a WDFW officer, he owned and operated his own charter fishing business from 2001 to 2014. Dielman recounted his investigation. He related that he began by talking to Barry and to two other passengers from the May 11 trip on David Gudgell's boat, the Westwind . The other passengers corroborated what Barry had reported: that an over limit of seven halibut was discarded from the boat, and at least three of those fish were already dead. One passenger, Gary Collenborne, related that, "From the nature of the ongoing conversation/banter among the captain, the deckhand, and [two other fishermen, who were "regulars"] during the course of [the trip, it] appeared to me that the two regulars were fully aware of what was going on and took it as a matter of course, something routine." CP (David Dist. Ct.) at 243.

¶ 8 Dielman also included in the affidavit the events of the undercover investigation that occurred on the Pacific Dream . When the undercover officer, Warren Becker, arrived at PSC, a woman working took his money, checked his name off in a big logbook, and gave him a receipt invoice to give to the captain. Becker also related that almost immediately before departing, one of the captains "mentioned if people caught ‘little chickens’ referring to smaller halibut, they would not gaff them but rather keep them swimming around in the storage container, so that people could size up if they happened to catch a larger halibut." CP (David Dist. Ct.) at 245.

¶ 9 Dielman wrote that based on his training and experience, the eyewitness accounts of the passengers from the May 11, 2017 Westwind trip, and Becker's observations on the Pacific Dream , he "believe[d] possession of an overlimit of halibut and wastage resulting from high-grading to be a standard practice for [PSC]." CP (David Dist. Ct.) at 250. He continued, "To fully understand the scope of these crimes, all of the clients from previous halibut charter trips need to be contacted to see if they witnessed or participated in any of these unlawful practices. I believe that these individuals can only be identified by searching for and seizing the business records that we know exist based on observations by our undercover officer." CP (David Dist. Ct.) at 250.

III. SEARCH RESULTS

¶ 10 WDFW obtained the following records from the PSC offices: two large schedule books, two stacks of booking slips, used license books, receipts for halibut trips, photo copies of payment logs on halibut days for the boats associated with the Gudgells, the Westwind and the Katie Marie , but also for the Pacific Dream and the Mar B III .³ With this information, officers contacted and interviewed former passengers of the Westwind and the Katie Marie . Based on these interviews, the State charged David Gudgell, captain of the Westwind , and Robert Gudgell, captain of the Katie Marie , with multiple counts of unlawful recreational fishing in the second degree, for fishing for more than the daily limit of halibut, and for failure to return fish immediately to the water. The State also charged David Gudgell with one count of waste of fish.

IV. SUPPRESSION MOTION

¶ 11 Prior to trial, the Gudgells moved to suppress the evidence seized under the search warrant, arguing that the search warrant did not establish probable cause that evidence of a crime would be found at the place to be searched; the search warrant did not establish a nexus between the criminal activity, the item to be seized, and the place to be searched; and the search warrant was overbroad.

¶ 12 The district court denied the motion to suppress, concluding (1) that there was probable cause to issue the warrant based on the Dielman's affidavit "combined with his expertise in the charter fishing business," (2) that a connection existed between the alleged crimes and the records located at PSC which consisted of the names of additional prior customers and crew members who could provide further evidence, and (3) even if the search warrant as written was arguably overbroad, the severability doctrine applied to preserve the relevant evidence seized. CP (David Dist. Ct.) at 288.

V. TRIAL

¶ 13 Twelve people who had taken halibut fishing trips on David Gudgell's boat during the 2017 season testified. A former deckhand of David Gudgell also testified.

¶ 14 Eleven people who had taken trips on Robert Gudgell's boat during the 2017 halibut season also testified. Dielman testified and after the State rested, both the Gudgells testified.

¶ 15 Both the Gudgells and the State proposed an accomplice liability instruction. The court engaged in extensive discussion with the parties about the accomplice liability instruction. They struggled with how to reconcile the unlawful recreational fishing statute's lack of mental state⁴ with the fact that accomplice liability attaches only when the accomplice acts or aids with knowledge of the specific crime.

¶ 16 The State also proposed a captain liability instruction, stating that a captain is strictly liable for actions of others on his or her boat. The court initially rejected the captain liability instruction but accepted the accomplice instruction without the knowledge requirement. Later, after further discussion, the court agreed to allow a modified captain liability instruction as well as the accomplice liability instruction with the knowledge requirement.

¶ 17 However, when...