State v. Nunez

160 Wash.App. 150

248 P.3d 103

STATE of Washington, Respondent,

v.Enrique Guzman NUNEZ, Appellant.

No. 28259–7–III.

Court of Appeals of Washington, Division 3.

Feb. 15, 2011.

David L. Donnan, Washington Appellate Project, Jan Trasen, Attorney at Law, Seattle, WA, for Appellant.Eric C. Biggar, Douglas County Prosecutor's Office, Waterville, WA, for Respondent.

OPINION PUBLISHED IN PART

SIDDOWAY, J.

[160 Wash.App. 153] ¶ 1 Enrique Nunez appeals following his conviction of possession and delivery of a controlled substance and the imposition of a 24–month sentencing enhancement based on a jury finding that he committed his crimes within 1,000 feet of a school bus route stop. He asks us to vacate the school zone enhancement in light of State v. Bashaw, 169 Wash.2d 133, 234 P.3d 195 (2010) because the jury in his case was instructed that unanimity was required to acquit him of the aggravating factor—the same type of instruction given in Bashaw. He also assigns error to the trial court's refusal to dismiss charges against him for violation of his CrR 3.3 speedy trial rights and, in a statement of additional grounds, asserts a number of additional challenges to proceedings below. We refuse to review Mr. Nunez's challenge to the jury instruction under RAP 2.5(a) because he failed to object to the instruction in the trial court and we are satisfied that any error is not manifest constitutional error. We also reject his other claims of error and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 On March 10, 2009, the State charged Mr. Nunez with delivery of a controlled substance and possession of a controlled substance. He was detained on the charges and arraigned on March 23. In May, the State amended the information to add a special allegation that each of the crimes took place within 1,000 feet of a school bus zone or school.

¶ 3 At arraignment, the court noted that speedy trial expired on May 22, 2009. On April 22, the court set the trial date for May 28 based on a defense request for a continuance. The court recalculated speedy trial at June 29, 2009. On May 26, the parties indicated they were ready for trial on May 28.

¶ 4 The trial did not begin on May 28. On June 3, the court reset the trial for June 11. On June 8, the parties informed the court they were ready for trial on June 11. On June 18, trial was continued to June 25.

¶ 5 The trial did not occur on June 25. There is no record of a hearing on that date. However, minutes from a June 29 hearing indicate that the case was continued due to the State's involvement in another trial. Clerk's Papers (CP) at 78. In its motion for a continuance, the prosecutor explained:

The State was involved in a trial last week, which I indicate[d] ultimately settled, but it didn't settle until the jury was here.... I've been handling the prosecution throughout in that case, and so this matter had to have been bumped as a result of my schedule conflict.

Report of Proceedings (RP) (June 29, 2009) at 3.

¶ 6 Over Mr. Nunez's objection, the court continued the trial to July 1, stating:

[T]he Court believes that as the prosecution was involved in a trial last Thursday when Mr. Nunez was scheduled to go to trial, that case had been pending for about a year.... [I]t was the type of case that, by statute, the Court can't continue as a result of the child victim, and Mr. Biggar, who's the Prosecutor in both cases, was involved. So, under the circumstances, the Court believes that there is good cause to continue a minimal time, which is [the] day after tomorrow, his speedy trial into Wednesday.

Id. at 3–4.

¶ 7 When defense counsel asked the court to calculate the new speedy trial date, the judge responded:

Well, I'm not sure. As I understand the statute, as he's incarcerated, the Court has another 14 days under [ER] 3.3(g). And, candidly, I haven't even really looked at his file to see if there's other reasons to continue under 3.3(e), but under 3.3(g), the Court has 14 days.

Id. at 4.

¶ 8 On July 1, the day of trial, defense counsel again objected to the continuance based on a speedy trial expiration date of June 29. RP (July 1, 2009) at 47. The court overruled the objection and the case proceeded to trial. Id. A jury found Mr. Nunez guilty of both charges as well as the special verdicts. At sentencing, the court dismissed the special verdict on count 1.

¶ 9 After this appeal had been fully briefed, the Washington Supreme Court issued its decision in Bashaw, holding that it was error to instruct a jury that its decision as to the existence of an aggravating sentencing factor must be unanimously “yes” or “no.” Because a similar instruction had been given with respect to the school bus route stop enhancements imposed in this case, Mr. Nunez moved to supplement his brief in order to raise this additional assignment of error. The motion was granted.

ANALYSIS

I. Alleged Instructional Error

¶ 10 Mr. Nunez asks us to vacate his sentencing enhancement based on the Supreme Court's decision in Bashaw, 169 Wash.2d 133, 234 P.3d 195.

¶ 11 Bashaw reversed this court's decision in State v. Bashaw, 144 Wash.App. 196, 201, 182 P.3d 451 (2008), in which we addressed a challenge to a concluding instruction directing the jury that in deciding whether the defendant committed the aggravating factor of selling a controlled substance within 1,000 feet of a school bus route stop, “ ‘all twelve of you must agree on the answer to the special verdict’ ”—an instruction that Ms. Bashaw contended wrongly required unanimous agreement in order to answer “no,” contrary to State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003). We held that the instruction in Ms. Bashaw's case, like the pattern instruction then in use, correctly required unanimity to convict or acquit a defendant of an aggravating factor, clarifying Goldberg as we understood it; alternatively, we held that the error was harmless. The Supreme Court accepted review and reversed, stating the rule of Goldberg as follows:

[A] unanimous jury decision is not required to find that the State has failed to prove the presence of a special finding increasing the defendant's maximum allowable sentence. A nonunanimous jury decision is a final determination that the State had not proved the special finding beyond a reasonable doubt.

Bashaw, 169 Wash.2d at 146, 234 P.3d 195.

¶ 12 The concluding instruction in Mr. Nunez's case, like the instruction in Bashaw, erroneously required unanimity to acquit Mr. Nunez of the aggravating factors of possessing and delivering a controlled substance within 1,000 feet of a school bus route stop.¹ But Mr. Nunez did not object to the concluding instruction given by the trial court. RP (July 1, 2009) at 241–43.

¶ 13 RAP 2.5(a) states the general rule for appellate disposition of issues not raised in the trial court: appellate courts will not entertain them. State v. Scott, 110 Wash.2d 682, 685, 757 P.2d 492 (1988). As pointed out in Scott, the general rule has specific applicability with respect to claimed errors in jury instructions in criminal cases through CrR 6.15(c), requiring that timely and well stated objections be made to instructions given or refused “ ‘in order that the trial court may have the opportunity to correct any error.’ ” Id. at 686, 757 P.2d 492 (quoting City of Seattle v. Rainwater, 86 Wash.2d 567, 571, 546 P.2d 450 (1976)).

¶ 14 Mr. Nunez does not suggest an exception to RAP 2.5(a) that warrants raising the form of special verdict in his case for the first time on appeal. He generally cites Washington Const. art. I, §§ 21 and 22 in support of his assignment of error, however. In addition, the Supreme Court's decision in Bashaw applied constitutional harmless error analysis, a matter we discuss below. “[M]anifest error affecting a constitutional right” is one of the exceptions that can be raised for the first time on appeal. RAP 2.5(a)(3). We therefore consider whether the giving of an instruction that requires a jury to deliberate to unanimity in order to acquit a defendant of an aggravating factor constitutes manifest constitutional error.

¶ 15 To demonstrate that an error qualifies as manifest constitutional error an appellant must “ ‘identify a constitutional error and show how the alleged error actually affected the [appellant's] rights at trial.’ ” State v. O'Hara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009) (alteration in original) (quoting State v. Kirkman, 159 Wash.2d 918, 926–27, 155 P.3d 125 (2007)). We do not assume that an error is of constitutional magnitude. Id. (citing Scott, 110 Wash.2d at 687, 757 P.2d 492). We look to the asserted claim and assess whether it implicates a constitutional interest as compared to another form of trial error. See id.

¶ 16 If the claimed error is of constitutional magnitude, we determine whether the error is manifest. “ ‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.” Id. at 99, 217 P.3d 756 (internal quotation marks omitted) (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125). To demonstrate actual prejudice there must be a “ ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.’ ” Id. (internal quotation marks omitted) (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125). In determining whether the error was identifiable, the trial record must be sufficient to determine the merits of the claim. Id. “ ‘If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.’ ” Id. (quoting State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995)).

¶ 17 The determination whether the error is manifest and actual prejudice has been shown is a different question from whether the error was harmless; harmless error analysis takes place only after it has been determined that the trial court committed manifest constitutional error. As explained in O'Hara:

In order to ensure the...