                                                                                     FILED-             i
                                                                                                    F

                                                                               COURT , OF Al EAd        v
                                                                                     DIVISION 11

                                         20 JUL — 3 AM 8 L 7
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                           NU
                                                                               STATE tYr.

                                                    DIVISION II

STATE OF WASHINGTON,                                                           No. 43951 -4 -II


                                       Appellant,


            v.




JEFFREY DEAN TUCHECK,                                                    UNPUBLISHED OPINION


                                       Respondent.


            WORSWICK, J. —        During Jeffrey Tucheck' s jury trial on multiple drug offense charges,

the trial court determined that the State failed to timely disclose crime scene photographs to the

defense, and it dismissed the charges against Tucheck. The State appeals the trial court' s


dismissal order, asserting that ( 1) Tucheck failed to demonstrate the requisite prejudice to

support     dismissal    under   CrR 8. 3( b),   and ( 2) the trial court erred by concluding that the State had

committed a Brady' violation. Additionally, the State asserts that, even assuming that it had

violated Brady or the rules of discovery, the trial court erred in ordering dismissal of Tucheck' s

charges because it failed to consider remedies apart from dismissal. Because the trial court did

not abuse its discretion in dismissing Tucheck' s charges for governmental misconduct under CrR

8. 3( b),   we affirm.



                                                          FACTS


            Police officers executed a search warrant at Tucheck' s home in Tacoma, Washington.


During the search, police found methamphetamine, scales, packaging materials, cell phones,


1
    Brady v. Maryland, 373         U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
No. 43951 -4 -II



surveillance cameras, and cash. The State charged. Tucheck with unlawful possession of a


controlled substance with intent to deliver, unlawful use of a building for drug purposes,

unlawful use of drug paraphernalia, and unlawful possession of forty grams or less of marijuana.
                                                                                                                                   2
The State       also   filed   charges against        Tucheck' s   roommate,    Lisa Balkwill,         and   joined the   cases.




             Before trial, Tucheck' s defense counsel filed a discovery demand that, among other

things, requested the State to produce:


             A list of, copies of, and access to any books, papers, documents, photographs, or
             tangible objects which the Prosecuting Attorney intends to use in the hearing or
             trial [ and a] list of all items or things which were obtained from or belonged to the
             Defendant, regardless of whether the Prosecutor intends to introduce said items at
             hearing or trial.

Clerk'   s   Papers ( CP)      at   85 (   emphasis added).    Also before trial, the trial court entered omnibus


hearing orders signed by the prosecutor, which stated in part that the prosecutor had " provided to

defense       all   discovery in their possession          or control, pursuant    to CR 4. 7(     a)"     and had " contacted


law enforcement agencies to request and /or obtain any additional supplemental police reports,

forensic tests,        and evidence and         has   made   them   available   to defendant      or   defense   counsel."    CP


at 9. The State did not turn over any photographs to the defense before trial.

             Pierce    County       Sheriff' s Detective     Ray   Shaviri testified first   at   trial.    Shaviri described the


photographing process that typically occurs during the execution of a search warrant. According

to Shaviri, Tucheck admitted to possessing methamphetamine and giving methamphetamine to

friends but denied selling it. Shaviri stated that police did not locate any weapons at Tucheck' s

home.




2 The State does not appeal the trial court' s dismissal of Balkwill' s charges.



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No. 43951 -4 -II



         After Shaviri concluded his testimony, the State called Pierce County Sheriffs Deputy

Kory Shaffer as a witness. Shaffer briefly testified about various drug -related items found

during the search of Tucheck' s home before the trial court recessed for the day.

         When trial recommenced, the State told the trial court:


         Deputy Shaffer testified on Thursday and he mentioned photos, and when I had
         looked at the discovery in this case there was no mention anywhere of photos
         having been taken. Usually that' s on the property list, and I didn' t see anything
         on the property list. The State also sent a follow - p request for any further
                                                               u
         discovery that we maybe have, and I didn' t receive anything. But I talked to Kory
         Shaffer after he testified on Thursday, and he said yes, there should have been
         further    photos.       And Detective Shaviri brought them to my office on Friday. I
         gave      them to defense    on Friday, around 11: 00. I gave them to the defense that
         afternoon, and I notified both attorneys by email as soon as I got the photos that I
         had them. [ Tucheck' s defense counsel] just got his copy this morning.

Report of Proceedings ( RP) at 237. 3 The defense then moved for dismissal of all charges under

CrR 8. 3     and   Brady   v.   Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).               The trial


court reserved its ruling on the defense' s motion to dismiss to allow parties time to research the

issue further, but stated that continuing the case was " not an option" and that it was prepared to

either   dismiss the   case or      declare    a mistrial.     RP   at   243.   Following a recess, the State asserted

that it had disclosed to the defense before trial                a police report with a notation     indicating "'   photos



                                                   4
of   items   of evidence.'"       RP   at   247.       The State then argued that it did not violate Brady or the

discovery rules because defense counsel was on notice of the photographic evidence that had

been in police possession. The trial court orally ruled that the State failed to provide timely

notice of the photographic evidence and that the State' s failure to disclose the photographs


3 The record on appeal does not contain the approximately 50 photographs at issue.

4 The record on appeal does not contain a copy of this police report.



                                                                    3
No. 43951 -4 -II



prejudiced the defendants. When discussing the possible remedy for the State' s failure to timely

disclose the crime scene photographs, counsel for both the defendants stated that they opposed a

mistrial and that the defendants would not waive their right to be tried by the jury that had been

selected. The trial court then orally ruled that it was dismissing Balkwill' s charges and that it

would hear arguments regarding the remedy for Tucheck' s case the following morning.

       The next day, after hearing extensive arguments from counsel, the trial court asked

whether it could reverse its oral decision to dismiss Balkwill' s case. The State responded that it


would file a motion to reconsider the trial court' s oral ruling dismissing Balkwill' s charges. The

trial court then recessed to see if Balkwill and her counsel could be present for arguments on the


State' s reconsideration motion. The trial court reconvened later that same day. Balkwill' s

counsel stated that Balkwill was unavailable and objected to the hearing. The trial court then

ruled that it would dismiss Tucheck' s charges and later entered its findings of fact and


conclusions of law. The State timely appeals the trial court' s order dismissing Tucheck' s

charges.




                                                      ANALYSIS


        We first address whether dismissal was proper under CrR 8. 3( b) for a violation of the

                     5
discovery   rules.       Brady, 373 U. S. at 87 ( suppression by prosecution of material evidence

favorable to the defendant        violates   due   process);   State v. Hall, 95 Wn.2d 536, 539, 627 P. 2d 101


5 We note that there is a difference between a defendant' s due process right to discovery and the
prosecutor' s discovery obligations under court rule. A criminal defendant' s constitutional due
process right to discovery extends only to exculpatory or impeaching evidence material to the
defendant' s guilt or punishment. Brady, 373 U.S. at 87; Strickler v. Greene, 527 U.S. 263, 280 -
82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 ( 1999).            In contrast, a prosecutor' s discovery obligations
under court rule are more extensive. See CrR 4. 7.




                                                               4
No. 43951 -4 -II


 1981) (     Reviewing courts should not decide constitutional issues " unless absolutely necessary to

the determination of the                 case. ").   We hold that the trial court did not abuse its discretion in


dismissing Tucheck' s charges under CrR 8. 3( b) and thus we do not reach the constitutional issue
                                     6
presented under            Brady.

A.           Standard ofReview

             CrR 8. 3( b) governs a trial court' s dismissal of criminal charges due to governmental

misconduct. That rule provides:


             The court, in the furtherance of justice, after notice and hearing, may dismiss any
             criminal prosecution due to arbitrary action or governmental misconduct when
             there has been prejudice to the rights of the accused which materially affect the
             accused' s      right       to a   fair trial.   The court shall set forth its reasons in a written
             order.



             Under CrR 8. 3( b),           a trial court may dismiss a defendant' s charges if the defendant makes

two showings. First, the defendant must show arbitrary action or governmental misconduct.

State   v.   Michielli, 132 Wn.2d 229, 239 -40, 937 P. 2d 587 ( 1997).                     Such governmental misconduct


 need not       be      of an evil or      dishonest    nature,"   rather, " simple mismanagement     is   sufficient."   State




6 Tucheck asserts that if we were to reverse the trial court' s dismissal order, a retrial would
nonetheless be barred by the constitutional prohibition against double jeopardy because he did
not consent to the trial court' s prior mistrial ruling. The prohibition against double jeopardy
protects a defendant' s "` valued right to have his trial completed by a particular tribunal. '

Arizona       v.   Washington, 434 U. S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 ( 1978) ( quoting
Wade     v.   Hunter, 336 U. S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 ( 1949)).
                                                                              Accordingly, where a
trial court declares a mistrial over the defendant' s objection, double jeopardy principles may
prohibit a retrial. State v. Robinson, 146 Wn. App. 471, 478 -79, 191 P. 3d 906 ( 2008). The right

to be tried        by   a particular       tribunal,   however, " must in some instances be subordinated to the
public' s     interest in fair trials designed to              end   in just judgments."   Wade, 336 U. S. at 689. Thus, a
trial court' s mistrial ruling over the defendant' s objection would not bar retrial if the ruling was
justified by a "` manifest necessity. ' Robinson, 146 Wn. App. at 479 -80. Because we hold that
the trial court did not abuse its discretion when it dismissed Tucheck' s charges, we need not
decide whether a " manifest necessity" justified the trial court' s prior mistrial ruling.



                                                                        5
No. 43951 -4 -II



v.   Dailey,      93 Wn. 2d 454, 457, 610 P. 2d 357 ( 1980).           Second, a defendant seeking dismissal

under CrR 8. 3( b) must also show that such governmental misconduct prejudiced his or her right

to a fair trial. Michielli, 132 Wn.2d at 240. Dismissal under CrR 8. 3 is an extraordinary remedy

and, thus, a trial court should consider alternative remedies before resorting to dismissal. State v.

Wilson, 149 Wn.2d 1, 12, 65 P. 3d 657 ( 2003).


            A trial court' s power to dismiss under CrR 8. 3( b) is discretionary, and we will reverse a

trial   court' s    CrR 8. 3( b) dismissal ruling only for        a " manifest abuse of   discretion." Michielli, 132


Wn.2d       at   240; State    v.   Burri, 87 Wn.2d 175, 183, 550 P. 2d 507 ( 1976). " Discretion is abused


when the trial court' s decision is manifestly unreasonable, or is exercised on untenable grounds,

or   for   untenable reasons."          State   v.   Blackwell, 120 Wn.2d 822, 830, 845 P. 2d 1017 ( 1993).     We


review a         trial   court' s challenged    factual findings for   substantial evidence.?   State v. Sommerville,


111 Wn. 2d 524, 533 -34, 760 P. 2d 932 ( 1988). " Substantial evidence exists if the record contains


evidence of sufficient quantity to persuade a fair -
                                                   minded, rational person of the truth of the

declared         premise."     Sommerville, 111 Wn.2d at 534.


B.          Governmental Misconduct


            The State asserts that substantial evidence does not support the trial court' s findings that


its untimely disclosure of crime scene photographs to the defense constituted governmental

misconduct. The State first argues that there is no evidence in the record to support the trial


court' s finding that Shaviri knew about the crime scene photographs but failed to turn them over


7 The State assigns error to several of the trial court' s findings of fact, but we address only those
challenged factual findings that are relevant to our determination of whether the trial court
abused its discretion in dismissing Tucheck' s charges under CrR 8. 3( b).




                                                                  6
No. 43951- 4- 11



to the defense. We disagree. The State told the trial court that it had sent a request to police


requesting any further discovery in police possession before trial, but that it did not receive the

photographs at that time. After confirming that police took photographs during its search of

Tucheck' s home, the State received the missing photographs from Shaviri. Accordingly,

substantial evidence supports the trial court' s finding that Shaviri had been in possession of the

photographs but failed to disclose them to the defense. Moreover, regardless of whether Shaviri


or another officer had been in possession of the missing photographs, the State does not contest

the fact that the photographs were in police possession and, thus, substantial evidence supports

the trial court finding that the State committed governmental misconduct under CrR 8. 3( b) for

failing to timely disclose that evidence to the defense.

          The State also argues that the trial court' s governmental misconduct findings were

incomplete in that the findings did not adequately " explain the nature of the mismanagement or

the   extent."     Br. of Appellant at 15. The State fails to explain, however, how this alleged


deficiency    is   material     to the issue before   us—    whether substantial evidence supports the trial


court' s findings that the State committed governmental misconduct. As our Supreme Court

stated   in Dailey, " simple mismanagement is sufficient" to demonstrate governmental misconduct


under    CrR 8. 3( b).       93 Wn.2d at 457. Here, the State concedes that it did not timely disclose the

photographs at issue with the defense. This constitutes governmental misconduct under CrR

8. 3( b). See,     e. g.,   State   v.   Brooks, 149 Wn.   App.   373, 384 -86, 203 P. 3d 397 ( 2009). The trial


court' s findings that the State committed governmental misconduct by failing to timely disclose




                                                                  7
No. 43951- 4- 11



crime scene photographs            to the defense is   supported      by   substantial evidence      in the   record.   8 We

thus turn to whether substantial evidence supports the trial court' s finding that the State' s

governmental misconduct prejudiced Tucheck.


C.        Prejudice


          The State asserts that, even if substantial evidence in the record supports the trial court' s


finding of governmental misconduct, the evidence does not support the trial court' s finding that

such governmental mismanagement prejudiced Tucheck' s right to a fair trial. We disagree.

          Here, the trial court found that the late disclosure of photographic evidence substantially

prejudiced Tucheck' s defense because the late disclosure " hindered [ Tucheck' s] ability to

prepare    for trial,"   and necessitated a change in defense strategy midway through trial. In Brooks,

a trial court dismissed the defendants' charges following the State' s failure to provide the

defense    with certain     discovery    material   until   the   eve of   trial.   149 Wn.   App.   at   377 -83. We


affirmed the trial court' s CrR 8. 3( b) dismissal order, holding that the State' s late disclosure of

discovery material prejudiced the defendants because it "prevented defense counsel from

preparing for trial in       a   timely fashion."   Brooks, 149 Wn. App. at 390. Our Supreme Court has

similarly held that        prejudice under   CrR 8. 3( b) includes         an   infringement   on   the '   right to be


represented by counsel who has had sufficient opportunity to adequately prepare a material part

of   his defense .... "'         Michielli, 132 Wn.2d at 240 ( quoting State v. Price, 94 Wn.2d 810, 814,

8 The State also assigns error to the trial court' s findings regarding Shaviri' s testimony and
contends that the trial court erred by relying on these findings in determining that the State
committed governmental mismanagement. We do not address whether substantial evidence in
the record supports these findings, however, because we hold that the State' s failure to timely
disclose crime scene photographs to the defense, alone, constituted governmental misconduct
under CrR 8. 3( b).




                                                                  8
No. 43951 -4 -II


620 P. 2d 994 ( 1980));   see also Dailey, 93 Wn.2d at 458 -59 ( affirming trial court' s CrR 8. 3( b)

dismissal for the State' s mismanagement in providing supplemental witness list on the eve of

trial and for other delays in providing discovery).

        Here, the prejudice to Tucheck' s defense is even more apparent than in Brooks because


the State' s late disclosure of photographic evidence occurred midway through trial, after

Tucheck' s counsel had already cross -examined Shaviri. The photographic evidence was clearly

material to defense counsel' s cross -examination of Shaviri because the photographs revealed

information that could have been used to impeach Shaviri. For example, the photographs


depicted weapons and several vehicles, calling into question Shaviri' s testimony that police did

not locate any weapons in the home and did not locate a vehicle belonging to Tucheck. The

photographic evidence also contained information that could have been used to cross -examine


Shaviri on the quality of the police investigation because the photographs depicted items not

collected into evidence such as backpacks, a suitcase, and an identification card belonging to

another individual. Accordingly, substantial evidence supports the trial court' s finding that the

State' s untimely disclosure of crime scene photographs prejudiced Tucheck because the untimely

disclosure hindered counsel' s trial preparation and forced counsel to change its strategy after trial

had already begun.

D.      Alternative Remedies


        Finally, the State asserts that the trial court erred by failing to consider alternative

remedies before dismissing Tucheck' s charges. Again, we disagree. Although the trial court

stated that continuing Tucheck' s .trial was " not an option" and that it was prepared to either

dismiss the case or declare a mistrial, the record shows that after the trial court made this




                                                     9
No. 43951 -4 -II



statement it considered the State' s argument for suppression of the crime scene photographs as a


remedy for the State' s discovery violation. The trial court, however, found that the prejudice to

the defendants was too great to allow the trial to continue and, thus, concluded that suppression


of the evidence was inadequate to remedy the State' s discovery violation. The trial court also

declared a mistrial before it concluded that dismissal was the more appropriate remedy for the

State' s failure to timely disclose evidence to the defense. Accordingly, the record belies the

State' s assertion that the trial court failed to consider alternative remedies before dismissing

Tucheck' s charges.


         In Brooks, we noted that, because a criminal defendant has separate constitutional rights


to a speedy trial and to effective assistance of counsel, the State cannot force a defendant to

choose   between his speedy trial      rights and   his   right   to   effective counsel.   149 Wn.App. at 387

 citing Price, 94 Wn.2d   at   814).    And when the State causes a series of delays in the discovery

process, inexcusably fails to provide substantial amounts of discovery, or fails to disclose

discovery materials until shortly before a crucial stage in the litigation process, it may prejudice

one or both of these constitutional rights. Price, 94 Wn.2d at 814; see Brooks, 149 Wn.App. at

388 ( noting that the State' s delay in providing discovery supported the finding of actual

prejudice   to the defendant).   Similarly, a defendant should not have to choose between his or her

right to effective counsel and the " valued right to have his trial completed by a particular

tribunal" due to the State' s failure to    timely disclose        evidence    to the defense.   Wade v. Hunter,


336 U. S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 ( 1949).                Accordingly, we hold that substantial

evidence in the record supports the trial court' s findings that the State committed prejudicial


misconduct under CrR 8. 3( b) by failing to timely disclose evidence to the defense, and that the



                                                            10.
No. 43951 -4 -II



trial court did not abuse its discretion in determining that dismissal was an appropriate remedy

for such misconduct. We affirm the trial court' s dismissal order.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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