                                                                                                FILED
                                                                                       COURT OF APPEALS
                                                                                              DIVISION II
                                                                                     2015 APR 2!
                                                                                                     All 9: 03
                                                                                     STATE 0
                                                                                     BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                 DIVISION II

 STATE OF WASHINGTON,                                                      No. 45496 -3 -II


                                       Respondent,                     UNPUBLISHED OPINION


        v.



 JEFFREY D. ROBINSON


                                       Appellant.

       BJORGEN, A.C. J. —        After the trial court concluded that the State had committed a CrR


4. 7 discovery violation by failing to disclose certain evidence to the defense before trial, Jeffrey

Robinson requested the dismissal of his charges as a remedy. The trial court declined

Robinson' s request to dismiss his charges and instead allowed Robinson to choose as a remedy

either suppression of the undisclosed evidence or a mistrial; Robinson chose a mistrial. At the


conclusion of his second trial, the jury returned verdicts finding Robinson guilty of possession of

a stolen vehicle. Robinson appeals his conviction, asserting that the trial court abused its

discretion   by failing   to dismiss   his   charges.   We   affirm.
No. 45496 -3 -II



                                                   FACTS


         On May 7, 2013, the State charged Robinson with one count of possession of a stolen

vehicle. The State later amended its charges to add one count of theft of a motor vehicle.


Robinson' s first trial commenced on August 20, 2013.


         During its opening statement at the first trial, the State told the jury that Washington State

Patrol Trooper James O' Connor would testify regarding the significance of a tans truck that was

present near where he had pulled over Robinson in a blue truck that was later reported as stolen.


After the first trial witness concluded her testimony, Robinson' s defense counsel told the trial

court that the State had committed a discovery violation by failing to disclose Trooper

O' Connor' s claim that the tan truck was involved in the theft of the blue truck that Robinson


allegedly stole and possessed. Defense counsel stated that she had specifically asked Trooper

O' Connor about the significance of the tan truck during a pretrial interview, but that he " pretty

much just shrugged it off' and told her that he had " just cleared the stop" of the tan truck.

Report   of   Proceedings ( RP) (   Aug. 20, 2013) at 53.

         Defense counsel moved to dismiss Robinson' s charges based on the alleged discovery

violation. After hearing testimony from Trooper O' Connor and extensive arguments from

counsel, as well as reviewing a transcript of defense counsel' s interview with Trooper O' Connor,

the trial court found that the State had violated the rules of discovery by failing to disclose

evidence to the defense. Because of this violation, Robinson filed a motion to dismiss his




1 The tan truck is the same as the " second vehicle" or " second truck" referred to in the record
excerpts below.


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charges, which the trial court denied, noting that dismissal was too harsh a penalty for the State' s

discovery violation. Instead, the trial court allowed Robinson to choose between a mistrial or

suppression of the previously undisclosed evidence as a.remedy for the State' s discovery

violation. Robinson chose a mistrial. The trial court ordered a mistrial and later entered the


following findings of fact, which findings are not challenged in this appeal:

                                     A. February 25, 2013 Incident
        1.        On February 25, 2013 Trooper O' Connor pulled over a blue Toyota pick up
       truck    for failure to signal as it entered the highway from the off ramp. Later that
       day    the    vehicle     was reported        as    stolen.       Trooper O' Connor spoke with Officer
        Sabado and informed him about the contact. Officer Sabado' s report indicated that
       Trooper O' Connor mentioned another vehicle appeared to be waiting in the area.
       The license number of that vehicle was provided. Trooper O' Connor' s report did
       not mention the second vehicle.


                                                B. June 17, 2013 Interview
        2.          On    June       17,   2013      defense    counsel         interviewed Trooper        O' Connor
        concerning the          events of    February      25, 2013.       Deputy Prosecutor Robert Davy was
        present     for that interview. Defense counsel asked Trooper O' Connor to tell her
        about    what      he   remembered             February 25th just prior to 1: 00. Trooper
                                                     about

        O' Connor        stated: "   I was traveling southbound on State Route 3, just north of Finn
        Hill.    It' s approximately          milepost       52 traveling        south.    Under Finn Hill there, I
        observed a small          pickup truck using the                 on -ramp     from Finn Hill to South 3.   I

        observed the pickup not use its left turn signal to merge onto the highway. At that
        point, when I observed the vehicle not use its turn signal, I stopped the vehicle and
        made    my    contact with         the driver. [ "] The trooper then discussed the contact with

        the driver of that pickup truck.

        3.       describing the contact, Trooper O' Connor then stated: " I cleared the stop.
             After

        Jeffrey —the driver of the Toyota exited back on the highway and [ I] continued to
        patrol that night. [ "]


        4.    Defense counsel asked the Trooper if he had contact with someone else about
        that time and the trooper stated that he had contact with a vehicle he categorized as
        a    disabled     vehicle     just   after   his   contact       with   the   blue pickup truck.   No other
        information was provided.


        5.    Because a second vehicle had been mentioned in Sabado' s report, defense
        counsel attempted to follow up on that and was not able to find the driver, but was


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No. 45496 -3 -II



       interested in that second vehicle because there could have been some exculpatory
       information that could have been provided.


       6. Based on the interview with Trooper O' Connor, defense counsel did not follow
       up further believing that information was a dead end and not relevant to the
       incident.


       7.      After the interview with defense counsel, Trooper O' Connor had further
       conversation with DPA Davy that was not in the presence of defense counsel. DPA
       Davy fleshed out more information concerning the second vehicle. DPA Davy was
       aware that defense counsel did not have this information as it was not disclosed in
       any police report and he was present for the interview with defense counsel just
       moments before. DPA Davy knew that defense counsel did not have the additional
       information, however, DPA Davy did not disclose that information to defense
        counsel.




                                     C. Opening Statement August 20, 2013
        8.   Mr.   Davy     in his opening statement: " There was a second truck present
                           stated

       just behind the truck that Mr. Robinson was driving. Trooper O' Connor is going
        to tell you that he thought it was odd at the time, being hardly any traffic, if at all,
        at one o' clock in the morning on a Sunday night in Poulsbo, or just south of Poulsbo
        on   the   highway,    and   that the      second   truck   did   a slow roll -by— didn' t   get over in
        another    lane,   even   though that lane was open —             did a very, very, slow roll -by of the
        officer who had stopped this vehicle. Estimates 10, 15, 20 miles an hour on a 60-
        mile -an- hour highway. Trooper O' Connor will tell you the second truck continued
        on, approximately, a quarter mile, half a mile just down the road, but that it' s a
        straight road and it' s a clear road, and that he can see that that second truck pulls
        over and turns on its flashers while Trooper O' Connor was conducting a traffic stop
        with this first truck, the defendant' s truck. He initially saw this second truck pull
        by him at a slow rate of speed, but it stopped up there and put on its flashers. He' s
        completed the first stop.  Nothing amiss that he can tell at this point, other than
        giving the defendant a verbal warning for not having his license on him and for a
        lane   violation    that he   witnessed.       Trooper O' Connor pulls up behind the second
        truck. And he will tell you, the flashers were on; that truck didn' t move that entire
        time; it    was    in his   sight   that   entire   time that he dealt     with   the first truck.   And

        Trooper O' Connor will tell you that he went up to that second truck and offered his
        assistance...      He approached the vehicle and he noticed that the driver was sitting
        there and the      cell phone —      and there was a cell phone on the bench seat next to the
        driver.




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No. 45496 -3 - II



        9. In    describing count II, theft of a motor vehicle, Mr. Davy says: " The trooper will
        tell   you   that   he is   sure   that it'   s   the    right   guy. But what' s additional with Count II
        is the State will bring evidence that shows you, circumstantially, that the defendant
        took the vehicle from that lot, which is why he was in such close proximity to the
        victims' home at the time that he did, what was in the car, what the other truck was
        doing, and why all of that together will show you beyond a reasonable doubt that
        the defendant also stole that truck from the Stevensons.


                              D. Voir Dire of Trooper O' Connor August 21, 2013
        10. Trooper O' Connor testified that immediately after the interview with defense
        counsel in June, that he and Mr. Davy had a conversation wherein more information
        was fleshed out concerning the tan pickup truck, such that the tan pickup truck was
        entering onto Highway 3 with the other vehicle; that the trooper, in stopping the
        blue Toyota, had to get between the two vehicles to effect the stop; that he saw the
        second vehicle traveling very slowly past the first vehicle, such that his opinion is
        that they were traveling together.

        11.     There was nothing in defense counsel' s interview or in Officer Sabado' s report
        that reveals that Trooper O' Connor saw these two cars traveling together off the
        on -ramp, that he had to get between them to effect the stop of the Toyota, that the
        driver of the brown car drove slowly past the trooper, which was unusual, or that
        the trooper felt or opined that the two were connected in any way, shape, or form.

        12. In defense counsel' s interview with Trooper O' Connor, hearing nothing about
        the second vehicle when he described his initial contact with the Toyota, asked
        Trooper O' Connor if he had                       contact        with   anyone   else.   Trooper O' Connor' s

        response was entirely consistent with the information previously disclosed by
        prosecutors         to the defense.       No information was ever disclosed prior to trial that
        would lead defense counsel to believe that the two vehicles were traveling together
        or     that there    was    a suspicion           that    they   were   connected    to each other.   Defense
        counsel would not and could not have known that information in her follow up with
        the trooper in his interview.


        13. The state intended to elicit from Trooper O' Connor his opinion concerning the
        second vehicle and the signs that the two were travelling together and that in his
        opinion the second vehicle acted as a disable[ d] vehicle in order for the first vehicle
        to get away clean. The state did not disclose that he intended to elicit this opinion
        from Trooper O' Connor.


Clerk' s Papers ( CP) at 159 -62.




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No. 45496 -3 -II



       Based on the above, the trial court concluded that the State had violated CrR 4. 7( h)( 2) by

failing to disclose evidence to defense counsel, that dismissal of Robinson' s charges was too

harsh a sanction for the State' s violation, and that mistrial was the proper remedy.

       After the trial court declared a mistrial, the parties discussed a possible date for the next


trial. The State suggested starting the new trial the following week. Defense counsel told the

trial court that Robinson had a neurology appointment the following Monday, August 26, and

that she wanted additional time to conduct some investigation. When the trial court suggested an


early September trial date, defense counsel stated that she would prefer a trial date at the end of

September because she had an ill family member in Illinois whom she wanted to visit in early

September. The trial court set a new trial date of September 30, noting that the CrR 3. 3 time for

trial period had started over when the court declared a mistrial.

        Robinson' s second trial began on September 30. At the start of trial, the State moved to


dismiss Robinson' s theft of a motor vehicle charge, which motion the trial court granted.2 At the

conclusion of Robinson' s second trial, the jury entered a verdict finding him guilty of possession

of a stolen vehicle. Robinson appeals his conviction.




2 Although Trooper O' Connor testified briefly about the tan truck at Robinson' s second trial, his
testimony did not suggest that the presence of the tan truck was relevant to Robinson' s
possession of a stolen vehicle charge.




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No. 45496 -3 - II



                                                       ANALYSIS


        Robinson contends that the trial court abused its discretion by failing to dismiss his

charges as a remedy for the State' s discovery violation.3 At the outset of our analysis, we note

that the trial court' s conclusion that the State had violated CrR 4. 7( h)( 2) by failing to disclose

evidence to the defense is not at issue in this appeal. Rather, the only issue before us is whether

the trial court abused its discretion when it denied Robinson' s motion to dismiss his charges as a


remedy for the State' s discovery violation, instead allowing him to choose between suppression

of the evidence or a mistrial.



        CrR 4. 7( h)( 2) imposes on the State a continuing duty to disclose certain evidence to the

defense, stating:

        Continuing Duty              to Disclose.     If, after compliance with these rules or orders
        pursuant thereto, a party discovers additional material or information which is
        subject to disclosure, the party shall promptly notify the other party or their counsel
        of the existence of such additional material, and if the additional material or
        information is discovered during trial, the court shall also be notified.

        CrR 4. 7(h)( 7) provides a trial court discretion to sanction a party that fails to comply with

the discovery rules, stating in relevant part:

        Sanctions.
                    i) [ I] f
                        at any time during the course of the proceedings it is brought to the
        attention of the court that a party has failed to comply with an applicable discovery
        rule or an order issued pursuant thereto, the court may order such party to permit
        the   discovery         of   material   and   information   not   previously disclosed,   grant   a

        continuance, dismiss the action or enter such other order as it deems just under the
        circumstances.




3 Robinson cites to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, .10 L. Ed. 215 ( 1963) in his
assignment of error, but does not argue that the State' s discovery violation rose to the level of a
Brady violation. Accordingly, we do not address the constitutional issues presented in Brady.
State v. Dennison, 115 Wn.2d 609, 629, 801 P. 2d 193 ( 1990).

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No. 45496 -3 - II



             One of the other orders available to the trial judge under CrR 4. 7 is an order of mistrial.


State   v.   Greiff, 141        Wn.2d 910, 923          n. 5,   10 P. 3d 390 ( 2000) ( citing   State v. Falk, 17 Wn. App.

905, 908, 567 P. 2d 235 ( 1977)).                    Generally, trial courts have " broad discretion to choose the

appropriate sanction              for   violations of     the   discovery   rules."   State v. Oughton, 26 Wn. App. 74,

79, 612 P. 2d 812 ( 1980) ( citing CrR 4. 7( h)( 7)). "                  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).                    However, the


dismissal of charges for a State' s discovery violation is an " extraordinary remedy" that the trial

court should        only       order " as a   last   resort."    State v. Krenik, 156 Wn. App. 314, 320, 231 P. 3d 252

 2010);      see also      State   v.   Cannon, 130 Wn. 2d 313, 328, 922 P. 2d 1293 ( 1996) ( " Dismissal of a


case for discovery abuse is an extraordinary remedy that is generally available only when the

defendant has been prejudiced by the prosecution' s actions. ").

             Here, the trial court considered dismissal as a possible remedy for the State' s discovery

violation, but concluded that dismissal was too harsh a sanction under the circumstances.

Robinson appears to argue that the trial court' s reason for denying dismissal was untenable

because, by declaring a mistrial, Robinson was forced to proceed to a new trial that was

commenced beyond the original expiration of his timely trial period. We disagree.

             CrR 3. 3( c)( 2) provides in relevant part:


                          Resetting of Commencement Date. On occurrence of one of the following
             events, a new commencement date shall be established, and the elapsed time shall
             be   reset   to   zero.    If more than one of these events occurs, the commencement date
             shall be the latest of the dates specified in this subsection.


              iii) New Trial. The entry of an order granting a mistrial or                      new   trial....   The new
             commencement date shall be the date the order is entered.



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No. 45496 -3 - II



         Robinson does not contend that his CrR 3. 3 timely trial right was actually violated by the

trial court' s order declaring a mistrial, but instead appears to argue that the trial court' s decision

to declare a mistrial rather than dismiss his charges was an abuse of discretion because it forced


him to accept a new commencement date that extended his timely trial period. Accepting

Robinson' s argument, however, would transform every trial court decision imposing a mistrial as

a remedy for the State' s discovery violation into an abuse of discretion. Such a result conflicts

with the broad discretion afforded to a trial court under CrR 4. 7 to impose sanctions " as it deems


just   under   the circumstances,"      as well as with our Supreme Court' s approval of mistrial as a


proper   remedy for the State'      s   discovery   violation.     Greiff, 141   Wn.2d   at   923      n. 5.   We thus hold


that Robinson has failed to show the trial court abused its discretion by refusing to dismiss his

charges as a remedy for the State' s discovery violation.

         Moreover, the record belies Robinson' s contention that the trial court' s declaration of a


mistrial forced him to proceed to a trial that commenced beyond the original expiration of his


timely trial period. The record shows that Robinson' s original timely trial period was set to

expire on September 18. After the trial court declared a mistrial on August 21, the State


requested a new      trial date "   as soon as   possible,"    stating, " Next   week would         be fine."     RP ( Aug.

8, 21, 2013) at 156. The trial court proposed two potential trial dates, which dates were both


within Robinson' s original timely trial period. Defense counsel, however, requested a trial date

at the end of September due to a family member' s illness. Accordingly, even were we to hold

that a trial court could abuse its discretion by ordering a mistrial as a sanction for the State' s

discovery      violation where such a sanction        forces   a   defendant to   proceed     to   a   trial beyond his   or
No. 45496 -3 - II



her original timely trial period, those facts are not present here. Accordingly, we affirm

Robinson' s conviction of possession of a stolen vehicle.


        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.


                                                                                       Ja:




                                                                             J   eC.
                                                                       f /
                                                             4,   A..C. J.
 We concur:




 W RSWICK, J.




 SUTTON, J.




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