                                                                                         f ILED
                                                                                  COURT OF APPEALS
                                                                                       DIVISION Ii

                                                                                  7915 AUG 18    AM 91. 04

                                                                                 STATE: OF WASHINGTON
                                                                                  8Y
                                                                                             P TY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

 STATE OF WASHINGTON,                                                               No. 45955 -8 -II


                                        Respondent,


           V.



 JOSEPH DEAN HUDSON,                                                           UNPUBLISHED OPINION




          JOHANSON, C.J.                Joseph Dean Hudson appeals his convictions and sentence for


vehicular homicide and vehicular assault after a retrial. He argues that ( 1) the trial court erred by

admitting evidence that we suppressed after Hudson' s first appeal and ( 2) there was insufficient

evidence    to   support   the   jury' s finding   that he   acted with an egregious    lack   of remorse.   We hold


that ( 1) the trial court admitted no suppressed evidence and (2) sufficient evidence exists to support


the   jury' s finding   that Hudson     acted with an egregious         lack   of remorse.   Accordingly, we affirm

Hudson' s convictions and sentence.


                                                         FACTS


                                                I. BACKGROUND FACTS


          In April 2009, Hudson          and   his then -girlfriend, Paula Charles,     met    two   friends— Tommy


Underwood        and   Leon Butler— at     a   bar to have   a   few drinks. They left the bar in Charles'   s vehicle.
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            At about 1: 00 AM, the car went off the road, down a seven -foot embankment, rolled twice,

and stopped about          100 feet from Kenneth Grover'          s   home.    Grover heard the crash from his


bedroom       and "   hollered"   out   the   window,   asking if anybody     was   hurt.   1 Report of Proceedings


 RP)   at   89. He heard     a calm, male voice answer, "[        N] o."   1 RP   at   90. Grover got dressed, went


out to investigate, and discovered Butler climbing out of the rear driver' s side window. Butler was

frantic and limping when he emerged from the vehicle. Grover and Butler found an unresponsive

Charles. Grover then discovered Underwood, who died within minutes of the accident.


            Butler and Grover could not locate Hudson. Hudson returned to the accident scene about


two hours later. In order to separate Hudson from several of Underwood' s family members who

had    assembled,      Trooper Ben      Blankenship     took Hudson to his     patrol car.    Several minutes later,


Sergeant Sam Ramirez ordered his troopers to arrest everyone who he thought had been in the

vehicle,     including    Charles, Butler,      and   Hudson.    They   complied.      Later that night Charles told


Detective Dan Presba that when the group left the bar, she was in the front passenger seat and

Hudson was driving.

                                               II. FIRST TRIAL AND APPEAL


            In January 2010, the State charged Hudson with vehicular homicide and vehicular assault

and added an aggravating factor alleging that Hudson displayed an egregious lack of remorse. At

the first trial, the jury convicted Hudson on both charges and found an egregious lack of remorse

for both charges.




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        Hudson appealed his convictions and we held that Hudson' s arrest was invalid and


suppressed    any "   evidence obtained as a result of            his   arrest."    State v. Hudson, noted at 168 Wn.


App.   1023, slip op.     at   7 ( 2012).    In the prior decision, we enumerated the specific pieces of


evidence that should have been suppressed because they were the fruits of Hudson' s illegal arrest:

         1) Hudson' s     evasive and       inconsistent    statements         to Trooper   Blankenship, ( 2)   his
        blood- alcohol level, ( 3) his admission of guilt and statement that his stomach hurt
        to Detective Presba, ( 4) photographs of and testimony about Hudson' s injuries, and
         5) a recording of Hudson' s phone call from the jail.

Hudson, slip op. at 8. We reversed Hudson' s convictions and remanded for a new trial. Hudson,

slip op. at 9.

                                                    III. RETRIAL


        In November 2013, prior to Hudson' s second trial, the trial court granted the State' s motion


to compel Hudson to provide a deoxyribonucleic acid ( DNA) sample, based in part on Butler' s

sworn statement       that Hudson had been        driving. A forensic DNA scientist with the Washington

State Patrol Crime Lab tested Hudson' s new DNA sample and matched it to blood found on the,

inside of the driver' s door of the vehicle.


        At trial, the witnesses testified         consistent with           the     above   background facts.     Sergeant


Ramirez also testified that he did not remember whether Hudson appeared injured but that he could


smell the odor of intoxicants on Hudson and noticed that Hudson was speaking as if he were

intoxicated      and was "   swaying" from      side   to   side.       1 RP   at   148.   Hudson did not object to this


testimony.




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          Detective Presba, a collision reconstruction expert, opined that Charles, Underwood, and


Butler had       not   been   driving. Detective Presba concluded that, in his opinion, Hudson was the

driver. Hudson did not object to this testimony.

           Trooper Blankenship also testified that when he first approached Hudson, he noticed the

odor of intoxicants, that Hudson' s speech patterns were off, and that Hudson had brush and other

debris in his hair.       As Trooper Blankenship walked Hudson to his patrol car in order to separate

Hudson from Underwood' s family members, Hudson told Trooper Blankenship that "his back was

sore."    2 RP at 210.


           Hudson objected to Trooper Blankenship' s testimony and moved for a mistrial, arguing

that Trooper       Blankenship           had   referred   to   suppressed evidence "      twice."   2 RP   at   210.   The trial


court stated that it wanted to clarify the moment of Hudson' s arrest because evidence obtained

after    his   arrest should       be    suppressed.      Outside the jury' s presence, both Hudson and the State

questioned Trooper Blankenship, who stated that he did not arrest Hudson until he had been

secured        in the back    of   the   patrol car   for   at   least five   minutes.   Hudson stated he was " satisfied"


that Trooper Blankenship' s testimony had been proper, and the trial court then denied his motion

for a mistrial. 2 RP at 217.


           After the second trial, the jury convicted Hudson on both charges and also found that he

acted with an egregious             lack   of remorse as         to both   charges.   Hudson appeals his convictions and


sentence.




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                                                    ANALYSIS


                               I. LAW OF THE CASE AND SUPPRESSED EVIDENCE


           First, Hudson argues that the trial court violated the law of the case doctrine when it

admitted evidence       that   we suppressed    in Hudson' s first      appeal.     We hold that the trial court did


not violate the law of the case doctrine because it admitted no evidence in the retrial that was

suppressed in the first appeal.


           Under the law of the case doctrine, an appellate court' s holding must be followed " in all of

the   subsequent stages of      the   same   litigation."   State v. Schwab, 163 Wn.2d 664, 672, 185 P. 3d


1151 ( 2008).    We previously held that the police did not have probable cause to arrest Hudson and

suppressed "    the   evidence obtained as a result of        his   arrest."   Hudson, slip op.   at   7. We review a


trial court' s conclusions of law regarding whether evidence should be suppressed de novo. State

v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).


           Hudson argues that Sergeant Ramirez, Detective Presba, and Trooper Blankenship testified

to facts that should have been suppressed under our prior decision. We disagree.

           Hudson' s argument here is an attempt to expand the specific list of suppressed evidence


that we enumerated in our prior decision into broad categories of types of information that must

be    suppressed regardless of whether          they   were   actually " obtained as a result of his [ unlawful]


arrest."    Hudson, slip op.     at   7. But this argument is misplaced. In our prior decision, we did not


suppress all evidence of Hudson' s injuries or all evidence of evasive and inconsistent statements.


Hudson, slip op. at 8. We suppressed evidence of injuries or evasive and inconsistent statements—

as well as    any   other evidence that were       the "fruits of his    arrest."    Hudson, slip op. at 8 ( emphasis

added).




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      No. 45955 -8 -II


                First, at the retrial, Sergeant Ramirez testified that ( 1) he could not " recall if [Hudson] had


      any injuries" but could smell an odor of intoxicants when he approached him, and ( 2) Hudson

      exhibited several other signs of intoxication. 1 RP at 146. The other signs of intoxication included

      affected speech patterns and "       swaying."      1 RP    at    148. However, Sergeant Ramirez made each of


      these observations before he told Trooper Blankenship to secure Hudson in his patrol car and

      before Hudson was arrested. Therefore, Sergeant Ramirez' s testimony and observations were not

       evidence obtained as a result of [Hudson' s] arrest" and were not suppressed in Hudson' s first


      appeal. Hudson, slip op. at 7.

                Second, Detective Presba opined that, based on the December 2013 DNA report, Charles,


      Underwood,       and   Butler   were not    driving   the   vehicle when        it   crashed.     Hudson claims that this


      evidence was     improper because it " implies that Presba                  also considered       Hudson'   s   DNA,"     which'




      should    have been    suppressed.    Br.   of   Appellant       at   10.   But Detective Presba lawfully obtained a

      DNA     sample   from Hudson       pursuant      to the trial     court' s   November 2013          order—      which Hudson


      does   not challenge.     Hudson' s DNA sample was not " evidence obtained as a result of his arrest"


      and, therefore, not suppressed in Hudson' s first appeal. Hudson, slip op. at 7.

                Third, as Trooper Blankenship walked Hudson to his patrol car, he asked Hudson if he was

      injured   and   Hudson   responded    that " his back       was sore."       2 RP    at   210.   Trooper Blankenship also

      inquired    about whether       Hudson   was     involved in the        accident and      Hudson    said, "[    N] o."   2 RP at


      225.    However, Blankenship took Hudson to his patrol car to separate him from Underwood' s

      family members who were gathering and causing a commotion and not because Hudson was under

      arrest at that time. Because Hudson was not under arrest or in custody, the statements he made to




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No. 45955 -8 -II



Trooper Blankenship. were, again, not " evidence obtained as a result of his arrest" and were not

suppressed by our prior decision in this case. 1 Hudson, slip op. at 7..
          The evidence that Hudson argues' should have been suppressed in this case was not the fruit

of   Hudson'   s unlawful arrest.        Accordingly, we hold that the trial court did not violate the law of

the case doctrine because it did not admit evidence that was suppressed in Hudson' s first appeal.

                           II. EGREGIOUS LACK OF REMORSE SPECIAL VERDICT


          Hudson next argues that there is insufficient evidence to support the jury' s special verdict

finding that he acted with an egregious lack of remorse. Specifically, Hudson claims that the facts

here are distinguishable from other cases where an egregious lack of remorse special verdict was


deemed appropriate. We hold that there is sufficient evidence to support the jury' s special verdicts

finding an egregious lack of remorse.

          Whether the defendant demonstrated an egregious lack of remorse depends on the specific


facts   of each case.   State   v.    Ross, 71 Wn.       App.   556, 563, 861. P. 2d 473, 883 P. 2d 329 ( 1993).        We


review a jury' s special verdict finding of an egregious lack of remorse under a sufficiency of the

evidence standard.      State    v.   Stubbs, 170 Wn.2d 117, 123, 240 P. 3d 143 ( 2010) ("                 A jury' s finding

by   special   interrogatory    is   reviewed under       the sufficiency   of the evidence standard.").         Therefore,




1 Hudson also argues that Trooper Blankenship made two other statements that should have been
suppressed.      Specifically,       the fact that ( 1)     once he was in the car, Hudson again told Trooper
Blankenship       that his back        was      sore,   and (   2) Hudson pointed to Charles and told Trooper

Blankenship that she was yelling at him because she thought that Hudson was the driver. However,
Trooper Blankenship testified to these facts during an offer of proof when the jury was not present
and in an effort to investigate Hudson' s specific objection. The trial court excluded the statement
about Charles yelling, and the jury only heard Trooper Blankenship testify that Hudson said his
back    was sore prior   to    his    arrest.   Moreover, Hudson        stated   that   he   was "   satisfied" that Trooper

Blankenship' s proposed testimony was consistent with our prior decision. 2 RP at 217. Therefore,
Hudson' s argument about these statements is baseless.


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we must determine whether, when reviewing the evidence in a light most favorable to the State,

any rational jury could have found the existence of an egregious lack of remorse beyond a

reasonable   doubt.     State   v.   Yates, 161 Wn.2d 714, 752, 168 P. 3d 359 ( 2007).                  We consider


circumstantial and    direct    evidence   equally reliable.      Yates, 161 Wn.2d     at   752.    A " mundane lack


of remorse   found in   run- of-the- mill criminals"       is   not sufficient.   State v. Garibay, 67 Wn. App.

773, 781, 841 P. 2d 49 ( 1992),       abrogated on other grounds by State v. Moen, 129 Wn.2d 535, 919

P. 2d 69 ( 1996).


        Here, the jury was instructed that

         a] n egregious lack of remorse means that the defendant' s words or conduct
        demonstrated      extreme      indifference   to        harm resulting    from the         crime.   In

        determining whether the defendant displayed an egregious lack of remorse, you
        may consider whether the defendant' s words or conduct:
               a) increased the suffering of others beyond that caused by the crime itself,
               b) were of a belittling nature with respect to the harm suffered by the victim
        or others; or

                c) reflected an ongoing indifference to such harm.
        A defendant does not demonstrate an egregious lack of remorse by denying guilt,
        remaining silent, asserting a defense to the charged crime or failing to accept
        responsibility for the crime.

Clerk' s Papers ( CP) at 83- 84; see also 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY


INSTRUCTIONS: CRIMINAL 300.26, at 736 ( 3d ed. 2008).


        Grover testified that when he arrived, Butler was hobbling and eventually fell to the ground

as Grover looked for the vehicle' s other occupants. When Grover discovered Charles, she was not


moving, did not appear to be conscious, and was covered in so much blood that he could not see

her face. Underwood was gasping as he died in a tree over 30 feet away after being thrown from

the car during the accident. However, Grover heard a calm, male voice say that nobody was hurt




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and Hudson walked away after the accident without calling for help and did not return for about

two hours.


         Based on the injuries that Grover, observed and Hudson' s conduct, a rational jury could

have found that Hudson was the calm, male voice who told Grover that nobody was hurt because

Underwood      was   badly     injured    and not      in   a condition   to   speak,   and    Butler   was "   frantic"   and




 hollering."     1 RP   at   92.   A rational jury could also have determined that Hudson displayed an

 ongoing indifference" to the harm that he caused because by leaving the accident scene for over

two hours when his friends needed medical assistance and by telling Grover that nobody was hurt,

he   prevented   them from getting        medical assistance as soon as possible.              CP at 84. Therefore, we


hold that sufficient evidence supports the jury' s special verdict finding that Hudson demonstrated

an egregious lack of remorse.


         Hudson points to three cases where an egregious lack of remorse was found and argues

that the   facts here demonstrate that his              conduct— saying,       " No," to Grover when he asked if

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anybody    was     hurt— was       not   nearly   so    severe.       We disagree       with   Hudson because ( 1)          he


improperly limits the evidence that he acted with an egregious lack of remorse to his one -word

response to Grover and ( 2) these cases are not analogous.


         In Ross, we held that the defendant' s refusal to take responsibility for his actions and the

fact that he continued to " blame the justice system for his crimes" showed an egregious lack of


remorse. 71 Wn. App. at 563- 64.



2 Hudson also points to Division Three of this court' s opinion in State v. Erickson, 108 Wn. App.
732, 33 P. 3d 85 ( 2001), for            additional    support.       However, the defendant in Erickson did not
challenge the trial court' s determination that he had acted with a " lack of remorse" and Division
Three did not review whether the evidence in that case was sufficient to support the special verdict.
108 Wn. App. at 740- 42.
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No. 45955 -8 -II



          In State v. Wood, 57 Wn. App. 792, 798, 790 P. 2d 220 ( 1990), we upheld an egregious lack

of remorse      aggravator applied        to   a   defendant    who   helped       plan   her husband'      s murder.     Wood


traveled with another man just over one week after the murder and established a residence with a

third   man   just three   weeks after     the     murder.    Wood, 57 Wn.         App    at   795.    Wood joked about her


husband' s death and teased the man who pulled the trigger of the gun that killed her husband about

his sensitivity to the     sound      her husband     made as    he died.    Wood, 57 Wn. App. at 795.

          In State v. Zigan, 166 Wn. App. 597, 603, 270 P.3d 625, review denied, 174 Wn.2d 1014

 2012),   Division Three affirmed the trial court' s finding that Zigan displayed an egregious lack of

remorse.      There, immediately following a fatal accident, Zigan asked the victim' s husband if he

was "`   ready to bleed."'      Zigan, 166 Wn. App. at 602. Zigan smiled and laughed while talking with

police officers at the scene and joked later with one of the officers that the officer should not ride


a motorcycle     because " he might        get     killed   by [ Zigan]   too."    Zigan, 166 Wn.         App.   at   603. Zigan


also joked with his fellow inmates about the accident. Zigan, 166 Wn. App. at 603.

          Although the conduct in each of these cases was severe, these cases do not dictate the result

here because whether sufficient evidence supports an egregious lack of remorse special verdict is

a fact -specific inquiry, Ross, 71 Wn. App. at 563, and the facts in this case demonstrate that Hudson

displayed     an extreme and       ongoing indifference to the injuries he                caused      to his friends.   From the


facts in this case, a reasonable jury could conclude that Hudson ( 1) was the driver of the vehicle,

 2) calmly told Grover that nobody was hurt immediately after the accident, and ( 3) walked away

from the      accident   for   over   two hours     without    getting    help    for his friends. When Hudson left the


scene, one of his friends was dying after being ejected from the car into a tree and Charles, his




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No. 45955 -8 -II



girlfriend at the time, had blood all over her face. A reasonable jury could find that his continued

indifference to their injuries was extreme and ongoing.

        Affirmed.


        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:
                                                 bl?        S-ON, C. J.                 k-

 WC : SWICK, J.
   IV

                    a




 MELNICK, J. ,}




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