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FILED 

### MAY 2, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Appellant, V. DANIEL OBADIAHBATSELL, Respondent. ) ) ) ) ) ) ) ) ) No. 33340-0-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- After dismissing a charge ofpossession ofmethamphetamine againstDaniel Batsell for an assertedBrady 1violation, the trial courthad secondthoughts but doubted its authority to entertain a motion for reconsiderationunder CR59. We need not determine whether CR59 applies in orderto entertainthe State's appeal ofthe trial court's dismissal order. We reverse it; the appropriate remedy for the late discovery of information inthis case was a trial continuance.

1Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).No. 33340-0-111 State v. Batsell

FACTS AND PROCEDURAL BACKGROUND On September 15, 2014, Daniel Batsell wasplacedunder arrest on outstanding warrants afterhe was encountered leaving a residence at 1107 West Yakima Street, to which Pasco police officers had traveled in response to a suspicious circumstances call. When Mr. Batsell was searched incidentto the arrest by OfficerJeffrey Cobb, the officer found a broken glass pipe containing traces ofmethamphetamine in the pocket ofhis pants and a metal canister ofmethamphetamine in a small bag attached to a key chain he had been carrying. A set ofcarkeys was onthe key chain. Mr. Batsell was chargedwith possession ofmethamphetamine a couple ofdays later. Mr. Batsell told his criminal defense lawyerthat neitherthe carkeys northe associated carwere his, so in the months before trial, Mr. Batsell's lawyertried to identify the owner ofcars atthe residence at the time ofhis client's arrest. 

### Mr. Batsell's lawyer shared information about whathe was looking for with the prosecutorin October. In January 2015, 

### Mr. Batsell's lawyertold the prosecutor hehad hired an investigatorto try to find the owner ofthe car, whohebelievedwas Mr. Batsell's friend and couldtestify thatthe car keys found in Mr. Batsell'spossession did not belongto him. Mr. Batsell's lawyer asked the prosecutor for help locatingthe car's owner, butthe prosecutorresponded that he was unable to conduct a records search with the limited informationprovided andpossessed no reports containing information about any vehicles. In February, Mr. Batsell informed theprosecutor thatthe pants in which the 2No. 33340-0-III State v. Batsell glass pipe was found belongedto the same friend. Theprosecutor again responded that he did not have any information inhis file to help locate the friend. OnMarch 17, the day before trial, Mr. Batsell's lawyer e-mailedthe prosecutor at 2:30 p.m., advising himthatMr. Batsell thoughtthere shouldbe police reports related to his case otherthan Officer Cobb's, which had beenprovided. The prosecutorreceived the e-mail upon returning to the office at 4:00 p.m. He immediately searchedthe law enforcement database for reports in which Mr. Batsell was named as an "involved other" and found one that had beenpreparedby Officer Richard Leininger and described the suspicious circumstances call thattookpolice to the Yakima Streetresidence in the first place. Clerk's Papers (CP) at 19. It revealedthat after Officer Cobb arrested Mr. Batsell, OfficerLeininger contacted an individual namedJoshua Ferris in the residence to which officers responded and arrested him. Because the report stated that Mr. Ferris identified Mr. Batsell as someone he knew and referred to the license plate number ofa vehicle located at the residence, the prosecutorprovided the report to Mr. Batsell's lawyer "withinminutes." CP at 20. The report disclosedthatMr. Ferris was at the Yakima Streetresidence and was the individual who had called police to report suspicious circumstances. Hetold the police dispatcher that a man named "Daniel Bates"was at the house earlier buthad been askedto leave, and was acting funny. CP at 38. Mr. Ferris told the dispatcher he had armed himselfwith a shotgun while awaitingpolice. 3

### No. 33340-0-111 State v. Batsell
OfficerLeiningerprepared the police report and was evidently the first to arrive at the Yakima Street residence, where he saw Mr. Batsell standing near a red caridentified in the report by license number-attemptingto get into it. OfficerLeininger ordered Mr. Batsell to get down; Mr. Batsell complied, and the report refers to the fact that Mr. Batsell had outstanding warrants. Officer Leiningerturned Mr. Batsell overto Officer Cobb and Mr. Batsell's arrest was the subject matter ofthe separate police report prepared by Officer Cobb. OfficerLeininger's report went on to discuss what he did after turning Mr. Batsell

overto Officer Cobb: I knocked onthe door and contacted Ferris. Ferris opened the door and 

### Inoticed a shotgun that was disassembled and leaning near an old gun cabinet. Ferris was extremelyparanoid and told me he thought someone was downstairs or in the room near the kitchen. The residence was littered with shotgun shells and used hypodermic needles. Ferris was detained for several warrants and the residence was cleared. Michelle Myer is apparently the homeowner, however she left the house before we arrived. While clearingthe residence, a large gun safe was found downstairs in the house that contained several guns butwas locked. There are several hundred rounds ofammunition in the residence and obvious signs ofdrug use including a broken methpipe onthe fridge. Ferris told me he thought that Daniel was trying to set him up because he is supposedly sleeping with another man's wife who lives in Finley. Ferris was sure people were out to get him, and the alarming thing is his attempts to load and assemble a shotgun while obviously high on Meth. Ferris was transported to FCCC for his warrants and Daniel was booked onpossession ofMeth. 

### CP at 

### 39-40. 4No. 33340-0-III State v. Batsell

The morning afterreceiving OfficerLeininger's report, Mr. Batsell's lawyer told the prosecutorthat the defense theory was that Mr. Ferris had been high and paranoid and tried to set Mr. Batsell up. He asked the prosecutorto run the car's license plate to determine ownership, which was done, revealing the car was not Mr. Ferris's, but was instead owned by a BenjaminFreeman. The same morning, at the outset ofwhat was scheduledto be trial proceedings, Mr. Batsell's lawyermoved for dismissal ofthe charge orto continue the trial based on whathe characterized as aBradyviolation, telling the courtthe defense had been searching for Mr. Ferris since the beginning ofthe case. He explainedthatthe defense theory was that Mr. Batsell borrowed Mr. Ferris'spants while helping Mr. Ferris move to

a rehab facility, and had been carrying Mr. Ferris's keys to load some ofMr. Ferris's belongings into the red car. He argued that the fact thatMr. Ferris was under the influence ofmethamphetamine when contacted by OfficerLeininger supportedthe theory that the methamphetamine belonged to Mr. Ferris. The lawyer explained that it was because Mr. Batsell only knew Mr. Ferris as "Joshua"that they had neededpolice assistance to locate him. Report ofProceedings (RP) (Mar. 18, 2015) at 2. He argued that OfficerLeininger's report, "ifnot exculpatory," was "relevant in that it would lead [him] to be able to locate this witness and talk to him about these charges." Id. at 3. The prosecutorresponded that defense counsel had informedhimthat he was looking for someone named Joshua, buthe understood defense counsel had an 5

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No. 33340-0-111 State v. Batsell investigator looking for the man. Until the final request on March 17, the prosecutor said he assumed the defense had located Joshua. The trial court found aBradyviolation and dismissed the charge. Eight days later, the prosecutor moved for reconsideration, relying on CR 59. In addition to providing a supporting affidavit further explaining the history ofhis communication with defense counsel, he argued there had been no Bradyviolation because the governmentnever withheld material information. He argued that a continuance, not dismissal, would have been the appropriate remedy. The defense responded that CR 59 does not apply in criminal matters, and that the only remedy available to the prosecutor was to appeal the order ofdismissal. The trial court denied the motion to reconsider, explaining, "Primarily I'm not sure iflhave the authority to do anything else." RP (Mar. 18, 2015) at 13. It added, "Iwill indicate ifI had this information set forth in the way [the prosecutor] set [it] forth I may not have granted the dismissal at the time it happened. I didn'thave it at the time." Id. The State appeals.
ANALYSIS Appealability a/Brady dismissal Mr. Batsell raises a threshold issue ofwhetherthe Brady dismissal was effectively appealed. The motion for reconsideration was not heard until May 4, 2015, and when it

6No. 33340-0-111 State v. Batsell

was denied the State appealed denial ofthat motion. Mr. Batsell argues that appeal ofthe reconsideration decision does not bring dismissal ofthe criminal charge up for review. Itis not entirely clearwhether a CR 59 motion to reconsider is permitted in a criminal case. On the one hand, inMarkv. KingBroadcasting Co., this courtheldthat "[

w]here in a procedural area a civil rule speaks and a criminal rule is silent, the civil rule applies." 27 Wn. App. 344,349,618 P.2d 512 (1980), ajf'don othergrounds, 96 Wn.2d 473,635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S. Ct. 2942, 73 L. Ed. 2d 1339 (1982). In 1988, our Supreme Court citedMark with approval, and stated "the civil rules can be instructive in matters ofprocedure for which the criminal rules are silent." State v. Gonzalez, 110 Wn.2d 738, 744, 757 P.2d 925 (1988). On otherhand, in what appears to bethe only published case that specifically addresses CR59's application in criminal cases, this court held that it does not apply. See State v. Keller, 32 Wn. App. 135, 647 P.2d 35 (1982). Itrelied on the fact that, at the time, "[r]elieffromjudgments and orders in both civil and criminal cases is governed by CR60(b), which supersede[d] RCW4.72.010." Id. at 139. Several years afterKeller, however, CrR7.8 was adopted, so CR60(b) can no longerbe said to apply to criminal

cases. The criminal rules are silent onthe type ofreliefprovided by CR 59. While not expressly addressing the propriety ofthe procedure, at least two reported decisions in criminal appeals have involved motions for reconsideration without questioning CR 59's application in criminal cases. See State v. Englund, 186 Wn. App. 444,459, 345 P.3d 7No. 33340-0-111 

### State v. Batsell 859, 

### review denied, 183 Wn.2d 1011, 352 P.3d 188 (2015); 

### State v. Chaussee, 77 Wn. App. 803, 806-07, 895 P.2d 414 (1995). We need not determine whether CR 59 applies, because we hold that the State's appeal presents the underlying

### Brady dismissal for ourreview. A timely motion for reconsideration extends the 30 day deadline for filing a notice ofappeal otherwise provided by RAP 2.2(b)(4) to 30 days after entry ofthe order denying reconsideration. RAP 5.2(e). While RAP 5.2(e) requires that the CR 59 motion be "timely," it does not impose any otherrequirements as to its merits or viability. We liberally interpret the rules on appeal to "promotejustice and facilitate the decision ofcases on the merits," and because the State filed a timely motion for reconsideration, it was entitledto rely on the rule. RAP 1.2(a). Mr. Batsell argues that the State's notice ofappeal designated only the order denying reconsideration for review, however, and that RAP 2.4(c) provides that we review finaljudgments not designated in a notice ofappeal ofa timely decision on a CR 59 motion only where the order denies a 

### "posttrial motion." (Emphasis added.) Because the 

### Brady dismissal was a

### pretrial motion, he argues that RAP 2.4(c) does notpermit review. "General rules ofstatutory construction are employed in application and interpretation ofrules promulgated by the Supreme Court, such as the Rules ofAppellate Procedure." 

### State v. West, 64 Wn. App. 541, 544, 824 P.2d 1266 (1992). That includes 8No. 33340-0-111 State v. Batsell determining the drafters' intent by examining an enactment as a whole and construing related rules together. See id. RAP 5.2(c) does not treatpretrial and posttrial motions for reconsideration differently in extending the time to appeal the underlying decision. Mr. Batsell offers no authority thatholds (or any reasons we should hold) that orders on pretrial and posttrial motions can both be appealed following reconsideration, but ifthe notice ofappeal designates the decision on reconsideration, then only decisions on posttrial motions are reviewable. A reported decision holds otherwise: in Davies v. Holy FamilyHospital, 144 Wn. App. 483,492, 183 P.3d 283 (2008), the underlying decision

on apretrial motion-a decision granting partial summaryjudgment-was deemed reviewable under RAP 2.4(c) notwithstanding that the underlying decision was not identified in the notice ofappeal. Given a commonsense reading, RAP 2.4(c)'s reference to "posttrial motion[s]" simply reflects that fact that most CR 59 motions covered by the two rules will deal with underlying motions that were brought after trial. The trial court's order dismissing Mr. Batsell's criminal charge is before us for review. Continuance, notdismissal, was the appropriate remedy The State contends the trial court erred when it dismissed the charge against Mr. Batsell under CrR 8.3(b), which authorizes trial courts to dismiss a criminal prosecution "dueto arbitrary action or governmental misconduct when there has been prejudice to the rights ofthe accused which materially affect the accused's right to a fair trial." To succeed in such a motion, the defendant must prove both governmental misconduct and 9No. 33340-0-III State v. Batsell prejudice to his right to a fair trial by apreponderance ofthe evidence. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). We review a trial court's decision to dismiss a criminal prosecution for abuse ofdiscretion. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003). The governmental misconduct alleged here was that the prosecutor suppressed OfficerLeininger's police report in violation ofBrady, which recognized an affirmative duty on the part ofthe State to disclose evidence that is favorable to a defendant. Brady, 373 U.S. at 87. An assertedBradyviolation is reviewed de novo. State v. Autrey, 136 Wn. App. 460,467, 150 P.3d 580 (2006). The State makes viable arguments that no Bradyviolation occurred butthis case is most easily resolved on the basis that the draconian remedy ofdismissal under CrR 8.3(b) would be an abuse ofdiscretion even ifthere was aBradyviolation. Atthe time he made his motion, Mr. Batsell had received OfficerLeininger's report and his own lawyerraised the possibility ofa continuance as an alternative remedy. Brady violations are most commonly raised after conviction as a basis for a new trial; they seldom warrant dismissal. The United States Court ofAppeals for the District ofColumbiahas summarizedthepostconviction remedy analysis for aBradyviolation as follows: (1) aBrady violation requires a remedy ofa newtrial; (2) such new trial may require striking evidence, a specialjury instruction, or other additional curative measures tailored to address persistentprejudice; and (3) ifthe 10No. 33340-0-III State v. Batsell lingering prejudice ofaBradyviolation has removed all possibility that the defendant could receive a new trial that is fair, the indictment must be dismissed. To be sure, dismissal is appropriate onlyas a last resort, where no other remedywouldcureprejudice against a defendant. UnitedStates v. Pasha, 797 F.3d 1122, 1139 (D.C. Cir. 2015) (emphasis added). Our Supreme Court has held that "before a trial court should exercise its discretion to dismiss a criminal prosecution, a defendant must prove that it is more probably true than not true that (1) the prosecution failed to act with due diligence, and (2) material facts were withheld from the defendant until shortly before a crucial stage in the litigation process, which essentially compelled the defendant to choose between two distinct rights," those being the defendant's "'right to a speedy trial, orhis right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part ofhis defense.'" State v. Woods, 143 Wn.2d 561, 582-83, 23 P.3d 1046 (2001) (quoting State

v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)). This Price/Woods standard was not addressed by Mr. Batsell's lawyer when he moved for dismissal norwas it the standard applied by the trial court. It is doubtful that the State failed to act with due diligence. The information contained in Officer Cobb's police report did not mention Joshua, provide any identification ofa car at the scene, or suggestthat any other officerpresent either arrested someone else or would have had occasionto prepare an additional report. While Mr. Batsell's lawyer asked for help locating Joshua or the car, he did not inform the prosecutor until the day before trial that

11No. 33340-0-111 State v. Batsell
his client believed there must be anotherpolice report, and the database consulted by the prosecutor contained hundreds ofreports identifying Mr. Batsell as an "involved other." Once asked about anotherreport, the prosecutor acted quickly to locate and provide it. Even more clearly, the court never considered whether the State's actions had compelled Mr. Batsell to choose between his right to a speedy trial and the right to be represented by adequately prepared counsel. 2 No consideration was given to the amount ofadditional time his lawyerwould need to prepare, having been provided with Mr. Ferris's name, and withthe identities ofthe owner ofthe Yakima Street home and the red

car. A trial court abuses its discretion ifits decision rests on facts unsupported in the record or is reached by applying the wrong legal standard. State v. Gentry, 183 Wn.2d 749, 764, 356 P.3d 714 (2015). The order ofdismissal is reversed and the case remanded. A majority ofthe panel has determined this opinion will notbe printed in the

2 At a hearing on January 20, defense counsel stated he was looking for a witness associated with the car and the keychain butwas not asking to move the trial date because "I believe I can contact this person and get a statement from him and get a statementto [the prosecutor] regarding this matter." RP (Jan. 6, 2015) at 3. On February 3, he told· the court "[w]e are actively trying to find two witnesses that were at the residence at the time this alleged offense occurred" but still expected to be ready for trial. Id. at 4.

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' No. 33340-0-III State v. Batsell Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

Fearing,

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