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FILED 

MAY 2, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Appellant, 

V. 

DANIEL OBADIAHBATSELL, 

Respondent. 

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No. 33340-0-111 

UNPUBLISHED OPINION 

SIDDOWAY, J. - After dismissing a charge of possession of methamphetamine 

against Daniel Batsell for an asserted Brady1 violation, the trial court had second thoughts 

but doubted its authority to entertain a motion for reconsideration under CR 59. We need 

not determine whether CR 59 applies in order to entertain the State's appeal of the trial 

court's dismissal order. We reverse it; the appropriate remedy for the late discovery of 

information in this case was a trial continuance. 

1 Brady 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 was placed under arrest on outstanding 

warrants after he 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 incident to the arrest by Officer Jeffrey Cobb, the officer 

found a broken glass pipe containing traces of methamphetamine in the pocket of his 

pants and a metal canister of methamphetamine in a small bag attached to a key chain he 

had been carrying. A set of car keys was on the key chain. Mr. Batsell was charged with 

possession of methamphetamine a couple of days later. 

Mr. Batsell told his criminal defense lawyer that neither the car keys nor the 

associated car were his, so in the months before trial, Mr. Batsell's lawyer tried to 

identify the owner of cars at the residence at the time of his client's arrest. Mr. Batsell's 

lawyer shared information about what he was looking for with the prosecutor in October. 

In January 2015, Mr. Batsell's lawyer told the prosecutor he had hired an 

investigator to try to find the owner of the car, who he believed was Mr. Batsell's friend 

and could testify that the car keys found in Mr. Batsell's possession did not belong to 

him. Mr. Batsell's lawyer asked the prosecutor for help locating the car's owner, but the 

prosecutor responded that he was unable to conduct a records search with the limited 

information provided and possessed no reports containing information about any 

vehicles. In February, Mr. Batsell informed the prosecutor that the pants in which the 

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No. 33340-0-III 

State v. Batsell 

glass pipe was found belonged to the same friend. The prosecutor again responded that 

he did not have any information in his file to help locate the friend. 

On March 17, the day before trial, Mr. Batsell's lawyer e-mailed the prosecutor at 

2:30 p.m., advising him that Mr. Batsell thought there should be police reports related to 

his case other than Officer Cobb's, which had been provided. The prosecutor received 

the e-mail upon returning to the office at 4:00 p.m. He immediately searched the law 

enforcement database for reports in which Mr. Batsell was named as an "involved other" 

and found one that had been prepared by Officer Richard Leininger and described the 

suspicious circumstances call that took police to the Yakima Street residence in the first 

place. Clerk's Papers (CP) at 19. It revealed that after Officer Cobb arrested Mr. Batsell, 

Officer Leininger contacted an individual named Joshua 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 of a vehicle 

located at the residence, the prosecutor provided the report to Mr. Batsell's lawyer 

"within minutes." CP at 20. 

The report disclosed that Mr. Ferris was at the Yakima Street residence and was 

the individual who had called police to report suspicious circumstances. He told the 

police dispatcher that a man named "Daniel Bates" was at the house earlier but had been 

asked to leave, and was acting funny. CP at 38. Mr. Ferris told the dispatcher he had 

armed himself with a shotgun while awaiting police. 

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State v. Batsell 

Officer Leininger prepared 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-attempting to get into it. Officer Leininger 

ordered Mr. Batsell to get down; Mr. Batsell complied, and the report refers to the fact 

that Mr. Batsell had outstanding warrants. Officer Leininger turned Mr. Batsell over to 

Officer Cobb and Mr. Batsell's arrest was the subject matter of the separate police report 

prepared by Officer Cobb. 

Officer Leininger's report went on to discuss what he did after turning Mr. Batsell 

over to Officer Cobb: 

I knocked on the door and contacted Ferris. Ferris opened the door 

and I noticed a shotgun that was disassembled and leaning near an old gun 

cabinet. Ferris was extremely paranoid 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 clearing the residence, a large gun safe was 

found downstairs in the house that contained several guns but was locked. 

There are several hundred rounds of ammunition in the residence and 

obvious signs of drug use including a broken meth pipe on the 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 on possession of Meth. 

CP at 39-40. 

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State v. Batsell 

The morning after receiving Officer Leininger's report, Mr. Batsell's lawyer told 

the prosecutor that the defense theory was that Mr. Ferris had been high and paranoid and 

tried to set Mr. Batsell up. He asked the prosecutor to 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 Benjamin Freeman. 

The same morning, at the outset of what was scheduled to be trial proceedings, 

Mr. Batsell's lawyer moved for dismissal of the charge or to continue the trial based on 

what he characterized as a Brady violation, telling the court the defense had been 

searching for Mr. Ferris since the beginning of the case. He explained that the defense 

theory was that Mr. Batsell borrowed Mr. Ferris's pants while helping Mr. Ferris move to 

a rehab facility, and had been carrying Mr. Ferris's keys to load some of Mr. Ferris's 

belongings into the red car. He argued that the fact that Mr. Ferris was under the 

influence of methamphetamine when contacted by Officer Leininger supported the 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 needed police 

assistance to locate him. Report of Proceedings (RP) (Mar. 18, 2015) at 2. He argued 

that Officer Leininger's report, "if not 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 prosecutor responded that defense counsel had informed him that he was 

looking for someone named Joshua, but he understood defense counsel had an 

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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 a Brady violation 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 of his 

communication with defense counsel, he argued there had been no Brady violation 

because the government never 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 of dismissal. 

The trial court denied the motion to reconsider, explaining, "Primarily I'm not sure 

ifl have the authority to do anything else." RP (Mar. 18, 2015) at 13. It added, "I will 

indicate if I 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't have it at the time." Id. 

The State appeals. 

ANALYSIS 

Appealability a/Brady dismissal 

Mr. Batsell raises a threshold issue of whether the Brady dismissal was effectively 

appealed. The motion for reconsideration was not heard until May 4, 2015, and when it 

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No. 33340-0-111 

State v. Batsell 

was denied the State appealed denial of that motion. Mr. Batsell argues that appeal of the 

reconsideration decision does not bring dismissal of the criminal charge up for review. 

It is not entirely clear whether a CR 59 motion to reconsider is permitted in a 

criminal case. On the one hand, in Mark v. King Broadcasting Co., this court held that 

"[ 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'd on other grounds, 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 cited Mark with approval, and stated "the civil 

rules can be instructive in matters of procedure for which the criminal rules are silent." 

State v. Gonzalez, 110 Wn.2d 738, 744, 757 P.2d 925 (1988). 

On other hand, in what appears to be the only published case that specifically 

addresses CR 59'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). It relied on the fact that, at the 

time, "[ r ]elief from judgments and orders in both civil and criminal cases is governed by 

CR 60(b), which supersede[d] RCW 4.72.010." Id. at 139. Several years after Keller, 

however, CrR 7.8 was adopted, so CR 60(b) can no longer be said to apply to criminal 

cases. The criminal rules are silent on the type of relief provided by CR 59. While not 

expressly addressing the propriety of the 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 

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No. 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 our review. A timely motion for 

reconsideration extends the 30 day deadline for filing a notice of appeal otherwise 

provided by RAP 2.2(b)(4) to 30 days after entry of the 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 other requirements as to its merits or viability. We liberally interpret the 

rules on appeal to "promote justice and facilitate the decision of cases on the merits," and 

because the State filed a timely motion for reconsideration, it was entitled to rely on the 

rule. RAP 1.2(a). 

Mr. Batsell argues that the State's notice of appeal designated only the order 

denying reconsideration for review, however, and that RAP 2.4( c) provides that we 

review final judgments not designated in a notice of appeal of a 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 not permit 

review. 

"General rules of statutory construction are employed in application and 

interpretation of rules promulgated by the Supreme Court, such as the Rules of Appellate 

Procedure." State v. West, 64 Wn. App. 541, 544, 824 P.2d 1266 (1992). That includes 

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No. 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 treat pretrial and posttrial motions for 

reconsideration differently in extending the time to appeal the underlying decision. Mr. 

Batsell offers no authority that holds ( or any reasons we should hold) that orders on 

pretrial and posttrial motions can both be appealed following reconsideration, but if the 

notice of appeal designates the decision on reconsideration, then only decisions on 

posttrial motions are reviewable. A reported decision holds otherwise: in Davies v. Holy 

Family Hospital, 144 Wn. App. 483,492, 183 P.3d 283 (2008), the underlying decision 

on a pretrial motion-a decision granting partial summary judgment-was deemed 

reviewable under RAP 2.4(c) notwithstanding that the underlying decision was not 

identified in the notice of appeal. 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, not dismissal, 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 

"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." To 

succeed in such a motion, the defendant must prove both governmental misconduct and 

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No. 33340-0-III 

State v. Batsell 

prejudice to his right to a fair trial by a preponderance of the 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 of discretion. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 

657 (2003). 

The governmental misconduct alleged here was that the prosecutor suppressed 

Officer Leininger's police report in violation of Brady, which recognized an affirmative 

duty on the part of the State to disclose evidence that is favorable to a defendant. Brady, 

373 U.S. at 87. An asserted Brady violation is reviewed de novo. State v. Autrey, 136 

Wn. App. 460,467, 150 P.3d 580 (2006). 

The State makes viable arguments that no Brady violation occurred but this case is 

most easily resolved on the basis that the draconian remedy of dismissal under CrR 8.3(b) 

would be an abuse of discretion even if there was a Brady violation. At the time he made 

his motion, Mr. Batsell had received Officer Leininger's report and his own lawyer raised 

the possibility of a 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 of Appeals for the District 

of Columbia has summarized the postconviction remedy analysis for a Brady violation as 

follows: 

(1) a Brady violation requires a remedy of a new trial; (2) such new trial 

may require striking evidence, a special jury instruction, or other additional 

curative measures tailored to address persistent prejudice; and (3) if the 

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State v. Batsell 

lingering prejudice of a Brady violation 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 only as a last resort, where 

no other remedy would cure prejudice against a defendant. 

United States 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, or his right to be represented 

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

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 nor was 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 of a car at the scene, or 

suggest that any other officer present either arrested someone else or would have had 

occasion to 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 

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State v. Batsell 

his client believed there must be another police report, and the database consulted by the 

prosecutor contained hundreds of reports identifying Mr. Batsell as an "involved other." 

Once asked about another report, 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 

of additional time his lawyer would need to prepare, having been provided with Mr. 

Ferris's name, and with the identities of the owner of the Yakima Street home and the red 

car. A trial court abuses its discretion if its 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 of dismissal is reversed and the case remanded. 

A majority of the panel has determined this opinion will not be 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 but was not asking to move the trial date because 

"I believe I can contact this person and get a statement from him and get a statement to 

[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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