IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

IZAAC JERMEL INNES,

Appellant.

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No. 36419-4-III

UNPUBLISHED OPINION

SIDDOWAY, J. — Following the jury’s return of a verdict finding Izaac Innes guilty 

of second degree murder—his third “most serious offense” for purposes of the Persistent 

Offender Accountability Act (POAA)1—the trial court sentenced him to life without the 

 

1 RCW 9.94A.030(38)(a), .570.

FILED

SEPTEMBER 10, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36419-4-III

State v. Innes

2

possibility of parole. On appeal, Mr. Innes initially challenged the constitutionality of 

applying the POAA to offenders who committed a predicate offense while a young adult.

After the Washington Supreme Court held that application of the POAA in such 

circumstances is constitutional, however,2 Mr. Innes filed an amended opening brief. He 

now makes only one assignment of error: he points out that his judgment and sentence

imposes interest on nonrestitution financial obligations in violation of RCW 10.82.090. 

The State concedes error. We accept the State’s concession and remand with directions 

to make the necessary ministerial correction.

In a pro se statement of additional grounds (SAG), Mr. Innes contends the trial 

court erred when it denied his trial lawyer’s pretrial motion to dismiss the charges against 

him as a remedy for State discovery violations. The trial court did not abuse its 

discretion in denying the motion and addressing the State’s untimely discovery 

production in other ways. The conviction is affirmed.

FACTS AND PROCEDURAL BACKGROUND

Izaac Innes was convicted of second degree murder, for shooting and killing

Jeremy Ayers outside a home on Maxwell Avenue. The evidence at trial was that Mr. 

Innes shot Mr. Ayers with a high-powered rifle from a slow moving vehicle that was 

being driven by Darren Bercier. 

 

2 See State v. Moretti, 193 Wn.2d 809, 813, 446 P.3d 609 (2019).
No. 36419-4-III

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3

The shooting took place in the early morning hours of July 30, 2016, during which 

police responded to reports of three shootings in the same general area of Spokane. The 

shootings occurred within a span of about two-and-a-half hours. The first report was of 

the shooting at Maxwell Avenue. The second report was of the nonfatal shooting of two 

men at a home on Sharp Avenue. Mr. Bercier was charged with that shooting, and

allegedly used the same rifle Mr. Innes had used to shoot Mr. Ayers. The third report 

turned out to be a false report. 

Charges against Mr. Innes proceeded to trial two years later. On the morning of 

what was supposed to have been his August 6, 2018 trial date, Mr. Innes filed a motion to 

dismiss the case, relying on CrR 4.7 and 8.3. He accused the State of unreasonable delay 

in producing potentially exculpatory evidence about the Sharp Avenue shootings. He 

argued that at the pretrial conference conducted on July 27, all parties indicated they were 

ready to proceed to trial on Monday, August 6. Despite that representation, the State 

produced approximately 75 pages of new discovery on Wednesday, August 1. Mr. 

Innes’s motion said he did not move for a continuance or dismissal at that time because 

there was sufficient time to deal with those materials. But Mr. Innes complained that 

thereafter, at approximately 4:45 p.m. on Friday, August 3, the State produced another 

421 pages of new discovery. 

We have no transcript of the limited proceedings that apparently took place on 

August 6. We can infer that the need to continue trial was agreed. The State evidently 
No. 36419-4-III

State v. Innes

4

anticipated Mr. Innes’s motion and simultaneously filed its response, admitting its

delayed production, offering an explanation, and stressing that roughly 30 days remained 

for trial under CrR 3.3. It appears the trial court continued the trial date to September 4, 

2018, granted Mr. Innes’s request that it authorize 120 hours of investigative services,

and set the dismissal motion for August 24 with a view to assessing any prejudice to Mr. 

Innes at that time. 

At the August 24 hearing, the trial court asked if the defense was still on track for 

the September 4 trial. Defense counsel informed the court that it had been able to hire an 

investigator on August 7 and provide him with the new information. He described some 

additional delays he and his investigator encountered in getting access to the county’s 

new CaseGuard system. He described a CAD3report received that he characterized as 

raising some “pretty significant information” he needed to investigate. Report of 

Proceedings (RP)4at 10-11. He stated, however, that “[w]e will continue to try to be 

prepared for trial.” RP at 11.

The prosecutor responded that the State had originally focused on providing 

information about the Maxwell Avenue shooting, not the shooting at the home on Sharp

Avenue. But he said he believed they had now provided everything related to the 

 

3 Computer-aided dispatch.

4 All report of proceedings references are to the volume that includes proceedings 

taking place on March 17, 2017 and August 24, 2018.
No. 36419-4-III

State v. Innes

5

shooting on Sharp. He said some records in the last batch of production had probably 

also been provided earlier, but he had no way of knowing for sure. He said the CAD 

report that concerned defense counsel related to the third report of a shooting received on 

the morning of July 30 and appeared to be “totally unrelated.” RP at 18. But he told the 

court he had asked a detective to look into it further, because if there was additional 

information they could provide to the defense, they would. 

The trial court denied the motion to dismiss, observing that “without some type of 

discovery log, it is very difficult for the Court to find any type of violation.” RP at 25. In 

denying the motion, the trial court told defense counsel to inform the trial court if there 

were any more items that needed to be explored before moving ahead with trial. The 

case proceeded to trial on September 4, 2018.

STATEMENT OF ADDITIONAL GROUNDS

Mr. Innes’s SAG argues that the State’s untimely disclosure of the materials 

produced in August 2018 was prejudicial “because the defense argued that Mr. Bercier is 

blaming the homicide that occurred on Maxwell on Mr. Innes (Appellant) in order to 

escape responsibility for both crimes he committed using the same firearm.” SAG at 15-

16. He asks us to dismiss the charges against him with prejudice or suppress all of the 

late discovery and remand for a new trial. 

CrR 4.7. “CrR 4.7 is a reciprocal discovery rule that separately lists the 

prosecutor’s and defendant’s obligations when engaging in discovery.” State v. 
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Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017 (1993). Under CrR 4.7, prosecutors have 

“a duty to disclose and to preserve evidence that is material and favorable to the 

defendant.” Id. “If the State fails to disclose such evidence or comply with a discovery 

order, a defendant’s constitutional right to a fair trial may be violated; as a remedy, a trial 

court can grant a continuance, dismiss the action, or enter another appropriate order.” 

State v. Barry, 184 Wn. App. 790, 796, 339 P.3d 200 (2014). To support a motion to 

dismiss based on a discovery violation, a defendant must show not only that the State 

failed to act with due diligence and withheld material facts, but also that the discovery 

violation “‘essentially compelled the defendant to choose between two distinct rights’: 

the right to a speedy trial and the right to adequately prepared counsel.” Id. at 797 

(quoting State v. Woods, 143 Wn.2d 561, 583, 23 P.3d 1046 (2001)). 

CrR 8.3(b). Under CrR 8.3(b), the trial court “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.” “A defendant must make two showings to justify dismissal under CrR 8.3(b): (1) 

arbitrary action or governmental misconduct and (2) prejudice affecting the defendant’s 

right to a fair trial.” Barry, 184 Wn. App. at 797. Governmental misconduct does not 

need to be evil or dishonest in nature, simple mismanagement is sufficient. State v. 

Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). “Prejudice under CrR 8.3(b) 
No. 36419-4-III

State v. Innes

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includes the right to a speedy trial and the right to adequately prepared counsel.” Barry, 

184 Wn. App. at 797. 

“Dismissal is an extraordinary remedy, one that the trial court should use only as a 

last resort.” State v. Krenik, 156 Wn. App. 314, 320, 231 P.3d 252 (2010). A trial 

court’s decision on whether to dismiss an action under CrR 4.7 and CrR 8.3 is reviewed 

for an abuse of discretion. Michielli, 132 Wn.2d at 240. “Discretion is abused when the 

trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds, or 

for untenable reasons.” Blackwell, 120 Wn.2d at 830.

Mr. Innes fails to demonstrate an abuse of discretion. The trial court continued 

trial for a month, authorized 120 hours of investigative support for defense counsel, and 

set a hearing two-and-a-half weeks out in order to assess whether the defense had been 

able to respond to any prejudice and prepare for trial. At the August 24 hearing, Mr. 

Innes did not identify anything preventing him from going to trial on September 4.

Mr. Innes was not forced to choose between his right to a speedy trial and his right 

to adequately prepared counsel. Trial began within the time for trial period provided by 

the criminal rules. 
No. 36419-4-III

State v. Innes

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We affirm the conviction. We remand with directions to the trial court to correct

section 4.3 of the judgment and sentence to provide that only restitution obligations shall 

bear interest.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_____________________________

Siddoway, J.

WE CONCUR:

_____________________________

Pennell, C.J.

Korsmo, J.