FILED COURT OF APPEALS DIV I STATE OF WASHINGTON 2018 DEC -3 AM 9:23
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 76340-7-1 V. UNPUBLISHED OPINION BRIAN J. SMITH,
Appellant. FILED: December 3, 2018
DWYER, J. — Brian Smith appeals from a jury's verdict finding him guilty of
vehicular homicide and obstructing a law enforcement officer. He asserts that
the trial court erred by admitting evidence obtained from a blood draw, that his
lawyers provided constitutionally ineffective representation, and that he was
harmed when the jury was provided constitutionally deficient instructions on
superseding causes. None of his contentions merit appellate relief. We affirm.
While driving home on the evening of December 5, 2014, Smith attempted
to turn left off of a state highway and collided with Jason Schuylman's motorcycle
as it was driving in the opposite direction. The impact from the collision threw
Schuylman onto the hood of Smith's SUV. His head struck the windshield.
Schuylman was transported to the hospital, where he subsequently died from his
injuries. Because Smith's appeal primarily asserts error in the trial court's pretrial No. 76340-7-1/2
rulings, the facts set forth herein are those established through testimony during
those hearings unless explicitly stated otherwise.
Washington State Patrol Trooper Brad Beattie arrived at the collision
scene after some of the medical personnel had left to transport Schuylman to the
hospital. Other paramedics had begurli attending to Smith. Beattie approached
Smith and, noticing signs that Smith may have been intoxicated, asked him to
perform field sobriety tests. Smith's performance on the tests led Beattie to
request that Smith undergo a portable breath test, on which Smith's breath
sample read .145. Beattie arrested Smith.
Beattie read Smith his Miranda', warnings, handcuffed him, and placed
him in the back of his patrol car. Following the warnings, Smith immediately
asked when he would be able to speak with an attorney. Beattie informed Smith
that he could not put him in contact with an attorney at the scene, that he could
do so once they arrived at the jail, and that he would not ask Smith any questions
before putting him in contact with an attorney.2
Beattie waited approximately hlf an hour for another trooper to arrive at
the scene before leaving with Smith.3 While waiting, Beattie kept Smith
handcuffed in the patrol car, without access to a telephone. Before departing,
1 Miranda v. Arizona, 384 U.S. 436, 88 S. Ct. 1602, 16 L. Ed. 2d 694(1966). 2 Beattie testified during pretrial hearings that his standard procedure for providing access to an attorney was to allow access at the jail because he lacked the resources necessary to provide access in the field. 3 Beattie testified at pretrial hearings that while other police officers were at the scene of the collision when he arrested Smith, he was the only officer at the scene from the Washington State Patrol. He further explained that the other officers were members of the Everson Police Department and were not trained to investigate the type of collision that had occurred. Thus, he was instructed via dispatch to wait at the scene until another trooper arrived to take over supervising the scene.
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Beattie learned that Schuylman's injuries were serious and that he was being
taken into surgery.
Given that Beattie was concerned that the collision might result in a felony
charge and that it was department policy to obtain a blood sample in felony
cases involving intoXicated driving, Beattie drove Smith to a hospital rather than
to the jail. After arriving at the hospital, Beattie obtained a search warrant for 1 Smith's blood. Beattie did not provide Smith with access to an attorney while he
was obtaining the warrant because he sclid not plan to ask Smith any questions
and because he was focused on ensuring that he could obtain a blood sample
before the alcohol ir Smith's blood disSipated.4
When Smith was informed that would undergo a blood draw he stated
that he would not allow it. Beattie explained to Smith that he had a search
warrant for Smith's blood and tried to give the warrant to Smith to review. Smith
said that he did not want to see it. Without prompting, Smith stated that blood
draws were against ,his religion, that he was afraid of needles, and that if they
tried to draw his blood he would not allow it. At this time, Beattie uncuffed Smith
and allowed him to use the restroom, but did not provide him access to a
telephone in order to call an attorney.
Concerned that Smith would physically struggle to prevent the blood draw,
hospital staff and Beattie moved Smith to a padded room containing a bed with
restraints attached to it. After entering the room, Beattie told Smith to get on the
4 Beattie testified at pretrial hearings that the Washington State Patrol generally tries to obtain a blood sample within two hours of a collision and that over an hour had already passed between Smith's arrest and Beattie and Smith 'arriving at the hospital.
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bed but Smith refused and physically resisted attempts to force him onto the bed
and into the restraints. Only after Beattie placed his stun gun on Smith's chest
and threatened to use it if he did not get on the bed did Smith comply and allow
himself to be restrained.
When the phlebotomist attempted to draw blood, Smith again physically
resisted. Even when hospital security officers and troopers attempted to hold
Smith down, he tensed up, flailed, and kicked as much as the restraints would
allow. Concerned that the needle might break off or stab someone because of
Smith's resistance, the phlebotomist concluded that she was not comfortable
continuing to try to draw his blood.
After a short break, during which the phlebotomist and Beattie discussed
potential next steps with a hospital doctor, Dr. Oleg Ravitsky, it was decided that
they would make another attempt. Immediately prior to this attempt, Beattie read
Smith the special evidence warnings, including a statement that Smith had the
right to seek additional independent testing of his blood. The second attempt,
however, proved as futile as the first due to Smith's continued resistance. Again,
the phlebotomist decided that she was uncomfortable continuing.
After the second attempt, the phlebotomist told Beattie and Dr. Ravitsky
that she was unwilling to try again because of Smith's resistance. Someone
suggested sedating Smith as a possible means of enabling the safe completion
of the blood draw.5 By this time, Beatt e had been informed that Schuylman had
5 The record is not entirely clear as to who first suggested sedating Smith. Beattie testified at pretrial hearings that it was Dr. Ravlsky who mentioned it during the discussion held after the second blood draw attempt. However, Dr. Ravitsky testified that his medical examiner told him that the decision to sedate Smith had already been made by someone else (although he
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died as a result of his injuries. Because he was concerned about obtaining
evidence of Smith's blood alcohol content for a potential vehicular homicide case,
Beattie agreed to sedation.
After observing the second attempt to complete the blood draw, Dr.
Ravitsky believed that Smith was behaving in an unusual manner because drugs
or alcohol consumption had induced a psychotic manner. Due to Smith's
behavior and because of the risk that Smith may have suffered trauma during the
collision, Dr. Ravitsky believed that Smith should be sedated to enable a medical I examination to clear him for admittance to jail. Dr. Ravitsky decided that, due to
the drug or alcohol induced psychotic manner he had observed, Smith lacked the
capacity to consent and that sedation was necessary for Smith's safety and the
safety of hospital staff. Dr. Ravitsky believed that sedating Smith was a proper
course of action in that it dramatically reduced the risk that Smith would seriously
injure himself or others by struggling against the next blood draw attempt.
When Dr. Ravitsky informed Smith that he was going to be sedated, Smith
replied that sedation was not possible because he was allergic to the sedative.6
Smith then claimed that he was allergic to all sedatives. Dr. Ravitsky briefly left
the room in order to check Smith's medical records (so as to attempt to verify
Smith's claims). While they were waiting, Beattie gave Smith his cell phone to
allow him to call an attorney. Beattie did not provide Smith with a telephone
did not know by whom). Regardless, Dr. Ravitsky believed that such sedation was necessary and testified during pretrial hearings that he had had the final say on sedating Smith. 6 The pretrial record is unclear as to which sedative Smith first claimed to be allergic.
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number for an attorney and Smith did not attempt to call an attorney but, rather,
called his wife.
Dr. Ravitsky's search of Smith's medical records did not verify Smith's
claimed allergies to sedatives. Dr. Ravitsky ordered that Smith be given an 1 injection of HaIdol, with a secondary of Atvian or Benadry1.7 Smith physically
resisted the administration of the sedative, tensing and kicking at hospital staff
who attempted to inject him. Accordingly, Smith was distracted so that the nurse
could safely perform the injection.
The sedative made Smith calm and sleepy, but did not render him
unconscious. While Smith was sedated, Dr. Ravitsky was able to perform a
medical assessment of him and hospital staff successfully performed the blood
draw. Smith did not exhibit any negative side effect from the sedative. 1 Following the execution of the warrant to obtain a sample of Smith's blood,
Beattie took Smith to the Whatcom County Jail for booking. Beattie presumed
that Smith would be granted access to a telephone to call an attorney as part of
the booking process, as he believed that such was the jail's standard procedure.
The record, however, does not indicate whether this occurred. 1 Smith was charged with vehicular homicide and obstructing a law
enforcement officer. Smith filed pretrial motions to suppress the evidence of his
performance on the field sobriety tests'and the result of the blood test, and to
preclude testimony regarding various statements Smith had made while at the
7 At the time he gave this order, Dr. Ravitsky had 13 years of experience in administering these sedatives and knew that the potential side effects are usually mild and easily managed and also knew that Smith would be monitored for any side effects.
-6- No. 76340-7-1/7
hospital on the night of the collision. Following extensive pretrial hearings, the
trial court ruled that evidence of the result of the blood test and the statements
made by Smith while at the hospital were admissible.
At trial, the State's witnesses from pretrial hearings testified in keeping
with their pretrial testimony. To explain Smith's behavior in resisting the blood
draw, the defense, relying on trial testimony from Smith himself, argued that
Smith was terrified of needles.8 The defense also offered an alternative
explanation for the cause of the collision, claiming that the headlight on
Schuylman's motorcycle was off when Smith had looked to see if it was safe to
turn left, and that this relieved Smith of culpability.8
At the close of the evidence, the trial court gave the following jury
instructions regarding superseding causes:
Instruction No. 8 To constitute vehicular homicide, there must be a causal connection between the death Of a human being and the driving of a defendant so that the act done was a proximate cause of the resulting death. The term "proximate cause" means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
8 At trial, Smith testified that he does not "do well with needles," but denied that he had ever stated that he was allergic to all sedatives or that blood draws were against his religion. Smith did not present any other witnesses at trial who possessed firsthand knowledge of the veracity of Smith's statements at the hospital claiming a fear of needles. No other witnesses at trial corroborated Smith's testimony regarding his statements pertaining to religious objections to blood draws and allergies. Similarly, during pretrial hearings, no witness with firsthand knowledge testified to Smith's fear of needles, allergies to sedatives, or religious issues with blood draws. Smith did not testify at the pretrial proceedings. 9 Smith also argued at trial that problems with the design of the motorcycle's shifting mechanism could have been a superseding cause, but even Smith's own expert witness admitted that he had no reason to believe that the shifting mechanism had anything to do with the collision. The record shows that Smith did not present any evidence tending to show that the shifting mechanism was in any way a cause of the collision. We therefore will not consider this argument further.
7- No. 76340-7-1/8
There may be more than one proximate cause of a death.
Instruction No. 9 If you are satisfied beyond a reasonable doubt that the driving of the defendant was a Proximate cause of the death of another, it is not a defense that the driving of the deceased may also have been a proximate cause of the death.
However, if a proximate Cause of the death was a new independent intervening act of the deceased which the defendant, in the exercise of ordinary care, should not reasonably have anticipated as likely to happen, the defendant's act is superseded by the intervening cause and is riot a proximate cause of the death. An intervening cause is an action that actively operates to produce harm to another after the defendant's act has been committed or begun.
However, if in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening cause, that cause does not supersede the defendant's original act and the defendant's act is a proximate cause. It is not necessary that the sequence of events or the particular injury be foreseeable. It is only necessary that the death falls within the general field of danger which the defendant should have reasonably anticipated.
The wording of these instructions was taken from Washington Pattern Jury
Instructions 90.07 and 90.08. 11A WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 90.07, 90.08, at 276, 278 (4th ed. 2016)(WPIC).
Following closing arguments, the jury found Smith guilty of both the crime
of vehicular homicide and the crime of obstructing a law enforcement officer.
Smith appeals.
On appeal, Smith primarily contends that the evidence obtained from the
drawing and testing of his blood should have been excluded from trial. This is
so, he asserts, because the evidence was obtained in violation of his rights
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pursuant to our federal and state constitutions and a court rule regarding the right
to counsel in criminal cases. We disagree.
Because Smith challenges only the trial court's legal conclusions, we
consider factual findings from the pretrial hearings as verities on appeal. See
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313(1994). We review the
challenged conclusions of law de novd. State v. Inman, 2 Wn. App. 2d 281, 290,
409 P.3d 1138, review denied, 190 Wn.2d 1022 (2018).
A
Smith first asserts that evidence obtained from the blood draw should
have been excluded because the manner in which the police executed the
warrant to obtain his blood violated his right to due process pursuant to the l Fourteenth Amendment and his right not to be subject to unreasonable searches
and seizures pursuant to the Fourth Ar7ndment of the United States
Constitution. Specifically, Smith objects to the conduct of the police in restraining
him to a hospital bed and sedating hind in order to conduct the blood draw,
without his consent and without a warrant explicitly authorizing the use of
sedatives. In response, the State asserts that such measures were permissible,
particularly because they became necessary only after Smith physically resisted
the judicially authorized blood draw. The State has the better argument.
Before the Fourth Amendment to the United States Constitution was
incorporated via the Fourteenth Amendment to apply to the states, the United
States Supreme Court analyzed state police searches and seizures intruding into
a defendant's body solely through the due process clause of the Fourteenth
9 No. 76340-7-1/10
Amendment. See Rochin_V._California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed.
183(1952). In Rochin, the Court held that evidence obtained as a result of police
unlawfully breaking into a suspect's house, forcibly attempting to open and
remove items from the suspect's mouth, and ultimately forcibly extracting the
contents of the suspect's stomach, was inadmissible. 342 U.S. at 167, 174. The
Court held that such behavior, by agents of government, shocked the conscience
and were "methods too close to the rack and the screw to permit of constitutional
differentiation." Rochin, 342 U.S. at 172.
Although Rochin has never been overruled, following the incorporation of
the Fourth Amendment to apply to the states, the Supreme Court has shifted its
analysis of state police conduct during searches and seizures to a
reasonableness analysis under the Fourth Amendment. County of Sacramento
v. Lewis, 523 U.S. 833, 849 n.9, 1188. Ct. 1708, 140 L. Ed. 2d 1043(1988)
(acknowledging that if Rochin arose subsequent to incorporation it "would be
treated under the Fourth Amendment[analysis], albeit with the same result").1°
This Fourth Amendment search or seizure reasonableness analysis
encompasses issues pertaining to the ight to refuse medical treatment,
procedures, or medication, even though in other contexts the right to refuse
medical treatment is typically analyzed under the Fourteenth Amendment's due
10 Occasionally, a court has relied upon the Rochin analysis when confronted with a case in which the police had searched inside a suspect's body, but Rochin "cannot be said to be flourishing as an authority in that there has not been any tendency to apply it in any general way." Yanez v. Romero,619 F.2d 851, 856 (10th Cir, 1980). Cf. Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), overruled by Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447(1979) (holding by Second Circuit based on a Rochin 'analysis overruled by Supreme Court using Fourth Amendment reasonableness analysis).
10- No. 76340-7-1/11
process clause. See e.a., Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611,84 L.
Ed. 2d 662(1985)(considering whether it was reasonable for Fourth Amendment
purposes to compel a defendant to undergo surgery to remove a bullet); United
States v. Husband, 226 F.3d 626 (7th Cir. 2000)(considering whether it was
reasonable for Fourth Amendment purposes to administer an intravenous
anesthetic to sedate a resisting suspect to retrieve contraband believed to be
hidden in the suspect's mouth).
"[T]he Fourth Amendment's proper function is to constrain, not against all
intrusions as such, but against intrusions which are not justified in the
circumstances, or which are made in an improper manner." Schmerber v.
California, 384 U.S. 757, 768, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In
Schmerber, the Court considered whether, in a drunk driving case, evidence
obtained from a blood draw administered at a hospital without a warrant, and
without the suspect's consent, violated the suspect's Fourth Amendment rights.
384 U.S. at 758-59, 768-70. In affirming the admissibility of the evidence, the
Schmerber Court explained that "the q uestions we must decide in this case are
whether the police were justified in requiring petitioner to submit to the blood test,
and whether the means and procedures employed in taking his blood respected
relevant Fourth Amendment standards of reasonableness." 384 U.S. at 768.
The Court held that, on the record therein, there was probable cause to believe
that the blood draw would effectively produce evidence of a crime.11 The Court
11 The Schmerber Court specifically recognized that blood tests are "a highly effective means of determining the degree to which a person is under the influence of alcohol." 384 U.S. at 771. No. 76340-7-1112
also reasoned that the blood draw was a safe and common procedure performed
by medical personnel at a hospital, there was insufficient time to obtain a
warrant, and, thus, a compelled, warrantless, blood draw constituted a
reasonable search and seizure under the Fourth Amendment. Schmerber, 384
U.S. at 770-71. The Court explicitly restricted its ruling to the facts before it and
noted that different circumstances, particularly if the suspect had requested
alternative testing on the grounds of "fear, concern for health, or religious
scruple," might require a different analysis. Schmerber, 384 U.S. at 771.
In Winston v. Lee, 470 U.S. at 761-62, the Supreme Court identified three
factors considered in Schmerber that should be considered, in addition to a
finding of probable cause, when determining the reasonableness of any search
or seizure involving a compelled bodily intrusion. Therein, the Court weighed the
"extent to which the procedure may threaten the safety or health of the individual"
and the "extent of intrusion upon the individual's dignitary interests in personal
privacy and bodily integrity" against "the community's interest in fairly and
accurately determining guilt or innocence." Winston, 470 U.S. at 761-62.
Emphasizing, as it had in Schmerber, that a reasonableness analysis required a
case-by-case approach, the Court in Winston held that the record before it
showed that the State's requested compelled surgery was unreasonable. 470
U.S. at 766. The Court explained that the State had failed to demonstrate a
compelling need for the evidence the surgery would have provided, and that the
collection of merely useful, but not necessary, evidence was insufficient to
overcome the uncertain medical risks of the surgery and the severe intrusions on
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the defendant's privacy interests that such surgery would entail. Winston, 470
U.S. at 766.
In analyzing the Winston factors, we first note that the police herein sought
a blood sample pursuant to a valid warrant. Second, as in Schmerber, the risk to
Smith's health from participating in the blood draw was very low because a blood
draw is a safe and common procedure.12 Similarly, the pretrial record is clear
that the risk of harm to Smith's health from the use of the sedative was also very
low.13
12 Smith asserts that he falls within the special category of persons who object to the administration of a blood draw out of "fear, concern for health, or religious scruple." See Schmerber 385 U.S. at 771. He contends that his fear of needles requires us to view the blood draw differently than the Court did in Schmerber. However, the pretrial record provides no support for his assertion of fear. The trial court did not find that Smith had a fear of needles, nor could it have so found from the evidence presented. No witness with firsthand knowledge of the fact testified during pretrial hearings that Smith had a fear of needles. Instead, the witnesses testified to only their firsthand knowledge of his utterances to that effect. Indeed, Beattie was explicitly asked during pretrial hearings whether he knew what Smith's fears were on the night of the collision and he answered that he did not know. Citing to civil cases, Smith contends that the combination of the trial court's finding that Smith made statements at the hospital claiming to be afraid of needles and the trial court's absence of a finding that Smith's statements were not credible requires us to conclude that the trial judge credited Smith's claim of fear. However, the trial judge had to make a finding identifying statements Smith made at the hospital so that he could determine whether such statements were voluntary or the product of custodial interrogation in order to resolve the issues raised in the pretrial CrR 3.5 motion. The judge made a finding that certain statements were made but made no explicit finding as to their veracity. That the judge found as a fact that Smith uttered a statement about a fear of needles does not indicate that the judge believed the statement was true. Indeed, the context indicates quite strongly that the opposite is true. To be sure, for us to apply Smith's desired reasoning would require us to also conclude that the trial judge credited the truth of Smith's other statements at the hospital, including the statements concerning his religious scruples regarding blood draws and his allergies to all sedatives. Such a conclusion is illogical given that the record clearly shows that Dr. Ravitsky attempted to verify Smith's claimed allergies to all sedatives and that nothing in Smith's medical records supported the claim. It would be patently unreasonable to conclude that the trial judge credited Smith's statement claiming that he was allergic to sedatives when that statement was so clearly discredited soon after it was uttered. Smith failed to present even a scintilla of evidence during pretrial hearings that any of the statements at ,the hospital were truthful. We therefore decline Smith's invitation to force upon the trial judge a set of factual findings that the judge plainly did not make. 13 In fact, the trial court found that attempting to execute the warrant without sedating Smith would have risked placing him in greater harm than did sedating him because Smith's struggling may have broken off a needle inside of Smith's arm.
13- LI No. 76340-7-1/14
Third, unlike the risk of harm to his health, the harm to Smith's dignitary
interests was more substantial because he was forcibly sedated to undergo a
medical procedure without his consent. However, the harm was not as severe as
that threatened by the police in Husband or Winston because Smith was not
sedated to the point of unconsciousness. Additionally, it is pertinent to our
analysis that Smith was sedated (thus increasing the otherwise minimal harm to
his dignitary interests presented by a routine blood draw) only because of his
physical resistance. Smith had the opportunity to avoid sedation by cooperating
with the police and hospital staff who were attempting to obtain a blood sample
as authorized by a valid judicial warrant, but chose not to do so. It is plain that
suspects would be improperly incentivjzed to resist the execution of warrants if,
by doing so, they could force the State to employ more intrusive measures that
would then be held to be violations of the suspect's constitutional rights.14 We
therefore conclude that the dignitary harm posed by Smith's forced sedation was
substantially mitigated by the fact that Smith himself created the need for such
sedation.
Lastly, the community interest in obtaining the evidence garnered by the
blood draw was extremely high. Schuylman died from his injuries, making Smith
a suspect in a vehicular homicide case. Furthermore, highly relevant evidence
14 This does not mean that there are no limits to the manner in which police officers may execute a warrant. Rather, it simply means that a defendant's resistance may make otherwise unnecessary methods of execution reasonable in certain circumstances. Nothing we state should be understood as disagreeing with the propos'tion that the execution of a warrant must always be reasonable under the circumstances. State v. Hampton, 114 Wn. App. 486, 494,60 P.3d 95 (2002).
14 - No. 76340-7-1/15
germane to his guilt or innocence was quickly dissipating as time passed.15,16
Additionally, because Smith was resisting the execution of the warrant, he
threatened society's interest in seeing that judicial warrants are obeyed. We
conclude that the very low risks to Smith's health, and the moderate harm to
Smith's dignitary interests caused solely by Smith's refusal to cooperate with less
invasive procedures, were outweighed by the community's interest in obtaining
the evidence resulting from the blood draw and in ensuring compliance with
judicial warrants. The administration Of a low risk sedative by medical personnel
at a hospital, who continuously monitored Smith, was, under the circumstances,
a reasonable method of executing the warrant.
Smith next contends that the administration of the sedative in order to
conduct the blood draw violated his rights pursuant to article 1, section 7 of the
state constitution because the police lacked authority of law to sedate him. Smith
asserts that a second warrant was required that specifically authorized the
execution of the first warrant by use of sedation. We disagree.
15 Smith's assertion that the relatively recent case of Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), prohibits us from considering the dissipation of alcohol in Smith's blood when determining the reasonableness of the search and seizure is based on a misreading of McNeely. All McNeely holds is that the dissipation of alcohol in a suspect's blood is not a per se exigency excusing the need for a warrant before drawing blood from a suspect. As the police herein had secured a warrant to obtain Smith's blood, McNeelv's holding regarding exigent circumstances is inapplicable. 16 Smith asserts that because he resisted the blood draw for several hours, there was plenty of time for the police to obtain another warrant authorizing his sedation rather than investing time forcing him to be sedated. According to Smith, this logic renders the decision to forcibly sedate him unnecessary, and, thus, unreasonable. Such an argument presumes that Smith would have complied with a second warrant, but nothing in the record indicates that the existence of a warrant made any difference to Smith's level of resistance. Smith refused to cooperate when informed about the first warrant and nothing in the record supports an assertion that he would have cooperated with a second one.
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Article I, section 7 of our constitution states that Inio person shall be
disturbed in his private affairs, or his hiome invaded, without authority of law."
Our Supreme Court has explained that "[t]he 'authority of law' required by article
1, section 7 is satisfied by a valid warrant." York v. Wahkiakum Sch. Dist. No.
200, 163 Wn.2d 297, 306, 178 P.3d 995 (2008). Article!, section 7 prohibits only
"unreasonable searches and seizures" State v. Curran, 116 Wn.2d 174, 184,
804 P.2d 558 (1991), abrogated on other grounds by, State v. Berlin, 133 Wn.2d
541, 947 P.2d 700 (1997).
Our Supreme Court has been clear: when a warrant's purpose is to
authorize the collection of evidence, "[it is not sensible to read the warrant in a
way that stops short of obtaining that evidence." State v. Figeroa Martines, 184
Wn.2d 83, 93, 355 P.3d 1111 (2015). Search warrants are "to be tested and
interpreted in a commonsense, practical manner." State v. Perrone, 119 Wn.2d
538, 549, 834 P.2d 611 (1992). The reasonable execution of a valid warrant
satisfies the authority of law requirement. State v. Hampton, 114 Wn. App. 486,
494,60 P.3d 95 (2002).
Here, Smith does not contest the validity of the warrant relied upon by the
police to obtain a sample of his blood. As previously discussed, the manner of
execution of the warrant was reasonable under the circumstances. It is not
sensible to read the warrant, issued for the purpose of enabling the police to
obtain and test Smith's blood, as prohibiting the reasonable manner of execution
under the circumstances that was required in order to obtain the blood sample
needed to test Smith's blood alcohol content. See Fiqeroa Martines, 184 Wn.2d
- 16- No. 76340-7-1/17
at 93. Therefore, the warrant provided the necessary authority of law under the
circumstances to authorize sedating Smith to enable hospital staff to perform the
blood draw.
Smith next contends that he was improperly denied his right to counsel
pursuant to CrR 3.1. He asserts that by denying his right to counsel, the police
deprived him of an advocate before, during, and for several hours after the blood
draw, thereby depriving him of any legal advice regarding the right to seek an
independent blood test.
CrR 3.1 provides, in pertinent part:
(b)Stage of Proceedings. (1) The right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest.
(c) Explaining the Availability of a Lawyer.
(2) At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public'defender or official responsible for assigning a lawyer, and any other means necessary to place the person in communication with a lawyer.
CrR 3.1 goes "beyond the constitutional requirements of the fifth and sixth
amendments to the United States Constitution" by providing a more immediate
right to counsel upon arrest. State v. Templeton, 148 Wn.2d 193, 218, 59 P.3d
632(2002). If there is a violation of the court rule right to counsel, any evidence
that was tainted as a result of the violation must be suppressed. State v.
Schulze, 116 Wn.2d 154, 162, 804 P.2d 566 (1991).
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However, we have previously held that the rule does not "compel police to
postpone routine prebooking procedures or the execution of a search warrant
when an arrestee expresses the desire to consult an attorney." State v. Mullins,
158 Wn. App. 360, 369, 241 P.3d 456(2010). Citing approvingly to Mullins, our
Supreme Court recently held that a defendant's rights pursuant to CrR 3.1 are
not violated when law enforcement's "investigative duties and . . . security
measures and policies precluded an earlier meeting with an attorney." State v.
Schell, No. 88906-6, slip op. at 21 (Wash. Nov. 8, 2018)
http://www.courts.wa.gov/opinions/p0889066.pdf.
Here, Smith requested to speak to an attorney several times between his
arrest and booking at the jail. During this time, Beattie was supervising the
collision scene, driving Smith to the hqspital and to the jail, and attempting to
obtain and execute a search warrant for a blood sample. CrR 3.1 did not require
Beattie to postpone the completion of his routine duties, including supervising the
scene of the collision until another trooper arrived to ensure the safe and
effective management of the scene, transporting an arrested suspect by patrol
vehicle, and obtaining and executing a valid search warrant. Therefore, there
was no CrR 3.1 violation.
Even if there had been a violation of Smith's rights pursuant to CrR 3.1,
however, he would still not be entitled to appellate relief. "Because the asserted
error is a violation of a court rule (rather than a constitutional violation), it is
governed by the harmless error test." State v. Robinson, 153 Wn.2d 689, 697,
107 P.3d 90 (2005). Thus, reversal is appropriate only when, within reasonable
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probabilities, "[if] the error [had] not occurred, the outcome of the [trial] would
have been materially affected." Robinson, 153 Wn.2d at 697 (first two
alterations in original)(internal quotation marks omitted)(quoting Templeton, 148
Wn.2d at 220).
When evidence is obtained through a blood draw in violation of CrR 3.1,
that evidence is not tainted if an attorney could have done nothing other than
instruct the defendant to submit to the blood test. Schulze, 116 Wn.2d at 164.
Nevertheless, Smith asserts that an attorney could have arranged for him
to undergo an independent blood test if not for his sedation and the long delay in
giving him access to an attorney following his arrest.17 Smith avers that he had a
right to an independent test pursuant to RCW 46.61.506(7), and that the denial of
access to counsel prevented him from exercising that right because defense
counsel could have advised him to undergo an additional test.
Smith's contention is unavailing because the record is devoid of any
indication that Smith would have wanted to, or would have even been willing to,
undergo an independent blood test. The record shows that Smith, after being
read the special evidence warnings, which included a statement that Smith had
the right to seek an independent test, did not request such a test. During pretrial
hearings, Smith did not testify that he would have sought an independent test
17 Smith also asserts that an attorney,could have ensured that the police obtained a second warrant authorizing sedation or could have suggested doing a breath test instead of a blood test. Such arguments are patently meritless. As discussed, a second warrant was unnecessary, and, furthermore, nothing in the record indicates that Smith would have stopped resisting the blood draw if a second warrant had been obtained. Also, because the officers had a valid warrant to obtain Smith's blood, they did not need to offer a breath test as an alternative. Even if an attorney had been contacted, Smith could only have been properly advised to submit to the blood draw pursuant to the warrant.
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had he been able to discuss the subject with counsel. At trial, he again failed to
assert that he would have sought an independent test.18 Thus, even if there had
been a violation of CrR 3.1, a violation' premised on the denial of his right to be
counseled regarding his right to seek an independent blood test would be
harmless error.
None of Smith's contentions merit reversing the trial court's decision to
admit the evidence obtained from Smith's blood sample.
Ill
Smith next contends that his statements at the hospital, as testified to by
the officers and hospital staff, should have been ruled inadmissible as violating
his Fifth Amendment rights. This is so, Smith asserts, because his statements
were the product of police coercion and were not voluntary. We disagree.
The Fifth Amendment "protects a person from being compelled to give
evidence against himself or herself." State v. Unga, 165 Wn.2d 95, 100-01, 196
P.3d 645 (2008). A statement of the defendant is coerced when it is obtained by
promises or misrepresentations made by law enforcement that overcome the
defendant's freewill. State v. Broadawav, 133 Wn.2d 118, 132, 942 P.2d 363
(1997). "If statements are freely given, spontaneous and not the product of
custodial interrogation, they are considered voluntary." State v. Peerson, 62 Wn.
App. 755, 774, 816 P.2d 43(1991).
Smith asserts that we should follow the reasoning from the following
18 Furthermore, Smith "stuck to his guns" at trial as to his claimed fear of needles. There is no reason to believe that he would have vo untarily undergone an additional blood test on the night of the collision—an act that would have Undercut his claim of fear.
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passage in Schmerber that discussed the possibility of the prosecution obtaining
incriminating statements during the administration of physical tests.
Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test,' especially for an individual who fears the extraction or opposes'iit on religious grounds. If it wishes to compel persons to submit to suchattempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test... .[T]here may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the "search," and nothing we say today should be taken as establishing the permissibility of compulsion in that case.
Schmerber, 384 U.S. at 765 n.9.
Smith admits that the officers at the hospital did not explicitly interrogate
him, but avers that, as suggested by the Court in Schmerber, his statements
made while he was being physically tested, confronted with needles, and "beaten
and drugged," were not voluntary. But the applicability of Smith's proffered
passage from Schmerber is not supported by the record herein. A blood draw is,
as the Court in Schmerber recognized, a common procedure and, for most
people, involves virtually no risk, trauma, or pain. 384 U.S. at 771. There was
no testimony presented at pretrial hearings to support a finding that Smith's
claimed fear of needles was genuine. Thus, there was no reason to find that the
procedure posed an exceptional likelihood of inducing a confession. And,
indeed, Smith made no such confession. Additionally, all of the statements made
by Smith at the hospital that were admitted at trial were uttered prior to Smith's
sedation. During pretrial hearings, Beattie testified that Smith, without prompting
from any officer, volunteered his comments about a fear of needles, religious
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opposition to a blood draw, and allergies to sedatives. The statements were
properly admitted.
IV
Smith next contends that his counsel were constitutionally ineffective
because they failed to assert that the admission of the statements Smith made at
the hospital violated his statutory physician-patient privilege.
"A defendant is denied effective assistance of counsel if the complained-of
attorney conduct(1)falls below a minimum objective standard of reasonable
attorney conduct, and (2) there is a probability that the outcome would be
different but for the attorney's conduct." State v. Benn, 120 Wn.2d 631, 663, 845
P.2d 289(1993)(citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). If counsel's conduct was a conceivable
tactical decision that a reasonable attorney might have made, then it cannot
constitute ineffective assistance of counsel. State v. Reichenbach, 153 Wn.2d
126, 130, 101 P.3d 80 (2004).
The physician-patient privilege is statutory, derived from RCW
5.60.060(4), and is applied in the criminal context via RCW 10.58.010. State v.
Smith, 84 Wn. App. 813, 820, 929 P.2d 1191 (1997). The privilege protects
statements made in the course of treatment. State v. Salas, 1 Wn. App. 2d 931,
950, 408 P.3d 383, review denied, 190 Wn.2d 1016 (2018). However, even
when the privilege applies, the party asserting it can waive the privilege by the
nature of the defense asserted. Smith, 84 Wn. App. at 822. A person waives the
privilege by voluntarily placing his or her physical condition at issue in a judicial
- 22 - No. 76340-7-1/23
proceeding. Carson v. Fine, 123 Wn.2d 206, 213-14, 867 P.2d 610 (1994).
Smith's assertion of ineffective assistance of counsel fails because Smith
waived the physician-patient privilege by placing his physical condition at issue,
and such waiver is explainable as a conceivable tactical decision of a reasonable
attorney. Given that Smith claimed in a pretrial motion that the evidence of the
blood draw should have been suppressed because he was sedated in order to
obtain the evidence, he necessarily placed his physical condition at issue. There
is no way that the trial court could have ruled on the reasonableness of sedating
Smith without hearing testimony from the doctor who determined that sedating
him would be safe and effective. Furthermore, moving to suppress evidence of a
blood test in a vehicular homicide case on the ground that the blood was
obtained in an unlawful manner is a conceivable tactical decision that a
reasonable attorney would make. Smith's counsel was not constitutionally
ineffective.
V
Finally, Smith contends that the trial court's instructions to the jury on the
burden of proof regarding superseding causes violated his right to due process
and that such error was prejudicial. Specifically, Smith urges us to follow the
recent decision of Division Two in State v. Imokawa,4 Wn. App. 2d 545, 555,
422 P.3d 502(2018), which held that, in a vehicular homicide case,jury
instructions that failed to unambiguously explain that the State has the burden of
proof regarding the absence of superseding causes violated due process. In
response, the State asserts that we should apply a different analysis, that
-23- No. 76340-7-1/24
expressed in our decision in State v. Roacienkamp, 115 Wn. App. 927, 64 P.3d
92(2003), affd, 153 Wn.2d 614, 106 P.3d 196 (2005), and that, even were we to
follow Imokawa, any error in the jury instructions constituted harmless error. We
agree with Smith that the Imokawa analysis is correct. But the State is correct
that the error was harmless.
"Instructions satisfy the requirement of a fair trial when, taken as a whole,
they properly inform the jury of the applicable law, are not misleading, and permit l the defendant to argue his theory of the case." State v. Tili, 139 Wn.2d 107, 126,
985 P.2d 365(1999). A trial court's decision regarding a jury instruction is
reviewed for an abuse of discretion if the decision is based on the factual record
but is reviewed de novo if the decision is based on issues of law. State v.
Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883(1998).19
The Imokawa court held that the defense of a superseding cause
necessarily negates the essential elernent of proximate cause for the crime of
vehicular homicide and that the jury therein was not unambiguously informed of I the State's burden of proof in this rega rd. 4 Wn. App. 2d at 556-57. In so
holding, Division Two relied upon our Supreme Court's decision in State v. W.R.,
181 Wn.2d 757, 336 P.3d 1134 (2014). Therein, the court explained that
instructions violate a defendant's right to due process when they place the
19 This issue, raised for the first time on appeal, is properly before us pursuant to RAP 2.5(a), which permits review of manifest errors affecting constitutional rights. See State v. Kalebaugh, 183 Wn.2d 578, 583-84, 355 P.3d 253(2015)(explaining that an improper jury instruction that misstated the burden of proof to the jury by incorrectly defining reasonable doubt could be challenged for the first time on appeal).
-24 - No. 76340-7-1/25
burden of proving a defense on the defendant when that defense necessarily
negates an essential element of the crime charged. W.R., 181 Wn.2d at 762. In
such cases, the State "must prove the absence of the defense as part of proving
all essential elements of the crime beyond a reasonable doubt." Imokawa,4 Wn.
App. 2d at 553. Furthermore, when the State has the burden to prove the
absence of a defense, the jury mustb unambiguously informed that the State
has to prove the absence of the defense beyond a reasonable doubt. State v. I Acosta, 101 Wn.2d 612, 621,683 P.2d 1069 (1984). While an explicit instruction
to this effect is preferable, it is not required as long as the instructions, "taken as
a whole, make it clear that the State has the burden." Acosta, 101 Wn.2d at 621.
Applying this "negates an element" analysis, the Imokawa court held that a
superseding cause necessarily negates the essential element of proximate cause
for the crime of vehicular homicide. 4 Wn. App. 2d at 556-57. The court
explained that "it is impossible for the defendant's driving to be a proximate
cause of the injury or death and for there to also be a superseding cause of the
injury or death. Therefore, the two cannot coexist and a superseding cause
negates proximate cause." Imokawa,4 Wn. App. 2d at 555.
The trial court in Imokawa gave standard Washington Pattern Jury
Instructions related to proximate cause and superseding causes, specifically
WPIC 90.07 and WPIC 90.08. 4 Wn. App. 2d at 552. These instructions did not
include any language requiring the State to prove the absence of a superseding
cause, nor did any other instruction prH/ided by the trial court provide language
indicative of the State's burden. Imokawa,4 Wn. App. 2d at 552. Therefore, the
- 25 - No. 76340-7-1/26
court concluded, the pattern jury instructions failed to unambiguously inform the
jury of the State's burden, thereby violating the defendant's due process rights.
Imokawa,4 Wn. App. 2d at 557.
We decline the State's invitation to apply the analysis used in
Roqqenkamp. The Romenkamp analysis relies on a decision of our Supreme
Court, State v. Camara, 113 Wn.2d 631, 781 P.2d 483(1989), that was overruled
in W.R. 181 Wn.2d at 762. The Imokawa court correctly followed the decision in
W.R.
Here, the jury instructions for proximate cause and superseding causes
were taken from WPIC 90.07 and WPIC 90.08 and were practically identical to
those given in Imokawa. Also similarly to Imokawa, no other instructions
provided to the jury here indicated that the State bore the burden of proving the
absence of a superseding cause beyond a reasonable doubt. Applying the
analysis employed in Imokawa, we conclude that the instructions at issue herein
were constitutionally deficient.
"Jury instructions that violate a defendant's right to due process require
reversal unless the State can prove that the error was harmless beyond a
reasonable doubt." Imokawa, 4 Wn. App. 2d at 559 (citing State v. Brown, 147
Wn.2d 330, 339, 58 P.3d 889 (2002))J An error is harmless if it is clear beyond a
reasonable doubt that the outcome ofIthe trial would have been the same even in
the absence of the error. State v. SoUther, 100 Wn. App. 701, 709-10, 998 P.2d
350 (2000). In a vehicular homicide case, if the defendant presents evidence
- 26 - No. 76340-7-1/27
that could establish a superseding cause, and the only issue related to the
evidence was a question of credibility for the jury, then the erroneous jury
instructions were not harmless. Imokawa,4 Wn. App. 2d at 559. A superseding
cause is an intervening cause that is not reasonably foreseeable. Roqqenkamp,
115 Wn. App. at 945. "An intervening cause is a force that operates to produce
harm afterthe defendant has committed the act or omission" of which he has
been accused. Roggenkamp, 115 Wn. App. at 945.
In Souther, we held that any potential error from the constitutionally
insufficient jury instructions issued therein was harmless. 100 Wn. App. at 711.
Therein, the defendant asserted that speeding and improper display of a left
hand turn signal by the victim were superseding causes. Souther, 100 Wn. App.
at 710. In rejecting this assertion, the court explained that even if the victim was
speeding or had a turn signal on when the victim was not turning, such actions
could not be considered intervening causes because they did not occur after
Souther's act of turning left in front of the motorcycle. Souther, 100 Wn. App. at
710.
Here, Smith presented evidence that he claimed showed that there were
potential superseding causes for the collision between his car and Schuylman's
motorcycle, but which showed only circumstances that existed prior to Smith's
act of turning left. In closing argument, Smith's attorney argued that the
headlight on Schuylman's motorcycle may have been out prior to and at the time
of the collision, and that this operated as a superseding cause because it made
the motorcycle invisible to Smith. The crux of Smith's argument was that Smith
- 27 - No. 76340-7-1/28
was unable to see the motorcycle prior to making his turn. Thus, Smith's
argument was based on an event that occurred prior to Smith's act while driving
(turning left) that caused the collision. Such a prior event cannot be a
superseding cause. Therefore, because Smith did not present any evidence of a I superseding cause, the failure to provide a constitutionally sufficient superseding
cause instruction to the jury was harmless beyond a reasonable doubt. The
deficient jury instructions do not require reversal.
Affirmed.
We concur:
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