IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 80305-1-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
JIMI JAMES HAMILTON,
Respondent.
SMITH, J. — Hamilton was charged with second degree assault of a
corrections officer while he was incarcerated at Monroe Correctional Complex.
Hamilton was convicted after presenting a mental-health defense at trial.
Hamilton appealed and we remanded for a new trial. On remand, Hamilton
moved to dismiss the case based on the State’s failure to preserve surveillance
video recordings of Hamilton’s interactions from the morning of the assault. The
court granted the motion and the State appealed. Because the deleted videos
were not materially exculpatory and there is no evidence that the State acted in
bad faith in failing to preserve the videos, we reverse and remand for a new trial.
FACTS
In August 2012, Hamilton was in the custody of the Washington State
Department of Corrections as an inmate at the Monroe Correctional Complex.
Around 10:00 AM on August 23, Hamilton had a conversation with Correctional
Officer Nicholas Trout about filing an emergency grievance. The conversation
became heated, and Officer Trout ordered Hamilton to return to his cell.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80305-1-I/2
Hamilton began to comply and walk away, but then suddenly turned back and
charged at Officer Trout, knocked him on to the floor, and began to punch him in
the face.
After the assault, Hamilton told police that he had been feeling anxious
about not being able to talk to a supervisor about his emergency grievance.
Then, after he turned to walk back to his cell, he thought an inmate was trying to
attack him with a knife, and he rushed forward and collided with the person. He
told police that the next thing he remembered was someone yelling at him to
stop.
Monroe Police Detective Barry Hatch led the investigation of the case and
interviewed the defendant and other persons with whom the defendant had
contact the morning before the assault. Hatch requested to preserve a portion of
the prison’s video surveillance, which showed Hamilton’s movements and
interactions leading up to the assault, the incident itself, and the moments after.
Hamilton was charged with one count of second degree assault. On
September 18, 2012, Hamilton’s counsel filed a notice of appearance and
request for discovery, asking the prosecutor to “provide discovery as required by
CrR 4.7(a).” Shortly thereafter, all of the prison’s surveillance video from that
day—other than the footage of the assault itself—was automatically overwritten
as part of the system’s routine functioning.
At trial, Hamilton asserted a defense of diminished capacity due to his
mental health. In support of his defense, Hamilton testified and presented an
expert psychiatric witness, Dr. Stuart Grassian, who testified to his opinion that
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Hamilton suffered from mental illnesses related to his stay in solitary confinement
at the time of the assault.
In October 2014, the jury found Hamilton guilty, and the court sentenced
Hamilton to life without the possibility of parole based on his status as a
persistent offender. Hamilton appealed, and in October 2016, we reversed his
conviction based on improper cross examination of Dr. Grassian. State v.
Hamilton, 196 Wn. App. 461, 465, 383 P.3d 1062 (2016). The appeal was
mandated in May 2017, and the parties continued trial for several months.
In July 2019, two months before the second trial was set to begin,
Hamilton moved to dismiss the assault charge. He contended that the State had
violated his due process rights by failing to preserve the videos of his other
interactions the morning of the assault. However, he did not attach any evidence
to this motion, relying only on a summary of the facts. At the same time,
Hamilton moved to suppress records from a search of his medical records. The
State responded to the motions and attached the affidavit of probable cause to
present the facts of the case. In his reply to the motion to dismiss, Hamilton did
not attach any exhibits but did introduce certain evidence in the body of his brief.
Specifically, Hamilton’s counsel stated that Hamilton’s expert had told him that
the videos from that morning would have been “immensely helpful” in assessing
Hamilton’s mental health. To support his claim that the State had acted in bad
faith, Hamilton’s attorney described an e-mail from the prosecutor to the police
department that stated, “This case has been assigned to Laura Twitchell. Go get
em!!,” and an e-mail between Department of Corrections officials that stated:
3 No. 80305-1-I/4
“Per Detective Barry Hatch, handling the Criminal Investigation, the time need[s] to be stated in the narrative. Maybe you had a break in your typical schedule and were off by 5-10 minutes. . . Example: ‘I got to work that day at 0730 hours . Approximately 5 minutes later as I began to distribute mail, I saw/heard . . .[’] etc.)”
Hamilton’s reply to the motion also included a sworn statement that “[t]he
conversations and written materials referenced are relayed accurately.”
The motions were heard by a different judge who had not presided over
the original trial. Nonetheless, although no portions of the trial transcript were in
the record before the court, both the State and the court referred to the trial
testimony during the hearing.
On July 24, 2019, the court issued a letter ruling discussing the facts and
its analysis and concluding that the charges should be dismissed. On August 1,
the court entered an order of dismissal and stated that its analysis would be
“further memorialized in written findings and conclusions entered at a later date.”
On August 6, the State appealed the decision to this court.
The trial court did not enter its findings and conclusions until November
15, 2019, and the State did not sign the order, indicating that it had not received
notice of the findings. Hamilton filed the findings as supplemental clerk’s papers
on December 31. The State filed its opening brief on May 21, 2020. Hamilton
filed his responding brief on April 13, 2021. Along with his brief, Hamilton moved
to transfer reports of proceedings from his previous appeal to this appeal. The
commissioner granted Hamilton’s motion and we subsequently denied the
State’s motion to modify the ruling.
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ANALYSIS
The State alleges that the court erred by dismissing the case, both
because the deleted videos were not material exculpatory evidence and because
the State did not exhibit bad faith. We agree.
Procedural Issues
The parties first raise several threshold procedural issues regarding the
scope and standard of our review. These are addressed in turn.
1. Consideration of Trial Transcript
The State contends that although we granted Hamilton’s motion to transfer
the trial report of proceedings, we should not consider this transcript in making
our determination because it was not before the trial court. We agree.
“We do not accept evidence on appeal that was not before the trial court.”
State v. Curtiss, 161 Wn. App. 673, 703, 250 P.3d 496 (2011); RAP 9.11. Here,
the judge who heard the motion to dismiss did not preside over the 2014 trial.
Neither party submitted any portions of the trial transcript in their briefing on the
motion to dismiss. Nor is there any indication that the trial transcript was
anywhere in the record before the trial court. The court did not identify what
documents it had reviewed in reaching its decision, except to refer to the affidavit
of probable cause and the “defense recitation of facts.” While counsel for the
State and for Hamilton both described trial testimony to the court, an assertion by
counsel “does not itself constitute competent evidence.” Lemond v. Dep’t of
Licensing, 143 Wn. App. 797, 807, 180 P.3d 829 (2008). Because there is no
5 No. 80305-1-I/6
indication that the trial transcript was before the trial court, we may not consider
it.
Hamilton disagrees and contends that we should consider the trial
transcript because the prosecutor invited the trial court to consider the transcript
and the court did so. Although the prosecutor did encourage the court to look at
the testimony from trial and the court made statements about what “the testimony
in the record” established, this does not negate the fact that the transcript does
not appear to actually have been before the court. The transcript that Hamilton
asks us to consider is in the Court of Appeals file, not the superior court file.
There is a presumption that “the trial judge did not consider inadmissible
evidence in rendering the verdict,” and there is no evidence in this case that the
judge actually did search beyond the record before it to locate and read the trial
transcript. State v. Read, 147 Wn.2d 238, 244, 53 P.3d 26 (2002). Accordingly,
we do not consider the trial transcript on appeal.
2. Waiver of Challenge to Findings
Hamilton next contends that the State should not be permitted to
challenge the trial court’s findings because it “accepted the truth of each finding
in the trial court.” 1 However, the record does not support Hamilton’s assertion.
On the contrary, the State specifically challenged many of Hamilton’s factual
assertions, disagreeing that “video would have captured [Hamilton] and the
interactions” that he had that morning, that any “video of 2-3 hours prior to the
1 Hamilton specifically alleges that the State is barred from challenging the court’s findings on the theories that it is judicially estopped, it invited any errors, and it waived its challenge.
6 No. 80305-1-I/7
assault would have been useful” to Hamilton, that “the police herein acted in bad
faith,” and that there was no comparable evidence available. Moreover, the court
did not enter its findings until three months after the State appealed its order,
entered the findings without notice to the State, and included findings that went
beyond its original letter ruling. 2 Because Hamilton relies on a
mischaracterization of the record, we reject his contention that the State is barred
from challenging factual issues.
3. Standard of Review
Generally, “[w]e review findings of fact to determine whether they are
supported by ‘substantial evidence’ and, in turn, whether the findings support the
conclusions of law and judgment.” State v. Boyer, 200 Wn. App. 7, 13, 401 P.3d
396 (2017) (quoting State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004
(1996)). “Substantial evidence is evidence sufficient to persuade a fair minded,
rational individual that the finding is true.” Boyer, 200 Wn. App. at 13. “We
review allegations of constitutional violations de novo.” State v. Siers, 174 Wn.2d
269, 273-74, 274 P.3d 358 (2012).
The State contends that we should review the court’s findings de novo
instead of for substantial evidence because the findings were based on
documentary evidence and the State was not given notice of the entry of the
findings. While the lack of notice to the State would normally require remand for
2 For instance, while the court’s letter ruling stated that Detective Hatch anticipated a mental health defense and that he interviewed every staff member who had contact with Hamilton on the morning of the assault, the formal findings specifically stated that Detective Hatch interviewed these staff members because he anticipated a mental health defense.
7 No. 80305-1-I/8
the proper entry of findings, remand in this case is not practicable because the
judge who dismissed the case has since passed away. See State v. Nava, 177
Wn. App. 272, 289 n.6, 311 P.3d 83 (2013) (disregarding findings and
conclusions entered without notice to appellate counsel and concluding that trial
record was adequate for appeal); State v. I.N.A., 9 Wn. App. 2d 422, 427-28, 446
P.3d 175 (2019) (disregarding findings instead of remanding for proper entry
because time was of the essence); In re Det. of G.D., 11 Wn. App. 2d 67, 71-72,
450 P.3d 668 (2019) (disregarding findings based on noncompliance with rules of
appellate procedure and lack of notice to counsel). Because the trial record is
adequate for our review, we disregard the court’s findings and review the facts de
novo.
Failure To Preserve Evidence
The State claims that the court erred by concluding that the State’s failure
to preserve video of Hamilton’s conversations earlier in the day of the assault
violated Hamilton’s due process rights. We agree.
“To comport with due process, the prosecution has a duty to disclose
material exculpatory evidence to the defense and a related duty to preserve such
evidence for use by the defense.” State v. Wittenbarger, 124 Wn.2d 467, 475,
880 P.2d 517 (1994). However, the State does not have “an undifferentiated and
absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.” Arizona v. Youngblood, 488
U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Accordingly, the State’s
failure to preserve evidence requires dismissal of the charges in two cases.
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First, where the State fails to preserve “material exculpatory evidence,” and
second, where the destroyed evidence is only “potentially useful” but the State
acted in bad faith in failing to preserve it. State v. Armstrong, 188 Wn.2d 333,
344-45, 394 P.3d 373 (2017). The trial court held that dismissal was required
under both tests and we address each in turn.
1. Whether the Videos were Materially Exculpatory
The State contends that the trial court erred by concluding that the deleted
videos were “material exculpatory evidence.” We agree.
The Supreme Court has noted that the State’s duty to preserve evidence
is “limited to evidence that might be expected to play a significant role in the
suspect’s defense.” California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528,
81 L. Ed. 2d 413 (1984). To meet this standard for material exculpatory
evidence, “the evidence must both possess an exculpatory value that was
apparent before it was destroyed and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available
means.” Wittenbarger, 124 Wn.2d at 475. “Exculpate” means “to clear from
alleged fault or guilt[, to] prove to be guiltless.” W EBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 794 (2002). By contrast, “potentially useful evidence”
is “evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.”
Youngblood, 488 U.S. at 57.
In Wittenbarger, defendants who were charged with driving while under
the influence of intoxicants challenged the State’s failure to preserve detailed
9 No. 80305-1-I/10
inspection, repair, and maintenance records of the breath alcohol analysis
machines used to calculate the defendants’ blood alcohol content. 124 Wn.2d at
472-74. The defendants presented expert testimony that “all records of machine
malfunctions and repairs would be useful and should be retained in order to
assist the defense in challenging the reliability” of the machines. Wittenbarger,
124 Wn.2d at 474. Nonetheless, the Supreme Court held that the records were
“not directly related to the accuracy of a particular breath test. Unlike the breath
test ticket, which contains specific information regarding the accuracy of each . . .
reading, evidence of past repairs is only tangentially related to whether the
machine is properly functioning on a given day.” Wittenbarger, 124 Wn.2d at
476. Furthermore, the court noted that the defendants had many alternative
means to attack the credibility of the breath tests, including cross examination
regarding operator error, expert testimony, and evidence of additional breath or
blood tests. Wittenbarger, 124 Wn.2d at 476. Because the documents were “not
directly related to the [defendants’] guilt or innocence” and the defendants had
alternative means to attack the results, the documents did not constitute “material
exculpatory evidence.” Wittenbarger, 124 Wn.2d at 488.
Here, there is no evidence indicating that the deleted video was material
exculpatory evidence. First, there is no evidence that the surveillance system
captured all the interactions Hamilton had that morning, and even if it had, the
video had no audio and might not have captured faces or body language clearly,
if at all. Even if the video did clearly capture Hamilton’s interactions, the video
would not be material because as in Wittenbarger, the interactions “are not
10 No. 80305-1-I/11
directly related to [Hamilton’s] guilt or innocence.” 124 Wn.2d at 488. Hamilton’s
defense turned on his claim that he was in a “dissociative state—an altered
[state] of consciousness—at the time of the assaultive act.” Hamilton, 196 Wn.
App. at 467. Even accepting Hamilton’s claim that the deleted video would have
shown Hamilton “undergoing a mental health episode, anxiety, paranoia,
hallucination,” this would not establish that Hamilton was in a dissociative state at
the time of the assault. If a video could show this dissociative state, it would be
the video of the assault, which was properly preserved and introduced into
evidence.
Furthermore, and again accepting Hamilton’s claim that the video would
show him “undergoing a mental health episode, anxiety, paranoia, [and]
hallucination,” Hamilton had reasonable means to obtain evidence of a similar
nature. Hamilton acknowledges that witness accounts were available and that
many of these referred to Hamilton as being anxious, paranoid, and stressed that
morning. Unlike the silent video recordings, these witnesses could describe the
content of their conversations with Hamilton and their perception of his mental
state. Therefore, as in Wittenbarger, Hamilton had many alternative means to
present his defense, including cross examination, expert testimony, additional
mental health exams, and video of the actual event during which Hamilton was
purportedly in a dissociative state. 124 Wn.2d at 476.
Because the video did not possess an immediately apparent exculpatory
value and other comparable evidence was available, it was not material
exculpatory evidence.
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2. Whether the State Exhibited Bad Faith
The State next contends that if the deleted videos were “potentially useful”
evidence, the court erred by concluding that the State showed bad faith in failing
to preserve the videos. We agree.
“‘The presence or absence of bad faith . . . turn[s] on the police’s
knowledge of the exculpatory value of the evidence at the time it was lost or
destroyed.’” Armstrong, 188 Wn.2d at 345 (alterations in original) (quoting
Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003)). “A
plaintiff must ‘put forward specific, nonconclusory factual allegations that
establish improper motive.’” Armstrong, 188 Wn.2d at 345 (quoting Cunningham,
345 F.3d at 812). It is not enough to show that an investigation was incomplete
or conducted negligently. Armstrong, 188 Wn.2d at 346. If the State dealt with
the evidence in compliance with an established policy, the State acted in good
faith. Armstrong, 188 Wn.2d at 345. The requirement that the defendant show
bad faith confines the application of this rule to “cases where the interest of
justice most clearly require it, i.e., those cases in which the police themselves by
their conduct indicate that the evidence could form a basis for exonerating the
defendant.” Youngblood, 488 U.S. at 58.
Here, there is no evidence in the record suggesting that the State knew
that the videos of Hamilton’s interactions from that morning would be
exculpatory. The mere fact that Detective Hatch interviewed people with whom
Hamilton interacted does not indicate that he thought videos of those interactions
would be useful for Hamilton’s case. Indeed, there is no evidence that Detective
12 No. 80305-1-I/13
Hatch’s motivation in interviewing those individuals went beyond conducting a
thorough investigation. Hatch’s affidavit for a search warrant, which Hamilton
submitted as evidence for his contemporaneously filed motion to suppress,
indicates only that “numerous inmates witnessed the event. Several of those
witnesses corroborate the events.” Although Detective Hatch was aware of
Hamilton’s claims about his mental health and many months later requested a
search warrant for Hamilton’s medical and psychological records, there is no
indication that he thought the videos of Hamilton’s conversations would be
relevant to a mental health defense. Hamilton has failed to put forward specific
allegations that establish improper motive and has only, at worst, alleged an
incomplete investigation. This is not sufficient to establish bad faith. Armstrong,
188 Wn.2d at 345-46.
Hamilton contends that the e-mails he submitted, including the
encouragement from the prosecutor to “go get em!” and the e-mail encouraging a
corrections officer to be precise about the time descriptions in his report,
exhibited a lack of objectivity that constituted bad faith. Even if we were to read
these e-mails as exhibiting a lack of objectivity in the investigation, the presence
of bad faith turns on the State’s knowledge of the exculpatory value of the
evidence. Armstrong, 188 Wn.2d at 345. The e-mails do not mention the videos
and have no bearing on this inquiry.
Finally, Hamilton contends that the State’s failure to preserve the videos
following the defense’s discovery request establishes bad faith. However, the
discovery request did not identify any specific material for the State to preserve,
13 No. 80305-1-I/14
but requested only “discovery as required by CrR 4.7(a).” CrR 4.7(a) requires
the State to disclose “any electronic surveillance . . . of the defendant’s premises
or conversations to which the defendant was a party” that is “within the
knowledge, possession, and control of members of the prosecuting attorney’s
staff.” CrR 4.7(a)(2)(i), (a)(4). CrR 4.7(a) does not address material held by
others, which the prosecutor must attempt to make available if the defendant
specifically requests and designates such material pursuant to CrR 4.7(d).
Accordingly, even reading the discovery request broadly, it did not ask the
prosecutor to preserve the surveillance videos from earlier in the morning
because they were not in the prosecutor’s control at that time. If Hamilton had
made a specific request for the specific videos from that morning under
CrR 4.7(d) and the State had intentionally ignored it, this would be more
indicative of improper motive on the State’s part. As it is, there is no evidence
establishing bad faith on the part of the State.
Because the surveillance videos were not material exculpatory evidence
and there is no evidence that the State acted in bad faith in permitting the videos
to be erased, we conclude that the State did not violate Hamilton’s due process
rights.
14 No. 80305-1-I/15
We reverse and remand for a new trial.
WE CONCUR: