FILED
AUGUST 15, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30220-2-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JONA RENEE ZEIGLER, ) ) Appellant. )
KULIK, J. - Jona Renee Zeigler appeals her conviction for attempting to elude a
pursuing police vehicle. A CrR 3.5 hearing was held to assess the incriminating
statements Ms. Zeigler made to an officer while she was in the hospital recovering from
injuries she suffered during the incident. Ms. Zeigler did not appear at the hearing but
was represented by her counsel. The statements were admitted. Ajury found Ms. Zeigler
guilty of attempting to elude. She contends that her absence from the CrR 3.5 hearing
violated her right to be present at all critical stages of trial proceedings. She also alleges
ineffective assistance of counsel. No. 30220-2-III State v. Zeigler
We conclude that Ms. Zeigler fails to establish a manifest error and she waived her
right to be present at the CrR 3.5 hearing. Her counsel was effective. Therefore, we
affirm the conviction.
FACTS
Corporal Thomas Tufte approached Jona Zeigler while she was sitting in her truck
in a parking lot near downtown Moses Lake. Corporal Tufte told her there was a warrant
for her arrest, and that she was not free to go. After an additional conversation, Ms.
Zeigler told him'" I'm not going,'" backed up her truck, and then drove out of the
parking lot. Report of Proceedings (Aug. 24 & 25, 2011) (RP) at l39. Corporal Tufte got
into his patrol car and followed her.
During the pursuit, Corporal Tufte activated his siren. After turning on a
residential street, Ms. Zeigler attempted to get out of the moving truck. She slipped,
grabbed the steering wheel and tried to get back into the truck. As the truck bounced off
the curb, Ms. Zeigler lost her grip and fell. The truck continued to roll until it high
centered on a chain link fence. Ms. Zeigler became pinned under the rear wheel of her
vehicle.
Nearby neighbors came to the assist Corporal Tufte in getting Ms. Zeigler out from
underneath the truck. After he had moved her away from the truck, Corporal Tufte found
No.30220-2-III State v. Zeigler
Ms. Zeigler had a pulse but was not breathing. An ambulance took Ms. Zeigler to a
nearby hospital, where Detective Kurt Adkinson interviewed her 10 days later.
The State charged Ms. Zeigler with attempting to elude and reckless endangennent
and sought an exceptional sentence based on an allegation of endangennent by eluding.
The State proposed to introduce statements by Ms. Zeigler allegedly made to Corporal
Tufte and Detective Adkinson.
The trial court conducted a suppression hearing at which Ms. Zeigler did not
appear. Defense counsel told the court that she had asked Ms. Zeigler to be present, but
was prepared to proceed given the nature of the hearing. The court did not question the
reason for Ms. Zeigler's absence. The hearing proceeded without Ms. Zeigler.
At the outset of the suppression hearing, defense counsel told the court that she
was not challenging the admissibility of Ms. Zeigler's statements to Corporal Tufte
because she did not believe that her client was in custody at the time. She offered to
stipulate to the admissibility of the statements in her client's absence, but ultimately
agreed to the admissibility of a transcript of the corporal's previously recorded statement
The trial court found that defense counsel had stipulated to the admissibility of Ms.
Zeigler's statements to Corporal Tufte.
No. 30220-2-111 State v. Zeigler
As to the statements to Detective Adkinson, Ms. Zeigler contended that she was
heavily medicated at the time she was questioned by Detective Adkinson and not capable
of fully understanding her statements or the Miranda! warnings. The trial court found
that Ms. Zeigler's coherent and thoughtful responses to Detective Adkinson's questions
demonstrated that her waiver of rights was knowing and voluntary. The court ruled that
her statements to law enforcement officers were admissible.
Five days later, Ms. Zeigler appeared at a hearing on the State's motion to amend
the information. The trial court did not ask her anything about her failure to appear at the
suppression hearing nor did Ms. Zeigler mention her nonappearance. Ms. Zeigler also did
not object when the findings of fact and conclusions of law from the suppression hearing
were presented to the court on the first day of trial.
Ms. Zeigler appeared at a readiness hearing on Monday, August 22. Ms. Zeigler
acknowledged that she should be ready to proceed to trial on Wednesday. The trial began
as scheduled on Wednesday, August 24.
During the State's case, Corporal Tufte told the jury that Ms. Zeigler initially lied
about her identity and that as she began to drive away, she said to Corporal Tufte, "'No,
rm not going.'" RP at 139. Detective Adkinson related several of Ms. Zeigler's
1 Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
statements made during his interview with her, including her admission that she told
Corporal Tufte that she '" can't go to jail'" and was '" going to try and run.'" RP at 196,
198.
Ms. Zeigler testified at trial. Her trial testimony did not address the statements
made to the officers. Instead, Ms. Zeigler testified that she left the parking lot quickly.
About one-half mile later, she saw the officer was following her with his lights on. She
said she knew the officer was behind her but was ignoring his signal. She also said that
she thought about stopping but her husband needed her care at home.
A jury found Ms. Zeigler guilty of eluding and answered "yes" on the special
verdict form that Ms. Zeigler's actions of eluding threatened other persons with physical
injury or harm. Ms. Zeigler appeals.
ANALYSIS
Whether a defendant's constitutional right to be present has been violated is a
question of law reviewed de novo. State v.lrby, 170 Wn.2d 874, 880,246 P.3d 796
(2011).
In reviewing a trial court's decision regarding whether a defendant is voluntarily
absent from trial, we apply an abuse of discretion standard. State v. Garza, 150 Wn.2d
360, 365-66, 77 P.3d 347 (2003). The determination whether the defendant is voluntarily
absent from trial is dependent upon an inquiry into the facts and the totality of the
circumstances, and the trial court is in a better position than the appellate court to pass on
the question. Id. at 366. An abuse of discretion occurs when a trial court's decision is
manifestly unreasonable or is based on untenable grounds or for untenable reasons. Id.
(quoting State v. Woods, 143 Wn.2d 561,626,23 P.3d 1046 (2001)).
erR 3.5 Suppression Hearing. Generally, appellate courts will not consider an
issue raised for the first time on appeal unless the issue involves a manifest error affecting
a constitutional right. State v. McFarland, 127 Wn.2d 322,333,899 P.2d 1251 (1995)
(quoting RAP 2.5(a)(3)). The burden is on the defendant to "identifY a constitutional
error and show how, in the context of the trial, the alleged error actually affected the
defendant's constitutional rights; it is this showing of actual prejudice that makes the
error 'manifest', allowing appellate review." Id.
"[P]ermitting every possible constitutional error to be raised for the first time on
appeal undermines the trial process, generates unnecessary appeals, creates undesirable
retrials and is wasteful of the limited resources of prosecutors, public defenders and
courts." State v. Lynn, 67 Wn. App. 339,344, 835 P.2d 251 (1992).
A criminal defendant has a constitutional right to be present at all critical stages of
the proceedings. United States v. Gagnon, 470 U.S. 522,526, 105 S. Ct. 1482,84 L. Ed.
No. 30220~2~III State v. Zeigler
2d 486 (1985). "The core of the constitutional right to be present is the right to be present
when evidence is being presented." In re Pers. Restraint ofLord, 123 Wn.2d 296, 306,
868 P.2d 835 (1994). A defendant may waive his rights under the constitution, provided
that such waiver is voluntary, knowing, and intelligent. State v. Thomson, 123 Wn.2d
877,880, 872 P.2d 1097 (1994). Constitutional rights can be waived by conduct. State v.
Myers, 86 Wn.2d 419, 426~27, 545 P.2d 538 (1976). Voluntarily absenting oneself from
a proceeding may waive a defendant's right to be present. See Taylor v. United States,
414 V.S. 17,20,94 S. Ct. 194,38 L. Ed. 2d 174 (1973).
Washington requires courts to conduct a hearing pursuant to CrR 3.5 to determine
the admissibility of a defendant's statements to law enforcement. State v. Williams, 137
Wn.2d 746, 749~50, 975 P.2d 963 (1999). A CrR 3.5 hearing tests the voluntariness of an
incriminating statement prior to its admission at trial. Williams, 137 Wn.2d at 754. Even
after incriminating statements are admitted following a CrR 3.5 hearing, a defendant is
not precluded from presenting evidence that casts doubt on the credibility or weight to be
given to the statements. CrR 3.5(d).
"A violation of the due process right to be present is subject to harmless error
analysis." Irby, 170 Wn.2d at 885. '" [T]he burden of proving harmlessness is on the
State and it must do so beyond a reasonable doubt.'" Id. at 886 (quoting State v.
Caliguri, 99 Wn.2d 501,509,664 P.2d 466 (1983)).
Ms. Zeigler contends that the trial court violated her due process right to be present
at all critical stages of the trial proceedings by conducting the erR 3.5 hearing in her
absence. She maintains that the evidence fails to establish a knowing, voluntary, and
intelligent waiver of her rights. She also contends that this error is not harmless because
she could have objected at the hearing to the testimony regarding her confessional
statements.
Ms. Zeigler ~aises this due process challenge for the first time on appeal. Despite
several other complaints, Ms. Zeigler never approached the trial court with the issue of
her absence from the erR 3.5 hearing. The preliminary question is whether Ms. Zeigler
raises a manifest error affecting a constitutional right.
In this situation, Ms. Zeigler's erR 3.5 hearing is a critical stage of the trial
proceedings because it involved the taking of testimony. Detective Adkinson testified at
the hearing regarding Ms. Zeigler's confessional statements, and the trial court ruled that
this evidence was admissible. Ms. Zeigler's alleged error involves a constitutional right.
However, the trial court's decision to conduct the hearing without Ms. Zeigler's
presence was not a manifest error. Ms. Zeigler fails to show actual prejudice from the
error. Ms. Zeigler's constitutional right to have incriminating statements assessed was
No. 30220-2-III State v. Zeigler
protected despite her absence. Ms. Zeigler's attorney represented her and questioned
Detective Adkinson about Ms. Zeigler's statements.
Moreover, Ms. Zeigler does not establish how the outcome of the hearing would
have been different with her presence. There is no indication that the court's findings and
conclusions from the hearing were erroneous or would not have been admissible at trial.
Ms. Zeigler does not assign error to the trial court's findings from the erR 3.5 hearing.
Nor did Ms. Zeigler object to the entry of these findings, even though she was in the
courtroom when her attorney presented the findings and conclusions from the erR 3.5
hearing to the trial court. Ms. Zeigler did not contradict Detective Adkinson's testimony
at trial. In sum, no actual prejudice resulted from Ms. Zeigler's absence because she was
afforded the right to have her incriminating statements assessed, and she does not contend
that the statements are false. She fails to establish a manifest error?
Even if we were to decide that Ms. Zeigler raises a manifest error affecting a
constitutional right, her contention still fails. Under the circumstances, the trial court did
not err in conducting the erR 3.5 hearing despite Ms. Zeigler's absence. Ms. Zeigler
voluntarily waived her right to be present, as evidenced through her conduct. Ms. Zeigler
knew of the hearing and failed to appear. She was not in custody. Ms. Zeigler's attorney
2 But see Irby, 170 Wn.2d 874.
implied that Ms. Zeigler was waving her right to appear by telling the trial court that it
should proceed without Ms. Zeigler, given the nature of the hearing. When Ms. Zeigler
appeared at the next court proceeding, she did not offer an explanation for her absence or
object to the hearing being held. Nor did she complain at trial when the findings and
conclusions from the CrR 3.5 hearing were presented to the court.
There is no prejudicial effect from the trial court's failure to question Ms. Zeigler
as to whether she knowingly, voluntarily, and intelligently waived her right to be present
during the CrR 3.5 hearing. As we have previously stated, Ms. Zeigler's attorney made
her arguments for suppression of the statements. Ms. Zeigler did not contest any of the
fmdings or conclusions of the trial court from the CrR 3.5 hearing or contradict Detective
Adkinson's testimony. Ms. Zeigler does not establish that her presence at the hearing
would have changed the evidence presented at trial or the outcome of her trial.
In any case, the error was harmless. The outcome of Ms. Zeigler's trial would not
have been different ifshe was present at the CrR 3.5 hearing. Corporal Tufte's
statements were still admissible at trial. Ms. Zeigler's attorney told the court that she did
not plan on contesting the statements because the statements were not made while Ms.
Zeigler was in custody. Corporal Tufte's statements established that Ms. Zeigler knew
she was not free to leave when she exited the parking lot.
As for the statements made to Detective Adkinson, even if Ms. Zeigler's presence
would have somehow convinced the court to suppress these statements, there was still
ample evidence to support the verdict that Ms. Zeigler attempted to evade the police. In
addition to Corporal Tufte's testimony, Ms. Zeigler testified that she was aware that a
police car was following her and that she did not stop. The videotape of the police
pursuit also established that Ms. Zeigler failed to stop for police. Ms. Zeigler's absence
at the suppression hearing was a harmless error beyond a reasonable doubt.
We decline to review Ms. Zeigler's alleged error for the first time on appeal
because she fails to establish a manifest error affecting a constitutional right. Even if we
were to address Ms. Zeigler's contention that her constitutional right to be present at all
crucial stages of trial proceedings was violated, her contention fails. Ms. Zeigler waived
her right to be present at the proceeding. Any alleged error is not prejudicial and is
harmless.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
E{(ectiveness ofCounsel. In her statement of additional grounds for review
(SAG), Ms. Zeigler claims ineffective assistance of counsel. Ms. Zeigler contends that
defense counsel's performance was defective when counsel (1) admitted in closing
arguments that Ms. Zeigler was eluding, (2) told Ms. Zeigler that she did not need to be
present during the CrR 3.5 hearing, and (3) misled Ms. Zeigler about the date of the trial,
causing Ms. Zeigler to rush horne from an out-of-townjob opportunity.
To establish ineffective assistance of counsel, two prongs need to be satisfied:
(1) counsel's conduct must be deficient, and (2) counsel's acts must have prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). "[S]crutiny of counsel's performance must be highly deferential." Id. at 689.
Where the evidence of guilt on a particular count is overwhelming and there is no
reason to suppose that any juror doubts it, conceding guilt on that count in closing can be
a sound trial tactic. State v. Silva, 106 Wn. App. 586, 596, 24 P.3d 477 (2001) (quoting
Underwood v. Clark, 939 F.2d 473,474 (7th Cir. 1991)). This approach may help win
the jury's confidence, preserve the defendant's credibility, and lead the jury toward
leniency by conceding that the defendant is guilty of a lesser charge. See id. at n.3 7. If
the concession is a matter of trial strategy or tactics, it is not ineffective representation.
Id. at 599.
We conclude that Ms. Zeigler fails to establish that defense counsel was
ineffective. Defense counsel's statement during closing argument was not unreasonable.
Defense counsel could not deny the allegation of attempting to elude because Ms. Zeigler
admitted to all of the elements of the offense in her testimony. Also, the videotape
evidence clearly showed Ms. Zeigler's failure to stop. At this point, it is reasonable to
conclude that defense counsel's strategy was to minimize the impact of the evidence by
admitting that the evidence established the offense of eluding, but denying that the
evidence supported the recklessness charge or the special allegation of endangerment.
This strategy of focusing on charges where reasonable doubt could be established was a
sound trial tactic. The strategy was effective, as Ms. Zeigler was found not guilty of
reckless endangerment.
As for the erR 3.5 hearing, the record does not establish that defense counsel
advised Ms. Zeigler that she did not need to attend. However, even if this was true,
defense counsel did not act unreasonably in advising Ms. Zeigler. Ms. Zeigler's presence
would not have changed the outcome of the proceeding. The testimony would still have
been admitted. The trial court recognized the clear admissibility of the statements.
Defense counsel was reasonable in telling Ms. Zeigler that her presence was not
necessary. There is no prejudice to Ms. Zeigler.
The alleged confusion over the trial date did not amount to ineffective assistance.
The trial court addressed this issue and recognized that it could not confirm that defense
counsel advised Ms. Zeigler of an incorrect trial date. Even so, the court correctly found
that the action was not prejudicial to Ms. Zeigler. The court found that Ms. Zeigler
No.30220-2-II1 State v. Zeigler
appeared at the pretrial hearing, was advised of the trial date, and had an obligation to
appear on that date. Defense counsel's failure to confer with Ms. Zeigler immediately
before trial does not establish ineffective assistance of counsel. Defense counsel
presented a coherent argument and was well prepared. Ms. Zeigler was not prejudiced by
the alleged error.
Defense counsel effectively represented Ms. Zeigler.
Jury Instructions. Next, Ms. Zeigler contends that the jury confused the
instruction on reckless endangerment with the instruction on the special allegation of
endangerment on the eluding charge. She contends that the instructions appear to charge
her twice for the same offense and the jury's confusion may have resulted in Ms. Zeigler
being convicted of the wrong offense. Ms. Zeigler did not object to the jury instructions
at trial.
Generally, a defendant's failure to object to jury instructions at trial results in a
waiver of the right to challenge the instruction on appeal. However, an error may be
raised for the first time on appeal if it '" invades a fundamental right of the accused.' "
State v. Levy, 156Wn.2d 709, 719, 132 P.3d 1076 (2006) (quoting State v. Becker, 132
Wn.2d 54, 64,935 P.2d 1321 (1997)). Also, a double jeopardy violation is an error of
constitutional magnitude and can be raised for the first time on appeal. State v. Mutch,
171 Wn.2d 646,661,254 PJd 803 (2011). The constitutional guaranty against double
jeopardy protects a defendant against multiple punishments for the same offense. U.S.
CONST. amend. V; CONST. art. I, § 9.
Ms. Zeigler failed to object to the jury instructions at trial. Thus, she waived her
right to challenge the jury instructions on appeaL Admittedly, Ms. Zeigler alludes to a
double jeopardy violation in her challenge to the jury instructions. However, no double
jeopardy violation occurred because she was not convicted of both of the separate
charges. The jury answered affirmatively on the special endangerment allegation, but
found Ms. Zeigler not guilty of the count of reckless endangerment. Thus, she did not
receive multiple punishments for the same offense.
In her last SAG issue, Ms. Zeigler suggests that she cannot be found guilty of
eluding if the act takes place on private property. Ms. Zeigler does not cite to legal
authority to support this position. In any case, the eluding statute does not require the
offense to occur on public highways.
Ms. Zeigler waived her right to challenge the jury instructions on appeal.
We affirm the conviction.
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.
Kulik, J.
WE CONCUR:
Korsmo, C.J. ("J Sidd~Llr-