State Of Washington v. Joseph Hudson

• Court: Court of Appeals of Washington
• Decided: August 18, 2015
• Docket: 45955-8
• Status: Unpublished

Opinion

f ILED COURT OF APPEALS DIVISION Ii

7915 AUG 18 AM 91. 04

STATE: OF WASHINGTON 8Y P TY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 45955 -8 -II

Respondent,

V.

JOSEPH DEAN HUDSON, UNPUBLISHED OPINION

JOHANSON, C.J. Joseph Dean Hudson appeals his convictions and sentence for

vehicular homicide and vehicular assault after a retrial. He argues that ( 1) the trial court erred by

admitting evidence that we suppressed after Hudson' s first appeal and ( 2) there was insufficient

evidence to support the jury' s finding that he acted with an egregious lack of remorse. We hold

that ( 1) the trial court admitted no suppressed evidence and (2) sufficient evidence exists to support

the jury' s finding that Hudson acted with an egregious lack of remorse. Accordingly, we affirm

Hudson' s convictions and sentence.

FACTS

I. BACKGROUND FACTS

In April 2009, Hudson and his then -girlfriend, Paula Charles, met two friends— Tommy

Underwood and Leon Butler— at a bar to have a few drinks. They left the bar in Charles' s vehicle. No. 45955 -8 -II

At about 1: 00 AM, the car went off the road, down a seven -foot embankment, rolled twice,

and stopped about 100 feet from Kenneth Grover' s home. Grover heard the crash from his

bedroom and " hollered" out the window, asking if anybody was hurt. 1 Report of Proceedings

RP) at 89. He heard a calm, male voice answer, "[ N] o." 1 RP at 90. Grover got dressed, went

out to investigate, and discovered Butler climbing out of the rear driver' s side window. Butler was

frantic and limping when he emerged from the vehicle. Grover and Butler found an unresponsive

Charles. Grover then discovered Underwood, who died within minutes of the accident.

Butler and Grover could not locate Hudson. Hudson returned to the accident scene about

two hours later. In order to separate Hudson from several of Underwood' s family members who

had assembled, Trooper Ben Blankenship took Hudson to his patrol car. Several minutes later,

Sergeant Sam Ramirez ordered his troopers to arrest everyone who he thought had been in the

vehicle, including Charles, Butler, and Hudson. They complied. Later that night Charles told

Detective Dan Presba that when the group left the bar, she was in the front passenger seat and

Hudson was driving.

II. FIRST TRIAL AND APPEAL

In January 2010, the State charged Hudson with vehicular homicide and vehicular assault

and added an aggravating factor alleging that Hudson displayed an egregious lack of remorse. At

the first trial, the jury convicted Hudson on both charges and found an egregious lack of remorse

for both charges.

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Hudson appealed his convictions and we held that Hudson' s arrest was invalid and

suppressed any " evidence obtained as a result of his arrest." State v. Hudson, noted at 168 Wn.

App. 1023, slip op. at 7 ( 2012). In the prior decision, we enumerated the specific pieces of

evidence that should have been suppressed because they were the fruits of Hudson' s illegal arrest:

1) Hudson' s evasive and inconsistent statements to Trooper Blankenship, ( 2) his blood- alcohol level, ( 3) his admission of guilt and statement that his stomach hurt to Detective Presba, ( 4) photographs of and testimony about Hudson' s injuries, and 5) a recording of Hudson' s phone call from the jail.

Hudson, slip op. at 8. We reversed Hudson' s convictions and remanded for a new trial. Hudson,

slip op. at 9.

III. RETRIAL

In November 2013, prior to Hudson' s second trial, the trial court granted the State' s motion

to compel Hudson to provide a deoxyribonucleic acid ( DNA) sample, based in part on Butler' s

sworn statement that Hudson had been driving. A forensic DNA scientist with the Washington

State Patrol Crime Lab tested Hudson' s new DNA sample and matched it to blood found on the,

inside of the driver' s door of the vehicle.

At trial, the witnesses testified consistent with the above background facts. Sergeant

Ramirez also testified that he did not remember whether Hudson appeared injured but that he could

smell the odor of intoxicants on Hudson and noticed that Hudson was speaking as if he were

intoxicated and was " swaying" from side to side. 1 RP at 148. Hudson did not object to this

testimony.

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Detective Presba, a collision reconstruction expert, opined that Charles, Underwood, and

Butler had not been driving. Detective Presba concluded that, in his opinion, Hudson was the

driver. Hudson did not object to this testimony.

Trooper Blankenship also testified that when he first approached Hudson, he noticed the

odor of intoxicants, that Hudson' s speech patterns were off, and that Hudson had brush and other

debris in his hair. As Trooper Blankenship walked Hudson to his patrol car in order to separate

Hudson from Underwood' s family members, Hudson told Trooper Blankenship that "his back was

sore." 2 RP at 210.

Hudson objected to Trooper Blankenship' s testimony and moved for a mistrial, arguing

that Trooper Blankenship had referred to suppressed evidence " twice." 2 RP at 210. The trial

court stated that it wanted to clarify the moment of Hudson' s arrest because evidence obtained

after his arrest should be suppressed. Outside the jury' s presence, both Hudson and the State

questioned Trooper Blankenship, who stated that he did not arrest Hudson until he had been

secured in the back of the patrol car for at least five minutes. Hudson stated he was " satisfied"

that Trooper Blankenship' s testimony had been proper, and the trial court then denied his motion

for a mistrial. 2 RP at 217.

After the second trial, the jury convicted Hudson on both charges and also found that he

acted with an egregious lack of remorse as to both charges. Hudson appeals his convictions and

sentence.

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ANALYSIS

I. LAW OF THE CASE AND SUPPRESSED EVIDENCE

First, Hudson argues that the trial court violated the law of the case doctrine when it

admitted evidence that we suppressed in Hudson' s first appeal. We hold that the trial court did

not violate the law of the case doctrine because it admitted no evidence in the retrial that was

suppressed in the first appeal.

Under the law of the case doctrine, an appellate court' s holding must be followed " in all of

the subsequent stages of the same litigation." State v. Schwab, 163 Wn.2d 664, 672, 185 P. 3d

1151 ( 2008). We previously held that the police did not have probable cause to arrest Hudson and

suppressed " the evidence obtained as a result of his arrest." Hudson, slip op. at 7. We review a

trial court' s conclusions of law regarding whether evidence should be suppressed de novo. State

v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).

Hudson argues that Sergeant Ramirez, Detective Presba, and Trooper Blankenship testified

to facts that should have been suppressed under our prior decision. We disagree.

Hudson' s argument here is an attempt to expand the specific list of suppressed evidence

that we enumerated in our prior decision into broad categories of types of information that must

be suppressed regardless of whether they were actually " obtained as a result of his [ unlawful]

arrest." Hudson, slip op. at 7. But this argument is misplaced. In our prior decision, we did not

suppress all evidence of Hudson' s injuries or all evidence of evasive and inconsistent statements.

Hudson, slip op. at 8. We suppressed evidence of injuries or evasive and inconsistent statements—

as well as any other evidence that were the "fruits of his arrest." Hudson, slip op. at 8 ( emphasis

added).

5 I -

No. 45955 -8 -II

First, at the retrial, Sergeant Ramirez testified that ( 1) he could not " recall if [Hudson] had

any injuries" but could smell an odor of intoxicants when he approached him, and ( 2) Hudson

exhibited several other signs of intoxication. 1 RP at 146. The other signs of intoxication included

affected speech patterns and " swaying." 1 RP at 148. However, Sergeant Ramirez made each of

these observations before he told Trooper Blankenship to secure Hudson in his patrol car and

before Hudson was arrested. Therefore, Sergeant Ramirez' s testimony and observations were not

evidence obtained as a result of [Hudson' s] arrest" and were not suppressed in Hudson' s first

appeal. Hudson, slip op. at 7.

Second, Detective Presba opined that, based on the December 2013 DNA report, Charles,

Underwood, and Butler were not driving the vehicle when it crashed. Hudson claims that this

evidence was improper because it " implies that Presba also considered Hudson' s DNA," which'

should have been suppressed. Br. of Appellant at 10. But Detective Presba lawfully obtained a

DNA sample from Hudson pursuant to the trial court' s November 2013 order— which Hudson

does not challenge. Hudson' s DNA sample was not " evidence obtained as a result of his arrest"

and, therefore, not suppressed in Hudson' s first appeal. Hudson, slip op. at 7.

Third, as Trooper Blankenship walked Hudson to his patrol car, he asked Hudson if he was

injured and Hudson responded that " his back was sore." 2 RP at 210. Trooper Blankenship also

inquired about whether Hudson was involved in the accident and Hudson said, "[ N] o." 2 RP at

225. However, Blankenship took Hudson to his patrol car to separate him from Underwood' s

family members who were gathering and causing a commotion and not because Hudson was under

arrest at that time. Because Hudson was not under arrest or in custody, the statements he made to

G No. 45955 -8 -II

Trooper Blankenship. were, again, not " evidence obtained as a result of his arrest" and were not

suppressed by our prior decision in this case. 1 Hudson, slip op. at 7.. The evidence that Hudson argues' should have been suppressed in this case was not the fruit

of Hudson' s unlawful arrest. Accordingly, we hold that the trial court did not violate the law of

the case doctrine because it did not admit evidence that was suppressed in Hudson' s first appeal.

II. EGREGIOUS LACK OF REMORSE SPECIAL VERDICT

Hudson next argues that there is insufficient evidence to support the jury' s special verdict

finding that he acted with an egregious lack of remorse. Specifically, Hudson claims that the facts

here are distinguishable from other cases where an egregious lack of remorse special verdict was

deemed appropriate. We hold that there is sufficient evidence to support the jury' s special verdicts

finding an egregious lack of remorse.

Whether the defendant demonstrated an egregious lack of remorse depends on the specific

facts of each case. State v. Ross, 71 Wn. App. 556, 563, 861. P. 2d 473, 883 P. 2d 329 ( 1993). We

review a jury' s special verdict finding of an egregious lack of remorse under a sufficiency of the

evidence standard. State v. Stubbs, 170 Wn.2d 117, 123, 240 P. 3d 143 ( 2010) (" A jury' s finding

by special interrogatory is reviewed under the sufficiency of the evidence standard."). Therefore,

1 Hudson also argues that Trooper Blankenship made two other statements that should have been suppressed. Specifically, the fact that ( 1) once he was in the car, Hudson again told Trooper Blankenship that his back was sore, and ( 2) Hudson pointed to Charles and told Trooper

Blankenship that she was yelling at him because she thought that Hudson was the driver. However, Trooper Blankenship testified to these facts during an offer of proof when the jury was not present and in an effort to investigate Hudson' s specific objection. The trial court excluded the statement about Charles yelling, and the jury only heard Trooper Blankenship testify that Hudson said his back was sore prior to his arrest. Moreover, Hudson stated that he was " satisfied" that Trooper

Blankenship' s proposed testimony was consistent with our prior decision. 2 RP at 217. Therefore, Hudson' s argument about these statements is baseless.

7 No. 45955 -8 -II

we must determine whether, when reviewing the evidence in a light most favorable to the State,

any rational jury could have found the existence of an egregious lack of remorse beyond a

reasonable doubt. State v. Yates, 161 Wn.2d 714, 752, 168 P. 3d 359 ( 2007). We consider

circumstantial and direct evidence equally reliable. Yates, 161 Wn.2d at 752. A " mundane lack

of remorse found in run- of-the- mill criminals" is not sufficient. State v. Garibay, 67 Wn. App.

773, 781, 841 P. 2d 49 ( 1992), abrogated on other grounds by State v. Moen, 129 Wn.2d 535, 919

P. 2d 69 ( 1996).

Here, the jury was instructed that

a] n egregious lack of remorse means that the defendant' s words or conduct demonstrated extreme indifference to harm resulting from the crime. In

determining whether the defendant displayed an egregious lack of remorse, you may consider whether the defendant' s words or conduct: a) increased the suffering of others beyond that caused by the crime itself, b) were of a belittling nature with respect to the harm suffered by the victim or others; or

c) reflected an ongoing indifference to such harm. A defendant does not demonstrate an egregious lack of remorse by denying guilt, remaining silent, asserting a defense to the charged crime or failing to accept responsibility for the crime.

Clerk' s Papers ( CP) at 83- 84; see also 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 300.26, at 736 ( 3d ed. 2008).

Grover testified that when he arrived, Butler was hobbling and eventually fell to the ground

as Grover looked for the vehicle' s other occupants. When Grover discovered Charles, she was not

moving, did not appear to be conscious, and was covered in so much blood that he could not see

her face. Underwood was gasping as he died in a tree over 30 feet away after being thrown from

the car during the accident. However, Grover heard a calm, male voice say that nobody was hurt

8 No. 45955 -8 -II

and Hudson walked away after the accident without calling for help and did not return for about

two hours.

Based on the injuries that Grover, observed and Hudson' s conduct, a rational jury could

have found that Hudson was the calm, male voice who told Grover that nobody was hurt because

Underwood was badly injured and not in a condition to speak, and Butler was " frantic" and

hollering." 1 RP at 92. A rational jury could also have determined that Hudson displayed an

ongoing indifference" to the harm that he caused because by leaving the accident scene for over

two hours when his friends needed medical assistance and by telling Grover that nobody was hurt,

he prevented them from getting medical assistance as soon as possible. CP at 84. Therefore, we

hold that sufficient evidence supports the jury' s special verdict finding that Hudson demonstrated

an egregious lack of remorse.

Hudson points to three cases where an egregious lack of remorse was found and argues

that the facts here demonstrate that his conduct— saying, " No," to Grover when he asked if

2 anybody was hurt— was not nearly so severe. We disagree with Hudson because ( 1) he

improperly limits the evidence that he acted with an egregious lack of remorse to his one -word

response to Grover and ( 2) these cases are not analogous.

In Ross, we held that the defendant' s refusal to take responsibility for his actions and the

fact that he continued to " blame the justice system for his crimes" showed an egregious lack of

remorse. 71 Wn. App. at 563- 64.

2 Hudson also points to Division Three of this court' s opinion in State v. Erickson, 108 Wn. App. 732, 33 P. 3d 85 ( 2001), for additional support. However, the defendant in Erickson did not challenge the trial court' s determination that he had acted with a " lack of remorse" and Division Three did not review whether the evidence in that case was sufficient to support the special verdict. 108 Wn. App. at 740- 42. 9 No. 45955 -8 -II

In State v. Wood, 57 Wn. App. 792, 798, 790 P. 2d 220 ( 1990), we upheld an egregious lack

of remorse aggravator applied to a defendant who helped plan her husband' s murder. Wood

traveled with another man just over one week after the murder and established a residence with a

third man just three weeks after the murder. Wood, 57 Wn. App at 795. Wood joked about her

husband' s death and teased the man who pulled the trigger of the gun that killed her husband about

his sensitivity to the sound her husband made as he died. Wood, 57 Wn. App. at 795.

In State v. Zigan, 166 Wn. App. 597, 603, 270 P.3d 625, review denied, 174 Wn.2d 1014

2012), Division Three affirmed the trial court' s finding that Zigan displayed an egregious lack of

remorse. There, immediately following a fatal accident, Zigan asked the victim' s husband if he

was "` ready to bleed."' Zigan, 166 Wn. App. at 602. Zigan smiled and laughed while talking with

police officers at the scene and joked later with one of the officers that the officer should not ride

a motorcycle because " he might get killed by [ Zigan] too." Zigan, 166 Wn. App. at 603. Zigan

also joked with his fellow inmates about the accident. Zigan, 166 Wn. App. at 603.

Although the conduct in each of these cases was severe, these cases do not dictate the result

here because whether sufficient evidence supports an egregious lack of remorse special verdict is

a fact -specific inquiry, Ross, 71 Wn. App. at 563, and the facts in this case demonstrate that Hudson

displayed an extreme and ongoing indifference to the injuries he caused to his friends. From the

facts in this case, a reasonable jury could conclude that Hudson ( 1) was the driver of the vehicle,

2) calmly told Grover that nobody was hurt immediately after the accident, and ( 3) walked away

from the accident for over two hours without getting help for his friends. When Hudson left the

scene, one of his friends was dying after being ejected from the car into a tree and Charles, his

10 No. 45955 -8 -II

girlfriend at the time, had blood all over her face. A reasonable jury could find that his continued

indifference to their injuries was extreme and ongoing.

Affirmed.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.

We concur: bl? S-ON, C. J. k-

WC : SWICK, J. IV

a

MELNICK, J. ,}