State Of Washington v. Chad Daniel Sullivan ( 2017 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON c)
THE STATE OF WASHINGTON, ) No. 74862-9-1
)
Respondent, )
) DIVISION ONE
v. )
)
CHAD DANIEL SULLIVAN, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: November 6, 2017
)
MANN, J. — Chad Sullivan appeals from his conviction on three counts of
assault in the second degree. Sullivan argues that he was deprived of the
opportunity to present a defense because the King County Department of Public
Defense(DPD)and trial court refused public funding for Sullivan's chosen expert
witness. Because the trial court has discretion to provide a "competent" expert
for indigent defendants, and nothing prohibits financial considerations in carrying
out that discretion, we affirm.
FACTS
On October 22, 2014, store security at Sportsman's Warehouse in Federal
Way observed Sullivan take two canisters of pepper spray from a store shelf and
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conceal one of the canisters in his jacket. Sullivan then paid for the second can
and left the store. After Sullivan exited the store, he was stopped by the store
security officer Martin Roper, and another employee John Silas. Roper and Silas
identified themselves and asked Sullivan to return to the store. Sullivan
compliantly returned to the store and was escorted to a small room located near
the front of the store. Roper took Sullivan's identification and left the room.
Silas remained in the room with Sullivan. While they waited, Silas heard
Sullivan say "1 can't go back to jail," at which point Sullivan pulled a small folding
knife out and used the knife to open the package holding the pepper spray. Silas
left the room and closed the door. Roper and a third store employee, Chris
McMurray,joined Silas in trying to keep the door closed as Sullivan sprayed
pepper spray under the door. Sullivan eventually succeeded in opening the door
and during the ensuing struggle pepper sprayed Silas, Roper, and McMurray.
After the security officers managed to subdue Sullivan, the police arrived and
took him into custody.
The State charged Sullivan with three counts of second degree assault
under RCW 9A.36.021(d), for administering a poison or other destructive or
noxious substance.
Sullivan's primary defense was that pepper spray was not a noxious
substance. Sullivan, who is indigent, applied pretrial for public funding from DPD
to hire an expert to testify regarding the nature and effects of pepper spray.
Sullivan requested funding to hire Kamran Loghman, an expert located in
Washington, D.C., at the rate of $495 an hour for a total of $9,900. Loghman
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was an expert in "all aspects of tear gas, pepper sprays and mace." Loghman
held five patents for pepper spray formulas, and had years of experience as the
chief executive officer of a pepper spray manufacturer that provided pepper
spray to law enforcement agencies and the military. He also authored
international law enforcement training manuals and published articles on pepper
spray and other chemical agents. Sullivan's counsel stated that she had
discussed the case with Loghman and that Loghman indicated "he has heard of
no other state or federal case in which a serious felony comparable to Assault in
the Second Degree has ever been charged based solely on the discharge of
[over the counter] pepper spray." Counsel stated she "was unable to locate any
other experts as uniquely qualified to provide services in this case."
DPD denied the request explaining that "expert's proposed testimony that
there is no other case similarly charged as [defendant]'s case is not reasonable
for a defense as it does not bear on whether pepper spray causes bodily harm."
Sullivan filed a second request with DPD asserting that Loghman "indicated that,
as a holder of 5 patents for pepper spray formulas, he is able to testify that the
pepper spray in question in this case was not a noxious substance, similar to a
poison...[and]that pepper spray does not cause bodily harm." DPD again
denied the request explaining that "[b]efore this amount of money can be
authorized counsel needs to contact other witnesses or medical professionals
who would be able to state an opinion as to whether [over the counter] pepper
spray is a 'noxious substance' similar to poison."
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Sullivan then resubmitted a third request to for funds to hire Loghman.
DPD again denied the request adding that ,
The Information does not allege that "noxious" is similar to poison
nor does it say it must be harmful to the alleged victims. It says "or
noxious substance." Because "noxious" can be defined very
broadly I do not believe the request is justified under CrR3.1(f).
Sullivan appealed to the superior court, which also denied the request.
The court held, "the contents of commercial pepper spray is readily available,"
thus "[e]xpertise at the cost suggested by defendant is not reasonably necessary
to the presentation of defendant's case." DPD ultimately approved funding to
retain a different expert, Rick Walker. Walker charged $25 per hour and was
authorized for 20 hours of work for a total of $500.
Walker testified at trial. Walker owns the personal safety training
company, Black Dog Training, and is certified by a private pepper spray
corporation to perform demonstrations, trainings, and sales. Walker testified he
was familiar with the components and the concentration of the pepper spray used
in this case. Walker characterized the pepper spray as a "nontoxic temporary
incapacitater." He testified to the common reactions to pepper spray, and
emphasized the spray can be washed off and has no long-term effects and
causes no lasting physical harm to the body. Walker acknowledged there could
be long-term effects from pepper spray in cases where an individual had a
preexisting condition, though he had not seen that occur. Walker also
acknowledged that pepper spray was "designed to hurt."
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The three employees Sullivan pepper sprayed also testified. Roper
testified the pepper spray hit the side of his face causing him to experience an
intense burning sensation for half an hour, as well as difficulty breathing.
McMurray testified that after being pepper sprayed he had difficulty keeping his
eyes open, that the pain from the burning sensation on his skin was a six on a
scale from one to ten, and that he had trouble sleeping that night due to the pain.
Silas testified that the pepper spray had caused him to be unable to see, to have
difficulty breathing, and that he felt a strong burning sensation on his skin, in his
throat, and in his nostrils. All three of the victims testified they had no lasting
effects from the pepper spray.
• ANALYSIS
Expert Opinions
Sullivan argues that he was deprived of the right to present a defense
because he was denied funding to retain Loghman. Sullivan argues the trial
court improperly considered the cost of his expert, denying Sullivan his right to
due process. We disagree.
As part of an indigent defendant's constitutional right to effective
assistance of counsel, the State must pay for expert services when such services
are necessary to an adequate defense. State v. Mines, 35 Wash. App. 932, 935,
671 P.2d 273(1983). Whether expert services are necessary for an adequate
defense lies within the sound discretion of the trial court. State v. Young, 125
Wash. 2d 688, 691, 888 P.2d 142(1995)(citing Mines, 35 Wash. App. at 935). A
discretionary decision of the trial court "'will not be disturbed on review except on
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a clear showing of abuse of discretion," meaning the discretion was "manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons."
City of Mount Vernon v. Cochran, 70 Wash. App. 517, 523, 855 P.2d 1180(1993)
(quoting Mines, Wn. App. at 936).
In Washington, CrR 3.1(f) governs the appointment of experts at public
expense. Young, 125 Wash. 2d at 691. "CrR 3.1(f) incorporates the constitutional
right of an indigent defendant to the assistance of expert witnesses." State v.
Poulsen, 45 Wash. App. 706, 709, 726 P.2d 1036 (1986)(footnote omitted). CrR
3.1(f) provides, in relevant part:
(1) A lawyer for a defendant who is financially unable to obtain
investigative, expert or other services necessary to an adequate
defense in the case may request them by a motion to the court.
(2) Upon finding the services are necessary and that the defendant
is financially unable to obtain them, the court. . . shall authorize
the services.
Nothing in CrR 3.1(f) requires the trial court to authorize payment for the witness
of the defendant's choosing or precludes a trial court from considering cost in
making its decision.
To the contrary, all that is required is that the defendant have access to
expertise where necessary to support their defense. For example, in Ake v.
Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 84 L. Ed. 2d 53(1985), the
Supreme Court addressed whether an indigent criminal defendant attempting to
present an insanity defense to a charge of murder had the right to expert opinion
at the public's expense. The Court held that, in cases where the defendant can
demonstrate to the trial court that his sanity at the time of the offense would be a
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significant factor at trial, the "State must, at a minimum, assure the defendant
access to a competent psychiatrist" to examine and assist in the presentation of
the defense. Ake, 470 U.S. at 83. The Court continued:
This is not to say, of course, that the indigent defendant has a
constitutional right to choose a psychiatrist of his personal liking or
to receive funds to hire his own. Our concern is that the indigent
defendant have access to a competent psychiatrist for the purpose
we have discussed, and as in the case of the provision of counsel
we leave to the States the decision on how to implement this right.
Ake, 470 U.S. at 83.
Similarly, in State v. Cuthbert, 154 Wash. App. 318, 225 P.3d 407(2010), a
theft case, the trial court denied the defendants request to hire a forensic
accountant, instead offering "to authorize funds for the defense to hire someone
to check all the records," an offer the defendant declined. Cuthbert, 154 Wn.
App. at 335. The appellate court upheld the trial court's ruling, holding that the
trial court properly exercised its discretion in concluding that a forensic
accountant was not necessary to prepare a defense, and that an investigator
would have sufficed. Cuthbert, 154 Wash. App. at 334-36. Indeed, Sullivan
concedes,"a defendant is not denied equal protection when he receives a viable
alternative expert, and that there is no right to have an expert of one's choosing."
Sullivan's defense was that pepper spray was not a "destructive or
noxious substance" under RCW 9A.36.021(d). In order to present this defense,
Sullivan wanted to retain a specialist familiar with the components and effects of
pepper spray. Although we agree Loghman was well qualified to testify'to the
chemical composition and effects of pepper spray, Walker was also qualified.
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Sullivan argues Loghman would have testified pepper spray was specifically
manufactured not to cause permanent or long-term harm and that Walker was
not a viable alternative because he was less qualified to testify to pepper spray
manufacturing. Sullivan's argument would require a viable alternative expert to
have the exact same qualifications as the one originally requested. Sullivan
offers no support for this high standard.
The determination of whether an expert is competent or a viable
alternative is within the discretion of the trial court, and will not be overturned
absent a clear showing of abuse of discretion. Walker was familiar with the
components and effects of pepper spray and was fully qualified to testify to the
effects of pepper spray. Walker testified that pepper spray is a "nontoxic
temporary incapacitater," emphasizing that the spray can be washed off, has no
long-term effects, and causes no lasting physical harm to the body. Sullivan's
argument—that the pepper spray was not "destructive or noxious" because it did
not cause long-term harm—was addressed by Walker's testimony. Moreover,
Walker's testimony was supported by all three victims who testified that they had
no lasting harmful effects.
The trial court did not abuse its discretion in authorizing payment for
Walker, but not Loghman.
Statement of Additional Grounds
In his statement of additional grounds, Sullivan claims that RCW
9A.36.021 is unconstitutional because "the word noxious is so vague that it is
unfair to take the one word alone and constitute it an Assault II." The
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constitutionality of a statute is an issue of law, which we review de novo. State v.
Watson, 160 Wash. 2d 1, 5, 154 P.3d 909 (2007). Appellate courts approach a
vagueness challenge with a strong presumption in favor of the statute's validity.
Haley v. Med. Disciplinary Bd., 117 Wash. 2d 720, 739, 818 P.2d 1062(1991). "If
the statute does not involve First Amendment rights, then the vagueness
challenge is to be evaluated by examining the statute as applied under the
particular facts of the case." Watson, 160 Wash. 2d at 6(quoting State v. Coria,
120 Wash. 2d 156, 163, 839 P.2d 890 (1992)). The party challenging a statute's
constitutionality on vagueness grounds has the burden of proving its vagueness
beyond a reasonable doubt. City of Seattle v. Eze, 111 Wash. 2d 22, 26, 759 P.2d
366 (1988).
Under the due process clause of the Fourteenth Amendment,"a statute is
void for vagueness if either:(1) the statute does not define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is
proscribed; or (2) the statute does not provide ascertainable standards of guilt to
protect against arbitrary enforcement." Watson, 160 Wash. 2d at 6 (internal
quotations omitted). "A statute meets constitutional requirements if persons of
ordinary intelligence can understand what the ordinance proscribes,
notwithstanding some possible areas of disagreement." Watson, 160 Wash. 2d at
7. Impossible standards of specificity are not required as some measure of
vagueness is inherent in the use of language. Eze, 111 Wash. 2d at 26.
Sullivan fails to prove beyond a reasonable doubt that the statute as
applied under the particular facts of the case is unconstitutionally vague. RCW
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9A.36.021 prohibits "administer[ing] to or caus[ing] to be taken by another,
poison or any other destructive or noxious substance" with the "intent to inflict
bodily harm." Bodily harm is defined by RCW 9A.04.110(4)(a) as "physical pain
or injury, illness, or an impairment of physical condition." The rest of the terms,
though not specifically defined, are all commonly known and used. Persons of
ordinary intelligence, viewing the facts in this case, could understand that pepper
spray being sprayed in the face of another person would constitute a "poison" or
"destructive or noxious substance" causing "injury" or an "impairment of physical
condition." While there may be some disagreement, such disagreement is for the
finder of fact, and does not rise to the level of constitutional vagueness.
Finally, Sullivan argues he had ineffective assistance of counsel. As
Sullivan's allegations rest on facts and matters outside the record, it cannot be
considered on direct appeal. State v. Kinzie, 181 Wash. App. 774, 786, 326 P.3d
870(2014).
Appellate Costs
Sullivan also asks that no costs be awarded on appeal. Appellate costs
are generally awarded to the substantially prevailing party on review. However,
when a trial court makes a finding of indigency, that finding remains throughout
review "unless the commissioner or clerk determines by a preponderance of the
evidence that the offender's financial circumstances have significantly improved
since the last determination of indigency." RAP 14.2. Here, Sullivan was found
indigent by the trial court. If the State has evidence indicating that Sullivan's
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financial circumstances have significantly improved since the trial court's finding,
it may file a motion for costs with the commissioner.
We affirm.
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WE CONCUR:
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