In re Tortorelli
- Reporters:
- ,
- Before:
- Chambers (en banc)
CHAMBERS, J.
John Tortorelli was found guilty of theft, trafficking in stolen property, and criminal profiteering, arising from his business of salvaging stray logs and submerged trees from Lake Washington. Tortorelli made several challenges to his convictions in his direct appeal, which were rejected by the Court of Appeals. In this personal restraint petition he raises numerous additional challenges, including insufficiency of the evidence that the logs and trees were “the property of another,” as required by the statute under which he was charged,
FACTS
Until 1994, the Department of Natural Resources (DNR) issued log patrol licenses to
The stray logs authorized for salvage by a log patrol licensee are not the same as the ancient forest remnants also found in Lake Washington. The ancient forest remnants were not lost from transportation or storage, but resulted from several landslides that occurred around the shores of Lake Washington about 1,100 years ago. These ancient trees have been preserved by the low oxygen content in the deep water. Because of their historic and scientific value, the trees by definition were not salvageable under the former log patrol statute.
In February 1991, Tortorelli, the owner of Western Wood Lumber, purchased salvage equipment including a barge and tug called the Shawnee from Carl Burgin and Roy Jamieson of Clearwater Marine Works, Inc. (Clearwater). Clearwater retained a barge and tug named the Crawfish. The agreement between Tortorelli and Clearwater was memorialized in two different documents. A security agreement provided in part that Western Wood Lumber could use permits issued to Clearwater if permitted by law. A cooperation agreement provided, among other things, that the two businesses would not directly compete with each other in the log salvage business.
On April 15, 1991, shortly after Tortorelli had his equipment towed from Everett to commence a salvage operation in Lake Washington, the State mailed him a letter advising that the State owned all the unbranded logs in the lake, describing the regulations applicable to log salvage, and summarizing
In August 1991, in apparent response to the April 15 letter, Tortorelli applied for a log patrol permit. However, he did so under the name Clearwater Marine Works and not Western Wood Lumber. He was neither an officer nor an employee of Clearwater. By applying in the name of Clearwater, he avoided the necessity of posting the $10,000 bond required of new applicants, and had to pay only the $500 required to license an additional boat. See former
Believing that both the Crawfish and the Shawnee were still owned by Clearwater, DNR issued a new license to attach to the Shawnee. When issuing the log patrol permit, the State sent Tortorelli another letter, reiterating which logs the State owned and enclosing revised operating guidelines.
While awaiting his new license, Tortorelli moved his operation to the ancient submerged forest on the southwest side of Mercer Island. Charts issued by the National Oceanic and Atmospheric Administration indicate that the forest extends to within 30 feet of the surface of the water. Some trees are anchored in the bed of the lake, but others were uprooted in about 1919 when the Corps of Engineers cleared the channel during construction of the Lake Washington ship canal. The timber the crew found at this site consisted of full length fir trees, about a hundred feet tall, with root balls attached. The crew raised the trees, then cut off the root balls and tops and returned them to the water, retaining only the tree trunks.
In August 1991, while Tortorelli was working in the submerged forest area, he began to cooperate with Dr. Gordon Jacoby and Dr. Patrick Williams, scientists doing a tree ring analysis to date the sunken trees. Tortorelli provided slices from 18 different trees, each
In March 1992, after spending a few months in Everett, Tortorelli returned to Lake Washington, where he went to work in the Gene L. Coulon Memorial Beach Park area. Toward the end of the month, a metro sewer line was ruptured under the channel between Mercer Island and the eastern shore of Lake Washington, triggering extra scrutiny from DNR. On becoming aware of Tortorelli‘s operations in the area, DNR informed him that he needed to obtain a hydraulics project approval. Tortorelli accordingly applied, but carried on his operations without waiting to receive the permit.
On May 7, 1992, the Department of Fisheries issued a hydraulics project approval on condition that Tortorelli conduct a study to determine whether his operation was damaging crayfish, an important food source for bass and trout and a crucial part of the lake‘s ecology. Tortorelli was also required to stay south of the Interstate 90 Bridge. The same month Fisheries cited Tortorelli twice for operating outside the conditions of his hydraulics project approval permit. Both citations were dismissed.
In June 1992, Steve Meacham of DNR and Tortorelli had an “extended discussion about where and when it was legal to collect stray logs,” during which Meacham read Tortorelli large portions of the log patrol statute. Report of Proceedings (RP) (p.m. Jan. 31, 1995) at 26-28.
Four months later, the fisheries department executed a search warrant on Tortorelli‘s home and log patrol area, and seized records. The State determined that he had illegally seized trees worth $165,000.
Tortorelli was arrested in August 1994. He was charged with several offenses, which were consolidated into eight counts for trial: count 1, profiteering; counts 2 and 3, theft of and trafficking in submerged trees; counts 5, 6, 8, and 9, theft of and trafficking in stray logs; and count 4, offering a false document for filing.1
At trial, Tortorelli did not contest nor concede the State‘s ownership of all the trees. In fact, Tortorelli had conceded the State‘s ownership of the logs and trees to a log patrol administrator prior to trial. Instead, he claimed a good faith belief that he had permission to salvage logs under Clearwater‘s license. The State countered, over Tortorelli‘s objection, with witness testimony that transfers of log patrol licenses are not legally permissible, a topic on which the statute itself is silent. Tortorelli did not take the stand on his own behalf. At the request of the defense, the trial court gave the entire log patrol statute to the jury as an exhibit, rejecting the State‘s request for a jury instruction on the statute.
Tortorelli was convicted of all counts. He was sentenced to 8 concurrent terms ranging from 12 to 43 months and ordered to pay restitution.
ANALYSIS
To prevail on his personal restraint petition, Tortorelli has the burden of establishing either error of constitutional magnitude resulting in actual prejudice or nonconstitutional error resulting in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990).
Tortorelli was charged under a statute that requires the jury to find he was stealing “the property of another.”
First, we find as a matter of law, the State of Washington does own both the ancient forest and unbranded stray logs. Our constitution vests ownership of the “beds and shores of all navigable waters in the state” to the State.
Further support of State ownership appears in federal law. When the United States was constituted, the Constitution reserved to the original states the shores and beds of navigable waters within their respective boundaries. Martin v. Waddell, 41 U.S. (16 Pet.) 367, 10 L.Ed. 997 (1842). Under the equal footing doctrine, states subsequently admitted to the Union obtained “the same rights, sovereignty and jurisdiction ... as the original States possess within their respective borders.” Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 436, 18 L.Ed. 756 (1867). More recently, the Submerged Lands Act of 1953 confirmed that the states took title to natural resources found within navigable waters:
It is determined and declared to be in the public interest that ... title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, ... [is] vested in and assigned to the respective States ... in which the land is located....
Tortorelli disputes whether the trees and logs were natural resources. “Natural resources” is defined in the Submerged Lands Act as ”without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life.”
The ancient forest trees are located “within” the waters or soil of Lake Washington. Under state and federal statutory and common law, the State owns the submerged trees. It is well established that “[u]nambiguous language does not require nor permit judicial construction.” State v. Michaelson, 124 Wash.2d 364, 366, 878 P.2d 1206 (1994).
Once the trees have been cut into logs, it is not so clear that they are natural resources as meant by the statute because cut logs are not “supplied by nature.” However, there is a separate basis for state ownership of stray logs, the marks and brands statute, which provides: “Unbranded or unmarked stray logs or forest products become the property of the state when recovered.”
Because the submerged trees and stray logs belong to the State as a matter of law, Tortorelli cannot prove any actual and substantial prejudice, and we accordingly deny relief on these grounds.
In a similar vein, Tortorelli argues that the evidence was insufficient to convict because the State was allegedly relieved of its burden to prove an element of the crime, that the logs were owned by another. Sufficiency of the evidence is a question of constitutional magnitude because due process requires the State to prove its case beyond a reasonable doubt. State v. Baeza, 100 Wash.2d 487, 488, 670 P.2d 646 (1983) (citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Evidence is sufficient to convict when “`viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We find Tortorelli has not met his burden for collateral relief.
First, we note that the jury was instructed to decide whether the prosecution had proved, beyond a reasonable doubt, that Tortorelli had taken the property of another. It did so find. Second, there was a wealth of evidence on the record from which the jury could so find. Tortorelli has shown no prejudice, and accordingly, we reject this claim.
Next, Tortorelli argues that there was insufficient evidence to determine that he operated under an invalid log patrol license. He claims that in 1991 he was authorized to operate under the Clearwater license. He bases this claim on a contract document that states that he was entitled to use the Clearwater permits, if legal. However, the license in question was for the Crawfish, which Clearwater retained. Licenses are specific to the vessel operated. As a result, Clearwater‘s license for the Crawfish could not provide Tortorelli authorization to salvage logs while operating the Shawnee. In 1992, Tortorelli operated under a new license, but when he applied for the license in the name of Clearwater, he was neither an owner nor an employee of Clearwater. He was found guilty of falsifying a document in his license application. These facts are sufficient to establish that the license Tortorelli was using in 1992 was invalid. Therefore, Tortorelli has failed to establish a constitutional error.
Tortorelli also argues that the trial court should not have admitted a copy of the log patrol statute into evidence because it contains a presumption that anyone holding stray logs without a valid license did so “with intent to deprive and defraud the owner thereof.” Former
Tortorelli further argues that the trial court erred in failing to declare the law, leaving the jury to determine whether a log patrol license is transferable based on its interpretation of the log patrol statute and on opinion testimony from DNR that such transfers are illegal. The court has a duty to declare the law.
Tortorelli‘s objection to Meacham‘s testimony at trial did not preserve the gravamen of his current argument for collateral review. Tortorelli must now show us that the trial court‘s alleged failure to declare the law was either constitutional error causing actual and substantial prejudice, or nonconstitutional error leading to a fundamental defect that inherently resulted in a complete miscarriage of justice. See In re Pers. Restraint of Cook, 114 Wash.2d at 810-11, 792 P.2d 506.
Assuming a constitutional error, Tortorelli has failed to prove actual and substantial prejudice. Assuming Clearwater‘s license was transferable, the license for the Crawfish did not provide Tortorelli authority to salvage stray logs while operating the Shawnee. Moreover, the legal question of whether the license was transferable is irrelevant to the factual issue of whether Tortorelli was acting under a good faith belief that he was authorized to salvage the submerged trees and stray logs. Consequently, Tortorelli has failed to prove actual and substantial prejudice.
Tortorelli finally argues that failure to object to admission of the log patrol statute constitutes ineffective assistance of counsel. In order to establish ineffective assistance of counsel, the petitioner must show that counsel‘s performance was deficient and not a matter of trial strategy or tactics, and that the petitioner was prejudiced. State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Washington courts indulge in a strong presumption that counsel‘s performance was reasonable. State v. Garrett, 124 Wash.2d 504, 518-19, 881 P.2d 185 (1994). Here, counsel allowed the admission of the entire log patrol statute in preference to excerpts from the statute, which the State wanted to admit. Admitting the entire statute enabled Tortorelli to argue his claim that he took the timber with good faith claim of title because there was “nothing in the log patrol guidelines that says a corporation cannot do exactly what Clearwater did, which is to authorize somebody to use their license.” Report of Proceedings (Feb. 10, 1995) at 126. We find this to be a legitimate trial strategy and cannot be a basis for ineffective assistance of counsel. State v. Brett, 126 Wash.2d 136, 198-99, 892 P.2d 29 (1995).
The only conviction not based on the premise that the State of Washington owns the timber salvaged by Tortorelli is count 4. This is the charge of offering false documents for filing, based on Tortorelli‘s false representation of himself as an agent of Clearwater when applying for a new log patrol permit. The statute provides:
Every person who shall knowingly procure or offer any false or forged instrument to be filed, registered, or recorded in any public office, which instrument, if genuine, might be filed, registered or recorded in such office under any law of this state or of the United States, shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than five thousand dollars, or by both.
We hold that the State of Washington had title to both the submerged trees and the stray logs. If admission of the log patrol statute was erroneous, the error was invited, and Tortorelli waived his right to object. The failure to object did not constitute ineffective assistance of counsel as it was based on legitimate trial strategy. We therefore affirm the trial court on all counts.
JOHNSON, MADSEN, IRELAND, BRIDGE, and OWENS, JJ., and SMITH, J. Pro Tem., concur.
SANDERS, J., dissenting.
As the majority notes, counts one, two, three, five, six, eight, and nine are all predicated on the State‘s asserted ownership of the submerged trees and the stray logs.1 Majority at 612. Tortorelli contends the State submitted insufficient evidence to prove it owns the submerged trees Tortorelli allegedly stole from the state.
The common law supplements the criminal statutes “insofar as [it is] not inconsistent with the Constitution and statutes of this state....”
The majority reaches this astonishing conclusion by overstating the State‘s claim to natural resources under the federal Submerged Lands Act of 1953,
The majority‘s conclusion is counterintuitive. The Submerged Lands Act speaks of minerals and marine life, not of sunken trees. Moreover, the rule of lenity requires the court to construe an ambiguous statute in a criminal case favorably to the accused. In re Post Sentencing Review of Charles, 135 Wash.2d 239, 249-50, 955 P.2d 798 (1998). This assures adequate notice, and thus due process, concerning what conduct will be considered illegal. Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Today‘s majority gives short shrift to this vital concern.
I therefore respectfully dissent.
ALEXANDER, C.J., concurs.