State v. OsmanState v. Osman
¶ 1 In courts of limited jurisdiction, all proceedings are electronically recorded. Under
FACTS
¶ 2 In April 2004, Abdinasir Osman was charged in King County District Court with driving while under the influence of alcohol (DUI). Before trial, the defense filed a motion to exclude evidence under
¶ 3 The hearing on Osman‘s motion to suppress took place on January 12, 2005. King County Deputy David L. Jeffries and Osman testified. Osman testified with the assistance of a Somali interpreter.
¶ 4 Deputy Jeffries testified that he had worked for the King County Sheriff‘s Department for approximately 15 years, he had been a member of the DUI squad for approximately 10 years, he had participated in approximately 5,000 DUI investigations, and had made approximately 1,400 DUI arrests. Deputy Jeffries also said that he was an alcohol breath test instructor and a DUI field training officer.
¶ 5 Deputy Jeffries testified that at approximately 2:50 a.m. on October 17, 2003, he observed a car in the White Center area weaving between two lanes of traffic on South 200th Street. Deputy Jeffries said that the car was crossing over the lane dividers, and on two different occasions, crossed the centerline. According to Deputy Jeffries, the driver had his right turn signal on at an intersection. However, the driver did not turn, but went straight onto the freeway. After the car drove onto the shoulder of the freeway and across the fog line, Deputy Jeffries pulled the car over. Deputy Jeffries asked the driver for his license, registration, and proof of insurance. Deputy Jeffries testified that the driver, Abdinasir Osman, had “a strong odor of intoxicants on his breath, red, watery, bloodshot eyes, slurred speech, and ... slow, lethargic movements.” Deputy Jeffries also said there were two other people in the car and he noticed four open beer containers in the front passenger seat.
¶ 7 Deputy Jeffries testified that he read Osman his rights and the implied consent warnings for the breath alcohol test again at the SeaTac Police Station. Osman refused to sign the “Constitutional Rights and Implied Consent Warning for Breath” form, and asked to speak to his attorney. Because Osman would not provide the name of his attorney, Deputy Jeffries contacted a public defender for him. After Osman spoke with the public defender, Osman told Deputy Jeffries he did not want to take the alcohol breath test.
¶ 8 Deputy Jeffries testified that Osman communicated with him in English the entire time. In his DUI report, Officer Jeffries wrote that Osman‘s native language was English. On cross examination, Deputy Jeffries said that both Osman and the two passengers spoke to him in English that night.
¶ 9 Osman testified that he was from Somalia, had only been in the United States for three years, and had never formally learned English. Osman said that he and his two friends had attended a Somali wedding in downtown Seattle that night. Osman disagreed with Deputy Jeffries‘s account of what occurred after Deputy Jeffries pulled him over. Osman testified that he did not understand Deputy Jeffries and that when Deputy Jeffries stopped the car, one of the passengers, Chambe Hailesellase, translated for him. Osman also said that he asked Deputy Jeffries for a Somali interpreter several times. Osman denied using English when he spoke to Deputy Jeffries, and denied telling Deputy Jeffries that he only had two beers and was okay to drive. Osman testified that Deputy Jeffries did not read him his rights when he was arrested or later at the police station.
¶ 10 For the limited purpose of the
¶ 11 At the conclusion of the hearing, the court ruled that Deputy Jeffries had probable cause to stop and to arrest Osman and that Osman‘s statement that he had two beers and was okay to drive was admissible. However, the court granted Osman‘s motion to suppress the statements that he made after he refused to sign the advice of rights form and he invoked his right to an attorney. The court also suppressed evidence of Osman‘s refusal to submit to the alcohol breath test.
¶ 12 The trial took place on February 24, 2005. Deputy Jeffries and one of the passengers in Osman‘s car, Hailesallase, testified at
¶ 13 In preparing Osman‘s appeal, his attorney discovered that a portion of the electronic record from the pretrial
¶ 14 It is undisputed that the end of the State‘s cross examination of Osman, the redirect of Osman, the court‘s ruling on the admission of Exhibit D, the lawyers’ arguments, and the court‘s oral decision and rulings on the motion to suppress were not electronically recorded. The transcript indicates that the motion to suppress hearing began at 10:20 a.m. and there is a “[Break in recording from 11:47:47 a.m.].” The transcript of the electronic record resumes at “1:00:30 p.m.” The hearing concluded at 1:13 p.m., “[Session ends at 1:13 p.m.].”
¶ 15 The court docket reflects the court‘s rulings on the
¶ 16 On the remand from superior court, the district court judge compared his notes from the
¶ 17 Osman filed a motion in superior court to review the district court‘s determination that the missing portion was not significant or material under
¶ 18 A commissioner of this court granted the State‘s motion for discretionary review to address the question of what standard of review applies when the superior court reviews a district court‘s determination of
ANALYSIS
¶ 19 The parties dispute whether the superior court applied the correct standard of review when reversing the district court‘s determination that the missing portion of the
¶ 20 As a general rule, all proceedings in a court of limited jurisdiction “shall be recorded by electronic means.”
In the event of loss or damage of the electronic record, or any significant or material portion thereof, the appellant, upon motion to the superior court, shall be entitled to a new trial, but only if the loss or damage of the record is not attributable to the appellant‘s malfeasance. In lieu of a new trial, the parties may stipulate to a nonelectronic record as provided in rule 6.1(b). The court of limited jurisdiction shall have the authority to determine whether or not significant or material portions of the electronic record have been lost or damaged, subject to review by the superior court upon motion.
¶ 21 The State contends that the superior court erred in reversing the district court‘s determination that the missing portion of the record was significant or material based on a de novo standard of review. The State asserts that because
¶ 22 The interpretation of a court rule is a question of law that we review de novo. State v. Robinson, 153 Wash.2d 689, 693, 107 P.3d 90 (2005). When interpreting a court rule, we apply the rules of statutory construction. In re Pers. Restraint of Stenson, 153 Wash.2d 137, 147, 102 P.3d 151 (2004). If the language of a court rule is plain and unambiguous, the court must give effect to that plain meaning. In re Stenson, 153 Wash.2d at 146, 102 P.3d 151. The use of the word “shall” is presumptively mandatory. State v. Mollichi, 132 Wash.2d 80, 86, 936 P.2d 408 (1997). Court rules must also be interpreted “so that `no word, clause or sentence is superfluous, void or insignificant.‘” State v. Dassow, 95 Wash.App. 454, 458, 975 P.2d 559 (1999) (quoting State v. Raper, 47 Wash.App. 530, 536, 736 P.2d 680 (1987)).
¶ 23 We conclude the language of
¶ 24 Using a de novo standard of review for the trial court‘s determination of whether the missing portions of the electronic record are significant or material is contrary to the clear language of the rule that mandates remand to the court of limited jurisdiction to make that determination. The cases Osman cites such as State v. Frankenfield, 112 Wash.App. 472, 475, 49 P.3d 921 (2002), City of College Place v. Staudenmaier, 110 Wash. App. 841, 43 P.3d 43 (2002), and State v. Dearbone, 125 Wash.2d 173, 178-79, 883 P.2d 303 (1994), are inapposite. Those cases stand for the proposition that when the trial court bases an otherwise discretionary decision solely on the application of a court rule to particular facts, the decision is reviewed de novo as a question of law. Here, the court did not just apply the rule to a particular set of facts, but rather exercised its discretion under
¶ 25 We conclude that an abuse of discretion standard of review applies to the decision of a court of limited jurisdiction of whether missing portion of the record is significant or material under
¶ 26 Even if the correct standard of review of the decision under
¶ 27 First, Osman contends that in deciding whether the missing portion of the record was significant or material, the district court impermissibly reconstructed the record. We disagree. The record reveals that the district court judge did not reconstruct the record, but rather compared his notes with the court docket to determine whether the missing portion was significant and material under
¶ 28
¶ 29 Osman also contends that the district court erred because the missing portion of the record that contains the court‘s findings and oral decision on the
¶ 30 As reflected in the court docket, the court ruled that Deputy Jeffries had probable cause to stop the car and to arrest Osman and that Osman‘s statement that he had two beers and was okay to drive was admissible,
Court finds defendant was read his rights in the field and understood his rights in the field. Statements made thereafter are admissible. Statements made are a waiver by conduct that includes the fact that he stated he had 2 beers and was okay to drive.
Court finds that the defendant was read his rights at the SeaTac facility and that he invoked his rights and any statements made after the second reading of rights are suppressed.
Court finds implied consent warnings for breath were read to defendant in the field and at the SeaTac facility. Court is not satisfied that defendant understood his rights. Therefore, BAC refusal is suppressed.
Court finds that there was probable cause to stop defendant based on the defendant‘s driving observed by Officer Jeffries.
Court finds probable cause to arrest defendant.
¶ 31 The district court‘s decision that Osman‘s statement that he had two beers and was okay to drive was admissible and that Deputy Jeffries had probable cause to stop the car and arrest Osman are the only rulings adverse to Osman. It is clear from the record that the district court admitted Osman‘s statement based on finding Deputy Jeffries‘s testimony that he read Osman his constitutional rights and that Osman understood his rights more credible than Osman‘s testimony.7 “Credibility determinations are for the trier of fact and cannot be reviewed on appeal.” State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).
¶ 32 The only other pretrial decisions subject to a RALJ appeal are the district court‘s rulings that Deputy Jeffries had probable cause to stop and to arrest Osman. On appeal of denial of a motion to suppress, findings are reviewed for substantial evidence and the conclusions of law derived from those findings are reviewed de novo. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001).8 A de novo standard of review also applies to the question of whether the stop was valid. State v. Byrd, 110 Wash.App. 259, 262 n. 2, 39 P.3d 1010 (2002).
¶ 33 To justify an investigative stop of an automobile, the police officer must have reasonable and articulable suspicion that the person is engaging in criminal activity. State v. Kennedy, 107 Wash.2d 1, 5, 726 P.2d 445 (1986). The analysis focuses on “the reasonableness of the officer‘s activities with respect to the privacy rights invaded.” Kennedy, 107 Wash.2d at 6, 726 P.2d 445. A court must evaluate the reasonableness of the officer‘s suspicion under the totality of the circumstances known to the officer at the time of the stop. State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991).
¶ 34 A police officer may arrest a person without a warrant based on probable cause to believe that the person has violated a traffic law such as reckless driving or driving while intoxicated. O‘Neill v. Dep‘t of Licensing, 62 Wash.App. 112, 116, 813 P.2d 166 (1991). Probable cause to arrest exists if, under the circumstances, a reasonably cautious person would believe an offense is being committed. O‘Neill, 62 Wash.App. at 116-17, 813 P.2d 166. Courts give consideration to the arresting officer‘s special expertise in identifying criminal behavior. State v. Scott, 93 Wash.2d 7, 11, 604 P.2d 943 (1980).
¶ 35 Here, the court docket contains the district court‘s findings and conclusions and the record contains all of Deputy Jeffries‘s testimony, Osman‘s direct examination, and nearly all of Osman‘s cross examination. This record allows Osman to challenge whether Deputy Jeffries had probable cause to stop and to arrest.
¶ 37 Last, Osman contends that without the missing portions of the record, his attorney cannot provide effective assistance of counsel on appeal. Due process requires a record “of sufficient completeness” to properly consider the assignments of error on appeal. Draper v. Washington, 372 U.S. 487, 497, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); State v. Larson, 62 Wash.2d 64, 66-67, 381 P.2d 120 (1963). Whether the record is sufficient for appellate review is a separate question from whether a missing portion of the record is significant or material under
¶ 38 We reverse the superior court decision finding the missing portion of the record is significant and material under
WE CONCUR: ELLINGTON and BECKER, JJ.
Notes
(a) Superior Court. After a notice of appeal has been filed, the superior court has authority to perform all acts necessary to secure the fair and orderly review of the case.
(b) Court of Limited Jurisdiction. After a notice of appeal has been filed, and while the case is on appeal, the court of limited jurisdiction has authority to act in a case only to the extent provided in these rules, unless the superior court limits or expands that authority in a particular case.