State
v.
Dalluge

Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division ThreeMar 15, 2005
126 Wn. App. 1029 (Wash. Ct. App. 2005)

No. 22846-1-III

Filed: March 15, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Grant County. Docket No. 03-1-00986-8. Judgment or order under review. Date filed: 02/24/2004. Judge signing: Hon. Evan E. Sperline.

Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.

Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.

Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.


Amel William Dalluge was arrested and subjected to a strip search at the jail. During the search, the corrections officer noticed a small baggie on the floor of the booking area change room. Mr. Dalluge disclaimed knowledge of the baggie. But the officer was positive the floor was clean before Mr. Dalluge entered the room. Mr. Dalluge was tried by jury on one count of possession of methamphetamine. Both the State and the jury requested a jury viewing of the change room. The defense objected. The judge sustained the objections and denied the viewing. Mr. Dalluge now contends this was an abuse of discretion. We find no abuse of discretion, and affirm the conviction.

FACTS

Mr. Dalluge was arrested on November 24, 2003, on an outstanding warrant and transported to jail. A strip search was ordered as part of the booking process. Before doing the search, the corrections officer in charge checked the gray tile floor of the 8- by 12-foot booking area `change room' where strip searches are done and satisfied himself it was free of small baggies. The officer testified that the contrast created by the gray tile floor was sufficient to see anything on the floor with a simple visual scan.

While Mr. Dalluge was undressing, the officer noticed a baggie on the floor about one foot away from Mr. Dalluge. The officer did not see the baggie fall or hit the floor. Mr. Dalluge denied knowledge of it. The baggie contained methamphetamine.

Before the corrections officer's testimony, the State made a written request for a jury viewing of the change room. The court reserved its ruling until after the corrections officer who found the baggie testified. The State renewed its request at that time. The State argued that the theory of the defense was that the officer had overlooked the baggie when he inspected the floor. The prosecutor argued that a viewing would enable the jury to assess the likelihood of this. Defense counsel objected on the grounds of necessity and relevance. He argued that gray is gray, and a viewing would add nothing to the corrections officer's testimony. The court denied the motion for the time being, explaining that a jury viewing is permitted solely for illustrative, not evidentiary, purposes, and that a viewing here would be additional evidence rather than illustrative. The State rested. Mr. Dalluge did not present any evidence. The jury asked the court to see the change room. The State was still in favor of the viewing. Mr. Dalluge's counsel, however, continued his objection. If the viewing was for additional evidence, it was improper, counsel argued. The court agreed and concluded that the purpose of the proposed viewing was indeed to gather evidence. The court denied the request. The jury found him guilty.

DISCUSSION

Mr. Dalluge's sole issue on appeal is whether the court abused its discretion in sustaining his own lawyer's objection to the jury viewing of the change room.

Mr. Dalluge offers numerous reasons why the court should have granted the State's motion for a viewing: all the material facts took place in the change room; there was not one, but two requests for the jury to see it; the jail was in the same building complex as the courtroom and was easily accessible; and if the court was concerned that the jury would erroneously use the site visit as substantive evidence, rather than merely illustrative, the court could have given an instruction.

The State responds that the invited error doctrine precludes review. The State argued in favor of the viewing at trial. And the sole reason the court denied a viewing was because it was persuaded to do so by Mr. Dalluge. The State agrees that there were more reasons to permit the viewing than to deny it. Nevertheless, it was solely within the court's discretion to grant or deny the motion.

At the discretion of the trial judge, the superior court criminal rules permit the jury to view the scene where any material fact occurred. CrR 6.9; State v. Land, 121 Wn.2d 494, 501-02, 851 P.2d 678 (1993). We review the court's decision for abuse of discretion. Id. at 502. Discretion is abused when the court acts without tenable grounds or reasons. Dalton v. State, 115 Wn. App. 703, 718, 63 P.3d 847 (2003).

The purpose of a jury site visit is to help the jury understand existing evidence, not to take new evidence. State v. Fricks, 91 Wn.2d 391, 400, 588 P.2d 1328 (1979). In Fricks, the judge properly denied a jury view to resolve conflicting testimony as to whether a broken window could be seen from a certain vantage point. `This would be in effect, new evidence, and not simply an opportunity to clarify existing evidence. This was not a proper case for a jury view, and the court did not err in denying the motion.' Id. Likewise, here, the sole purpose of a jury view would be to allow the jury to assess for themselves the likelihood of a small baggie being noticed. This would be new evidence.

Moreover, defense counsel opposed the motion to allow the jury to view the change room each time it was raised. Counsel argued most effectively that a viewing would add nothing to the evidence already before the jury in the form of the testimony of the officer who conducted the strip search and discovered the baggie on the floor.

Leaving aside the invited error doctrine, persuasive argument by the defense is a tenable ground for the court's exercise of its discretion and defeats the claim of error.

We affirm the judgment.

A majority of the panel has determined that 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.

SCHULTHEIS, J. and KURTZ, JJ., Concur.