Opposition Brief — Dempere v. City of Tukwila

9

on somebody your own size?” One of the officers re-

sponded, “Are you interrupting me in my official capacity

as & Houston police officer?” Hill then shouted, “Yes, why

don’t you pick on somebody my size.” Hill, 482 U.S. at 453-

54. Hill was arrested, but ultimately acquitted by a jury.

Specifically, this Court held:

A municipal ordinance that makes it unlawful to

interrupt a police officer in the performance of

his duty is substantially overbroad and therefore

invalid on its face under the First Amendment.

The ordinance in question criminalizes a sub-

stantial amount of, and is susceptible of regular

application to, constitutionally protected speech,

and accords the police unconstitutional enforce-

ment discretion, as is demonstrated by evidence

indicating that, although the ordinance’s plain

language is violated scores of times daily, only

those individuals chosen by the police in their

unguided discretion are arrested.

Hill, 482 U.S. at 451. Ultimately, this Court invalidated

the Houston ordinance as overbroad on its face because

the enforceable portion of the ordinance criminalized a

substantial amount of constitutionally protected conduct.’

Id., at 458.

Notwithstanding this Court’s decision in Houston uv.

Hill, Justice Powell’s concurring opinion referenced by the

majority opinion in footnote 11, indicates that:

\

* Texas’ State Penal Code pre-empted a portion of the ordinance’s

language making it unlawful to “assault” or “strike” a police officer.

10

In any case, today’s decision does not leave mu-

nicipalities powerless to punish physical obstruc-

tion of police action. For example, Justice Powell

states that ‘a municipality constitutionally may

punish an individual who chooses to stand near a

police officer and persistently attempt to engage

the officer in conversation while the officer is di-

recting traffic at a busy intersection.’ [citations

omitted.) We agree, however, that such conduct

might constitutionally be punished under a prop-

erly tailored statute, such as a disorderly conduct

statute that makes it unlawful to fail to disperse

in response to a valid police order or to create a

traffic hazard. [citations omitted.]

Id., 463, fn. 11. Additionally, Justice Powell observed that

“contentious and abusive” speech can interrupt an officer’s

investigation. Jd. Furthermore, Justice Powell continues

that a person may “constitutionally be punished under a

tailored statute that prohibits individuals from physically

obstructing an officer’s investigation, [but] he or she may

not be punished under a broad statute aimed at speech.”

Id.

In this instance, the jury did not convict Ms. Dempere

merely for verbally confronting the police — rather, she was

charged and convicted for willfully ignoring numerous

requests that she vacate the scene of a gang-related

investigation and for physically inserting herself into a

crime scene. Ms. Dempere’s behavior not only complicated

the officer’s detainment of the physically combative Mr.

Garza, but it equally compromised her safety as well as

the safety of several officers investigating the disturbance. —

Ms. Dempere’s Petition poses the question, “whether a _

bystander whose speech actually interferes with illegal

police behavior can be constitutionally convicted of a

1]

crime?” Petition at pgs. 7, 11, and 12. Ms. Dempere omits a

description of the gravity of the situation involving the

combative Mr. Garza, which was compounded by her close

proximity to an unsecured crime scene while possessing in

hand a screwdriver that could easily have been used as a

weapon. If the facts in this case involved only verbal

- confrontation, the posture of this case would be admittedly

different. To the contrary, however, this case involves Ms.

Dempere’s willful hindering, delay, and obstruction of

police officers in the lawful exercise of their duties by both

verbal and physical means. Ms. Dempere’s actions in no

way undertake any constitutionally protected freedom

under the First Amendment.

The unanimous rejections by Washington courts of

Ms. Dempere’s numerous attempts to find some constitu-

tional or other infirmity is completely consistent with this

Court’s opinion im Houston v. Hill, supra. In an unsup-

ported blanket assertion, Ms. Dempere incorrectly claims,

“Washington courts’ treatment of Ms. Dempere’s case

conflicts with the decisions of other state courts of last

resort and other United States courts of appeal.” Petition

at pg. 7. Rather, the cases cited by Ms. Dempere at pgs. 11

and 13 of her Petition are wholly distinguishable from this

matter in that they share one common exclusive factor —

speech and speech alone. By contract, Ms. Dempere’s case

also involves willful physical conduct that results in the

intentional obstruction of a lawful police investigation.

Indeed the concurring opinion of Justice Powell in

Houston v. Hill, referenced in footnote 11 of the majority

opinion, squarely addresses Tukwila’s authority to punish

an individual who elects to physically obstruct a police

officer’s investigation. Hill, 482 U.S. at 462 fn. 11. See,

Colten v. Kentucky, 407 U.S. 104, 109 (1972) (a case which

12

rejected as “near frivolous” the contention that the First

Amendment protected the right of bystanders to observe

the police issue a traffic citation); City of Chicago v.

Morales, 527 U.S. 41, 69 (1999) (“[s]ome police commands

will subject a citizen to prosecution for disobeying whether

or not the citizen knows why the order is given” — exam-

_ples include “[w]hen the police tell a pedestrian not to

enter a building and the reason is to avoid impeding a

rescue team, or to protect a crime scene, or to secure an

area for the protection of a public official.”).

@

bad

CONCLUSION

Pursuant to Rule 10(b) and (c), Ms. Dempere fails to

satisfy the criteria to justify this Court’s review. Accord-

ingly, the City of Tukwila respectfully requests this Court

deny Jackie Dempere’s Petition for Writ of Certiorari.

Respectfully submitted,

SANDRA S. MEADOWCROFT

Attorney for Respondent

KENYON DISEND, PLLC

11 Front Street South

Issaquah, WA 98027

Phone: (425) 392-7090

Fax: (425) 392-7071

e-mail: Sandy@KenyonDisend.com

App. 1

IN THE COURT OF APPEALS

FOR THE STATE OF WASHINGTON

IN THE MATTER OF THE ) No. 52925-1-I

PERSONAL RESTRAINT _ ) DIVISION ONE

OF: )

JACKIE DEMPERE, UNPUBLISHED OPINION

Petitioner. ) FILED: OCT 18 2004

Per Curiam. Jackie Dempere has filed a personal

restraint petition challenging her conviction in Tukwila

Municipal Court for one count of obstructing a law en-

forcement officer. But in order to obtain collateral relief by

means of a personal restraint petition, Dempere must

demonstrate either an error of constitutional magnitude

that gives rise to actual prejudice or a nonconstitutional

error that inherently results in a “complete miscarriage of

justice.” In re Personal Restraint of Cook, 114 Wn.2d 802,

813, 792 P.2d 506 (1990). Because she has failed to satisfy

this burden, we deny the petition.

FACTS

Dempere was charged with obstructing a law en-

forcement officer in Tukwila Municipal Court following an

incident on October 29, 1998, in which she allegedly

interfered with several Tukwila police officers who had

responded to a possible gang-related incident. Initially, the

trial judge was the Hon. Peter Lukevich. Following a pre-

trial hearing on February 16, 1999, Dempere filed a com-

plaint against Judge Lukevich with the Commission on

Judicial Conduct. As a result of the complaint, Judge Luke-

vich signed an agreed order of admonishment, stipulating

that he had used “an arguably harsh and inappropriate tone

App. 2

and manner of interaction” with Dempere at the pre-trial

hearing. Judge Lukevich later recused himself from the

case just before trial. !

The case went to trial on October 29, 1999, but it

ended in a mistrial. The City then dismissed the charge

without prejudice and refiled it on the same day. When the

case was retried in May 2000, the jury found Dempere

guilty as charged. The Superior Court affirmed Dempere’s

conviction on a RALJ appeal, and this court denied discre-

tionary review. After the Supreme Court also denied

review, Dempere filed this personal restraint petition.

At trial, the City presented evidence that Tukwila

police officers were sent to a possible fight at an apart-

ment building on the evening of October 29, 1998. Officer

James Syler, the first officer on the scene, encountered a

large group of people milling around. While attempting to

ascertain what had happened, Officer Syler encountered

one man who said he had called 911. Because the man was

“a little hysterical,” Syler placed him in handcuffs.

At this point, Syler noticed Officer Craig Boyd strug-

gling with another man a short distance away. From prior

encounters, Officer Syler recognized the man as Ramon

Garza. According to Syler, Garza had been violent during

prior arrests and had assaulted an officer.

Officer Syler left the apparent victim and went over to

assist Officer Boyd. Garza was yelling and cursing, but

they eventually forced him to the ground and handcuffed

him. Garza continued to struggle and kick, and it took at

least three officers to restrain him and move him into a

patrol car. Because Garza continued to kick in the patrol

car, the officers eventually used pepper spray to subdue

him.

App. 3

While Officer Syler was assisting with Garza, he

noticed Dempere cross the street and approach the offi-

cers. Syler told Dempere that she would have to move back

across the street. Dempere moved back across the street,

but approached the officers a short time later, coming

within about five feet. Officer Syler, who saw that Dem-

pere was holding a screwdriver, again told her that she

needed to go back across the street. Dempere responded

that she had not done anything wrong and that she did not

have to comply. But she then moved back across the street.

A short time later, Dempere once again crossed the

street and approached the officers who were attempting to

restrain Garza. According to Officer Syler, Dempere

became angry at this point and told him that “this is

America” and she “can do what she wants to do.” When

Dempere refused to comply with repeated orders to move

away, Officer Syler arrested her for obstruction. Syler

testified that he had to break away repeatedly from

assisting with Garza and investigating the reported

disturbance because of Dempere’s interference.

Officers Shawn Robertson, Craig Boyd, and James

Hicks generally corroborated Officer Syler’s account.

Officer Boyd testified that when he first responded to the

reported disturbance, Ramon Garza had approached him

with his hands in the pockets of his bulky jacket. Boyd

recognized Garza from prior encounters with the police,

including an assault, so he ordered Garza to remove his

hands from his pockets. Garza refused and became bellig-

erent. As the two men struggled, Garza went “out-of-

control” and several officers tried to subdue him.

Officer Robertson testified that Dempere approached

as he was attempting to frisk Garza for weapons. Dempere

App. 4

refused Robertson’s repeated order to stay away from the

officers. At some point, Robertson heard Dempere begin to

speak Spanish with Garza.

Garza testified that on the evening of October 29,

1998, he had been returning from a store when he stopped

to help a man who was being harassed. As Garza began

walking home, two police cars drove up and the officers

indicated that they needed to find out if he had any

weapons. When he told the officers he did not have any

weapons, they threw him to the ground. According to

Garza, the officers punched him during the resulting

struggle and gave him a black eye. Garza denied that he

resisted in any manner. He also denied that he kept his

hands in his pockets. Garza did not file a complaint about

being punched in the eye.

Garza acknowledged that he had prior convictions for

burglary and forgery. He admitted that he had pleaded

guilty to resisting arrest and obstruction on October 30,

1998, but explained that he was not guilty and had en-

tered a plea only to get out of jail earlier.

Dempere testified that she was working on the door

locks of her house when she heard a loud scream nearby.

She went out onto the street, still holding the screwdriver

that she was using on the locks, and saw a man — later

identified as Garza — on the ground, surrounded by three

police officers. When Dempere asked what was happening,

an officer told her to move back. As Dempere complied

with the order and started moving back, she was able to

see that-Garza was handcuffed and that one of the officers

was using a knee to hold Garza’s head down.

Dempere was concerned that Garza would be injured

or paralyzed and twice told the officers that they were

App. 5

hurting him as she moved back. One of the officers then

approached her, walked her to a patrol car, and arrested

her. Dempere maintained that she obeyed the order to

move back and that she was more than 15 feet away from

Garza when the officer approached her. She denied speak-

ing to Garza in Spanish and explained she only wanted to

let the officers know that they were being watched.

Officer Hicks testified on rebuttal that he did not

punch Garza or give him a black eye. He maintained that

Garza would not have been booked into the Regional

Justice Center following his arrest if he had been injured

because regulations require that he receive medical

assistance.

The jury found Dempere guilty as charged. She

originally received a suspended sentence. The sentence

was eventually modified to eliminate any detention and

community service time and to require only the payment

of a fine.

ANALYSIS

The City initially argues that the imposition of a fine

following Dempere’s conviction does not constitute “re-

straint” and that this court should therefore not address

the merits of Dempere’s claims. Under RAP 16.4(a), an

appellate court will grant relief by means of a personal

restraint petition only if the petitioner can demonstrate

unlawful “restraint.” For purposes of RAP 16.4, a peti-

tioner is under “restraint”

if the petitioner has limited freedom because of a

court decision in a civil or criminal proceeding,

the petitioner is confined, the petitioner is sub-

ject to imminent confinement, or the petitioner is

App. 6

under some other disability resulting from a

judgment or sentence in a criminal case.

(Italics ours.) RAP 16.4(b). The City maintains that the

“restraint” requirement in RAP 16.4 should be construed

as analogous to the “in custody” requirement for federal

habeas corpus relief. See Williamson v. Gregoire, 151 F.3d

1180 (9th Cir. 1998) (imposition of a fine and other “collat-

eral” consequences of a conviction do not satisfy “in cus-

tody” requirements of federal habeas corpus relief under

28 U.S.C. § 2241(c)(3)).

But the federal requirements are based on statutory

language that is not comparable to RAP 16.4(b). The City

fails to address the language in RAP 16.4(b), which

broadly defines restraint to include “some other disability

resulting from a judgment or sentence in a criminal case.” —

_ This provision has been construed to encompass the

stigma associated with an unlawful conviction, even if

there is no actual confinement. See In re Personal Re-

straint of Powell, 92 Wn.2d 882, 887-88, 602 P.2d 711

(1979). Accordingly, we reject the City’s contention that

Dempere is not under restraint for purposes of RAP

16.4(b).

Dempere first contends that Judge Lukevich, who

later recused himself from the case, violated her right to

due process and her right to counsel at a pre-trial hearing

on February 16, 1999, when he “forced” her to sign a

speedy trial waiver. Dempere maintains that the waiver

was therefore invalid and that the speedy trial period

under CrRLJ 3.3 expired on March 31, 1999, before the

charge was dismissed and refiled. But Dempere has

provided no evidentiary support for her conclusory asser-

tions.

; App. 7

The transcript of the hearing indicates that she

appeared in court on February 16, 1999, without an

attorney. Dempere’s prior attorney had withdrawn on

January 12, 1999, and she attempted to deliver to the

judge a notice of appearance from her new attorney, who

was not present, with an incorrect cause number on it.

Dempere also attempted to make what appeared to be a

pro se discovery request. She eventually signed a speedy

trial waiver to May 30, 1999.

The waiver that Dempere signed recited, among other

things, that she had the right to be tried within 90 days of

her arraignment and that unless she waived that right,

the case would be dismissed with prejudice if the trial did

not occur during that period. During the course of the

hearing, Dempere responded “that will be fine” when

asked if she wanted a continuance. She also expressly

acknowledged that she had executed speedy trial waivers

before and that she understood what the waiver was. The

record contains no declaration from Dempere or any other

evidence that would support an inference that the judge

coerced her into signing the waiver against her will. See In

re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d

1086 (1992).

In sum, Dempere has failed to make any showing that

the trial judge’s inappropriate behavior during the hearing

“forced” her to sign the speedy trial waiver or otherwise

violated her due process rights or right to counsel. It

should be noted that at the time Dempere signed the

waiver on February 16, 1999, the speedy trial expiration

date was March 31, 1999. The record shows that Dempere

appeared in court with new counsel on March 16, 1999,

and executed another speedy trial waiver to June 30, 1999.

Petitioner does not allege that this (or any subsequent)

App. 8

waiver was coerced or otherwise invalid.’ Consequently,

petitioner has failed to identify any basis for relief.

Dempere next contends that the trial court violated

her constitutional right to a unanimous jury when it failed

to give a unanimity instruction. When the State presents

evidence of multiple distinct criminal acts, any one of

which could form the basis for a single charge, the State

must either “elect” the specific incident upon which it

relies for conviction or the jury must be instructed that all

members must agree that the same criminal act has been

proven beyond a xeasonable doubt. State v. Camarillo, 115

Wn.2d 60, 63-64, 794 P.2d 850 (1990). The failure to give a

unanimity instruction when required is a constitutional

error that is not harmless if a rational trier of fact could

have had a reasonable doubt as to whether each incident

established the crime. State v. Kitchen, 110 Wn.2d 403,

411, 756 P.2d 105 (1988).

Under RCW 9A.76.020(1), the City was required to

prove, among other things, that Dempere willfully hin-

dered, delayed, or obstructed “any” law enforcement

officer. As set forth in Instruction No. 4, however, the City

was required to prove that Dempere obstructed “a law

enforcement officer in the discharge of the law enforce-

ment officer’s official powers or duties,” that she knew “the

law enforcement officer” was discharging official duties at

the time,” and that she knew her conduct would obstruct

“the law enforcement officer.” (Emphasis ours.)

* Because we have rejected Dempere’s arguments on their merits,

we do not address the City’s claim that Dempere cannot challenge the

- voluntariness of the waiver because the case was subsequently dis-

missed without prejudice. See State v. Taylor, 150 Wn.2d 599, 80 P.3d

605 (2003).

App. 9

Dempere maintains that under these instructions, the

jury was required to find that one specific officer — “the”

law enforcement officer — was a “victim” of the obstruction.

See State v. Stephens, 93 Wn.2d 186, 191, 607 P.2d 304

(1980) (assault instruction that alleged one offense against

two named victims in the disjunctive violated constitu-

tional right to jury unanimity). She reasons that because

all four testifying officers performed different roles and

described the incident from different perspectives, the

jurors might have disagreed about which officer was

obstructed.

In a direct appeal, constitutional error is presumed

prejudicial, and the State bears the burden of demonstrat-

ing that the error was harmless beyond a reasonable

doubt. Jn re Personal Restraint of Benn, 134 Wn.2d 868,

940, 952 P.2d 116 (1998). But because this is a personal

restraint petition, Dempere bears the burden of demon-

strating constitutional error that worked to her “actual

and substantial prejudice, even if the error could not have

been considered harmless beyond a reasonable doubt on

direct review.” In re Personal Restraint of Smith, 117

Wn.App. 846, 859, 73 P.3d 386 (2003).

The evidence was essentially uncontroverted that the

officers responded to a reported disturbance or possible

fight at an apartment building. Upon arriving, all four

officers initially attempted to ascertain what had hap-

pened, before becoming involved in the altercation with

Garza. Although Dempere correctly states that the officers

performed different roles, all four officers were drawn

away from investigating the initial report and were

_working together in an effort to restrain and arrest Garza

when the alleged obstruction occurred. Under the circum-

stances, there was no reasonable likelihood that a rational

App. 10

trier of fact could have rejected Dempere’s testimony

without also finding that any obstruction of one officer

necessarily obstructed all four officers who were involved

in the same ongoing investigation. Consequently, Dempere

has failed to demonstrate prejudice even if we assume that

Instruction No. 4 required the jury to find that she ob-

structed a specific officer or “victim.” See State v. Kitchen,

110 Wn.2d at 413-14 (petitioner failed to demonstrate

actual prejudice resulting from failure to give unanimity

instruction).

Dempere next contends that the evidence was insuffi-

cient to support her conviction for obstructing a law

_ enforcement officer. Tukwila Municipal Code 8.60.010 has

adopted RCW 9A.76.020(1), which provides:

A person is guilty of obstructing a law en-

forcement officer if the person willfully hinders,

delays, or obstructs any law enforcement officer

in the discharge of his or her official powers or

duties.

Dempere argues that because the police officers first

harassed and then unlawfully detained Garza, the evi-

dence failed to establish that the officers were discharging

their official powers or duties. She further argues that she

was denied effective assistance when counsel failed to

challenge the sufficiency of the evidence on appeal.

The evidence established that Tukwila police officers

were investigating a reported disturbance or possible fight

when a man, later identified as Ramon Garza, approached

one of the officers. Garza, who had previously threatened

and assaulted an officer, refused to take his hands out of

his bulky coat pockets. Garza then got into an altercation

with the officers.

App. 11

While the officers attempted to subdue Garza, Dem-

pere approached them, holding a screwdriver, and ques-

tioned their treatment of Garza. Despite being repeatedly

told by the officers to stay on the other side of the street,

Dempere approached the officers several times as they

struggled with Garza. When she refused to back off and

continued walking toward the officers, they arrested her.

The officers testified that Dempere’s actions interrupted

their attempts to restrain Garza and to investigate the

initial reported disturbance.

Viewed in the light most favorable to the City, these

_ circumstances were sufficient to permit the jury to find

beyond a reasonable doubt that Dempere willfully hin-

dered, delayed, or obstructed the officers in the discharge

of their official duties and that the officers had lawfully

detained Garza. See State v. Ware, 111 Wn.App. 738, 744,

46 P.3d 280 (2002) (evidence that defendant, despite

warnings, repeatedly approached and challenged uni-

formed officers who were attempting to arrest another

suspect was sufficient to support conviction for obstruc-

tion). Dempere has not cited any authority to support her

conclusory assertion that Garza was illegally detained and

arrested as a matter of law. Because the evidence was

sufficient to support Dempere’s conviction, her counsel was

not deficient for failing to challenge the — of the

evidence on direct appeal.

Dempere next contends that her right to due process

was violated when the deputy prosecutor used an “un-

counselled” guilty plea to impeach Garza. It is undisputed

that Garza pleaded guilty to both obstruction and resisting

arrest for the incident involving Dempere. Garza acknowl-

edged during his testimony that he had pleaded guilty to

obstruction, but initially had difficulty recalling whether

App. 12

he had also pleaded guilty to resisting arrest. For this

reason, the deputy prosecutor, without objection, showed

Garza a copy of his statement on plea of guilty. Garza then

acknowledged that he had also pleaded guilty to resisting

arrest. When Garza then explained that he had done

nothing wrong and had pleaded guilty only in order to get

out of jail earlier, the deputy prosecutor questioned him

further about the guilty plea.

’ Dempere relies on the general proposition that a prior

conviction is not admissible for purposes of impeachment

or enhancement of punishment if the defendant was not

afforded counsel or did not make a valid waiver of counsel.

See State v. Weygandt, 20 Wn.App. 599, 607, 581 P.2d 1376

(1978). But the mere fact that Garza was not represented

by counsel at his guilty plea does not automatically invali-

date his conviction, as Garza had a constitutional right to

proceed pro se. The statement of defendant on plea of

guilty Garza signed recites that he was informed and fully

understood that he had a right to counsel. Because Dem-

pere has not submitted any evidence suggesting an invalid

waiver, she has failed to sustain her burden of demonstrat-

ing actual prejudice for purposes of a personal restraint

petition.

Dempere next contends that the deputy prosecutor

~ committed reversible misconduct during closing argument

by making a “golden rule” argument and by informing the

jury that it was “Officer Memorial Week for officers dying

in the line of duty.” Dempere also argues that her attorney

was ineffective for failing to object to the remarks and for

failing to raise the issue on direct appeal.

During closing argument, the deputy prosecutor

stated:

App. 13

And I ask you as_jurors to put yourself in the

shoes of these police officers in what you per-

ceived, how you reacted and your heightened

sense of awareness.

RP 770. Dempere argues that this was an impermissible

“golden rule” argument.

“(W]hether made by plaintiff’s counsel or defendant’s

counsel, an argument in a civil case is improper which

appeals to the jurors to place themselves in the position of

a litigant and to decide the case based upon what they

would then want under the circumstances.” Adkins uv.

Aluminum Co. of Am., 110 Wn.2d 128, 140, 750 P.2d 1257

(1988). Such a “golden rule” argument is improper to the

extent that it encourages the jury to depart from neutral-

ity and to decide the case “on the basis of personal interest

and bias rather than on the evidence.” Adkins, 110 Wn.2d

at 139. Although the Supreme Court has approved a

“golden rule” argument in the sentencing phase of a

capital trial, it expressly declined to address the propriety

of such arguments during the guilt phase. State v. Rice,

110 Wn.2d 577, 607, 757 P.2d 889 (1988). Other courts

have applied the rule to criminal cases. See Gomez uv.

State, 751 So.2d 630, 632 (Fla. App. 1999); Hayes v. State,

512 S.E.2d 294, 297 (Ga. App. 1999); State v. Carlson, 559

N.W.2d 802, 812 (N.D. 1997); United State v. Kirvan, 997

F.2d 963 (1st Cir.1993).

In this case, the deputy prosecutor’s suggestion to the

jury to put themselves in the “shoes” of the police officers

occurred several times, but mainly during a summary of

the officers’ testimony about their initial encounter with

Garza, before Dempere appeared at the scene. The com-

ments were part of the deputy prosecutor’s attempt to

draw reasonable inferences from the evidence rather than

App. 14

an attempt to encourage the jury to decide the case on the

basis of personal interest and bias. Viewed in the context

_ of the total argument and the issues in the case, there was

no significant likelihood that the comments, even if im-

proper, had any effect on the verdict. See State v. Pirtle,

127 Wn.2d 628, 672, 904 P.2d 245 (1996).

The deputy prosecutor’s reference to “Officer Memo-

rial Week for officers dying in the line of duty” occurred

only once. The deputy prosecutor did not repeat the

remark or ask the jurors to draw further inferences. Under

the circumstances, we cannot say that the alleged miscon-

duct had any effect on the outcome of the trial.

Dempere next contends that the jury instructions did

not adequately protect her first amendment rights to

challenge police misconduct. But it is not clear whether

this contention is directed solely to an instruction given by

the trial court or to the trial court’s failure to give one of

- her proposed instructions. In any event, in a personal

restraint petition, this court will not review issues previ-

ously raised and rejected in a direct appeal unless the

petitioner can demonstrate that the “ends of justice would

be served by reexamining the issue.” Jn re Personal Re-

straint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250

(1999). A petitioner can satisfy this burden “by showing an

intervening change in the law ‘or some other justification

for having failed to raise a crucial point or argument in the

prior application.’” In re Gentry, 137 Wn.2d at 388 (quot-

ing In re Personal Restraint of Taylor, 105 Wn.2d 683, 688,

717 P.2d 755 (1986)).

In this case, Dempere concedes that the instructional

issues were raised and rejected in her direct appeal. On

RALJ appeal, the superior court concluded that Instruction

App. 15

No. 5 was a proper statement of the law and did not

prevent Dempere from arguing her theory of the case’ and

that the trial court did not err in failing to give Dempere’s

proposed instruction.’ In her petition, Dempere presents

no argument indicating that the court’s analysis was

flawed. Nor has she offered any meaningful legal argu-

ment to support her assertion that the absence of a tran-

script of portions of Garza’s testimony prejudiced the

appellate process. And she has not established that a judge

of this court should have recused himself from the panel

that declined to modify the commissioner’s ruling denying

discretionary review. Consequently, Dempere has failed to

make any showing that the “ends of justice” require a

reexamination of the instructional issues.

Finally, Dempere contends she is entitled to a refer-

ence hearing for issues arising under Brady v. Maryland,

373 U.S. 83, 10 L. ed 2d 215, 83 S. Ct. 1194 (1963). She

argues she should be permitted to discover evidence

indicating misconduct in other cases by the Tukwila

officers who were involved in Garza’s arrest. In support of

this contention, Dempere has submitted complaint logs

(with the officers’ names blacked out) that indicate the

general nature of complaints made against the four

officers and whether the complaints were sustained or not.

Dempere maintains that the City was required to disclose

* Instruction No. 5 provided: “Absent a threat of serious bodily

injury to the arrestee, a person is prohibited from interfering with an

arrest made by a uniformed officer.”

* The trial court declined to give the following instruction Dempere

proposed: “Under the circumstances of this case, you are instructed that

words alone are not sufficient to establish commission of the crime of

obstructing a law enforcement officer.”

App. 16

this “exculpatory evidence” of “horrible misconduct” prior

to trial and during the course of her direct appeal.

But Dempere has made no showing that the evidence

of complaints against the four officers ~ including allega-

tions of poor demeanor, use of excessive force, and one

instance of “improper medical treatment” — would have

affected her conviction. Although some complaints were

sustained, others were not. Dempere also suggests the

evidence would have supported Garza’s claim that the

officers used excessive force. But she has not demon-

strated that allegations that officers used excessive force

on other occasions would have been admissible in her case.

Moreover, Dempere was permitted to cross-examine the

officers extensively on the nature of the force they used on

Garza, and she testified fully about her claims that the

force used was improper. Under the circumstances, Dem-

pere has failed to demonstrate actual and substantial

prejudice arising from the alleged error.

Petition denied. i

For the court: /s/ Agid, J.

/s/ Baker, J.

/s/ Cox, CJ

App. 17

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON DIVISION ONE

Petitioner,

In the Matter of the ) No. 52925-1-I

Personal Restraint of: , ORDER DENYING

JACKIE DEMPERE, ) MOTION FOR

) RECONSIDERATION

)

(Filed Dec. 8, 2004).

Petitioner, Jackie Dempere, having filed a motion for

reconsideration of the opinion filed October 18, 2004, and

the court having determined that said motion should be

denied; Now, therefore, it is hereby

ORDERED that petitioner’s motion for reconsidera-

tion is denied.

DATED this 8th day of December 2004,

FOR THE COURT:

/s/ Agid, J.

Presiding Judge

App. 18

THE SUPREME COURT OF WASHINGTON

In re the Personal Restraint NO. 76482-4

Petition of RULING

JACKIE DEMPERE, DENYING REVIEW

Petitioner. (Filed Feb. 24, 2005)

Jackie Dempere was convicted in Tukwila Municipal

Court of obstructing a police officer. The King County

Superior Court affirmed the conviction and both Division

One of the Court of Appeals and this court denied discre-

tionary review. Ms. Dempere timely filed a personal

restraint petition in the Court of Appeals. In an unpub-

lished, per curiam opinion, the court denied the petition.

Ms. Dempere now seeks this court’s discretionary review.

RAP 16.14(c); RAP 13.5.

To obtain relief by personal restraint petition, Ms.

Dempere must show that she was actually and substan-

tially prejudiced by constitutional error or that nonconstitu-

tional error inherently resulted in a complete miscarriage of

justice. In re Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994).

And to obtain this court’s review, Ms. Dempere must demon-

strate that the Court of Appeals obviously or probably erred

or significantly departed from the usual course of proceed-

ings. RAP 13.5(b). She meets none of these burdens.

Ms. Dempere first argues that the original trial judge

deprived her of her right to counsel and violated her due

process rights by forcing her, without counsel, to waive her

rule-based speedy trial deadline. But Ms. Dempere ap-

peared at a pretrial hearing without counsel; seeking to

present a notice of appearance on her new attorney's behalf

(captioned with the wrong cause number) and attempting to

App. 19

make what appeared to be a discovery request. The judge

reasonably asked her if she wanted a continuance so that

her attorney could make a proper appearance and make

the appropriate discovery requests. She then signed a

waiver of the speedy trial deadline. Although the judge

spoke in a harsh and inappropriate manner toward Ms.

Dempere, leading to his admonishment, the Court of

Appeals correctly concluded that there was no evidence

_the judge forced Ms. Dempere to waive her speedy trial

rights.

Ms. Dempere next contends that the trial court erred

in failing to give a unanimity instruction in the face of

evidence that she may have obstructed any of four police

officers at the scene. But Ms. Dempere does not show that

the Court of Appeals erred in determining that her ob-

struction of_any one officer necessarily obstructed all four

officers. In connection with this claim, Ms. Dempere

argues that, because the State bears the burden on direct

appeal of showing the error was harmless, appellate

counsel was prejudicially ineffective in failing to raise this

issue on appeal. But Ms. Dempere does not show that the

unanimity claim would have been any more successful on

direct appeal. See Lord, 123 Wn.2d at 314 (must show

merit of underlying legal issue that should have been

raised on appeal and then demonstrate prejudice).

Next, Ms. Dempere contends that the evidence of guilt

was insufficient. But she bases her argument on her

assertion that the arrest with which she interfered was

unlawful. She does not show that the arrest was necessar-

ily unlawful.

Ms. Dempere next claims that her due process rights

were violated in connection with a defense witness. The

App. 20

person whose arrest Ms. Dempere obstructed later pleaded

guilty to obstruction and resisting arrest. While testifying

in Ms. Dempere’s defense, he could not at first recall

whether he had pleaded guilty to resisting arrest. The

prosecutor therefore presented him on cross-examination

with-his guilty plea statement. Ms. Dempere urges that a

prior guilty plea is inadmissible for impeachment purposes

if the defendant was not afforded counsel or did not validly

waive counsel. See State v. Weygandt, 20 Wn. App. 599,

607, 581 P.2d 1376 (1978). This witness was not repre-

sented by counsel in his guilty plea. But Ms. Dempere fails

to show that he did not validly waive his right to counsel.

Nor, in any event, does she demonstrate actual and sub-

stantial prejudice.

Ms. Dempere also argues that the prosecutor commit-

ted misconduct in closing argument by suggesting to the

jurors that they try to view the situation from the police

officers’ perspective. Ms. Dempere contends that this was

an improper “golden rule” argument (telling the jurors to

consider what result they would want if they were one of

the litigants). But she does not show the Court of Appeals

obviously or probably erred in holding that, under totality

of the circumstances, there was no significant likelihood

that these remarks, even if improper, affected the verdict.

Ms. Dempere next contends that the trial court violated

her First Amendment rights by refusing to instruct the jury

that words alone are insufficient to establish the crime of

obstructing a police officer. But the Court of Appeals rejected

this argument on direct appeal, and here it found no reason

in the interests of justice to reexamine the issue. See Lord,

123 Wn.2d at 303. Ms. Dempere does not demonstrate

otherwise.

App. 21

Finally, Ms. Dempere argues that the Court of Ap-

peals should have ordered a reference hearing on the

failure to disclose evidence of complaints against the

officers involved in this case. But again, Ms. Dempere fails

to show that the Court of Appeals obviously or probably

erred in its treatment of this issue, or that any error

actually and substantially prejudiced her or resulted in a

complete miscarriage of justice.

In sum, Ms. Dempere does not demonstrate that the

Court of Appeals decision merits this court’s review.

Accordingly, the motion for discretionary review is denied.

/s/ Geoffrey Crooks

COMMISSIONER

February 24, 2005

App. 22

THE SUPREME COURT OF WASHINGTON

Personal Restraint

(Filed May 3, 2005)

)

Petition of: ) ORDER

JACKIE DEMPERE, ) No. 76482-4

bie ) C/A No. 52925-1-I

Petitioner. )

)

Department II of the Court, composed of Chief Justice

Alexander and Justices Madsen, Bridge, Owens and J. M.

Johnson, considered this matter at its May 3, 2005, Motion

Calendar and unanimously agreed that the following order

be entered.

IT IS ORDERED:

That the Petitioner’s Motion to Modify the Commis-

sioner’s Ruling is denied.

DATED at Olympia, Washington this 3rd day of May,

2005.

For the Court

/s/ Gerry L. Alexander

CHIEF JUSTICE

App. 23

Douglas D. McBroom

JUDGE OF THE SUPERIOR COURT

SEATTLE, WASHINGTON 98104-2381

DEPARTMENT TWENTY-TWO

June 7, 2001

Charles S. Hamilton III

600 Market Place One

2000 Western Ave.

Seattle, WA. 98121

Sandra Meadowcroft - te

Kenyon Dornay Marshall, PLLC

11 Front St. S

Issaquah, WA. 98027-3820

Re: City of Tukwila v. Jackie Dempere

KCSC 00-1-06343-8 SEA

Dear Counsel:

Below is a summary of my reasons for affirming the

defendant’s conviction.

A. Judge Lukevich’s recusal did not interfere with speedy

trial right. . -

The sua sponte recusal was not reversible error. The

record contains the reasons for the recusal. These reasons

arose at a time after discretionary rulings had been made.

RP 86-88. CrRLJ 8.9(a) does not require a written order of

disqualification when reasons for disqualification are

orally stated on the record. Therefore, because the recusal

was properly supported, the extension of the speedy trial

time was valid.

App. 24

B. Speedy trial right was not violated after the October

29, 1999 mistrial. -

The superceding information filed after the mistrial

contained the same charges on the same facts. There was

a new charging document filed but it was not a “new case.”

I find no support for the argument that the dismissal and

recharge deprived the court of jurisdiction. The filing of

the new information after the mistrial did not remove the

case from the speedy trial deadline set by CrRLJ 3.3(d)(3).

This deadline was met.

C. Refusal of defendants instruction based on Seattle v.

Abercrombie was not error.

Seattle v. Abercrombie dealt with a city ordinance

provision criminalizing as obstruction a persons refusal to

leave the scene of an investigation. This element is not

included in RCW 9A.76.020 under which the defendant

here is charged. The Abercrombie court upholds the

Seattle ordinance provision on the basis that it does not

limit a person’s ability to “address officers from outside the

crime scene.”

Abercrombie and other cases, (i.e. State v. Turner, 103

Wn.App.525; State v. Contreras, 92 Wn.App.307) make it

clear that words alone do not support an obstruction

charge, but it is also clear from these cases that words

taken in combination with other conduct can constitute

evidence sufficient to convict for obstruction if the jury

finds that the conduct taken as a whole, including the

words, has the effect of hindering, obstructing, or delaying.

The instruction requested here, containing the phrase

“ ... under the circumstances of the case ... ” is a com-

ment on the evidence and takes determination of the issue

App. 25

of whether the defendant’s conduct, including her words

“hindered, obstructed or delayed” away from the jury.

The instructions as given left ample room for the

defendant to argue her theory that she was arrested only

for the words she spoke and therefore, should be acquitted.

This argument was made at RP 917 and 924. At RP 927

the prosecutor joined the defendant in this argument,

stating “ ... we’re not saying she committed the crime of

obstruction by saying you’re hurting him, he’s handcuffed.

That’s not obstruction. It’s nothing.” The instructions and

the argument of both attorneys made it clear to the jury .

that words alone would not support an obstruction convic-

tion. «

D. It was not error to give the instruction based on State

v. Holeman.

The instruction complained of is a correct statement of

the law. It did not qualify or modify the “to convict” in-

struction given at RP 877. It arguably could be read as

adding the words “interfere with” to the words “hindered,

delayed or obstructed” contained in the to convict instruc-

tion, but still provides ample room for argument of defen-

dant’s theory that if the only behavior complained of is

words spoken by the defendant, then the defendant should ©

be found not guilty.

Very truly yours,

/s/ Douglas D. McBroom

Douglas D. McBroom

Judge

App. 26

(Filed Nov. 26, 2001)

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

DIVISION ONE

CITY OF TUKWILA, ) No. 48733-7-I

Respondent, ‘ COMMISSIONER’S RULING

z , DENYING DISCRETIONARY

; REVIEW

JACKIE DEMPERE, !

)

Petitioner.

Jackie Dempere seeks review of the superior court

decision on RALJ appeal affirming her conviction for

obstructing a police officer. Contrary to her argument,

Dempere was properly tried within the speedy trial period

under applicable rules of criminal procedure. And the jury

was properly instructed on the elements of obstruction.

The trial court did not err in rejecting the defense pro-

posed instruction or giving an instruction based on State v.

Holeman because it is a correct statement of the law.’ The

motion for discretionary review is denied.

FACTS

On October 29, 1998, Jackie Dempere was working in

her home when she heard someone screaming. She ran

outside and found three police officers trying to handcuff a

young man. Jt looked to her that they were unnecessarily

hurting the young man so she began screaming at the

officers. The officers told her several times to move away

and testified that she did not do so. She claimed that she

" 103 Wn.2d 426, 693 P.2d 89 (1985).

App. 27

obeyed but continued to berate them for hurting the young

man. She was eventually arrested for obstructing a police

officer.

Dempere was eventually charged under a Tukwila

ordinance which adopts RCW 9A.76.020 as a city provi-

sion.”

(1) A person is guilty of obstructing a law

enforcement officer if the person willfully hin-

ders, delays, or obstructs any law enforcement of-

ficer in the discharge of his or her official powers

or duties. eae

She was found guilty and appealed to the superior

court which affirmed the conviction. She now seeks review.

DECISION

Discretionary review of a superior court decision on

RALJ appeal will be accepted only:

(1) Ifthe decision of the superior court is in

conflict with a decision of the Court of Appeals or

the Supreme Court; or

(2) If a significant question of law under

the Constitution of the State of Washington or of

the United States is involved; or

(3) If the decision involves an issue of pub-

lic interest which should be determined by an

appellate court; or

* As Dempere points out, the City initially charged her in the

language of a superceded statute, parts of which were long ago declared

unconstitutional. The issue is irrelevant to this motion.

App. 28

(4) Ifthe superior court has so far departed

from the accepted and usual course of judicial

proceedings, or so far sanctioned such a depar-

ture by the court of limited jurisdiction, as to call

for review by the appellate court.

RAP 2.3(d). Dempere fails to address the correct standards

of review.’ The City argues that Dempere has not estab-

‘lished any grounds for review.

Speedy Trial

First Proceeding

It is undisputed that Dempere had a right to a speedy

trial. Dempere was not in custody and was thus entitled to

trial within 90 days of arraignment. On February 16,

1999, Dempere appeared and attempted to say that she

was ready for trial. But her attorney had withdrawn and,

although she said she had retained new counsel, counsel

was not present nor had he entered a notice of appearance.

The trial court would not set a trial date without counsel.

Dempere, -over some objection, waived her speedy trial

rights for 90 days.

On July 20, the parties appeared and said they were

ready for trial. The trial court found that Dempere was

entitled to additional discovery (the police reports from the

case of the young man who was arrested). Dempere did not

allege City misconduct in failing to provide discovery nor

did the court find fault. The speedy trial period was

waived through August 31. Trial was to commence on —

* Dempere summarily cites to RAP 2.3(b) which does not govern

review of RAL.J appeals.

- App. 29

August 5 but on that date, the trial judge recused himself.

Under CrRLJ-3.3(d)(6), the judge’s decision extended the

speedy trial period 30 days.

On September 2, a police officer subpoenaed on

Dempere’s behalf failed to appear because he was on

vacation. Dempere’s counsel had not checked to see if he

was available. The court granted a continuance on condi-

tion that Dempere waive her speedy trial rights through

October 31. She did so. On October 28, trial commenced

but ended in a mistrial the next day. Under CrRLJ

3.3(d)(3), a mistrial restarts the 90-day speedy trial period.

On November 5, the complaint against Dempere was

dismissed without prejudice.

Dempere admits that a dismissal without prejudice is

a final appealable order that discontinues the prosecution.‘

She did not appeal the dismissal without prejudice. Al-

though she now wishes to argue that her speedy trial

waivers were not valid, that the trial court used the wrong

date of arraignment and the trial judge erred in recusing

himself without good reason, all of those events happened

in the initial case that was completed when the case was

dismissed without prejudice. Because Dempere could have

appealed and did not, the prior rulings become the law of

the case.” °

* State v. Torres, 85 Wn. App. 231, 233-34, 932 P.2d 186, review

denied, 132 Wn.2d 1012 (1997); State v. Bible, 77 Wn. App. 470, 471,

892 P.2d 116, review denied, 127 Wn.2d 1011 (1995).

° See, e.g., State v. Worl, 129 Wn.2d 416, 918 P-2d 905 (1996).

* Additionally, the record does not support her arguments. The

speedy trial waivers were appropriate as Dempere first appeared

without counsel and because Dempere later required additional

discovery and needed a continuance. The trial judge’s reasons for

(Continued on following page)

App. 30

Second Proceeding

Dempere contends that the dismissal without preju-

dice merely tolled the speedy trial period. Under her

analysis and CrRLJ 3.3(d)(3), the City had 90 days to try

her from the date of the mistrial. The trial date was set for

January 21, 2000, a date within the 90-day period. Unfor-

tunately, Dempere failed to appear for the pretrial hearing

on January 4 and a bench warrant was issued. Under

CrRLJ 3.3(d)(2), the City had 90 days to try Dempere from

the date her presence in the county was made known to

the court after the warrant was issued.

’ Because Dempere fails to mention this series of events

in her motion for discretionary review, it is not clear when

her presence was “made known” to the court. But she

appeared in court on February 29, at which point, her

previously filed motion to dismiss on speedy trial grounds

was denied and trial was set for May 5, 2000. She does not

argue that the trial court erred in finding that the 90-day

period recommenced when she appeared for the February

29 hearing. Thus, the speedy trial expiration date became

the end of May. Trial commenced on May 19, 2000, well

within the 90-day period.

Dempere fails to establish any speedy trial error

warranting review.

Defense Proposed Instruction

Dempere argues that the trial court erred in refusing

to give the following instruction she proposed:

recusing himself were sufficient. Dempere cites no case authority that

required more.

App. 31

Under the circumstances of this case, you

are instructed that words alone are not sufficient

to establish commission of the crime of obstruct-

ing a law enforcement officer.

The trial court declined to give the instruction, finding

that the words “under the circumstances of this case”

constituted a comment on the evidence. The statute under

which Dempere was charged requires that she actually

obstruct or interfere with a police officer.’ Dempere does

not suggest that there was anything wrong with the to-

convict instruction. The trial court is not required to give a

requested instruction when the subject is adequately

covered by another instruction.® The evidence in this case

was conflicting.” Dempere claimed she only used words;

the officers apparently testified otherwise. But the City

made clear, as Dempere concedes, that it was not contend-

ing that words alone constitute obstructing. There is no

basis for finding that the absence of the proposed instruc-

tion prejudiced Dempere’s ability to argue her theory of

the case.

Holeman Instruction

Dempere argues that the trial court erred in giving

the City’s proposed instruction drawn from the holding in

State v. Holeman:

Absent a threat of serious bodily injury to

the arestee (sic), a person is prohibited from

” City of Seattle v. Patu, __ Wn. App. ___, 30 P.3d 522, 527 (2001).

* State v. Holbrook, 65 Wn.2d 278, 401 P.2d 971 (1965).

* Dempere has not provided this Court with a full transcript.

App. 32

interfering with an arrest made by a uniformed

officer.

Dempere argues that Holeman was not a jury case,

predates a United States Supreme Court case that makes

it clear that a verbal challenge to an investigation does not

constitute interfering with a police officer, and is inappro-

priate as an instruction. Her argument is without merit.

The Supreme Court has specifically approved an instruc-

tion based upon Holeman. In State v. Valentine, the Court

discussed the common law rule of resisting arrest at some

length and concluded it had to be abrogated.” The Court

reaffirmed the holding in Holeman and found that an

instruction based on Holeman was not error. The instruc-

tion did not encourage the jury to find guilt based on

words alone.

The law on the issues raised by Dempere is well

settled. She has not presented any issues that meet the

criteria for review under RAP 2.3(d). The motion for

discretionary review is denied.

Now, therefore, it is hereby

ORDERED that discretionary review is denied.

Done this 26th day of November, 2001.

/s/ James R. Verellen

Court Commissioner

* 132 Wn.2d 1, 20-21, 935 P.2d 1294 (1997).

App. 33

IN THE COURT OF APPEALS OF

THE STATE OF WASHINGTON DIVISION ONE

CITY OF TUKWILA, No. 48733-7-1

Respondent, ) ORDER DENYING

: ) MOTION TO

JACKIE DEMPERE, uaa

eis ) (Filed Feb. 27, 2002)

Petitioner has moved to modify the commissioner’s

ruling denying discretionary review. We have considered

the motion under RAP 17.7 and have determined that the

motion should be denied.

Now, therefore, it is hereby

ORDERED that the motion to modify is denied.

Done this 27th day of February, 2002.

/s/ Grosse, J.

/s/ Appelwick, J. /s/ Cox, J.

App. 34 a

THE SUPREME COURT OF WASHINGTON

CITY OF TUKWILA,

Respondent, NO. 72228-5

_ RULING

A

JACKIE DEMPERE, SE

Petitioner.

Jackie Dempére was convicted in Tukwila Municipal

Court of obstructing a law enforcement officer. The King

County Superior Court affirmed, and Division One of the

Court of Appeals denied Ms. Dempére’s motion for discre-

tionary review. She now moves for discretionary review by

this court. She also moves to consolidate her case with

Seattle v. Patu, cause No. 71842-3.

Taking the motions in reverse order, I first note that

it would be neither feasible nor appropriate to consolidate’

this case with Patu. Patu is set for argument on July 13,

2002. There is no way this case could be briefed and ready

for argument by that date. Moreover, while both cases

concern convictions for obstruction, they involve differ-

ently worded ordinances and do not appear to present

overlapping legal issues.

In fact, the issues Ms. Dempére raises appear to turn

largely on her version of the events leading to the charges

against her. Unfortunately, she does not support that

version with citations to the record. Nor, with the excep-

tion perhaps of her speedy trial claim, does she tie her

version of the facts to any comprehensible legal argu-

ments.

App. 35

Thus, turning specifically to Ms. Dempére’s motion for

discretionary review, I can find no ground for review of the

Court of Appeals decision under RAP 13.5(b). That court,

in declining to review the superior court’s affirmance of

Ms. Dempére’s conviction, properly applied the criteria of

RAP 2.3(d). Ms. Dempére still has not demonstrated that

the superior court’s decision conflicts with controlling

precedent, or that her case involves a significant constitu-

tional question or an issue of public interest, or that either

the superior court or the municipal court departed from

the accepted and usual course of judicial proceedings. RAP

2.3(d)(1)-(4).

The motion for discretionary review and motion to

consolidate are denied.

/s/ Geoffrey Crooks

COMMISSIONER

May 28, 2002

App. 36

THE SUPREME COURT OF WASHINGTON

CITY OF TUKWILA, )

Respondent, ORDER

v. ) No. 72228-5

JACKIE DEMPERE, C/A No. 48733-7-1

Petitioner. ) (Filed Sep 4, 2002)

Department I of the Court (composed of Chief Justice

_ Alexander and Justices Smith, Madsen, Ireland and

Chambers) considered this matter at its September 4,

2002, Motion Calendar and unanimously agreed that the

following order be entered.

IT IS ORDERED:

That Petitioner’s Motion to Modify Commissioner’s

Ruling is denied.

DATED at Olympia, Washington this 4th day of

September, 2002.

/s/ Gerry L. Alexander

CHIEF JUSTICE

App. 37

(273) IN THE MUNICIPAL COURT

OF THE CITY OF TUKWILA

CITY OF TUKWILA,

Plaintiff No. CR0027909A TKP

Vs. EXCERPTS OF TRIAL

JACKIE DEMPERE,

Defendant

APPEARANCES:

For the City of Tukwila Margarita Dornay

City Attorney

For Jackie Dempere Charles Hamilton

Attorney at Law

TAPE 99-325

November 8, 1999

JUDGE: “Okay. Mr. Hamilton. Let’s see what we

- have here today. This is for Jackie Dempere, D-e-m-p-e-r-e.”

MR. HAMILTON: “That is correct your honor.

And I believe we're here, this matter ended in a mistrial

about a week ago.”

* * *

[414] MS. DORNAY: “Do you recollect approxi-

mately the time of day this was?”

OFF. SYLER: “It was about 8:20 at night.”

MS. DORNAY: “Was it dark at this point?”

OFF. SYLER: “It was dark.”

App. 38 —

MS. DORNAY: “So what happened?

OFF. SYLER: “The initial call was a fight

involving a large group of people. There was still a large

group of people milling around in front of the apartment

complex...”

MS. DORNAY: “I should meet, or intersect a

question there ... Were you with anybody in your car

when you responded?

OFF. SYLER: “NoI was.”

MS. DORNAY: “Were the first officer on the

scene?”

OFF. SYLER: “Yes, I was.”

MS. DORNAY: “The point were you are getting

out of your car are you still the first officer on the scene?”

OFF. SYLER: “Yes.”

MS. DORNAY: “All right: So then what hap-

pened?”

OFF. SYLER: “Okay, People who were walking

back to the apartment pointed to a gentleman in front of

them. I contacted him there in the middle of [415] the

street. He was kind of out of breath and shaken and said

he had called 911.” -

MS. DORNAY: “And did you identify him ini-

tially?”

OFF. SYLER: “Not initially.”

MS. DORNAY: “Did you ultimately identify him?

OFF. SYLER: “Yes.”

App. 39

MS. DORNAY: “All right and then what hap-

pened?”

OFF. SYLER: “The people that were walking

behind me and some of the people in front of me in the

hotel there Kind of started walking towards me and

walking in the area. None of the other officers were there

yet.”

MS. DORNAY: “At this point in time before the

officers arrive on the scene how would you describe your

position? I don’t mean physical position. When you are

dealing with the report by obviously no other officers on

the scene? Is there anything you are doing special?”

OFF. SYLER: “You are at a heightened level of

awareness for safety because of the call itself. I was there

alone at the time and didn’t really know what had hap-

pened yet. And there were a whole [416] lot of people

wandering around and all around me pretty much.

MS. DORNAY: “So the other officers when they

did arrive, then what happened?”

OFF. SYLER: “Initially the guy that I first

contacted, he was a little hysterical at first and I didn’t

know what was going on, so I placed him in handcuffs...”

MS. DORNAY: “Why did you do that?”

OFF. SYLER: “For safety. They said he called

911. But we didn’t know what it was and there was a lot of

people there...”

MS. DORNAY: “So at this point that you placed

him in handcuffs did you know whether he was a perpe-

trator or a victim or something?”

App. 40

OFF.SYLER: “NoI didn’t.”

MS. DORNAY: “Okay and then what happened?”

OFF. SYLER: “The other officers began arriving

at the scene. When I initially places him in handcuffs to

try to find out from him what happened I hear yelling

behind me...”

MS. DORNAY: “And you turned...”

OFF. SYLER: “Yes”

MS. DORNAY: “You go to see?”

%* * *

[419] OFF. SYLER: “Yes.”

MS. DORNAY: “Why?”

OFF SYLER: “He was fighting pretty hard.

Officer Boyd was having trouble with him. I assisted

officer Boyd, we couldn’t control him.”

MS. DORNAY: “Was he saying or doing anything

while the struggle was taking place?”

OFF. SYLER: “Just yelling and cussing and

fighting with us.”

MS. DORNAY: “Now once he was secured, you

secured him again. He is down on the ground. Is his back

to the ground or his stomach?”

OFF. SYLER: “Stomach.”

MS. DORNAY: “And you cuffed in the front or

the back?”

OFF. SYLER: “In the back.”

App. 41

MS. DORNAY: “Was he secure at this point?”

OFF. SYLER: “No.”

MS. DORNAY: “Why not?”

OFF. SYLER: “Because he was kicking and

struggling and trying to pull away from us.”

MS. DORNAY: “Was the fact that you knew him

from prior contact did that affect how you dealt with him

in this scenario?

OFF. SYLER: “Yes.”

[420] MS. DORNAY: “Why?”

OFF. SYLER: “Because he was violent in the

previous times he’s been arrested. He’s assaulted an

officers...”

MS. DORNAY: “And you knew that before you

DUE...

OFF. SYLER: “Once I got close to recognize who

it was.”

MS. DORNAY: “Okay.”

OFF. SYLER: “I knew that’s...”

MS. DORNAY: “How common contacts would

you say there have been with Mr. Garza?

MR. HAMILTON: “Objection to the form of that

question. This relates to the date in question which was

about a year and a half ago. Now only at that time.”

App. 42

MS. DORNAY: “Only that time. Up to that point

in 1998 how many contacts would you say, did you know

that Mr. Garza was having...”

MR. HAMILTON: “Objection again but the

relevant question is what did he know at that time? Not

what did you find out later?”

JUDGE: “Sustained. Rephrase the question.”

MS. DORNAY: “At the point in time October 29,

1998, how many contacts were you aware of with Mr.

Garza? With the Police Department?”

[421] OFF. SYLER: “Several, I personally had

maybe 4or5...”

MS. DORNAY: “You personally had...”

OFF. SYLER: “I believe that...”

MS. DORNAY: “And had Mr. Garza been com-

bative with you personally?”

OFF. SYLER: “Yes.”

MS. DORNAY: “Did he threaten you?”

OFF. SYLER: “So once now Mr. Garza is down

on the ground. Then what happened?”

OFF. SYLER: “We tried to hold him in position

to convince him he was under arrest and to stop resisting

and discontinue the ee. And at that point in time Ms.

Dempere walked up.”

MS. DORNAY: “Now why did that bug her?

There were other people around right?”

OFF. SYLER: “Right. Not as close as she was.”

App. 43

MS. DORNAY: “So when was your attention first

drawn to her? And I just want to determine distance. How

far away was she when you first noticed her?”

OFF. SYLER: “About 10-15 feet away. She was

walking towards us.”

[422] MS. DORNAY: “And this altercation is this

in the street, on the sidewalk, in the apartment corridor,

where specifically is it?

OFF. SYLER: “It’s in the street.”

MS. DORNAY: “And this is the street, how

would you describe it is it a busy street a residential .. .?”

OFF. SYLER: “Residential.”

MS. DORNAY: “Okay. Then you see her then

what happens.”

OFF. SYLER: “I see her out of the corner of my

eye walking towards us and at that point I break away

and tell her she needs to stay back.”

MS. DORNAY: “Were there other people besides

Ms. Dempere that was approaching in the manner she was

approaching?”

OFF SYLER: “No.”

MS. DORNAY: “All right you told her to step

back then what happened?”

OFF. SYLER: “She initially walked back as I

told her wait back across the street. There was communi-

cation between us but I don’t remember exactly what was

said about what was going on.”

App. 44

(423] MS. DORNAY: “There was communication

between the two of you?”

OFF. SYLER: “Right and I just told her to wait

back across the street. I still had a guy I hadn’t put hand-

cuffs yet that I still hadn’t dealt with yet and this guy was

being combative. And there were still people milling about.

Just worked her way back to the street.”

MS. DORNAY: “How far back did she go?”

OFF. SYLER: “Just to the other side of the

street.”

MS. DORNAY: “Was that a comfortable space

between where the incident was taking place and where

she first ended up?”

OFF. SYLER: “Yes.”

MS. DORNAY: “Then what happened?”

OFF. SYLER: “I attempted to contact the guy

that I placed in handcuffs to get his side of what was going

on because now that he was sitting with Officer Hicks.

Went over to talk to him, but I never got the chance to talk

to him.”

MS. DORNAY: “Why not?”

OFF. SYLER: “When I get over to him and start

talking to him I heard the officers yelling to her “Listen

here’ to get back. I turned around [424] and she was

walking back across the street to where they were at.”

MS. DORNAY: “Now when you heard the other

officers yelling did you turn and look at Ms. Dempere?

OFF. SYLER: “Yes.”

App. 45

MS. DORNAY: “And how far away was she, let

me step back, were the officers still struggling with Mr.

Garza at that point?”

OFF. SYLER: “Somewhat. Basically they were

just holding him there.”

MS. DORNAY: “Okay. What does that mean

‘holding him there’?”

OFF. SYLER: “Kneeling on him, face to the

ground, holding him...”

MS. DORNAY: “Down. Theyre kneeling on

him?”

OFF. SYLER: “Right”

MS. DORNAY: “And how far away is Ms. Dem-

pere when this place takes place?”

OFF. SYLER: “She's right in the middle of the

roadway at this point when I see her walking towards...”

MS. DORNAY: “So where does that place her, 5

feet?”

OFF. SYLER: “Maybe 5 feet away?”

MS. DORNAY: “Did you notice anything in her

hand at this point?”

[425] OFF. SYLER: “Yes I actually when I first

contacted her.”

MS. DORNAY: “Okay, what was she holding?”

OFF. SYLER: “She was holding a screwdriver.”

MS. DORNAY: “Anything else?

App. 46

OFF. SYLER: “She was holding something else

in her other hand I didn’t know what it was.”

MS. DORNAY: “Was this a screwdriver I could

change my glasses with or was this a handyman?”

OFF. SYLER: “It was a normal size screw- .

Griver:......~

MS. DORNAY: “Let me get over here”

OFF. SYLER: “Approximately that long.”

MS. DORNAY: “So you see her approaching

again and you see what happens?”

OFF. SYLER: “Again breakaway from someone I

had detained. Went back and asked her to wait back

across the street.”

MS. DORNAY: “How did you describe you

manner the way you did it? When you told her to move

back across the street?

OFF. SYLER: “I just asked her ‘you need to wait

back across the street’.”

OFF. SYLER: “Did you have a gun in your hand,

your baton in play?”

MS. DORNAY: “Oh Good and did she look back?”

[426] OFF. SYLER: Initially no. She said she

didn’t have to.”

MS. DORNAY: “Did you understand her when

she said that?

OFF. SYLER: “Yes”

App. 47

MS. DORNAY: “Was there a language barrier in

the conversation that you can all agree the conversation

you were having?”

OFF. SYLER: “Yes...”

MS. DORNAY: “In other was there a language

barrier? You could understand what she was saying to you.

And appewently she could understand you?”

OFF. SYLER: “Yes”

MS. DORNAY: “And so you tell her to get back

and what happened?”

OFF. SYLER: “She said she didn’t do anything

wrong and didn’t have to do what I said.”

‘ MS. DORNAY: “Did she remain where she was?”

OFF. SYLER: “Briefly, yes. I again told her ‘you

need to wait back across the street.”

MS. DORNAY: “Now up to this point in time

how many times total did you tell her to wait across the

street?

OFF. SYLER: “Well I when I initially contacted

her I told her a couple of times to wait back across the

[427] street. Then the second time I contacted her maybe

three times also.”

MS. DORNAY: “So then what happened?

OFF. SYLER: “She again walks back across the

street. And wait on the side of the street.”

MS. DORNAY: “Was that the end of it?”

: App. 48

OFF. SYLER: “No Again I attempted to contact

the gentleman waiting in handcuffs and as I’m walking

away she begins walking towards the other officers.”

MS. DORNAY: “Does she still have the screw-

driver in her hand? How would you describe her demeanor

at this point?”

OFF. SYLER: “She beginning to come with a

little anger with us she’s refusing to listen at this point

againI...”

MS. DORNAY: “Did she say anything?”

OFF. SYLER: “She said that she did not have to

do what we said this is America and she can do what she

wants to do.”

MS. DORNAY: “And then what happened?”

OFF. SYLER: “I told her several times to wait

back across the street several times and she refused. At

that point I told her if she did not back away [428] and

wait across the street she would be arrested”

MS. DORNAY: “Now officer, So what if she was

there. How does that impede your investigation, or the

scene?”

OFF. SYLER: “We had not determined actually

what happened. We did not actually know if she had been

involved in the fight or if she involved in the call at all, or

what her intentions were by approaching an officer.”

MS. DORNAY: “Does it matter what her inten-

tions were? Could it be an officer that knows?”

OFF. SYLER: “Yes.”

App. 49

MS. DORNAY: “Why?”

OFF. SYLER: “I didn’t know her relationship

with the person that’s being arrested because of the

hazard that she is approaching ... ” She’s holding the

screwdriver

MS. DORNAY: “Is it a safety issue?”

OFF.SYLER: “Yes itis...”

MS. DORNAY: “And, all right, then she, then

what happened?”

OFF. SYLER: “She refuses, and continues

walking toward the other officers and I told her three

times to

* * *

[505] and then that is when she came back and began

speaking in Spanish.”

MR. HAMILTON: “Okay, You had indicated

earlier that you were not the first officer on the scene?”

OFF. ROBERTSON: “That’s correct.”

MR. HAMILTON: “It sounds like you were the

second?”

OFF. ROBERTSON: ‘I believe I was the second

officer.”

MR. HAMILTON: “When you arrived what

among the officers, who among the officers were actually

there?”

OFF. ROBERTSON: “I believe officer Syler was

there.”

App. 50

MR. HAMILTON: “What was Officer Syler doing

when you arrived?”

OFF. ROBERTSON: ‘I do not recall?”

MR. HAMILTON: “Well what did you do when,

Do you recall what you did when you arrived?”

OFF. ROBERTSON: “Yes I do. I was talking to

witnesses in the par. ag lot, contacting the people, trying

to figure out what was going on. People were pointing,

talking, Spanish, in broken English, I I was contacting

potential witnesses and or the victim. That was what I

was attempting to do.”

MR. HAMILTON: “Okay. Did you contact the

victim?”

{506} OFF. ROBERTSON: “I don’t recall speak-

ing specifically with the victim. I believe I did speak with,

I did, I actually spoke with the victim briefly.”

MR. HAMILTON: “And what did the victim look

like?”

OFF. ROBERTSON: “A young man, 18-22, short

dark hair, slender...”

MR. HAMILTON: “And what was he doing when

you spoke with him?”

OFF. ROBERTSON: “I don’t recall.”

MR. HAMILTON: “And did he speak Spanish or

English?”

OFF. ROBERTSON: “He spoke very broken

English. A strong heavy Spanish accent.”

App. 51

MR. HAMILTON: “Now when you spoke with

him this is when you first arrived?”

OFF. ROBERTSON: “Yes that is correct.”

MR. HAMILTON: “And so, who else was in the

vicinity when you spoke with him, I mean within say a

diameter of about 6 feet?”

OFF. ROBERTSON: “I don’t recall. Like I said it

was very confusing in that area.”

MR. HAMILTON: “You don’t remember what

the young man, that you described, was wearing?”

OFF. ROBERTSON: ‘No. I do not.”

[507] MR. HAMILTON: “He was standing there

talking to you, is that correct?”

OFF. ROBERTSON: “It all happened in a very

brief period of time, about 30 to 45 seconds with numerous

people yelling and shouting and pointing and talking in a

language that I can’t understand. Some people speaking in

broken English, and people pulling away. And then within

a 30-45 seconds we are trying to make some sense out of

what’s going on at all if anyone’s fighting and what is

going on that is when I observed Roman Garza down the

street. So not much time to do anything there is an awful

lot of stimuli coming in and it is kind of hard to sort it

out.” :

MR. HAMILTON: “Okay. You gid not handcuff

him?” . — :

OFF. ROBERTSON: “I did not handcuff him.”

n h

\

App. 52

MR. HAMILTON: “And he wasn’t handcuffed,

this victim, was he?”

OFF. ROBERTSON: “I don’t know for sure

basically.”

MR. HAMILTON: “Your recollection is what

sir?” “

OFF. ROBERTSON: “I do not recollect him

being handcuffed, no. But it would not be unusual in that

circumstance.”

App. 53

PLAINTIFF’S EXHIBIT CR27909A #1

TUKWILA MUNICIPAL COURT

STATE OF WASHINGTON

COUNTY OF KING Case No. CR0027908

THE STATE OF WASHINGTON,

CITY TUKWILA STATEMENT OF

Plaintiff DEFENDANT UPON

PLEA OF GUILTY

Vv.

Roman Garza Defendant

1. My true name is Roman Garza

2. My age is 22

3

I went through the 11 grade.

4. I HAVE BEEN INFORMED AND FULLY UN-

DERSTAND THAT:

(a) I have the right to representation by a lawyer

and that if I cannot afford to pay for a lawyer, one will be

provided at no expense to me. My lawyer’s name is

(b) I am charged with the crimes of Resisting Arrest:

Obstructing a Public Servant

The elements of this crime are

5. I HAVE BEEN INFORMED AND FULLY UN-

DERSTAND THAT I HAVE THE FOLLOWING IMPOR-

TANT RIGHTS, AND I GIVE THEM ALL UP BY

PLEADING GUILTY:

App. 54

(a) The right to a speedy and public trial by an

impartial jury in the county where the crime is alleged to

have been committed.

(b) The right to-remain silent before and during

trial, and the right to refuse to testify against myself.

(c) The right at trial to hear and question the wit-

nesses who testify against me. .

(d) The right at trial to have witnesses testify for me.

These witnesses can be made to appear at no expense to

me.

(e) I am presumed innocent until the charge is

proven beyond a reasonable doubt or I enter a plea of

guilty.

(f) The right to appeal a determination of guilt after

a trial.

6. IN CONSIDERING THE CONSEQUENCES OF

MY GUILTY PLEA, I UNDERSTAND THAT:

(a) The crime with which I am charged carries a

maximum sentence of 365/90 in jail and a $5000/1000 fine.

(b) The crime of OBSTRUCTING- PUBLIC SER-

VANT, RESISTING ARREST has a mandatory minimum

sentence of

The law does not allow any reduction of this sentence. [If

not applicable, this paragraph should be stricken and

initialed by the defendant and the judge.]

(c) This plea of guilty will result in suspension or

revocation of my driver’s license by the Department of

App. 55

Licensing. If I have a driver’s license, I must now surren-

der it to the judge. [If not applicable, this paragraph

should be stricken and initialed by the defendant and the

judge.]

(d) The judge may require me to pay costs, fees and

assessments authorized by law. The judge may also order

me to make restitution to any victims who lost money or

property as a result of crimes I committed. The maximum

amount of restitution is double the amount of the loss of

all victims or double the amount of my gain.

(e) If this crime involves a sexual offense, prostitu-

tion, or a drug offense associated with hypodermic needles,

I will be required to undergo testing for the human immu-

nodeficiency (AIDS) virus. [If not applicable, this para-

graph should be stricken and initialed ys the defendant

and the judge.] ~

(f) The prosecuting authority will make the following

recommendation to the judge:

(g) The judge does not have to follow anyone’s

recommendation as to sentence. The judge is completely

free to give me any sentence up to the maximum author-

ized by law no matter what the prosecuting authority or

anyone else recommends.

(h) If I am not a citizen of the United States, a plea

of guilty to an offense punishable as a crime under state

law is grounds for deportation, exclusion from admission

to the United States, or denial of naturalization pursuant

to the laws of the United States.

7. I plead GUILTY to the crime of OBSTRUCTING

A PUBLIC SERV. & RESISTING ARREST as

charged in the complaint or citation and notice- I

App. 56

have received a copy of that complaint or citation

and notice.

8. Imake this plea freely and voluntarily.

9. Noone has threatened harm of any kind to me or

to any other person to cause me to make this plea.

10. No person has made promises of any kind to

cause me to enter this plea except as set forth in

this statement.

11. The judge has asked me to state briefly in my own

words what I did that makes me guilty of this

crime. This is my statement: in TUKWILA on 10-

29-98, when I got sprayed with mase I couldn't

breathe so I was kicking the inside car for some

air. (obstructing) (Res) I kept asking why was I

getting hand cuffed when I was walking home

12. My lawyer has explained to me, and we have fully

discussed all of the above paragraphs. I under-

stand them all. I have been given a copy of this

“Statement of Defendant Plea of Guilty”. I have

no further questions to ask the judge.

/s/ X Roman Garza I have read and discussed this

DEFENDANT statement with the defendant

and believe that the defen-

14224 37 Ave S. #106 dant is competent and fully

ADDRESS understands the statement.

TUKWILA WA 98168

CITY, ZIP, STATE DEFENDANT'S LAWYER

206-242-2414

PHONE PROSECUTING ATTORNEY

The foregoing statement was signed by the defendant

in open court in the presence of the defendant’s lawyer and

App. 57

the undersigned judge. The defendant asserted that [check

appropriate box]:

W (a) The defendant had previously read; or

0) (b) The defendant’s lawyer had previously read to

him or her; or

[] (c) An interpreter had previously read to the de-

fendant the entire statement above and that

the defendant understood it in full.

I find the defendant’s plea of guilty to be knowingly,

intelligently and voluntarily made. Defendant under-

stands the charges and the consequences of the plea.

There is a factual basis for the plea. The defendant is

guilty as charged.

Dated this 30 day of Oct, 1998.

/s/ Albert Raines

JUDGE

*I am fluent in the__ language and I have translated

this entire document for the defendant from English into

that language. The defendant has acknowledged his or her

understanding of both the translation and the subject

matter of this document. I certify under penalty of perjury

under the laws of the state of Washington that the forego-

ing is true and correct.

Dated this__ day of __,19__

LOCATION