FILED
June 28, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ROBERT E. LARSON; TYLER W. ) No. 33179-2-III
GASSMAN; and PAULE. STATLER, )
)
Appellants, )
)
V. ) PUBLISHED OPINION
)
STATE OF WASHINGTON, )
)
Respondent. )
LAWRENCE-BERREY, A.CJ. - The wrongly convicted persons act (WCPA),
chapter 4.100 RCW, provides statutory compensation for wrongly convicted persons who
prove they were actually innocent To receive compensation, a claimant must prove six
elements by clear and convincing evidence.
Robert Larson, Tyler Gassman, and Paul Statler (the claimants) appeal the trial
court's decision that they failed to establish the fourth and fifth elements of their WCPA
claims. We interpret the fourth WCPA element (significant new exculpatory information)
liberally, to reflect the remedial purpose of the legislation, so a wrongly convicted person
may more readily receive statutory compensation. We interpretRCW 4.100.060(3) as
No. 33179-2-III
Larson v. State
authorizing a trial court to admit evidence that would otherwise be excluded under the
rules of evidence. Finally, we interpret the burden of proof for the fifth WCPA element
(actually innocent) to be clear and convincing evidence.
As a result, we (1) reverse the trial court's interpretation of "significant new
exculpatory information," (2) hold that the trial court did not abuse its discretion by
excluding hearsay evidence, and (3) reverse the trial court's imposition of an improperly
high burden of proof on the "actually innocent" element. We remand to the trial court for
it to decide whether the claimants have proved by clear and convincing evidence they are
actually innocent.
FACTS
The parties tried this case to the bench. The trial court heard testimony from 15
witnesses over a period of four days, and admitted and reviewed numerous exhibits. The
trial court prepared and issued an extensive written decision, consisting of 44 findings of
fact. The claimants assign error to only two of these findings. We therefore set forth the
pertinent findings of the trial court, and separately analyze the two disputed findings:
After reviewing the evidence and being mindful of the arguments of
the parties, the Court finds by clear and convincing evidence the following
facts:
1. Sometime in April, 2008, Anthony Kongchunji, Matthew Dunham,
and three other males assaulted and robbed Eric Weskamp and
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Larson v. State
Clifford Berger. After committing the robberies, one of the fleeing
robbery suspects fired a gun from Mr. Dunham's vehicle towards
Kyle Williams and Mr. Weskamp.
2. During the time period of April, 2008, Robert Larson was residing in
a trailer behind his parent's home. This residence was approximately
three blocks from the Quarry Tile Company where Mr. Larson was
employed.
3. On the days he was scheduled to work, Mr. Larson consistently
clocked into work between 9:46 p.m. and 9:55 p.m. Mr. Larson
testified that he habitually arrived at work between 9: 10 p.m. and
9:20 p.m.
4. During the time period of April, 2008, Robert Hibdon was Mr.
Larson's supervisor at the Quarry Tile Company. Mr. Hibdon
testified that it was necessary for Mr. Larson to arrive at work a few
minutes before the beginning of his shift.
5. During the time period of April, 2008, Tyler Gassman was
unemployed and residing with his girlfriend, Elizabeth Holder, in
northern Idaho. Mr. Gassman resided with Ms. Holder for
approximately one year.
6. Mr. Gassman testified that in the one year he resided with Ms.
Holder, he never left the residence without her.
7. During the time period of April, 2008, Paul Statler was residing with
his mother on Dick Road. Also residing with Mr. Statler and his
mother was Mr. Statler's girlfriend, Ashley Shafer, and Shane
Neilson.
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Larson v. State
8. During the period of April, 2008, Mr. Statler was being monitored by
a [violent incident criminal apprehension program (VI CAP)] through
the Department of Corrections. Mr. Statler was required to provide
breath samples in the VICAP every day at 6:00 a.m., 6:00 p.m., and
10:00 p.m. Mr. Statler would have to be available for a short period
of time both before and after each breath sample time.
9. Between late March, 2008 through April, 2008, Mr. Weskamp and
Mr. Berger were attempting to purchase OxyContin from Mr.
Kungchunji. The sale price of the OxyContin was $4000.
10. At some point between late March, 2008 through April, 2008,
Anthony Kongchunji was riding as a passenger in a vehicle driven by
Matthew Dunham. There were three additional males in the back
seat of the vehicle. During this trip, Mr. Kongchunji placed a call to
Mr. Weskamp as these five individuals were on their way to sell
OxyContin to Mr. Weskamp and Clifford Berger.
11. Once Mr. Kongchunji and Mr. Dunham arrived at Mr. Weskamp's
house, the three males in the back seat of the vehicle got out and,
with their faces covered by bandanas, hid and waited for Mr.
Weskamp and Mr. Berger. At least one of the three men was armed
with a shotgun or rifle.
12. Once Mr. Weskamp and Mr. Berger emerged from the house, the
three males with bandanas covering their faces assaulted and robbed
Mr. Weskamp and Mr. Berger. One of the males used either or
shotgun or rifle during the assault.
13. Subsequent to the robbery, the five males returned to Mr. Dunham's
truck and fled the scene. Kyle Williams and Mr. Weskamp gave
chase in Mr. Williams's vehicle until shots began being fired from
Mr. Dunham's vehicle.
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Larson v. State
14. Later, on April 23, 2008, Mr. Kongchunji and Mr. Dunham were
arrested for a similar type of robbery. Shortly thereafter, law
enforcement received information that the firearm used by Mr.
Kongchunji and Mr. Dunham in the most recent robbery was at Mr.
Statler's residence.
15. In the early morning hours of April 24, 2008, Det. McCrillis went to
Mr. Statler's house and recovered a shotgun which was hidden under
Mr. Statler's mother's mattress. The shotgun recovered was similar
to the shotgun used in the April 23, 2008, robbery as well as the
firearm used in the robbery of Mr. Weskamp and Mr. Berger.
16. After being arrested on April 23, 2008, Mr. Kongchunji chose not to
speak with law enforcement. Mr. Dunham, on the other hand,
continually provided false statements to law enforcement concerning
his involvement in the robberies.
17. Once booked into jail, Mr. Kongchunji and Mr. Dunham spent
approximately one month housed in the same unit of the Spokane
County Jail. During this time, Mr. Kongchunji and Mr. Dunham had
numerous opportunities to communicate with one another.
18. Prior to resolving his charges, Mr. Kongchunji chose to engage in a
free-talk with the State. In consideration of providing information to
law enforcement, Mr. Kongchunji was seeking a non-prison
sentence. During the free-talk, Mr. Kongchunji identified the three
males involved in the robberies against Mr. Weskamp and Mr.
Berger as Mr. Larson, Mr. Gassman, and Mr. Statler.
19. Subsequent to the free-talk, the State failed to offer Mr. Kongchunji
a non-prison sentence. Mr. Kongchunji responded by alleging that
Mr. Larson, Mr. Gassman, and Mr. Statler were not involved in the
robberies. Det. Marske informed Mr. Kongchunji that ifhe lied at
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No. 33179-2-III
Larson v. State
trial he would be charged with perjury. Neitlier the State nor the
plaintiffs called Mr. Kongchunji as a witness at the criminal trial.
Mr. Kongchunji never asserted his Fifth Amendment protections
against self-incrimination, he simply was never called as a witness.
20. Similarly, Mr. Dunham, who was 17 years old at the time of his
arrest, engaged in a free-talk with the State. Like Mr. Kongchunji,
Mr. Dunham was facing a substantial prison sentence. Also, like Mr.
Kongchunji, Mr. Dunham identified the three males involved in the
robberies against Mr. Weskamp and Mr. Berger as Mr. Larson, Mr.
Gassman, and Mr. Statler.
21. Unlike Mr. Kongchunji, Mr. Dunham testified at the plaintiffs'
criminal trial that Mr. Larson, Mr. Gassman, and Mr. Statler were
involved in the robberies of Mr. Weskamp and Mr. Berger. In
consideration of his cooperation, Mr. Dunham was given a sentence
of 17 months confinement in a juvenile detention facility.
22. On July 28, 2008, Plaintiff Robert Larson, was charged by
information in the Spokane Superior Court under case number 08-1-
02445-9 with Count I-First Degree Robbery, Count II-Attempted
First Degree Murder (or in the alternative First Degree Assault),
Count III-Attempted First Degree Murder (or in the alternative
First Degree Assault), Count IV-Drive by Shooting, and Count V-
Drive by Shooting. The information alleged these crimes occurred
on or about April 15, 2008.
23. On July 28, 2008, Plaintiff Tyler Gassman, was charged by
information in the Spokane Superior Court under case number 08-1-
02444-1 with Count I-First Degree Robbery, Count II-Attempted
First Degree Murder (or in the alternative First Degree Assault),
Count III-Attempted First Degree Murder (or in the alternative
First Degree Assault), Count IV-Drive by Shooting, and Count V-
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No. 33179-2-111
Larson v. State
Drive by Shooting. The information alleged these crimes occurred
on or about April 15, 2008.
24. On July 28, 2008, Plaintiff Paul Statler, was charged by information
in the Spokane Superior Court under case number 08-1-02442-4 with
Count I-First Degree Robbery, Count II-Attempted First Degree
Murder (or in the alternative First Degree Assault), Count III-
Attempted First Degree Murder (or in the alternative First Degree
Assault), Count IV-Drive by Shooting, and Count V-Drive by
Shooting. The information alleged these crimes occurred on or
about April 15, 2008.
25. On January 12, 2008, the State moved to amend each plaintiffs
information. The Court granted the motions and each plaintiffs
information was amended, alleging the crimes occurred on or about
April 17, 2008.
27. The criminal trial was held in February, 2009. At trial, all three
plaintiffs presented alibi defenses.
28. At the conclusion of the trial, Mr. Larson, Mr. Gassman, and Mr.
Statler were each found guilty of First Degree Robbery, two counts
of First Degree Assault, and two counts of Drive by Shooting.
35. Subsequent to being convicted, all three plaintiffs moved for a new
trial under CrR 7.5(a)(3), claiming newly discovered evidence. The
Honorable Michael Price denied the motions.
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No. 33179-2-III
Larson v. State
36. The plaintiffs appealed Judge Price's denial of their motions for new
trials. The Court of Appeals affirmed Judge Price, concluding that
the motions for new trials were properly denied, the plaintiffs were
not provided ineffective assistance of counsel, the plaintiffs were not
prejudiced by the amended informations, and the plaintiffs were not
placed in double jeopardy. 1
37. The plaintiffs then filed motions for relief fromjudgment under
CrR 7.8. In granting the plaintiffs' motions, Judge Price found trial
counsel for each plaintiff was ineffective in a number of regards.
Specifically, Judge Price found trial counsel for each plaintiff failed
to obtain victim Eric Weskamp' s work records, 2 failed to obtain
Matthew Dunham's phone records, 3 failed to interview the
detectives, and failed to interview Shane Neilson. 4
1
State v. Larson, 160 Wn. App. 577, 249 P.3d 669 (2011); State v.
Gassman, 160 Wn. App. 600, 248 P.3d 155 (2011); State v. Statler, 160
Wn. App. 622, 248 P.3d 165 (2011).
2
Victim Eric Weskamp' s work records would have showed he left
work early on April 16, 2008, the only day of the week he did so. This
evidence would have allowed trial counsel to argue the crime occurred on
April 15, 2008 and not April 17, 2008. Plaintiffs' Exhibit P-16, P-17 & P-
18 (Judge Price's Findings of Fact, Conclusions of Law & Order, pg. 4).
3
Matthew Dunham was the State's star witness. He testified he did
not know the victims. The phone records contained post-conviction showed
he had been in communication with the victims. This information would
have assisted trial counsel in impeaching his credibility. Plaintiffs' Exhibit
P-16, P-17 & P-18 (Judge Price's Findings of Fact, Conclusions ofLaw &
Order, pgs. 4-5).
4
Shane Neilson would have testified that he received the gun used in
a robbery on April 23, 2008, without the knowledge of Mr. Statler. Without
this information, the jury was left with the impression Mr. Statler was "in
the know" about the April 23, 2008, robbery. Plaintiffs' Exhibit P-16, P-17
& P-18 (Judge Price's Findings ofFact, Conclusions of Law & Order, pg.
5).
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No. 33179-2-III
Larson v. State
38. Judge Price ultimately concluded that the plaintiffs were denied their
Constitutional right to effective counsel. He found that the plaintiffs
established that trial counsels' representation was deficient; falling
below the objective standard of reasonableness and that the plaintiffs
were prejudiced by this deficient performance.
39. Judge Price further found that trial counsels' failure to investigate
was especially egregious based upon their failure to discover
potentially exculpatory evidence.
40. Judge Price concluded that but for trial counsels' unprofessional
errors, the result of the proceedings would have been different.
41. On December 14, 2012, Judge Price entered orders vacating the
judgments of conviction against Mr. Larson, Mr. Gassman, and Mr.
Statler.
42. On May 31, 2013, the Honorable James Triplet entered an order
dismissing the charges against Mr. Larson. The certification forming
the basis for the motion to dismiss the charges asserted the motion
was founded upon insufficient evidence to proceed with trial.
43. On July 23, 2013, Judge Triplet entered orders dismissing the
charges against both Mr. Gassman and Mr. Statler. The certification
forming the basis for the motions to dismiss the charges asserted the
motions were founded upon insufficient evidence to proceed with
trial.
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Larson v. State
44. At trial, limited evidence was presented that was not put before the
jury in the criminal trial; specifically, the testimony of Mr.
Kongchunji, Mr. Weskamp's time card, Kyle Williams phone
records, and the testimony of Professor Alexandra Natapoff. 5
Clerk's Papers (CP) at 407-14.
ANALYSIS
Overview of the WCPA
The WCPA was passed in 2013, and came into effect on July 28 of that year.
LAWS OF 2013, ch. 175, §§ 1-9. The first section of the WCPA indicates the legislature's
intent and provides:
The legislature recognizes that persons convicted and imprisoned for crimes
they did not commit have been uniquely victimized. Having suffered
tremendous injustice by being stripped of their lives and liberty, they are
forced to endure imprisonment and are later stigmatized as felons. A
majority of those wrongly convicted in Washington state have no remedy
available under the law for the destruction of their personal lives resulting
from errors in our criminal justice system. The legislature intends to
provide an avenue for those who have been wrongly convicted in
Washington state to redress the lost years of their lives, and help to address
the unique challenges faced by the wrongly convicted after exoneration.
RCW 4.100.010.
To prevail on a claim under the WCPA claimants must show, by clear and
5
Prof. Natapoff testified as an expert witness primarily on issues
surrounding the lack of credibility of criminal informants.
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No. 33179-2-III
Larson v. State
convincing evidence, 6 that: ( 1) they were convicted of one or more felonies in superior
court and subsequently sentenced to a term of imprisonment, and have served all or any
part of the sentence, 7 (2) they are not currently incarcerated for any offense, 8 (3) during
the period of confinement for which the claimant is seeking compensation, the claimant
was not serving a term of imprisonment or a concurrent sentence for any conviction other
than those that are the basis for the claim, 9 ( 4) the judgment of conviction was reversed or
vacated and the charging document dismissed on the basis of significant new exculpatory
information or, if a new trial was ordered pursuant to the presentation of significant new
exculpatory information, either the claimants were found not guilty at the new trial or the
claimants were not retried and the charging document dismissed, 10 (5) they did not engage
in any illegal conduct alleged in the charging documents, 11 and (6) they did not commit or
suborn perjury, or fabricate evidence to cause or bring about their convictions. 12 The
dispute in this case focuses on the fourth and fifth elements.
A. Convictions vacated and charges dismissed on the basis ofsignificant new
6
RCW 4.100.060(1).
7
RCW 4.100.060(l)(a).
8
RCW 4.100.060(l)(b)(i).
9
RCW 4.100.060(l)(b)(ii).
10
RCW 4.100.060(1 )( c)(ii) (there is an alternative fourth element under
RCW 4.100.060(1 )( c)(i), that relates to pardons, but is not applicable in this case).
11
RCW 4.100.060(l)(d).
12
RCW 4.100.060(l)(e).
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No. 33179-2-III
Larson v. State
exculpatory information
The claimants argue the trial court erred in defining "significant new exculpatory
information" as evidence that was unavailable at trial. The claimants also argue the trial
court erred in finding their convictions were not vacated and their charges not dismissed
on the basis of the new information. These two arguments are discussed in tum below.
1. Significant new exculpatory information
The parties dispute the meaning of "significant new exculpatory information."
That phrase is not defined in the definitional section of the statute. See RCW 4.100.020.
"The meaning of a statute is a question of law reviewed de novo." Dep 't ofEcology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 PJd 4 (2002). Statutory interpretation is
used '" to determine and give effect to the intent of the legislature."' State v. Reeves, 184
Wn. App. 154, 158, 336 P.3d 105 (2014) (internal quotation marks omitted) (quoting
State v. Evans, 177 Wn.2d 186, 192,298 PJd 724 (2013)). If statutory language is plain
and unambiguous, this court does not engage in statutory interpretation. Berger v.
Sonne/and, 144 Wn.2d 91, 105, 26 PJd 257 (2001). We determine the phrase is
ambiguous because "new" might narrowly refer to information that was unavailable at
trial, or "new" might broadly refer to information that was not presented to the jury. 13
13 In Newton v. State, 192 Wn. App. 931, 932-33, 369 PJd 511 (2016), Isaiah
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No. 33179-2-III
Larson v. State
The trial court noted that RCW 10. 73 .170 contains language similar to the
language at issue here, and considered prior judicial interpretation of that similar
language important in its analysis. We agree. RCW 10. 73.170 authorizes a person
convicted of a felony to submit a motion requesting postconviction DNA 14 testing.
Before the motion can be granted, the moving party must demonstrate the DNA testing
would provide "significant new information." RCW 10.73. l 70(2)(a)(iii). The trial court
relied on State v. Riofla, 134 Wn. App. 669, 142 P.3d 193 (2006), aff'd, 166 Wn.2d 358,
209 P.3d 467 (2009). Because that case was reviewed by our Supreme Court, we start our
analysis with State v. Riofla, 166 Wn.2d 358.
In Riofla, a man approached the victim, asked him for a cigarette, and then pulled a
revolver from his coat and shot three times toward the victim, missing him each time. Id
at 362. The assailant fled, and in the process, left behind his white hat. Id. The victim
knew the assailant, identified him as "Alex," and provided a physical description to the
Newton filed a lawsuit under the WCPA after we reversed his first degree burglary
conviction. Our reversal of his criminal conviction was based on insufficiency of the
evidence. Id The trial court granted the State's motion for summary judgment on
Newton's WCPA claim. Id In affirming the trial court we stated, "significant new
exculpatory information necessarily refers to something other than the appellate reversal
itself. The appellate reversal must be based on some new information." Id. at 938. In
Newton, we held "significant new exculpatory information" required "new information."
Here, we more specifically address the nature of this "new information."
14
Deoxyribonucleic acid.
13
No. 33179-2-III
Larson v. State
investigating officer. Id. at 362-63. The victim looked at a photograph database and
identified his assailant as Alexander Riofta. Id. at 363. The State charged Mr. Riofta
with first degree assault with a firearm. Neither the prosecution nor the defense sought
DNA testing of the white hat. Id. The jury convicted Mr. Riofta. Id. After his
conviction, Mr. Riofta requested DNA testing of the white hat pursuant to
RCW 10.73.170. Id. The trial court denied his request. Id. at 364. The appellate court
also denied his request, holding that "[Mr.] Riofta failed to establish the DNA testing
could yield 'significant new information' because the white hat was available for testing
at trial." Id.
The Supreme Court reached the same result as the lower courts, but used a
different basis. Id. at 367-73. Prior to discussing the different basis, the Supreme Court
defined "significant new information" broadly-not narrowly-as did the appellate court.
The Supreme Court held, "[RCW 10.73.170] provides a means for a convicted person to
produce DNA evidence that the original fact finder did not consider, whether because of
an adverse court ruling, inferior technology, or the decision of the prosecutor and defense
counsel not to seek DNA testing prior to trial." Id. at 366. Accordingly, the Supreme
Court held Mr. Riofta's request for DNA testing of the white hat was not precluded
simply because such testing could have been, but was not, conducted prior to trial. Id.
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No. 33179-2-111
Larson v. State
Application of a similarly broad interpretation of "significant new exculpatory
information" would be consistent with the legislature's intent in enacting the WCPA. The
statute is remedial in nature, and "' remedial statutes are liberally construed to suppress
the evil and advance the remedy."' Go2net, Inc. v. FreeYellow.com, Inc., 158 Wn.2d
247, 253, 143 P.3d 590 (2006) (internal quotation marks omitted) (quoting Kitti/son v.
Ford, 23 Wn. App. 402,407, 595 P.2d 944 (1979)). The remedy the WCPA seeks to
advance is "to provide an avenue for those who have been wrongly convicted in
Washington state to redress the lost years of their lives, and help to address the unique
challenges faced by the wrongly convicted after exoneration." RCW 4.100.010.
If, instead, we defined "significant new exculpatory information" narrowly to
include only information unavailable at trial, the number of wrongly convicted persons
eligible for relief under the WCPA would be greatly restricted. The only eligible wrongly
convicted persons would be those fortunate enough to discover significant new
exculpatory information that was unavailable at trial. All other wrongly convicted
persons would never be able to pursue a claim under the WCPA. We hold that "new" in
the context of "significant new exculpatory information" must be construed broadly to
include information that was available at the criminal trial but was not presented to the
fact finder.
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No. 33179-2-III
Larson v. State
2. Convictions vacated and charges dismissed on the basis of the new information
The trial court found that the claimants failed to prove by clear and convincing
evidence their convictions were vacated and their charges were dismissed based on the
new information. The trial court found the sole basis for vacation of their convictions and
dismissal of their charges was deficient performance of criminal counsel. The claimants
argue the trial court erred because the criminal court vacated their convictions because
deficient performance of criminal counsel caused significant exculpatory evidence not to
have been presented at trial.
The criminal court's decision to vacate the claimants' convictions was based on
two documents and one witness not presented to the jury. The criminal court first
discussed the work records of Eric Weskamp, records that were not presented to the jury.
According to the criminal court, the work records provided "[ s]trong, credible alibi
evidence" that would have allowed trial counsel to argue the date of the crime was
April 15, 2008 and not April 17, 2008. Ex. P-16, at 4; Ex. P-17, at 4; Ex. P-18, at 4. But
the evidence went undiscovered due to the deficiencies of trial counsel.
The criminal court next discussed the telephone records of the State's main
witness, Matthew Dunham. These records also were not presented to the jury. The
telephone records show Mr. Dunham spoke with the victims of the Weskamp robbery
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No. 33179-2-III
Larson v. State
before the crime occurred. However, at trial, Mr. Dunham stated he did not know any of
the victims of the Weskamp robbery. The telephone records contained "critical
information" and raised "significant questions" about the State's account of the crime and
Mr. Dunham's version of events. Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5. If trial
counsel had obtained the telephone records, they would have been able to "effectively
challenge the State's case and raise doubt." Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5.
The criminal court next discussed the information that could have been elicited
through Shane Nielson, a witness who did not testify in the criminal trial. After the
April 23 robbery, Anthony Kongchunji took the shotgun used in that robbery to Mr.
Statler's home and left it there with Mr. Nielson. Mr. Nielson did not tell Mr. Statler
about the shotgun until the police arrived to search the home later in the evening.
Without Mr. Nielson's testimony, "the jury was left with the impression that Mr. Statler
was 'in the know' about the April 23 robbery," making it more plausible he was an
accomplice in the other robberies. Ex. P-16, at 5; Ex. P-17, at 5; Ex. P-18 at 5.
Based on all the above information that was not presented to the jury, the criminal
court concluded the claimants were denied their right to effective assistance of counsel.
The criminal court's finding that criminal counsel was ineffective was based on their
multiple failures to discover "[s]trong, credible alibi evidence," "critical information,"
17
No. 33179-2-III
Larson v. State
and other "potentially exculpatory evidence." Ex. P-16, at 4-5, 7; Ex. P-17, at 4-5, 7; Ex.
P-18 at 4-5, 7. The criminal court vacated the convictions because the effect of criminal
counsels' deficiencies undermined confidence in the verdicts. The State soon after
dismissed all criminal charges because it determined it had insufficient evidence to
proceed to trial. The only difference between initially proceeding to trial and later not
proceeding to trial was the new information.
The State argues that the information that the criminal court found to be
exculpatory was not actually exculpatory. In general, the State argues the information
was not so critical or contradictory to have undermined the confidence in the jury's
verdict. The State's argument misses the point. The statutory language does not ask
whether the criminal court correctly vacated the convictions. Rather, the statutory
language asks whether the convictions were vacated and the charges were dismissed
based on the new information. The answer is an emphatic yes.
In summary, the existence of significant new exculpatory information was the sole
basis for the criminal court's decision to vacate the convictions, which soon after resulted
in the dismissal of all criminal charges. We hold the trial court erred when it found the
18
No. 33179-2-III
Larson v. State
claimants failed to satisfy the fourth WCP A element by clear and convincing evidence. 15
B. Nonadmittance of hearsay evidence despite statutory directive to give due
consideration to difficulties ofproof
Despite substantial efforts, the claimants were unable to locate and subpoena Mr.
Weskamp to testify at their January 2015 WCPA trial. They, therefore, sought to admit
an April 2013 recorded interview between Mr. Weskamp and an investigator for the
Innocence Project.
In the interview, Mr. Weskamp implicated Mr. Dunham's brother as a third person
involved in the robbery, and said he was unable to identify the other person or two
persons involved. By implication, Mr. Dunham lied when he did not identify his brother
as an assailant. By further implication, the one or two unknown persons were not the
three claimants. Mr. Weskamp further stated he was sure the robbery occurred early in
the week, perhaps April 15. He said he was pressured by the State to accept the State's
date, which he thought was April 18.
The State filed a motion to exclude the recorded interview. In response,
the claimants argued the recorded interview should be considered pursuant to
15
Claimants assign error to finding 44, "limited evidence was presented that was
not put before the jury in the criminal trial." This assignment relates to the claimants'
argument that they met their burden of proof on the fourth WCPA element. We agree the
claimants met their burden of proof on this element and do not address this assignment.
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No. 33179-2-III
Larson v. State
RCW 4.100.060(3). The State argued the recorded interview was hearsay, they were not
invited to participate in the interview, and admitting the recorded interview would prevent
it from cross-examining Mr. Westkamp about his statements. The trial court granted the
State's motion and excluded the recorded interview.
The standard of review for a trial court's decision to admit evidence under
RCW 4.100.060(3) has not been articulated. RCW 4.100.060(3) provides:
In exercising its discretion regarding the weight and admissibility of
evidence, the court must give due consideration to difficulties of proof
caused by the passage of time or by release of evidence pursuant to a plea,
the death or unavailability of witnesses, the destruction of evidence, or
other factors not caused by the parties.
Because the statute recognizes the trial court's discretionary authority to weigh and
admit evidence, we hold that a trial court's decision to admit or not admit evidence under
RCW 4.100.060(3) is reviewed for an abuse of discretion. See State v. Baldwin, 63 Wn.
App. 303, 312, 818 P .2d 1116 ( 1991 ). A trial court abuses its discretion when its decision
is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971).
Here, the claimants argue the trial court's rigid application of evidentiary
rules was an abuse of discretion because if the legislature intended hearsay rules to apply,
RCW 4.100.060(3) would be superfluous. The claimants also argue policy considerations
20
No. 33179-2-III
Larson v. State
favor the legislature's decision to loosen the evidentiary rules.
We agree with the claimants that the legislature loosened the rules of evidence to
assist wrongly convicted persons establish their proof. We hold RCW 4.100.060(3)
authorizes a trial court to admit otherwise inadmissible evidence.
But we disagree with the claimants that a trial court abuses its discretion when it
enforces the rules of evidence. Evidentiary rules have a purpose-to keep out unreliable
evidence.
RCW 4 .100. 060(3) requires the court, in its discretion, to give due consideration to
difficulties of proof. If the court decides the difficulties of proof do not warrant admitting
certain evidence, the court has discretion to not admit it. That is what happened here.
The trial court listened to and considered the parties' arguments for and against admitting
the recording. The trial court then decided against admitting the recording because
(1) it was hearsay, (2) the statements in the recording were not made under oath, and
(3) admission would deprive the State of its ability to cross-examine Mr. Weskamp. The
trial court's decision was not manifestly unreasonable, and thus was not an abuse of
discretion.
C. Did not engage in any illegal conduct
RCW 4.100.060( 1)( d) requires a claimant to prove by clear and convincing
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No. 33179-2-III
Larson v. State
evidence he or she "did not engage in any illegal conduct alleged in the charging
documents." RCW 4.100.020(2)(a) makes the preceding quoted phrase synonymous with
"actually innocent." The claimants did not assign error to the trial court's legal ruling that
"charging documents" include the probable cause affidavits. Here, the probable cause
affidavits included a temporal component of "on or about April 15, 2008." Ex. D-115;
Ex. D-118; Ex. D-121.
The claimants argue the trial court erred when it found they did not sufficiently
prove they were actually innocent. Specifically, they argue the trial court erred (1) by
using a heightened burden of proof applicable to personal restraint petitions and writs of
habeas corpus, (2) by requiring them to prove they could not have committed the robbery
anytime in April, when the evidence established the robbery occurred on either April 4 or
April 15, and (3) by not finding them actually innocent. We examine the first argument
separately, but because the second and third arguments are related, we examine them
together.
1. Burden ofproof
Statutory interpretation is a question of law that this court reviews de novo.
Berger, 144 Wn.2d at 104-05. If the statute is plain and unambiguous, this court does not
engage in statutory interpretation. Id. at 105.
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No. 33179-2-111
Larson v. State
RCW 4.100.060 explicitly requires a claimant to prove the six statutory elements
by clear and convincing evidence. "Actually innocent," being synonymous with the fifth
WCPA element, is one of the statutory elements. We hold that RCW 4.100.060(1)(d)
requires a claimant to prove he or she was actually innocent by clear and convincing
evidence.
In its conclusions of law, the trial court resorted to the interpretations of "actually
innocent" in the context of personal restraint petitions and writs of habeas corpus. The
trial court noted, "The standard for establishing a freestanding claim of actual innocence
is 'extraordinary high' and ... the showing [for a successful claim] would have to be
'truly persuasive."' CP at425 (quotingHerrerav. Collins, 506 U.S. 390,417,113 S. Ct.
853, 122 L. Ed. 2d 203 (1993)). In concluding its analysis of whether the claimants
proved their actual innocence, the trial court stated, "While the [claimants'] evidence
certainly casts doubt on the State's case, they have not met their extraordinarily high and
truly persuasive standard required for a claim of actual innocence." CP at 430 (emphasis
added). Intermixed between these pages in the trial court's decision, the trial court
sometimes refers to the clear and convincing burden of proof. Nevertheless, we are
convinced the trial court required the claimants to meet the heightened burden of proof
requirement for personal restraint petitions and writs of habeas corpus. In doing so, the
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No. 33179-2-III
Larson v. State
trial court erred.
2. Application of correct standard ofproof to facts
The claimants argue the trial court erred in requiring them to prove actual
innocence by proving they could not have committed the robbery anytime in April 2008.
They argue the facts establish the robbery had to have occurred on either April 4 or
April 15. 16 They then contend the facts establish they could not have committed the
robbery on either of those two dates. 17 Thus, they argue, this court should direct a verdict
in their favor on the fifth WCP A element.
First, although we agree the evidence shows the robbery probably occurred on
April 15, this question is for the trier of fact. Second, the testimony is unclear if the
robbery occurred when it was getting dark or when it was completely dark. Third, Mr.
Dunham's recollection of a 30-minute delay between the robbery and when they divided
16
Specifically, Mr. Weskamp testified in the criminal trial he worked the day of
the evening when he was beaten, and missed work the following day. Examination of
Mr. Weskamp's time cards establish four days he missed work, but only two in which he
worked the prior day-April 4 or April 15.
17
Specifically, records establish it was not completely dark until 9: 14 p.m. on
April 4. Mr. Dunham testified they drove for 30 minutes after the robbery and before
returning to a house to split the stolen money. Assuming it would take five minutes to
divide the money and another five minutes for Mr. Larson to travel 2.5 miles from the
house to his work, the earliest Mr. Larson could have been to work was 9:54 p.m. But
Mr. Larson's time card shows he clocked in three minutes earlier, at 9:51 p.m. According
to the claimants, this three minute overlap establishes by clear and convincing evidence
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No. 33179-2-III
Larson v. State
the money at the house was possibly only a rough estimate.
If the time line was as certain as the claimants contend, we might be persuaded to
direct a verdict. But the facts are uncertain. We deem it proper for the trier of fact-the
trial court here-to determine whether the claimants have proved by clear and convincing
evidence they are actually innocent. We remand for this purpose.
CONCLUSION
We affirm the trial court's evidentiary ruling excluding the recorded statement.
We reverse the trial court's legal conclusion that "significant new exculpatory
information" must be evidence that was unavailable at trial. We also reverse the trial
court's legal conclusion that the claimants' evidentiary burden to prove actual innocence
is greater than clear and convincing. We remand this case to the trial court for it to make
a factual determination whether the claimants have proved by clear and convincing
evidence they are actually innocent.
Lawrence-Berrey, A.CJ.
j
WE CONCUR:
~,~·
Siddoway, J. Pennell, J.
they did not commit the robbery.
25