Appeal from Superior Court of Mason County. Docket No: 95-1-00038-0. Date filed: 06/29/95. Judge signing: Hon. James B. Sawyer II.
Authored by David H. Armstrong. Concurring: J. Dean Morgan, Carroll C. Bridgewater.
The opinion of the court was delivered by: Armstrong
ARMSTRONG, J. -- Charles Perrett was arrested for second degree assault with a deadly weapon after he pointed a shotgun at a tenant. He was released on electronic home monitoring 39 days after his arraignment. His trial started 85 days after arraignment and concluded with a jury conviction. Perrett appeals, claiming the trial court erred by (1) denying his motion to dismiss for violation of the 60-day speedy trial rule; (2) not suppressing his statement to a deputy regarding the last time the sheriff confiscated his guns; (3) suppressing evidence of a witness' shoplifting conviction; (4) suppressing the testimony of a witness who heard the two tenants negotiate with Perrett's son about staying on the property after Perrett's arrest; (5) denying his motion for mistrial after a deputy testified that Perrett "had nothing to say" after being read his rights; (6) failing to give his proposed self-defense instruction; and (7) refusing to answer the jury's questions concerning self-defense and assault with a deadly weapon. Holding that electronic home monitoring is not "jail" time for purposes of the 60-day speedy trial rule, but that accumulated trial errors denied Perrett a fair trial, we reverse and remand for a new trial.
Sixty-three-year-old Charles Perrett lived in rural Tahuya, Washington. In January 1995, 35-year-old Brenda Sue Gray and 39-year-old Greg Johnston rented the lower level of Perrett's house.
In early February 1995, Gray and Johnston purchased a truck from Perrett. As part of the transaction, the parties agreed that Perrett could occasionally use the truck. On the morning of February 9, 1995, Gray and Johnston noticed the truck was gone. Johnston assumed that the truck had been stolen and called the police.
Unknown to Gray and Johnston, Perrett had driven the truck to the home of neighbors, Laura Longan and Michael Almasi. Johnston eventually found the truck and started removing equipment from it. Perrett came out of the neighbors' house and a dispute broke out; it ended with Johnston's driving the truck back to Perrett's house.
Later that afternoon, Gray, Johnston, and Perrett were sitting at a desk in Perrett's house, arguing about the truck. At some point, they all stood up and Perrett retrieved a shotgun near his bed and demanded that the two leave.
According to Gray and Johnston, Perrett put his finger on the trigger and pointed the gun at Johnston's stomach. Johnston said the barrel of the gun touched his jacket. Gray and Johnston said they were scared. They believed the gun was loaded because Perrett had previously told them that all the guns in the house were loaded. Johnston denied making any threatening gestures.
Perrett testified that he believed Johnston had been drinking and was losing his temper. Perrett felt threatened and insisted that they leave, but they would not. After they all stood up, Gray yelled at him and Johnston, standing two or three feet away, clenched his fists and leaned towards him. Perrett got his shotgun because he thought Johnston "was going to get violent with me." *fn1 Perrett denied pointing the gun at Johnston, claiming he kept the barrel in the air the whole time.
Gray and Johnston immediately left the house and called the police. Responding to the call, deputies James Barrett and Kenneth Potts arrested Perrett and advised him of his Miranda rights. Deputy Barrett then asked Perrett if he could get the shotgun that Perrett had used earlier. The deputy testified that Perrett refused because "the last time the sheriffs took his guns, he didn't get them back." *fn2
On February 13, 1995, Perrett was arraigned on a charge of assault in the second degree with a deadly weapon. *fn3 RCW 9A.36.021(1)(c). His bail was set at $15,000. He remained in jail until March 24, when the court released him on electronic home monitoring (EHM).
The March 24 order required the court's written approval before Perrett could leave Mason and Kitsap counties. But Perrett was permitted to leave his home for drug abuse treatments and to visit his attorney and probation officer. On these trips, he was allowed to grocery shop and run personal errands.
The trial was originally scheduled for April 10, 57 days after arraignment. For reasons not clear, that date was stricken, and on April 17, over Perrett's objection, the trial was set for May 8, 85 days after arraignment. The court denied Perrett's motion to dismiss for violation of the speedy trial rule, concluding that Perrett was subject to the 90-day rule under CrR 3.3(c)(1) because he was not in "jail" while on EHM.
Before trial, Perrett moved to exclude his statement to Deputy Barrett that the last time they confiscated his guns they did not return them. He also unsuccessfully attempted to introduce the following evidence: (1) Gray's Arizona conviction for shoplifting (revealed during her interview with the prosecutor and defense counsel); and (2) testimony of Perrett's caretaker that she heard Gray and Johnston negotiate with Perrett's son in an attempt to stay on Perrett's property.
During the trial, the court denied Perrett's motion for mistrial after Deputy Potts testified that, after he read Perrett his rights, Perrett "had nothing to say." The court also refused to give Perrett's proposed instruction on self-defense. Thereafter, the jury found Perrett guilty.