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State v. Armstrong

Supreme Court of Washington, En Banc

May 11, 2017


          MADSEN, J.

         In alternative means cases where substantial evidence supports both alternatives submitted to the jury, jury unanimity as to the means is not required. In this case, Dennis Armstrong asks us to reverse his felony domestic violence conviction for violating a court order because the trial court instructed the jury that it need not be unanimous as to which of the two means it relied on, so long as it was unanimous as to the conviction. Because this is a correct statement of the law, we find no error. Armstrong further contends that police violated his right to due process because they did not retrieve certain video surveillance tapes, but Armstrong has not shown the required bad faith. Thus, his due process claim fails. We affirm.


         A no-contact order existed prohibiting Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, Karavan learned that Armstrong was at a bus stop about a block away from where Karavan was staying. Because she had belongings that she wished to return to Armstrong, Karavan walked to the bus stop.

         As the two talked, Armstrong became angry; according to Karavan, Armstrong yelled and hit the glass wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist. After a brief struggle, Karavan ran to a nearby AMPM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words, Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

         Three officers responded to the 911 call. Officers Quindelia Martin and Albert Elliot went to the AMPM and interviewed Karavan. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face. Officer Milton Rodrigue located Armstrong a block or two away from the AMPM. After Officer Elliot arrived, he and Officer Rodrigue interviewed Armstrong. The patrol car's camera captured the audio of the interview.

         During the interview, Armstrong denied spending time inside the AMPM. In response, the officers told Armstrong that surveillance video from the AMPM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should "tell the truth" because they had the "whole thing on video." At trial, Hawkins testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AMPM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AMPM policy, the video had since been destroyed.

         At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodrigue testified that he never viewed the video. He simply followed Officer Elliot's lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AMPM because he did not know such video existed.

         The State charged Armstrong with a domestic violence felony violation of a court order. Clerk's Papers (CP) at 1; see also RCW 26.50.110. Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong's motions.

         Relevant to Armstrong's unanimity challenge, the court instructed the jury:

To convict the defendant of the crime of violation of a court order, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1)That on or about April 20, 2014, there existed a no-contact order applicable to the defendant;
(2)That the defendant knew of the existence of this order;
(3)That on or about said date, the defendant knowingly violated a provision of this order;
(a)the defendant's conduct was an assault or
(b)the defendant has twice been previously convicted for violating the provisions of a court order; and
(5)That the defendant's act occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (3) and (5), and either of the alternative elements (4)(a), or (4)(b), have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (4)(a), or (4)(b), has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of the five elements, then it will be your duty to return a verdict of not guilty.

CP at 28-29. Armstrong did not object to this instruction. During closing argument, the prosecutor further explained this instruction:

The fourth element is in the alternative. So maybe everybody got this right away, but what this means is that there is [sic] two ways to commit this crime. . . .
But the kind of secondary paragraph, the following paragraph that says, speaks about unanimity, so whether or not you have to be unanimous-that's a hard word to say-it's essentially instructing you that if six of you believe that: Hey look, we don't know if you've been twice previously convicted but we believe you assaulted her and six of you say: We think he's been twice previously convicted but we don't know if he assaulted her but we do believe he violated the no-contact order by going to her residence, then that's guilty. So you don't have to be unanimous as to which of the alternative means were present; you just have to be unanimous that all four of the elements have been satisfied.

         Verbatim Report of Proceedings (July 31, 2014) at 17-18. Armstrong did ...

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