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In re Petition of Ware

Court of Appeals of Washington, Division 2

June 26, 2018

In the Matter of the Petition of BARNES MICHAEL WARE to Convene a Grand Jury. In the Matter of the Application of ERIKA JOHNSON for a Citizen's Complaint.

          LEE, J.

         Following the Lewis County Prosecuting Attorney's Office's decision to not file charges in an animal abuse case, two private citizens separately sought to independently initiate criminal charges. In the first case, Erika Johnson filed a petition in district court, requesting authorization to file a citizen's complaint. After the district court denied Johnson's petition, Barnes Michael Ware filed a petition to summon a grand jury in superior court, based on the same set of facts underlying Johnson's petition. The superior court similarly denied Ware's petition. In these consolidated appeals, the appellants argue that the lower courts erred in finding that granting their petitions would unconstitutionally violate the separation of powers. Johnson also argues that the superior court, on review of the district court's decision, erred in finding that the prosecutorial standards did not warrant the filing of criminal charges through her petition.

         We hold that the district court did not abuse its discretion in denying Johnson's petition. We also hold that the superior court did not abuse its discretion in denying Ware's petition. Accordingly, we affirm the district court's dismissal of Johnson's petition for issuance of a citizen's complaint, and we affirm the superior court's dismissal of Ware's petition to summon a grand jury.


         A. The Incident

         On April 28, 2016, the Centralia Police Department responded to a report of animal abuse at a Centralia apartment complex. The reporting party, Samantha Riggen, told officers that her neighbors had tortured and killed her mother's cat by throwing a rock at the cat and stabbing the cat with a knife.

         Officer William D. Phipps of the Centralia Police Department arrived on scene and was met by a large group of residents from the apartment complex. Officer Phipps interviewed four witnesses to the incident-one adult and three children. The adult, Alicia Schroeder, told Officer Phipps that her daughter had come to her and told her that two men "were going to stab the cat." Clerk's Papers (CP) at 29. Schroeder then ran to the back of the apartment complex and saw a man she identified as Kyle Burke stab the cat in the neck and attempt to push the cat under a chain link fence.

         The three juvenile witnesses who witnessed the incident told Officer Phipps that Emily Miller, another juvenile who lived in the apartment complex, had squeezed the cat, refused to let go, and twice threw the cat up toward her mother, who was standing on a second floor balcony. The girls informed Officer Phipps that at some point Burke threw a rock at the cat. After the cat fell to the ground, the girls reported seeing Burke and a man identified as Richard Allshouse running toward the cat with a knife. According to the girls, the two men were arguing about who would get to kill the cat first. The girls told Officer Phipps that Burke stabbed the cat and then shoved its body under a fence.

         Based on this information, Officer Phipps determined that there was probable cause to arrest Burke for first degree animal cruelty. Officer Phipps placed Burke under arrest and had him transported to Lewis County Jail.

         Officer Phipps then went to the back of the apartment building and discovered that the cat's body had been removed from the fence and placed in a plastic garbage bag. Officer Phipps removed the cat's body from the bag and photographed its remains. Officer Phipps reported that "[t]he only injury to the cat appeared to be to its head due to bleeding from the mouth and ears," and "[b]ecause of the blood I could not tell if there was a stab wound in its ears or not." CP at 30.

         Officer Phipps filled out an incident report detailing the facts set out above. His report requested that this case be forwarded to the Lewis County Prosecuting Attorney's Office.

         B. Prosecutor's Office Declines to File Charges

         On April 29, the Lewis County Prosecuting Attorney's Office sent a letter to the Centralia Police Department, informing them that the prosecutor's office was declining to file charges in this case. In the letter, the prosecutor's office explained that Burke's "actions related to the animal's death are unclear, at best, and he denied even causing the death." CP at 62. The letter further explained that, "One account is that Mr. Burke stabbed the cat in the neck; however, when Officer Phipps examined the cat's body, he was not able to locate any stab wounds." CP at 62.

         The letter also stated that the prosecutor's office found the accounts of the three juvenile witnesses to be the most credible and unbiased. However, those witness accounts "related that another juvenile female caused the cat a substantial amount of suffering prior to Mr. Burke ever becoming involved." CP at 62. Specifically, the three juvenile witnesses stated that before Burke arrived on scene, "the cat had been brutally squeezed, had been thrown or dropped from a second story balcony at least twice, and had a stone dropped upon or thrown against its head." CP at 62. The prosecutor's office stated that given these facts, it did not believe it would be possible to prove to a jury beyond a reasonable doubt that Burke committed first degree animal cruelty.

         The prosecutor's office also cited the evidentiary issues in the case; namely, that the cat's body was not collected at the scene. Without the body, the prosecutor's office would be unable to show how the cat died. The letter explained that any effort to recover the cat's body at this point in the investigation would be fruitless because the cat's body could have been tampered with since the incident occurred.

         The letter concluded, "What happened to this animal was deplorable, inhumane, and without justification. Nevertheless, I cannot charge Mr. Burke with causing these harms without solid evidence that he is the individual who caused them." CP at 63.

         C. Subsequent Involvement of Private Parties

         1. Barnes Michael Ware

         Barnes Michael Ware is a retired police officer. His wife, Mary Ware, [1] followed the incident involving the cat on Lewis County Sirens.[2] When Mary discovered that the cat's body had not been taken into evidence, she offered to take the cat and have him cremated.

         On April 29, Ware and Mary went to the apartment complex to retrieve the cat's body. There, the two discovered that the cat's body had already been removed from the trash and placed into a garbage bag inside a cardboard box.[3] Neither opened the box, but Ware had Schroeder initial and date the box to show when he took charge of the box. Ware and Mary returned to their residence and placed the box inside a spare refrigerator in their garage.

         The next day, Ware met with Erika Johnson of Thurston County Animal Services at an animal hospital in Olympia. Ware signed and dated the box when he released it into Johnson's custody.

         2. Erika Johnson

         Johnson is a former police officer and deputy sheriff in the State of Oregon. At the time of this incident, Johnson worked as an animal services officer with Thurston County.

         After Ware gave Johnson the box containing the cat's body, Johnson took the box and turned it over to an animal hospital to conduct a necropsy.[4] The report following necropsy stated, "To summarize the injuries, the cat suffered severe head and neck trauma. The exact cause of death is either skull fracture, penetrating brain trauma, cervical spinal fracture or possibly choking, due to the deep contusions and hemorr[h]age within the wall of the trachea and cervical deep tissues." CP at 33.

         On June 28, Johnson met with the prosecutor's office and the Centralia Police Chief. The purpose of the meeting was to discuss the prior charging decision in the case. At the meeting, the prosecutor's office told Johnson that it did not believe there was sufficient evidence to prove Burke's intent. The prosecutor's office also informed Johnson that it had referred Miller to the Juvenile Division. The prosecutor's office reiterated that it would not be filing charges in this case.

         3. Animal Legal Defense Fund

         On November 22, the Animal Legal Defense Fund (ALDF)[5] sent a letter to the prosecutor's office, urging the prosecutor's office to bring charges against Burke. In the letter, the ALDF outlined charging theories that it believed the prosecutor's office could pursue. The letter then explained how the necropsy report supported those charging theories.

         The prosecutor's office responded to the letter, explaining that it had again reviewed the results of the necropsy, but was still declining to file charges. The prosecutor's office explained that "[n]othing in the report leads to any reliable, admissible evidence that Mr. Burke's actions constitute a crime beyond a reasonable doubt. What he did is, frankly, horrific. However, the report itself cannot pinpoint, with certainty, what caused the death in this case." CP at 70.

         The prosecutor's office informed the ALDF that it takes animal cruelty cases very seriously, but also "must be mindful of the admissible evidence, the mandates imposed by statutes and the burden of proof." CP at 70. The prosecutor's office reiterated that it was declining to file charges in this case.

         D. Private Citizen Petitions

         1. Johnson's Petition

         a. Filing in District Court

         On December 20, Johnson filed a petition for issuance of a citizen's complaint under CrRLJ 2.1 (c). Under CrRLJ 2.1(c):

Any person wishing to institute a criminal action alleging a misdemeanor or gross misdemeanor shall appear before a judge empowered to commit persons charged with offenses against the State, other than a judge pro tem.
. . . .
In addition to probable cause, the court may consider:
(1) Whether an unsuccessful prosecution will subject the State to costs or damage claims under RCW 9A.16.110, or other civil proceedings;
(2) Whether the complainant has adequate recourse under laws governing small claims suits, anti-harassment petitions or other civil actions;
(3) Whether a criminal investigation is pending;
(4) Whether other criminal charges could be disrupted by allowing the citizen ...

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