No. 22610-7-IIIThe Court of Appeals of Washington, Division Three.
Filed: April 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Douglas County. Docket No. 03-1-00073-0. Judgment or order under review. Date filed: 12/03/2003. Judge signing: Hon. John Hotchkiss.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Eric C. Biggar, Douglas County Prosecutors Office, PO Box 360, Waterville, WA 98858-0360.
SCHULTHEIS, J.
Police officers executing a search warrant found four propane tanks in the trunk of Scott Taylor’s car. After a test indicated that one of the tanks held anhydrous ammonia, a hazardous substance, the four tanks were destroyed. On appeal of his conviction for unlawful storage of anhydrous ammonia (RCW 69.55.020), Mr. Taylor contends the State’s failure to preserve the tanks or a sample of the anhydrous ammonia denied him due process. He also challenges the sufficiency of the evidence to support his conviction. Although we find that the destruction of the tanks did not violate Mr. Taylor’s constitutional rights, we vacate the judgment and remand to the trial court for entry of findings of fact and conclusions of law.
Facts
On April 1, 2003, Coulee City chief of police Leonard Geer was contacted by Ray Bechtol, a fertilizer salesman. Mr. Bechtol told Chief Geer that a suspicious turquoise car was `cruising’ around one of his company’s large storage tanks of anhydrous ammonia in Douglas County.[1] Clerk’s Papers (CP) at 156. After contacting Chief Geer, Mr. Bechtol drove to the storage tank to investigate. He found the described vehicle parked inside the storage tank’s fence, and saw a man filling a propane tank from the storage tank’s contents. Mr. Bechtol tried to close the fence gate in order to trap the car inside. However, the man put the propane tank in the trunk of his car, rammed the gate, and escaped. Mr. Bechtol followed in his car.
Meanwhile, Chief Geer drove to the storage tank, saw the damaged gate, contacted Mr. Bechtol, and rushed to catch up with the vehicles. After a high speed chase, Chief Geer eventually stopped and arrested Mr. Taylor, the driver of the turquoise car. Mr. Taylor was given his Miranda[2] warnings. Douglas County sheriff’s deputy Dean Schlaman then arrived and took custody of Mr. Taylor, who admitted to Deputy Schlaman that he had four propane tanks — one partially filled with anhydrous ammonia — in the trunk of his car. Mr. Taylor explained that he had intended to fill the tanks with anhydrous ammonia and to trade them for information on manufacturing methamphetamine. When Mr. Taylor complained that he had gotten anhydrous ammonia on his face, the deputy offered to take him to the hospital, but Mr. Taylor declined the offer and the deputy provided him water to wash off.
Deputy Schlaman prepared an affidavit for a search warrant for Mr. Taylor’s car. The affidavit also requested an order of disposal for the hazardous chemicals and their containers found in the search. In the search warrant issued, the page containing the order of disposal obviously left out language. Without preamble, the page begins as follows: chemicals, chemical residue or contaminated material found as a result of the execution of a search warrant issued by the Douglas County District Court.
That the destruction of the hazardous or toxic chemicals, their chemical residues or contaminated material is necessary to preserve the public health and welfare now, therefore:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the chemicals, chemical residue or contaminated materials seized pursuant this search warrant issued by the Douglas County District Court Judge Judith McCauley, on the 2nd day of April, 2003. The chemicals shall be preserved by sampling and/or by photographs and the balance should be and is hereby ordered destroyed by appropriate means.
CP at 21.
During execution of the search warrant, four propane tanks were found in the trunk of Mr. Taylor’s car. Deputy Schlaman smelled ammonia when he opened the trunk and he saw that the brass valve on at least one of the tanks was turning purplish-blue from corrosion due to contact with the gas. Concerned with the possibility that the tanks could explode, Deputy Schlaman ran a `dragger pump’ test of the air around the valve. CP at 83. This hand-operated pump draws vapors through a glass vial containing a chemical that changes color if a certain gas is present. The vial turned blue, indicating anhydrous ammonia was in the air around the propane tank’s valve. After photographing the blue vial, Deputy Schlaman gave the tanks to another officer, who took them to a field and shot holes in them to ventilate the contents. The shooting of the tanks was videotaped and showed clouds of vapor ventilating from the tanks. One tank contained a substantial amount of chemical, another contained a small amount, and two were empty. Because the tanks were still somewhat contaminated, they were then thrown in a dumpster and discarded.
Mr. Taylor was charged by amended information with unlawful possession of a controlled substance (anhydrous ammonia) with intent to manufacture methamphetamine (RCW 69.50.440), second degree malicious mischief (RCW 9A.48.080), theft of anhydrous ammonia (RCW 69.55.010), and unlawful storage of anhydrous ammonia (RCW 69.55.020). Following a CrR 3.5 hearing on the admission of his statements to Deputy Schlaman, the court concluded that the statements were made freely after Mr. Taylor was advised of his rights. Mr. Taylor then moved to dismiss because potentially inculpatory evidence was destroyed by the State. This motion was denied by a court commissioner, whose decision was affirmed by the superior court.
At a bench trial on stipulated facts held on December 3, 2003, the State dismissed all charges except for the unlawful storage of anhydrous ammonia. After reviewing the transcript of the CrR 3.5 hearing, the October 8, 2003 letter ruling by the court commissioner, and a report from Eastern State Hospital, the court found Mr. Taylor guilty of the charge and sentenced him to 60 months of incarceration. The court did not enter findings and conclusions.
State Destruction of Evidence
Mr. Taylor first contends the State denied him due process of law by destroying the propane tanks. He argues that because no samples of the substance contained in the tanks were taken and the tanks themselves were not preserved, he was unable to conduct tests that might disprove the presence of anhydrous ammonia. The trial court denied Mr. Taylor’s motion to dismiss that was based on failure to preserve the evidence. We review the trial court’s decision for abuse of discretion. State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003).
Due process under the state and federal constitutions requires fundamental fairness and the opportunity to present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994). To comport with due process, the State must preserve material exculpatory evidence. Id. at 475; State v. Potts, 93 Wn. App. 82, 89, 969 P.2d 494 (1998). `To be material and exculpatory, the evidence’s exculpatory value must have been apparent before it was destroyed and must be of such a nature that comparable evidence could not be reasonably obtained.’ Potts, 93 Wn. App. at 89 (citing Wittenbarger, 124 Wn.2d at 475). If the evidence’s exculpatory value is not immediately apparent and is only potentially useful to the defense, the State’s failure to preserve will not constitute a denial of due process unless the defendant can show bad faith on the part of the State. State v. Smith, 130 Wn.2d 215, 225, 922 P.2d 811 (1996); Wittenbarger, 124 Wn.2d at 477.
Here, the evidence destroyed was neither materially exculpatory nor potentially useful to the defense. Mr. Taylor had already admitted that the tanks contained anhydrous ammonia,[3] Mr. Bechtol had observed Mr. Taylor apparently putting anhydrous ammonia into one of the tanks, and Deputy Schlaman testified he smelled ammonia in the trunk where the tanks were found. Additionally, photographs of the tanks showed the corrosion on the brass valves and the blue-colored vial of the dragger pump test that indicated anhydrous ammonia was seeping through the valves. In light of this evidence, a reasonable person would not have concluded that the tanks were exculpatory.
Even if potentially useful to the defense, Mr. Taylor cannot show that the State’s destruction of the tanks was in bad faith. He argues that the officers violated the destruct order contained in the search warrant. However, the order was obviously flawed due to a scrivener’s error. It is not clear what the officers were directed to do, other than to preserve the chemicals `by sampling and/or by photographs.’ CP at 21. Read in its entirety, the order authorizes destruction of the `chemicals, chemical residue or contaminated materials . . . by appropriate means.’[4] CP at 21. Deputy Schlaman testified that the crime lab would not accept anhydrous ammonia for testing. Consequently, the standard practice, consistent with the deputy’s training, was to don protective gear, run a dragger pump test, photograph the results, and then destroy the contaminated containers by venting them (with firearms) and disposing of them. An officer’s compliance with a standard policy is evidence of good faith. Potts, 93 Wn. App. at 89 (citing Wittenbarger, 124 Wn.2d at 477-78).
Under these circumstances, destruction of the tanks without preservation of a sample of the anhydrous ammonia was not a violation of due process. The trial court did not abuse its discretion in denying Mr. Taylor’s motion to dismiss.
Sufficiency of the Evidence
Mr. Taylor next challenges the sufficiency of the evidence to support his conviction, citing the lack of competent evidence to prove that the destroyed tanks contained anhydrous ammonia. It appears clear that Mr. Taylor’s incriminating statements as well as the testimony of Deputy Schlaman and Mr. Bechtol are more than sufficient to support beyond reasonable doubt the elements of unlawful storage of anhydrous ammonia.[5] However, this court is prevented from reaching the merits of Mr. Taylor’s challenge because the trial court never entered findings of fact and conclusions of law.
CrR 6.1(d) requires the trial court to enter findings of fact and conclusions of law following a bench trial. The purpose of this requirement is to enable review of the questions raised on appeal. State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187
(1998). Although we may apply a harmless error standard to findings of fact and conclusions of law that contain errors, State v. Banks, 149 Wn.2d 38, 43-46, 65 P.3d 1198 (2003), when the trial court completely fails to enter findings and conclusions after a bench trial, the only remedy is remand for entry of the same, as required by CrR 6.1(d). Head, 136 Wn.2d at 624. The fact that the trial court’s decision here was based on stipulated facts does not ameliorate the error. In Head, the trial court had made an oral ruling that was the basis for the final judgment. Even so, the Supreme Court held that the oral ruling did not adequately identify the evidence relied upon to support each separate element of each count. Id. at 623. The findings and conclusions should address each element separately, set out the factual basis for each conclusion of law, and specifically state that an element has been met. Banks, 149 Wn.2d at 43. Without those findings and conclusions, the appellate court has nothing to review. Head, 136 Wn.2d at 622.
Because the trial court did not enter findings of fact and conclusions of law following Mr. Taylor’s bench trial on stipulated facts, his judgment and sentence must be vacated and his case remanded for entry of findings and conclusions pursuant to CrR 6.1(d). Id. at 625-26. The judgment based on these findings and conclusions may be appealed `as in the usual course of things.’ Id.
Judgment vacated and remanded for entry of findings of fact and conclusions of law.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., Concur.