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IN THE DISTRICT COURT FOR THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
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In the matter of: STATE OF WASHINGTON, Plaintiff, No. C-534232
v. FORREST BISHOP, Defendant.
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HEARING February 11, 2005
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[Redacted Transcript of Proceedings]
THE COURT: Okay, you ready to proceed, State?
MR. SANTOS: State is ready to proceed.
THE COURT: Okay. Mr. Bishop, just so we have the record correct, I'll take you being here as still your standing objection to this Court having jurisdiction. Okay? So that's a standing objection still continuing.
MR. BISHOP: We are not here again, sir.
THE COURT: Okay, yeah, I understand. Remember I -- okay, so on everything, you know, understand. So I'm reiterating that standing objection and preserving it for you in the record. Okay? You ready to proceed then with trial?
MR. BISHOP: No, sir.
THE COURT: Why?
MR. BISHOP: I have a motion to suppress evidence.
THE COURT: Okay.
MR. BISHOP: Have you reviewed this?
THE COURT: No.
MR. BISHOP: Oh.
THE COURT: What's your suppression motion based on?
MR. BISHOP: Okay. It's based on U.S. v. Colin.
THE COURT: Okay. What is it you want to suppress?
MR. BISHOP: All the evidence.
THE COURT: Okay.
MR. BISHOP: For lack of probable cause to initiate arrest.
THE COURT: Okay. Okay. That's what I needed to understand the probable cause. Okay. So we'll -- I'll tell you what, this is on for trial also but I understand you have a motion for probable cause, okay? I'm going to blend it in with the testimony of the trial. If there is insufficient probable cause given the testimony then I'll grant your motion.
MR. BISHOP: Sir, you did stipulate January 5th to hear motions ahead of trial.
THE COURT: Okay, here we are. I'm listening. You've got motion for PC, okay.
MR. BISHOP: It's been filed.
THE COURT: Okay. So I'm telling you, yeah, I'm going to listen to the motion. Understand I've got to give the State an opportunity to present evidence with regards to your motion that they satisfy your challenge to the probable cause then hey, okay. So, okay, I'm going to fold it in with the trial. All right. Any other motions?
MR. BISHOP: Yeah, I move to vacate the trial date.
THE COURT: Why?
MR. BISHOP: Because I want to file this motion and have a motion hearing on it.
THE COURT: We are going to have a motion hearing. You said you've already filed it. As I understand it, it is a motion to suppress for lack of probable cause. Okay.Any other motions?
MR. BISHOP: Notice of concurrent motions because I wanted -- there are several other motions that I obviously can't file right here and already right here today.
THE COURT: Okay. Why? Why didn't you file them earlier?
MR. BISHOP: Because it takes a long time to prepare these things.
THE COURT: Well, you knew what the trial date was. You didn't ask for a continuance at that time. State's ready to go.
MR. BISHOP: I'm asking you to vacate the trial date, not continue it.
THE COURT: Understand.
MR. BISHOP: Until these motions are heard.
THE COURT: No. Denied. You knew this was the trial date. You had ample opportunity to submit your motions prior to today's date. I'm assuming State's ready to proceed with witness?
MR. SANTOS: Yes, Your Honor.
THE COURT: They got the witness here.
MR. BISHOP: What witness?
THE COURT: The witness that they're calling to prove their case against you, sir.
MR. BISHOP: I wasn't told anything about a witness.
THE COURT: Did you ask for a discovery.
MR. BISHOP: Yes, sir, I did.
THE COURT: Okay. In what form or fashion did you do that?
MR. BISHOP: I did it on January 5th.
THE COURT: And did you serve the prosecuting attorney's office with that?
MR. BISHOP: I asked him here in open court if I could see all inculpatory as well as exculpatory evidence.
THE COURT: Okay. They said, yeah. They turned it over to you.
MR. BISHOP: They indicated that I had.
THE COURT: Huh?
MR. BISHOP: He indicated that I had.
THE COURT: Okay.
MR. BISHOP: The fact of the matter, sir, is I haven't received any evidence from Mr. Santos at all.
THE COURT: Did you turn over the discovery?
MR. SANTOS: Your Honor, I believe the Court made a finding that he did submit a bill of particulars and that all evidence that was going to be relied upon in trial was already handed over in the form of the discovery packet which included the complaint, the police report.
THE COURT: Okay.
MR. BISHOP: Sir, what Mr. -- because -- realize you're the fourth judge, this is the sixth hearing, this is actually the second prosecutor.
THE COURT: Okay, so?
MR. BISHOP: The point of that is the first two hearings were a different prosecutor and I had an attorney. The point of that is --
THE COURT: Okay.
MR. BISHOP: -- the attorney received evidence, discovery. Okay?
THE COURT: If I understand correctly you got -- you got the packet.
MR. BISHOP: No, sir.
THE COURT: You don't have a police report?
MR. BISHOP: No, sir.
THE COURT: You never had that?
MR. BISHOP: It has not -- I have not received it from the attorney because the attorney was barred by court order from delivering it unto me.
THE COURT: Who did that?
MR. BISHOP: Judge Chapman. This transcript, the hearing of October 21st.
THE COURT: Okay, I'll take a look at that. I mean, you know, if you're telling me. Do you know anything about this, State?
MR. SANTOS: No, Your Honor. My understanding --
MR. BISHOP: This was the hearing before, sorry. That's the hearing before Mr. Santos came on.
THE COURT: Okay.
MR. SANTOS: My documentation (Inaudible) don't say that discovery was indeed delivered to Mr. Bishop. Now, whether or not that was sent to his counsel at the time --
THE COURT: That's okay.
MR. BISHOP: It was sent to my counsel.
THE COURT: All right. Was it your counsel at the time?
MR. BISHOP: The court said yes.
THE COURT: Okay.
MR. BISHOP: I fired him at this October 21st hearing and I said --
THE COURT: I'm sorry. What was the date?
MR. BISHOP: October 21, 2004.
THE COURT: October 21, okay.
MR. BISHOP: Page 9, line 5:
"MR. BISHOP: Am I supposed to get the file," meaning discovery.
"MR. SCHULMAN:" Mr. Sureman, my ex-attorney, "I can give you discovery, what I have, and I'll do that."
"THE COURT: He's not entitled to discovery until I let him proceed pro se. So if you want to provide discovery at that time. Okay? Before I allow you the right to waive your rights to an attorney I would suggest you come back in 30 days and we'll come back and see about how you want to proceed with this and I recommend you hire an attorney."
THE COURT: Okay.
MR. BISHOP: So I never actually received discovery from my ex-attorney.
THE COURT: Okay.
MR. BISHOP: By order of the court.
THE COURT: So at some point you were allowed to represent yourself; correct?
MR. BISHOP: Not by Mr. Schulman. No, I'm not representing myself.
THE COURT: Well, do you have an attorney?
MR. BISHOP: No.
THE COURT: Then you're the only one here.
MR. BISHOP: But I am myself, I'm not representing myself.
THE COURT: Okay.
MR. BISHOP: And I specifically deny that in the affidavit --
THE COURT: Understand. We have that ongoing in terms of jurisdiction but that --
MR. BISHOP: No, this is -- I'm sorry, sir, excuse me for interrupting. This is the affidavit document No. 10-30 affidavit of denial of pro se status. I am representing myself.
THE COURT: Okay. All right. Okay. So --
MR. SANTOS: I have to interject, Your Honor.
THE COURT: Sure.
MR. SANTOS: I do see here that Mr. Bishop has quoted parts of the report -- police report in his motion and so I don't know whether --
THE COURT: Okay. How were you able to quote part of that if what they're saying is true?
MR. BISHOP: I have not received it --
THE COURT: Do you have it?
MR. BISHOP: -- from the attorney.
THE COURT: Do you have it?
MR. BISHOP: I have a copy which may be a copy of it; I don't know.
THE COURT: Okay. All right. Motion denied.
MR. BISHOP: I don't know. I also don't know what other discovery, for example --
THE COURT: Okay. I don't know either.
MR. BISHOP: I don't know what the State has because I received nothing.
THE COURT: I don't know either.
MR. BISHOP: I received a copy of a copy of something.
THE COURT: Okay.
MR. BISHOP: Period. They have nothing more.
THE COURT: Okay, you got any other offer of proof of why you should get anything more, other than you don't think you don't have it all?
MR. BISHOP: I think the Court should rescind its order barring me from receiving it from the attorney so I can get the rest of discovery.
THE COURT: Okay. As I understand it your concern is not receiving it directly from the prosecuting attorney.
MR. BISHOP: Correct.
THE COURT: Is that correct?
MR. BISHOP: It's --
THE COURT: But you do have it in hand; is that correct?
MR. BISHOP: I don't know what I have. Actually, I don't. I don't have it.
THE COURT: Okay, well, let's pursue that a little bit.
MR. BISHOP: I don't know what I have.
THE COURT: Let me see what you have in order to have based your motion quoting certain reports.
MR. BISHOP: Um-hum.
THE COURT: So what is your understanding of what you base that information in which to base your motions? Did you have reports?
MR. BISHOP: I had a copy of a copy of something.
THE COURT: Okay, so you have a police report; is that correct?
MR. BISHOP: I don't know.
THE COURT: Then why did you use that to base your motions on?
MR. BISHOP: Because it had the appearance.
THE COURT: Okay. If that's good enough for you to have the appearance to base a motion, it's good enough for me.
MR. BISHOP: Well, if it is indeed the statement, which again I'm not sure.
THE COURT: Well, that's why you go do an investigation and that's why you have time to do that before this trial time. So, I understand what you're saying; disagree with it. I'm ruling and overruling your motion or I'm not granting -- denying your motion. Okay, you ready to proceed? Any other motions?
MR. BISHOP: Yeah, I move to dismiss.
THE COURT: Okay.
MR. BISHOP: Sir, if I -- excuse me, I'm sorry.
THE COURT: You're making another motion. I need to understand the basis of which of this new motion.
MR. BISHOP: The basis of a Ninth Circuit decision that's identical to this case, actually even worse.
THE COURT: Okay. What is the basis of your motion? What it is that you're trying to suppress?
MR. BISHOP: All the evidence because it was an illegal traffic stop.
THE COURT: Okay. That's the probable cause issue again; correct?
MR. BISHOP: Right.
THE COURT: I told you I'm going to take that in with the trial -- prior to the trial. Any other motions?
MR. BISHOP: Yeah, I demand a jury trial.
THE COURT: You already waived that.
MR. BISHOP: Under duress. And sir --
THE COURT: Okay, what was the duress?
MR. BISHOP: Well, there was an armed sheriff standing in the door. I guess he's not here today.
THE COURT: Okay, yeah?
MR. BISHOP: I'm here under threat.
THE COURT: Okay.
MR. BISHOP: Physically.
THE COURT: Is that the duress that you're speaking of?
MR. BISHOP: Yes, sir.
THE COURT: Okay, that's denied.
MR. BISHOP: You are denying me my own psychological condition?
THE COURT: No, I'm denying you your motion to reinstate a jury based upon being under duress. All right?
MR. BISHOP: The reason -- if you may recall on January 5th the reason I waived that is because you, sir, told me that you can overrule a jury.
THE COURT: Yeah, I can.
MR. BISHOP: And I spent quite a bit of time digging through statutes and procedures and court rules and yada, yada, yada. I cannot find this.
THE COURT: Okay. I understand you can't find it but I'm telling you I can.
MR. BISHOP: Do you know the rule? Where would I find it?
THE COURT: I'm not going to tell you. You can go look it up yourself. All I'm telling you: I ruled on it, you made a decision, I asked you about it. Okay, we're beyond that now. Any other motions?
MR. BISHOP: No, sir.
THE COURT: Okay. You ready to proceed then? Okay. Call your first witness, State.
[Cop testimony redacted]
THE COURT: Mr. Bishop, it's your opportunity if you want to, don't have to, to ask this witness of any questions.
MR. BISHOP: The surprise witness?
THE COURT: This witness of any question. Do you have any questions?
[Cross examination redacted]
THE COURT: Okay, they're done. That's all they have. Okay? You have the opportunity at this point in time to present your case, okay? It's up to you and whether or not you want to present anything or just say you rest. You can take the stand but understand that once you take the stand anything you say could be used against you, it does give them on opportunity to cross-examine you on things that you cover. Do you understand that, Mr. Bishop? Okay.
MR. BISHOP: Yes, sir.
THE COURT: Knowing that, how do you wish to proceed with your side of the case?
MR. BISHOP: I move to dismiss.
THE COURT: At this time?
MR. BISHOP: Can I move to dismiss?
THE COURT: Yeah, you can. Okay. So that's a motion before you present your case or are you resting and want to move to dismiss?
MR. BISHOP: I want to make it before I present my case.
THE COURT: You're moving to dismiss?
MR. BISHOP: Yes, sir.
THE COURT: Okay. Let me handle that motion at this point in time. Moving to dismiss prior to.
MR. SANTOS: What's the basis of the motion?
THE COURT: Insufficient evidence.
MR. BISHOP: Of probable cause.
THE COURT: And the probable cause. Okay, I'll fold that in now. I'll take that as a probable cause asking the Court -- well, if you want me to do the probable cause issue, okay, I need to find out from you whether or not you want to present anything on the probable cause issue, because you're kind of separating it out. Do you see what I'm saying?
MR. BISHOP: In the way of testimony?
THE COURT: Yeah.
MR. BISHOP: Okay.
THE COURT: Do you want to or not want to?
MR. BISHOP: Sure.
THE COURT: Okay, so just for the probable cause or are you getting on for probable cause and the trial itself? I want to make a distinction here because I understand the distinctions, you may not.
MR. BISHOP: Yeah.
THE COURT: So I'm explaining what the -- what the Court has done is I've taken all of the State's testimony, both for the probable cause and for the trial of whether or not you are guilty or not guilty of the charge. Okay? We're at this point now -- and I need to understand what you want, Mr. Bishop, from your perspective. Are you moving to dismiss, and if you are, is it on everything or is it just on the probable cause?
MR. BISHOP: Or the traffic stop. Yes, sir.
THE COURT: For the PC, okay probable cause. Now, if that is the case, they have rested and I'm just starting to compartmentalize things so you understand because your motion to dismiss at this point is just on the probable cause issue. They have rested on presenting whatever testimony or evidence they want with regards to the stop. Okay? Then you still have your opportunity to present, if you want to, things concerning the stop.
MR. BISHOP: Okay.
THE COURT: Okay? So I'm separating. Do you want to present anything on the stop? And you don't have to but you can.
MR. BISHOP: In the way of evidence testimony?
THE COURT: Yeah, yeah.
MR. BISHOP: Sure.
THE COURT: Okay. You need to understand and I'm advising you, that when you take the stand for just that preliminary motion purpose, okay, it can be used against you for impeachment purposes for the full trial of whether you're guilty or not guilty of the -- for the crime alleged. Do you understand that?
MR. BISHOP: Yes, sir.
THE COURT: Okay. Knowing that, do you still wish to take the stand for probable cause?
MR. BISHOP: Sure.
THE COURT: Okay. Just so we're all clear, this testimony at this point in time is only for the subject matter of a pretrial motion of probable cause.
[testimony redacted]
MR. SANTOS: Okay. That's all I have, Your Honor.
THE COURT: Okay. Anything further on the probable cause, Mr. Bishop?
MR. BISHOP: No, sir.
THE COURT: Okay. You may stand down and then we'll talk about the probable cause issue. Is there not a case that there's got to be more than just within the lane?
MR. SANTOS: There's U.S. v. Colin, Your Honor.
THE COURT: Uh-huh.
MR. SANTOS: And the State would argue here two things: One is that the Washington State Supreme Court has not come down on this issue. This is a Ninth Circuit case; however, Washington Supreme Court hasn't had a case on point.
THE COURT: Okay. Let's assume I take your position on that, which means, okay, it's enough to go to the next step. Now, this is a PC.
MR. SANTOS: Right.
THE COURT: Okay. So got no -- got no fumbling, got no slurring of speech.
MR. SANTOS: Well, going back to the stop though, Your Honor.
THE COURT: Yeah.
MR. SANTOS: The infraction that Trooper Zimmer was stopping him for was unsafe lane travel.
THE COURT: Is there such a creature?
MR. SANTOS: Yes.
THE COURT: No, there's unsafe lane change. Tell me where there is an unsafe lane travel.
MR. SANTOS: I'm sorry, I don't have my book in front of me but it's based on his lane travel here.
THE COURT: I understand there were concerns about the lane travel.
MR. SANTOS: Correct.
THE COURT: But you said, based upon the infraction of the lane travel.
MR. SANTOS: I don't have the citation. (Inaudible)
THE COURT: That's what I need because, okay, there's -- if there was an infraction what was that infraction to then go to the next step?
MR. BISHOP: Your Honor --
THE COURT: Wait, it ain't there yet. So that's what I'm looking for. He didn't cross over, it's not alleged that he crossed over into another lane to perhaps be an unsafe lane change.
MR. SANTOS: I can't tell you exactly the RCW at this moment.
THE COURT: Okay.
MR. SANTOS: But, basically lawful lane travel would be to remain as practicable as possible within your lane.
THE COURT: Okay.
MR. SANTOS: Here the trooper did observe the defendant from fairly close distance in the same lane touch and drive over the lane --
MR. BISHOP: Objection.
THE COURT: You'll have your chance, you'll have your chance.
MR. BISHOP: He's testifying.
THE COURT: No. This is argument going on right now, Mr. Bishop. Okay? He's just reiterating what was testified to. All right? You know, if there was no testimony involved to what he is arguing or what you are arguing the Court disregards the argument at all. Okay? Just so you understand. All right.
MR. SANTOS: So okay, the trooper did testify to the defendant's tires driving on top of the lane divider --
THE COURT: Yep.
MR. SANTOS: -- lines.
THE COURT: Yes, I recall that.
MR. SANTOS: On two occasions in a short distance.
THE COURT: Yeah.
MR. SANTOS: And also testified --
THE COURT: Why is that not consistent with someone being sleepy?
MR. SANTOS: Well, someone being sleepy could be consistent also with someone being impaired.
THE COURT: Understand, don't disagree with you but this is a PC.
MR. SANTOS: And still could be -- someone being sleepy and their type of lane travel could still be basis for a stop.
THE COURT: Don't disagree -- don't disagree with you -- with that at all. Okay.
MR. SANTOS: And Trooper Zimmer also here further testified that the vehicle, like any other vehicle, has rearview mirrors and at that point the rearview mirrors and at least that part of the car crossed over the plane of the lane divider --
THE COURT: Okay.
MR. SANTOS: And if there was indeed cars -- well, he testified that there were no cars.
THE COURT: I understand. I don't disagree with that. Okay. We've got to that stop.
MR. SANTOS: But that, in fact, that portions of the vehicle did cross over the lane while the tires (Inaudible)
THE COURT: Are you saying that was an attempt at a lane change?
MR. SANTOS: No, Your Honor, but it was traveling outside of the lane and not staying (Inaudible)
THE COURT: Understand.
MR. SANTOS: Or as (Inaudible) as possible.
THE COURT: I understand your point. That's why you asked on both mirrors.
MR. SANTOS: Right.
THE COURT: So I understand why you asked that question.
MR. SANTOS: So on both occasions then he did travel outside of the lane.
THE COURT: Um-hum.
MR. SANTOS: Yes, the tires did travel outside of the lane. That's what it sounds like and the trooper is being honest in his testimony.
THE COURT: No, the trooper was candid, I will say that.
MR. SANTOS: Right.
THE COURT: He was being honest.
MR. SANTOS: Correct. But here the objective of the law is to make sure that people are safely within their lanes and not contacting vehicles or touching or colliding with vehicles next to them.
THE COURT: Don't disagree with that, Counsel. We're on a PC for an arrest on a DUI.
MR. SANTOS: Right.
THE COURT: Not for the stop.
MR. SANTOS: Right, but I'm just arguing the PC for that stop right now; correct, Your Honor?
THE COURT: Understand.
MR. SANTOS: Okay. And so that was his basis for the stop.
THE COURT: Uh-huh.
MR. SANTOS: The trooper's basis for the stop is the unsafe lane travel.
THE COURT: Uh-huh.
MR. SANTOS: Based on his experience, based on his training, on his fresh training. He had just come out of training at that time. That was -- those were indicators of someone who is potentially driving impaired.
THE COURT: Okay. Is that it?
MR. SANTOS: That's all I have, Your Honor, for the PC to stop.
THE COURT: Well, I want to make sure I understand. Are we talking PC to stop or PC to arrest?
MR. BISHOP: Oh, I thought we were PC to stop.
THE COURT: Oh, okay.
MR. SANTOS: It's PC to stop only. That's what I believe.
THE COURT: Okay, I understand. Mr. Bishop, anything?
MR. BISHOP: Yes, sir. The statute in question is RCW 46.61.140. It's on page 7 of the --
THE COURT: Wait, 46. what?
MR. BISHOP: RCW 46.61.140. It's on page 7 of the document No. 6751 motion to suppress evidence.
THE COURT: Okay, give me a second. You're looking at Subsection 1, Mr. Bishop?
MR. BISHOP: Yes, sir.
THE COURT: Okay. Does it not say 'entirely'?
MR. BISHOP: Entirely within a single lane.
THE COURT: Right.
MR. BISHOP: Half-way down.
THE COURT: Does it say 'entirely'?
MR. BISHOP: It does say 'entirely' and it also says 'as nearly as practicable.'
THE COURT: Okay.
MR. BISHOP: And sir?
THE COURT: Uh-huh, I'm listening.
MR. BISHOP: That is almost identical language -- it said as near as practical -- pretty much the same word, used in the statute from the Ninth Circuit, which I have right here for review.
THE COURT: Okay.
MR. BISHOP: It's also the relevant parts as quoted in this motion --
THE COURT: Uh-huh, okay.
MR. BISHOP: Is on file.
THE COURT: That's what we're here for.
MR. BISHOP: Okay.
THE COURT: So you have that Ninth Circuit case?
MR. BISHOP: Yes, sir.
THE COURT: Okay. So you're saying the Ninth Circuit case applies?
MR. BISHOP: It's identical. These guys were actually worse. They were riding along the lane for ten seconds and then over to the middle.
THE COURT: Okay.
MR. BISHOP: Riding along together.
THE COURT: Let me stop you there. Do you agree that that's factually what's in the Ninth Circuit in terms of the factual rendition of that case? That there was worse lane travel?
MR. SANTOS: I wouldn't make any characterization. I don't recall the exact facts.
THE COURT: Okay.
MR. SANTOS: All I remember is --
THE COURT: Okay. That's okay. All right. I accept the Ninth Circuit. It's insufficient. There was no PC. So this case is dismissed.
MR. BISHOP: Thank you, Your Honor.
THE COURT: Hey, I just did the trial like I was supposed to do.
MR. BISHOP: Yes, sir, you did.