Opinion Information Sheet

			

State v. Budik, No. 84714-2
Dissent by J.M. Johnson, J.

                                         No. 84714-2

       J.M. JOHNSON, J.           (dissenting) -- Federal and state constitutional 

guaranties of free speech and privacy do not protect the utterance of false and 

misleading statements to police during the course of a murder investigation.  

Kenneth Budik sat in the passenger seat while a shooter approached and fired 

through his window to kill the driver of the car.  Budik not only repeatedly 

denied any knowledge of the identity of the shooter in this case, but he also 

provided a false account to police that later contradicted statements made to 

the victim's mother.  As a result, investigating police were confused and 

unable to identify the perpetrator.

       Additionally, the state legislature has the power to determine the tools 

available to law enforcement in bringing criminals to justice,                including 

criminalizing "obstruct[ing] . . . anyone from performing an act that might aid 

in the discovery or apprehension" by a law enforcement officer.  RCW 

9A.76.050(4).  If the state legislature chooses to further require an affirmative 

act or statement requirement as part of former RCW 9A.76.070 (2003), it  

State v. Budik, No. 84714-2

could have done so in the text of the statute.  I would hold that there is 

sufficient evidence to support Budik's conviction for first degree rendering 

criminal assistance and thus dissent.

A.     Freedom of Speech and Privacy

       Article I, section 5 of the Washington State Constitution guarantees 

that "[e]very person may freely speak, write and publish on all subjects, being 

responsible for the abuse of that right."  Although article I, section 5 generally 

"provides broader free speech protection than the first amendment to the 

United States Constitution," JJR Inc. v. City of Seattle, 126 Wn.2d 1, 8 n.6, 

891 P.2d 720 (1995), "the inquiry must focus on the specific context in which 

the state constitutional challenge is raised," and "it does not follow that 

greater protection is provided  in all contexts," Ino Ino, Inc. v. City of 

Bellevue, 132 Wn.2d 103, 115, 937 P.2d 154 (1997).

       The nature of this case requires holding that state constitutional free 

speech protection in the criminal investigative context is no greater than that 

provided under the First Amendment to the United States Constitution.  The 

United States Supreme Court has never directly addressed federal free speech 

protection in the criminal investigative context, but its case law in the 

                                           -2- 

State v. Budik, No. 84714-2

commercial context is instructive.  Commercial speech is not protected by the 

First Amendment if it is either unlawful or misleading.  Cent. Hudson Gas & 

Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 566, 100 S. Ct. 

2343, 65 L. Ed. 2d 341 (1980).  Similarly, false and misleading statements 

made to police in the criminal investigative context are not protected under 

federal and state constitutional free speech provisions.  This is because there 

is even greater public interest in deterring false statements in the criminal 

investigative context than there is in the commercial context. As the Court of 

Appeals aptly noted, "[W]hile Mr. Budik may not have had any obligation to 

speak, . . . if he chose to speak, he was not privileged to mislead police."  

State v. Budik, 156 Wn. App. 123, 128, 230 P.3d 1094, review granted, 170 

Wn.2d 1008, 249 P.3d 624 (2010).

       Article I, section 7 of our state constitution also provides that "[n]o 

person shall be disturbed in his private affairs, or his home invaded, without 

authority of law."    While article I, section 7 "'provides greater protection to 

individual privacy rights than the Fourth Amendment to the United States 

Constitution,'" State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004)

(quoting  State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002)), it 

                                           -3- 

State v. Budik, No. 84714-2

focuses on "those privacy interests which citizens of this state have held, and 

should be entitled to hold, safe from governmental trespass," State v. Myrick, 

102 Wn.2d 506, 511, 688 P.2d 151 (1984).  However, "[i]f no search occurs, 

then article 1, section 7 is not implicated."  State v. Young, 123 Wn.2d 173, 

181, 867 P.2d 593 (1994).             Here, Budik "was not the focus of the 

investigation" and "was not a suspect or under arrest when asked questions 

by the police."  Budik, 156 Wn. App. at 130.  Simple questioning by a police 

officer did not constitute a search.  

       Unlike the majority's characterization, a literal reading of the term 

"deception" does not require us to ignore our holding in State v. Williams, 

171 Wn.2d 474, 251 P.3d 877 (2011).  Majority at 11.  There, defendant 

Michael Williams challenged his conviction of obstructing an officer under 

RCW 9A.76.020, which makes it a crime "if [a] person willfully hinders, 

delays, or obstructs any law enforcement officer in the discharge of his or her 

official powers or duties."   Williams, 171 Wn.2d at 477.                Williams  had 

provided law enforcement with false self-identifying information, after leaving 

a car dealership without paying for requested repairs, in order to obscure an 

outstanding arrest warrant against him.  Id. at 475-76.  We held that the state 

                                           -4- 

State v. Budik, No. 84714-2

constitution required "conduct in addition to pure speech in order to establish 

obstruction of an officer" in this context.  Id. at 485.

       The difference between Williams and the current case, however, is

obvious; Budik was not a suspect at any time during the course of the 

criminal investigation, and as a result, the right against self-incrimination was 

never implicated.  Budik, 156 Wn. App. at 130; see also Hoffman v. United 

States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118                        (1951).  

Accordingly, the concerns regarding an "end run" around constitutional 

guaranties are not present because this case is significantly different from the 

"stop-and-identify" statute that was condemned in State v. White, 97 Wn.2d 

92, 96-97, 640 P.2d 1061 (1982).                 Instead, by creating a broader 

interpretation of free speech and privacy, the majority is weakening an 

important tool of law enforcement to investigate and punish wrongdoers and 

ensure community safety.  We therefore should not read an affirmative act or 

statement requirement into the text of former  RCW 9A.76.070, which the 

legislature did not include.

B.     Legislative Intent

       As the majority indicates, our objective in this case is to determine the 

                                           -5- 

State v. Budik, No. 84714-2

legislature's intent in enacting former RCW 9A.76.070, majority at 6, but 

"[t]he surest indication of legislative intent is the language enacted by the 

legislature, so if the meaning of a statute is plain on its face, we 'give effect to 

that plain meaning,'" State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 

(2010)  (internal quotation marks omitted) (quoting State v. Jacobs, 154 

Wn.2d 596, 600, 115 P.3d 281 (2005)). "In determining the plain meaning of 

a provision, we look to the text of the statutory provision in question, as well 

as 'the context of the statute in which that provision is found, related 

provisions, and the statutory scheme as a whole.'"  Id.                The majority's 

characterization of related provisions and the statutory scheme as a whole, 

however, does not compel a finding that the legislature intended to include an 

affirmative act or statement requirement, which it did not expressly include.

       Admittedly,  the text of RCW 9A.76.020 does                    not contain an 

affirmative act requirement.  Still, the majority relies on this  statute as 

evidence of the legislature's intent to the contrary. Majority at 8-9.  We held 

in Williams that the state constitution required "conduct in addition to pure 

speech in order to establish obstruction of an officer" under RCW 9A.76.020, 

Williams, 171 Wn.2d at 485, but the same concerns in Williams with former 

                                           -6- 

State v. Budik, No. 84714-2

RCW 9A.76.070 are not present in this case.  The majority is not justified in 

amending the statutory scheme of the legislature in former RCW 9A.76.070 

when there is no constitutional infirmity in the statute's plain meaning.

       The majority also  points  unconvincingly  to other examples in the 

legislature's statutory scheme.  Majority at 8.  If anything, RCW 9A.76.175 

demonstrates that the legislature knew how to include a material statement 

requirement as part of a statute and chose not to include a similar requirement 

in the text of former RCW 9A.76.070.  The majority's citation to cases and 

statutes in other states also does not evidence intent on the part of the state 

legislature with respect to the statute at issue.  Thus, this court should not 

read an affirmative act or statement requirement into former RCW 9A.76.070, 

and it should uphold Budik's conviction of first degree rendering criminal 

assistance.

C.     Sufficiency of the Evidence

       In evaluating a sufficiency of the evidence challenge, "we view the 

evidence in the light most favorable to the prosecution and determine whether 

any rational fact finder could have found the essential elements of the crime 

beyond a reasonable doubt."  State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 

                                           -7- 

State v. Budik, No. 84714-2

1007 (2009).  Here, Budik indicated to police on multiple occasions that he 

did not know who was responsible for the shooting of the driver sitting next 

to him.  Budik even concocted a false account that "he bent over to get his 

drink" while "[s]omeone shot several rounds into the truck through the open 

passenger window."  Budik, 156 Wn. App. at 126.  This concocted story also 

conflicted with Budik's statements to the victim's mom that he knew who 

was responsible for the shooting constituted more than a simple disavowal.  

Id.  The evidence of Budik's interactions with the police demonstrated his

methodical and deliberate attempt to confuse and delay the progress of the 

criminal investigation into the death.  

       Arguments regarding a lack of sufficiency with respect to the 

"deception" or "performing an act" elements of the statute are equally 

unpersuasive.  As to the argument that Budik's statements were not 

deceptive, the spent casing that police found inside the cab of the truck and 

Budik's statements to the victim's mom that he knew who was responsible 

for the shooting sufficiently  demonstrated the falsity of Budik's previous 

statements to police.  Id.     Additionally, the police did not have to actually 

believe all of Budik's statements in order for those statements to fulfill the 

                                           -8- 

State v. Budik, No. 84714-2

"deception" element.       Any resulting investigative  confusion  and delay and 

cost would be sufficient.  As to the argument that there was no identifiable act 

that Budik's statements prevented the police from performing, the statute 

does not require the State to precisely pinpoint how the police investigation 

was interfered with.  As a detective testified, Budik's false assertions caused 

delay and confusion and impeded the progress of the murder investigation.  

See id. at 127.  Our cases require deferential review of the jury's verdict.

Here, we should conclude that a rational fact finder could have found the 

essential elements of the crime beyond a reasonable doubt especially if the 

evidence is viewed in the light most favorable to the prosecution, as required.

                                         Conclusion

       I would hold that        former  RCW  9A.76.070 does not contain a 

constitutional infirmity that justifies judicial amendment to include a new 

element, an affirmative act or statement. The constitutional guaranties of free 

speech and privacy do not protect false and misleading statements made to 

police during the course of a murder investigation.  Because Budik said and 

did much to obstruct this murder investigation, his statements were not mere 

disavowals.  Thus, I would reject Budik's sufficiency of the evidence 

                                           -9- 

State v. Budik, No. 84714-2

challenge and uphold  his  conviction under  former  RCW  9A.76.070.   The 

issue was whether to believe Budik or believe the other witnesses.  The jury 

considered all the evidence, and it unanimously found Budik guilty.  For the 

foregoing reasons, I respectfully dissent.

                                          -10- 

State v. Budik, No. 84714-2

       AUTHOR:

                Justice James M. Johnson

       WE CONCUR:

                                          -11-