Summary
In State v. Cunningham, 18 Wn. App. 517, 521, 569 P.2d 1211 (1977), review denied, 90 Wn.2d 1001 (1978), counsel represented to the court that he would not be prepared to try the case until he had obtained an examination of the defendant's mental capacity, and that he would waive the speedy trial rule until then.
Summary of this case from State v. GeorgeOpinion
No. 2171-3.
September 28, 1977.
[1] Criminal Law — Trial — Time of Trial — Right to Speedy Trial — Waiver by Counsel — In General. A criminal defendant's right to be tried within the specific time limits of CrR 3.3 may be waived by his counsel when necessary for the benefit of the defense.
[2] Criminal Law — Right to Counsel — Assistance in Defense — Interference by State. Actions by prison officials which hinder or delay an accused from participating with his counsel in his defense or which obstruct the trial preparations of his counsel are not grounds for reversal of a conviction unless prejudice is shown or relief was improperly denied.
Nature of Action: Prosecution for second-degree burglary and attempted second-degree arson committed by a man who became angry over his failure to see his children at his former wife's home.
Superior Court: A judgment was entered on guilty verdicts by the Superior Court for Grant County, No. 3918, Fred Van Sickle, J., on October 24, 1976.
Court of Appeals: The judgment is affirmed, the court holding the defendant's right to a speedy trial under CrR 3.3 was waived by his counsel and finding no prejudice resulted from various delays by state prison officials.
Nels A. Hansen and Collins Hansen, for appellant. Paul A. Klasen, Jr., Prosecuting Attorney, and Ken Jorgensen, Deputy, for respondent.
On October 21, 1976, the jury returned verdicts finding defendant, Gary Cunningham, guilty of second-degree burglary and attempted second-degree arson. He appeals the trial court's failure to dismiss either on the grounds that he was denied his right to speedy trial or that the State's lack of cooperation resulted in a denial of his right to counsel and his right to participate in his own defense. We affirm.
In 1969, while the defendant was in the Navy, he was struck in the back of the head by a 50-pound weight falling approximately 300 feet. This blow resulted in a cyst forming in his brain, causing him to be subject to seizures and requiring that he take medication to control these seizures. The defendant's first marriage, to which two children were born, ended in divorce March 28, 1975. After the divorce, apparently considerable friction developed between defendant and his former wife over the defendant's visitation rights. This friction ultimately resulted in the defendant being charged with assault upon his former wife, to which he pleaded guilty.
On October 12, 1975, the defendant and his present wife returned to Moses Lake for sentencing on that assault charge. Upon arriving in Moses Lake, he proceeded to his former wife's home, intending to see his children, but no one was there. Later that morning, he talked with police, demanding that he be allowed to see his children; the police told him to call his attorney. Mid-morning the police were summoned to his former wife's residence, where they found the defendant inside the residence, threatening to burn it unless he was allowed to see his children. There was a strong odor of gasoline in the house, and the defendant was holding a cigarette lighter. After a 2-hour confrontation, the defendant was enticed from the house and forcibly arrested.
Thereafter, the following events occurred: The court instructed the defense attorney to notify the prosecuting attorney when the examination was completed so that the prosecuting attorney could note the case for trial.
The possession of firearm charge was later dismissed.
FAILURE TO MAKE A RECORD JUSTIFYING EXTENDED TRIAL SETTING ON FEBRUARY 11, 1976
The defendant correctly states the interpretation of CrR 3.3 that when a continuance is granted extending the time of trial beyond the time periods of the rule and the record does not state the reasons for the extension, the defendant is entitled to a dismissal. State v. Williams, 87 Wn.2d 916, 557 P.2d 1311 (1976); State v. Jack, 87 Wn.2d 467, 553 P.2d 1347 (1976); State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975); State v. Walker, 16 Wn. App. 637, 557 P.2d 1330 (1976); State v. Espeland, 13 Wn. App. 849, 537 P.2d 1041 (1975).The absence of any notation in the record provides the defendant with his argument for dismissal. The uncertainty of whether a record of the February 11 proceeding was made, was lost, or was eradicated is all that is necessary under the cases cited to allow the defendant to move for a dismissal. It is imperative that the trial court insure that a record is made of any matter considered in a criminal case. Had that been done here, the primary issue on this appeal would have been eliminated.
During the trial setting hearing conducted December 19, 1975, the defense attorney explained the difficulties he had encountered in obtaining a mental examination of the defendant, stated he anticipated obtaining such an examination during January 1976, and that he would probably be ready for trial the end of January or during February 1976. In the ensuing discussion, the following comments were made:
[DEFENSE ATTORNEY]: So, I have some difficulties, and I don't know when I can be ready to try the case. As yet I am still trying to determine the mental capacity of the man. And I think that waives the requirement that he be tried within a certain period of time — or at least we exclude that from this time period . . . .
. . .
[DEFENSE ATTORNEY]: I am not sure when we commenced this period. But, as of now I would consider that period stayed . . . .
THE COURT: I understand. Are you in a position to waive the speedy trial rule?
[DEFENSE ATTORNEY]: Well, as long as we are having the mental examination I think it is stayed. But, as soon as I get that back, then it wouldn't be stayed any longer.
Thereafter, the defense attorney agreed that he would inform the prosecuting attorney when the examination had been completed so that the prosecuting attorney could set the case for trial.
The record is void of any such communication. In fact, the defendants made additional requests for continuance (in May and August of 1976) because no examination had been conducted. It is evident he did not receive the mental examination until at least August 10, 1976. The continuance until the defendant obtained the mental examination granted in December 1975, in conjunction with three subsequent continuances, granted at his request, constituted a waiver of the defendant's right to speedy trial until the trial date October 20, 1976. CrR 3.3(d)(1); CrR 3.3(e)(1).
The May 26, 1976, continuance; the August 4, 1976, continuance; and the October 19, 1976, continuance.
[1] Furthermore, implicit in this record of defendant's difficulty in obtaining the mental examination is the conclusion that he was not prepared to proceed to trial without that examination. This fact was confirmed by defense counsel at oral argument before this court. Counsel can properly waive the provisions of CrR 3.3 under those circumstances for the benefit of the defendant. Cf. State v. Franulovich, 18 Wn. App. 290, 567 P.2d 264 (1977).
Thus, by excluding the time awaiting a mental examination, the defendant was brought to trial within the 90-day speedy trial period. Defendant's claim that he was denied his right to speedy trial is without merit.
October 17-24, 1975 — stay for examination at Spokane Veterans Hospital; December 5, 1975, until trial date set for October 18, 1976 — allow defendant's mental examination; October 19, 1976 — additional continuance requested by defendant. Thus, this case is distinguished factually from State v. DeLong, 16 Wn. App. 452, 557 P.2d 14 (1976), in that here attempts to determine defendant's competency were in process.
Since the defendant was incarcerated on a previous conviction, the 90-day, rather than the 60-day, time period is applicable. CrR 3.3; State v. Hanson, 14 Wn. App. 625, 544 P.2d 119 (1975); State v. O'Neil, 14 Wn. App. 175, 540 P.2d 478 (1975); accord, State v. Keith, 86 Wn.2d 229, 543 P.2d 235 (1975).
STATE'S LACK OF COOPERATION DENIED DEFENDANT HIS RIGHT TO EFFECTIVELY PARTICIPATE IN HIS OWN DEFENSE
This assignment of error is based upon (1) the State Department of Institution's interference and lack of cooperation resulting in the delay of his mental examination until August of 1976, thus depriving his counsel of the aid and advice of a necessary expert, i.e., a psychiatrist; and (2) the prison officials' refusal to allow the defendant to take with him his personal papers and medication when he was transported for trial, thus depriving him of his right to participate in his own defense.
[2] There is no evidence that the delay in the defendant's mental examination prejudicially affected the defense attorney's preparation of the case. A defendant is entitled to his right to counsel, including the allowance of sufficient opportunity for his counsel to prepare for trial. Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527 (1932); State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976); State v. Cory, 62 Wn.2d 371, 382 P.2d 1019, 5 A.L.R.3d 1352 (1963). This right to counsel may include defense counsel being given the opportunity to obtain the advice of experts, including psychiatrists. See In re Ketchel, 68 Cal.2d 397, 438 P.2d 625, 66 Cal.Rptr. 881 (1968); Cornell v. Superior Court, 52 Cal.2d 99, 338 P.2d 447, 72 A.L.R.2d 1116 (1959); Ex parte Ochse, 38 Cal.2d 230, 238 P.2d 561 (1951). Although we cannot condone the actions of the State Department of Institutions in this case, there is no evidence that these actions were prejudicial to the defense attorney's preparation of the case. State v. Burri, supra.
In the event that a court-ordered examination appears to be unduly delayed, the court may consider issuing a show cause order requiring the proper officials to come before the court and explain the necessity for delay.
Neither the postponement of the trial an additional day to allow the defendant to obtain his necessary medication or the prison officials' initial denial of defendant's request to transport his personal papers to trial were sufficient to constitute a denial of his right to participate in his own defense. The facts are that he was able to obtain his personal papers, that they were available for use at trial, and that he was able to obtain the necessary medication so that he could function properly at trial. The state institution's refusal to send the defendant's medication with him when he was transported for trial is not analogous to the forced administration of drugs in State v. Maryott, 6 Wn. App. 96, 492 P.2d 239 (1971). The defendant admits that, because of the blow he received on the head in 1969, it was necessary for him to take medication to control his seizures. However, there is no evidence that this medication changed since the incident October 12, 1975, or that the defendant at that time should have been receiving different medication. Therefore, such action did not constitute a denial of the defendant's right to participate in his own defense.
Moreover, the judicial branch should not necessarily be held accountable for the actions of the State Department of Institutions, a portion of the executive branch of government. See Robinson v. Peterson, 87 Wn.2d 665, 669, 555 P.2d 1348 (1976); January v. Porter, 75 Wn.2d 768, 453 P.2d 876 (1969); State v. Christianson, 17 Wn. App. 264, 562 P.2d 671 (1977).
Judgment is affirmed.
GREEN and McINTURFF, JJ., concur.
Reconsideration denied November 2, 1977.
Review denied by Supreme Court May 12, 1978.