Opinion
No. 28892-7-III.
Filed April 21, 2011.
Appeal from a judgment of the Superior Court for Benton County, No. 96-1-00375-5, Vic L. VanderSchoor, J., entered March 9, 2010.
Reversed and remanded by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Brown, JJ.
The State of Washington appeals an order dismissing a child molestation prosecution because it failed to extradite Wallace Griffith from California. Because there is no duty to extradite and because Mr. Griffith was not subject to the Interstate Agreement on Detainers (IAD), we reverse and remand for further proceedings.
FACTS
The Benton County Prosecuting Attorney filed one count of third degree child molestation against Mr. Griffith in June 1996 for an incident occurring the previous year. An arrest warrant issued the same day. That document authorized extradition from Washington or Oregon; it also noted Mr. Griffith's last address was in Rialto, California.
Law enforcement in Riverside County, California, contacted Mr. Griffith in October 1996 as a suspicious person. The officers learned of the Washington warrant and contacted the Richland (Washington) Police Department. The Richland police advised Riverside County that the warrant was still outstanding but that it was not extraditable from California. The Benton County Prosecutor received the report about the California incident and contacted the victim's mother. They decided not to pursue extradition at that time in order to avoid putting the victim through the trial.
California authorities arrested Mr. Griffith for felony theft in March 2002. A California detective alerted the Benton County prosecutor to the arrest. The prosecutor again contacted the victim's mother and discussed the case. Because the victim was to start college in the fall, her mother did not want to pursue the case at that time. The prosecutor did not seek extradition. Mr. Griffith later entered a plea to the theft charge in California. He was sentenced to one day in jail with credit for one day previously served.
Mr. Griffith again was arrested in California in June 2006. He pleaded guilty to a felony offense and was released from jail. Six months later a warrant issued for his failure to attend a probation hearing for that offense. California authorities ultimately arrested Mr. Griffith in July 2009 and sentenced him to 45 days of incarceration. Benton County was then alerted to the arrest. It filed a notice of detainer and sought extradition. Washington's Governor's Warrant was delivered to California. Mr. Griffith then waived extradition.
He appeared in the Benton County Superior Court on September 18, 2009, and was arraigned five days later. Clerk's Papers (CP) at 13-15. He twice waived his right to a speedy trial under CrR 3.3. His attorney then filed a motion to dismiss the charges, arguing that his time for trial rights under CrR 3.3 were violated due to Washington's failure to extradite him from California over the years.
The trial court granted the motion, concluding that the State had a duty to file a detainer in either 1996 or 2002. The resulting delay prejudiced Mr. Griffith. The State timely appealed the order of dismissal.
ANALYSIS
The State argues that the trial court erred in finding that it had a duty to extradite while Mr. Griffith primarily argues that his Sixth Amendment speedy trial right was violated by the 13-year delay in getting him into court. We agree that the IAD did not provide a basis for dismissing the charges. The record is not sufficient to allow consideration of the speedy trial claim.
IAD and Time for Trial. At one time, the IAD and CrR 3.3 were interrelated in the context of an untried Washington defendant who was incarcerated out-of-state. State v. Welker, 157 Wn.2d 557, 564-565, 141 P.3d 8 (2006). The IAD provides a procedure by which an incarcerated defendant having "entered upon a term of imprisonment" can require that he be brought to trial. RCW 9.100.010 (art. III of IAD). The prosecutor must first file a detainer with the authorities holding the prisoner, asking that he be held for them. Prison authorities must notify the prisoner, who then must request that he be brought back for trial. Upon receiving the prisoner's request, the prosecutor has 180 days to bring him to trial. Id.; Welker, 157 Wn.2d at 563-564. The IAD does not impose an obligation on the prosecutor to file a detainer. State v. Anderson, 121 Wn.2d 852, 861, 855 P.2d 671 (1993); Welker, 157 Wn.2d at 565.
Prior to significant amendments in 2003, former CrR 3.3 imposed an implied duty on prosecutors to exercise good faith and due diligence to bring a suspect to trial. Anderson, 121 Wn.2d at 857-858. As a result, prosecutors were expected to utilize the IAD in order to obtain a defendant who was incarcerated out-of-state. Id. at 864; Welker, 157 Wn.2d at 564-565. However, there was no obligation to extradite defendants who were at large in other jurisdictions and, thus, not amenable to process. State v. Stewart, 130 Wn.2d 351, 361-363, 922 P.2d 1356 (1996); State v. Hudson, 130 Wn.2d 48, 57, 921 P.2d 538 (1996).
Significant amendments to CrR 3.3 on September 1, 2003, eliminated the implied obligation to act diligently to bring an offender to trial. State v. George, 160 Wn.2d 727, 737-738, 158 P.3d 1169 (2007). Those amendments applied to all cases pending as of September 1, 2003. State v. Olmos, 129 Wn. App. 750, 756-757, 120 P.3d 139 (2005).
With this backdrop in mind, it is clear that the trial court erred in dismissing this action under the IAD. As to the 1996 "encounter" between Mr. Griffith and California authorities, there was no arrest. Mr. Griffith was never incarcerated for any crime in that jurisdiction and there was no basis to invoke the IAD. Instead, he was simply not amenable to process and there was no duty for the prosecutor to act. Stewart, 130 Wn.2d at 361-362; Anderson, 121 Wn.2d at 861.
For similar reasons, the 2002 California arrest did not trigger the IAD. The record reflects that California held Mr. Griffith for only one day on its charge; when he subsequently pleaded guilty, the only term of incarceration was credit for that one day. Thus, at the time of the 2002 arrest, he had never "entered upon a term of imprisonment" within the meaning of the IAD. Rather, he was simply (and briefly) incarcerated pending charges and disposition.
Stewart involved a similar situation. There the defendant had been very briefly arrested during a traffic stop by Arizona authorities on the basis of an outstanding Washington warrant. He was immediately released when the officer learned that Washington would not extradite. 130 Wn.2d at 355. Our court concluded that this brief detention on the Washington warrant did not either make him amenable to process or subject to the IAD. Id. at 362, 365.
Similarly here, Mr. Griffith simply was not amenable to process in Washington when he was briefly arrested in California on suspicion of criminal behavior there in 2002. He likewise was not subject to the IAD at the time of his very brief preconviction incarceration because he had not entered into a term of imprisonment. The trial court incorrectly concluded that the IAD applied to the 1996 and 2002 California police contacts.
Accordingly, we need not address the trial court's conclusion that the IAD violation prejudiced Mr. Griffith. See Welker, 157 Wn.2d at 567-568 (declining to find prejudice on the basis of unsubstantiated assertions).
Mr. Griffith does not contend that his CrR 3.3 rights were violated independent of the alleged violation of the IAD. Accordingly, we reverse the trial court's order of dismissal.
Constitutional Speedy Trial. Mr. Griffith devotes the vast majority of his appellate brief to arguing that his Sixth Amendment right to a speedy trial was violated. He did not present this argument to the trial court. We conclude that it is both unfair to the State and imprudent to consider this argument for the first time on appeal.
The motion to dismiss listed the "Sixth Amendment" among its bases for dismissing the charge, but the motion presented no analysis or argument on that topic.
The Sixth Amendment provides for a "speedy and public trial." This guarantee does not provide for trial within a specific time period, but, rather, is a "relative" or "slippery" right. Barker v. Wingo, 407 U.S. 514, 521-522, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Because it is not a specific right, a flexible balancing test that looks to the respective conduct of the prosecution and the defendant is used to assess this right. Id. at 530. Courts must weigh four factors under this test: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id.
As a general rule, Washington appellate courts will not consider an argument that was not first presented at the trial court. RAP 2.5(a). One exception to that rule is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). However, an alleged error is not manifest if there are insufficient facts in the record to evaluate the contention. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
The record in this case does not allow this court to address all four of the Barker factors. Although the first factor, the length of the delay, is known, the evidentiary facts addressing the other three factors are not known. For instance, the third factor is whether or not the defendant asserted his right to a speedy trial. That factor, in turn, depends to a degree on whether or not the defendant knew about the charge — his failure to assert the right carries very little weight if he did not know that he had been charged. There are conflicting allegations in the record that the defendant knew about the charge because of California police contacts, made efforts to convince the victim to drop the charge, and did not know about the charge at all. However, there is no evidence on any of these points. Instead of testimony or affidavits, there are simply conflicting assertions of counsel in Washington or California court proceedings. The trial court made no findings on these matters (nor on other factual allegations related to the other factors) because no one requested it do so.
Compare CP at 44-45 (California judge indicating defendant knew of charges), Report of Proceedings (Mar. 2, 2010) at 7 (prosecutor asserting defendant contacted victim), and Br. of Resp't at 15 (record does not show that defendant was aware of charges).
Trial courts, not appellate courts, make factual determinations. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009), review denied, 168 Wn.2d 1041 (2010). Without those factual determinations, this court simply is not in a position to weigh the Barker factors as required. This court has heard Sixth Amendment claims initially on appeal when the record permitted review. E.g., State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186, review denied, 133 Wn.2d 1015 (1997). This simply is not one of those cases. The facts are unsettled and the parties have not had the opportunity to make their respective records. While Mr. Griffith can waive his right to make a record by asserting the argument in this appeal, he lacks authority to make the State do so.
We decline to consider the Sixth Amendment argument in this proceeding. Mr. Griffith is free to raise that issue to the trial court upon remand and both parties will be able to present their evidence related to the Barker factors.
Reversed.
A majority of the panel has determined 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.
Sweeney, J. and Brown, J., concur.