From Casetext: Smarter Legal Research

State v. Herrera

The Court of Appeals of Washington, Division Three
Nov 9, 2004
124 Wn. App. 1012 (Wash. Ct. App. 2004)

Opinion

No. 22321-3-III

Filed: November 9, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Walla Walla County. Docket No. 03-1-00181-1. Judgment or order under review. Date filed: 08/12/2003. Judge signing: Hon. Donald W Schacht.

Counsel for Appellant(s), Gail Lyn Siemers, Law Ofc of Gail Lyn Siemers Inc, 26 E Main St Ste 4, Walla Walla, WA 99362-1957.

Counsel for Respondent(s), Gabriel Eliud Acosta, Attorney at Law, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.


Francisco Herrera challenges his conviction for possession of methamphetamine. He contends the trial court erred by refusing to grant a dismissal based on the State's failure to reveal the existence of a potential witness until shortly before the commencement of the trial. We affirm Mr. Herrera's conviction.

FACTS

Francisco Herrera was charged with possession of methamphetamine. As the parties were standing in the hallway waiting for the trial to begin, defense counsel learned for the first time that there was a second person in the vehicle when Mr. Herrera was stopped and arrested. This information was not provided to the prosecutor's office by the officer or the officer's report. As a result, the prosecutor failed to inform defense counsel of the presence of this person at the scene of the arrest.

Defense counsel moved for dismissal. The court continued the trial until the afternoon, which gave the prosecutor and defense counsel an opportunity to talk to the potential witness by telephone. However, after the prosecutor read the witness her rights, she refused to answer any questions.

At the beginning of the afternoon session, the court was informed of the witness's refusal to testify. The court then continued the trial for one week to give defense counsel additional time to prepare for trial. One week later, the trial was held without the testimony of the missing witness.

The jury convicted Mr. Herrera. He appeals.

ANALYSIS

Standard of Review. The trial court has wide discretion when ruling on discovery violations and these decisions will not be reversed by this court absent an abuse of discretion. See State v. Linden, 89 Wn. App. 184, 189-90, 947 P.2d 1284 (1997). Even if the trial court commits an error, the appellant must demonstrate to this court that the error was prejudicial and materially affected the trial's outcome. Id. at 190.

Mr. Herrera contends that dismissal was required pursuant to CrR 4.7(d), which reads, in part:

Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant.

Here, an order on omnibus hearing was signed in which Mr. Herrera requested: `Any info[rmation] relevant to this case in the hands of the property officers or arresting officer.' Clerk's Papers at 20.

The purpose of CrR 4.7 is `to prevent a defendant from being prejudiced by surprise, misconduct, or arbitrary action by the government.' State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996). Dismissal of charges is `an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial.' City of Seattle v. Orwick, 113 Wn.2d 823, 830, 784 P.2d 161 (1989). `The mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial, however, does not establish `materiality' in the constitutional sense.' State v. Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407 (1986) (emphasis omitted).

Mr. Herrera asserts the court abused its discretion by ordering a continuance rather than dismissal of the charge against him. According to Mr. Herrera, the witness refused to give any information when faced with the immediate prospect of the trial and the possibility that she might incriminate herself. He maintains that defense counsel might have been able to obtain information from the witness if her name had been released earlier rather than immediately prior to trial. Alternatively, Mr. Herrera maintains the situation would have been more advantageous to him if the prosecutor had known of the witness and called her at trial — giving defense counsel the opportunity to cross-examine her.

Even if we assume that a discovery violation occurred, the court did not abuse its discretion by granting a one-week continuance of the trial. In Linden, the court found no abuse of discretion where the trial court granted a one-day continuance to allow defense counsel to decide whether to reopen its direct examination of the defendant or to respond to the new information on redirect. The evidence in question was a report from a neighboring jurisdiction which impacted the defendant's credibility and which contained evidence within the defendant's knowledge. Linden, 89 Wn. App. at 195-96. Similarly, in State v. Smith, 67 Wn. App. 847, 852, 841 P.2d 65 (1992), the court found no abuse of discretion where the trial court denied the defendant's motion for dismissal even though the prosecutor turned over a follow-up police report on the last day of the speedy trial period. The court found the defendant's ability to prepare his defense was not substantially prejudiced, even though the continuance granted by the trial court placed the trial past the speedy trial time. Id. at 855.

Mr. Herrera also argues that dismissal is required because his rights were prejudiced by the State's failure to inform him of the existence of the potential witness in a timely manner.

Under CrR 4.7, Mr. Herrera has the burden of proving prejudice affecting his right to a fair trial. Dismissal is available only when a defendant establishes by a preponderance of the evidence that the State's conduct has prejudiced his defense.

State v. Ramos, 83 Wn. App. 622, 637, 922 P.2d 193 (1996) (quoting State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980)). Here, it is difficult to see how Mr. Herrera's ability to prepare his defense was prejudiced when Mr. Herrera was also in the vehicle, and presumably knew the identity of the potential witness at the time of his arrest. Moreover, the one-week continuance was within the speedy trial period and provided defense counsel sufficient time to talk to the witness out of the presence of the prosecutor.

In short, Mr. Herrera has failed to show how the information concerning the identity of the second person in the vehicle when he was arrested was material to his defense or how he was prejudiced by the State's failure to provide the name of this person to Mr. Herrera until shortly before trial. Accordingly, the court did not abuse its discretion by granting a one-week continuance and declining to grant Mr. Herrera's motion to dismiss.

We affirm Mr. Herrera's conviction.

The 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.

KATO, C.J. and SWEENEY, J., concur.


Summaries of

State v. Herrera

The Court of Appeals of Washington, Division Three
Nov 9, 2004
124 Wn. App. 1012 (Wash. Ct. App. 2004)
Case details for

State v. Herrera

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. FRANCISCO HERRERA, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Nov 9, 2004

Citations

124 Wn. App. 1012 (Wash. Ct. App. 2004)
124 Wash. App. 1012