Opinion
No. 56949-0-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-07005-2, Laura C. Inveen, J., entered September 26, 2005.
Affirmed by unpublished per curiam opinion.
A trial court's decision denying a motion to dismiss under CrR 8.3(b) will be disturbed only if the court manifestly abused its discretion. Because the court in this case did not abuse its discretion in denying Kenneth Thompson's motion to dismiss, we affirm his convictions for unlawful possession of a firearm and possession of cocaine.
In April 2005, Seattle Police arrested Thompson for his suspected involvement in an armed robbery. During a search of Thompson incident to arrest, the officers found a loaded revolver and a pipe containing cocaine residue. The State charged Thompson with unlawful possession of a firearm and possession of cocaine, but did not charge him with robbery. The firearm and possession charges were assigned to Seattle Police Department Detective Jim Cooper; the uncharged robbery was assigned to Detective Frank Clark.
On May 2, 2005, Thompson's counsel filed a notice of appearance and a general request for discovery. The State provided discovery, and on May 19, 2005, the court set trial for June 27, 2005, roughly one week before the speedy trial expiration date.
On June 10, 2005, Thompson served a subpoena on the Seattle Police Department requesting "any and all police reports or documents relating to a robbery incident involving Kenneth Thompson, D.O.B. 10/10/62, from April 2005."
On June 15, 2005, the prosecutor informed Thompson's counsel that she would work diligently to obtain the requested documents. That same day, she spoke with Detective Cooper. He indicated he would provide any documents he could locate relating to the robbery.
On June 17, 2005, the parties entered an agreed order continuing the trial from June 27 to July 18, 2005. The order stated in part: "State to provide additional discovery on 3.6 issue, and defense to investigate." The continuance pushed Thompson's speedy trial expiration date back to August 17, 2005.
On June 24, 2005, the defense served a second subpoena requesting documents "relating to incident number 05-160268." This number was not the incident number for either the firearm/possession case or the robbery.
On June 28, 2005, in response to a request from Detective Cooper, Seattle Police Officer Steven Kim made a written statement regarding the probable cause determination underlying Thompson's arrest on the robbery charge. After reviewing this statement, the parties agreed that additional documents regarding the robbery arrest likely existed. The prosecutor then asked Detective Cooper to research the issue and provide any further documentation that existed.
On July 1, 2005, the parties entered another agreed order continuing the trial date from July 18 to August 1, 2005 and extending Thompson's expiration date to August 31, 2005. The order stated in part: "State to provide witness statements, follow-up reports, and copy of photo montage for #'s 05-164785 [and] 05-159157 [and] 05-160268." These incident numbers included the correct incident number for the robbery.
Around July 12, 2005, the parties communicated again and the prosecutor indicated that she had requested more follow-up discovery. Later in July, Detective Cooper informed the prosecutor that Detective Frank Clark was assigned to the robbery case but was not available due to a vacation. Detective Cooper also stated he had gone to Detective Clark's office but had been unable to locate any additional documents relating to the robbery. According to defense counsel, the prosecutor informed him "that she believed no such [documents] existed."
On August 1, 2005, the parties continued the trial date to August 15, 2005. At the beginning of August, the prosecutor learned that Detective Clark had returned to his office. She contacted Detective Clark and requested records relating to the robbery. Detective Clark provided them the same day.
On August 15, 2005, the parties continued the trial so that "defense counsel [could] investigate matters contained in recently provided discovery and prepare for 3.6 hearing in response to new information. . . ."
Trial commenced on September 7, 2005. Thompson moved to dismiss the charges under CrR 8.3(b), arguing that he "was forced to sacrifice his right to a speedy trial while he waited for the State to provide records that could easily have been obtained in a more timely fashion." Thompson blamed the delay and continuances on the prosecutor's failure to contact Detective Clark earlier than she did. In denying the motion, the court stated:
Well, Criminal Rule 8.3(b) very appropriately exists, but it is a remedy that is available when there is pretty egregious activity by the State. And the language that's used requires arbitrary action of governmental misconduct, but acknowledging that there is case law that indicates that simple mismanagement can rise to the level of arbitrary action or governmental misconduct. I don't find, to the extent there was any mismanagement, that it rose to the level of arbitrary action of governmental misconduct anticipated by the court rule. I think the delay was due to a number of factors and it was not solely the conduct of the State. It involved the fact that there were two separate incidents, so that created some confusion. Because there was a detective that was investigating the initial allegations of robbery and then subsequently a different detective that was focusing on this particular case. So they were filed separately. There were two separate suspects, if not three. So they were filed under different suspect's names. There was apparently a question about a cause number being different or a case number being different. The State wasn't put on notice or the Court wasn't put on notice of any concerns when there were continuances that occurred. There was not a motion to compel discovery made. And frankly, at this point, I don't find that there was any actual prejudice. So I am going to deny the motion to dismiss.
Report of Proceedings (Sept. 8, 2005) at 76-77.
Thompson appeals this ruling.
DECISION
Under CrR 8.3(b), a "court, in the furtherance of justice . . . may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect[s] the accused's right to a fair trial." To establish government misconduct, it is sufficient to show simple mismanagement; the misconduct "`need not be of an evil or dishonest nature.'" State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993)). Dismissal is an extraordinary remedy, however, and is available only in "truly egregious cases of mismanagement or misconduct." State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441, aff'd, 121 Wn.2d 524, 852 P.2d 294 (1993); Blackwell, 120 Wn.2d at 830; State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003). Loss of the right to a speedy trial may, depending on the facts, be sufficiently prejudicial to warrant dismissal. State v. Smith, 67 Wn. App. 847, 853, 841 P.2d 65 (1992). We review the denial of a motion to dismiss for manifest abuse of discretion. State v. Blackwell, 120 Wn.2d at 830.
Thompson contends the trial court abused its discretion in denying his motion to dismiss. In essence, he contends the prosecutor failed to use due diligence in responding to his discovery request and the resulting delay forced him to forego his right to a speedy trial. This, he concludes, constituted government misconduct warranting dismissal. We disagree.
Considering all the circumstances, we conclude the trial prosecutor acted with due diligence. Only five days after Thompson's first subpoena, and 12 days before the original scheduled trial date, the prosecutor directed the detective assigned to her case to locate the requested records. Two days later, the parties agreed to continue the trial and extend the speedy trial expiration date.
One day after the original scheduled trial date, the prosecutor's efforts bore fruit in the form of an officer's written statement regarding the probable cause determination on the robbery. That document indicated that additional documents regarding the robbery likely existed. The prosecutor immediately directed the detective to continue searching for the records and the parties again agreed to continue the trial and speedy trial expiration dates.
During the next month, the prosecutor continued her efforts to locate the documents until she received information that the detective assigned to the robbery was on vacation and no documents could be found in his office. As soon as the prosecutor received word that the detective had returned, she contacted him, obtained the records, and delivered them to the defense.
The record thus demonstrates continuous and diligent efforts by the prosecutor to obtain the robbery documents. While a fair amount of time passed before the documents were produced, the discovery process was complicated by several factors. The robbery was uncharged and assigned to another detective. The defense provided the prosecutor with an erroneous incident number. Finally, the prosecutor incorrectly believed that the robbery detective was on vacation.
But even if the prosecutor's diligence could be questioned, any mismanagement did not rise to the "egregious" level required for dismissal. Nor did the alleged prejudice, i.e., the loss of the right to a trial within the original speedy trial period, justify dismissal under the circumstances. We believe it significant that Thompson requested and agreed to all of the continuances without ever signaling that he was doing so under duress or that he was compromising his speedy trial rights. Nor did he move to compel disclosure of the documents or otherwise demand their production by a date certain. In the absence of such actions, it is difficult to fault the prosecutor for not acting with more urgency or to conclude that extensions beyond the original speedy trial period warranted dismissal. The court did not abuse its discretion in denying Thompson's motion to dismiss.
See State v. Flinn, 119 Wn. App. 232, 247-49, 80 P.3d 171 (2003).
See State v. Smith, 67 Wn. App. 847, 852-53, 841 P.2d 65 (1992).
Compare State v. Michielli, 132 Wn.2d at 244-45 (upholding dismissal where defendant unsuccessfully objected to the State's late amendment and was thus forced to choose between his rights to a speedy trial and effective assistance of counsel).
Thompson's pro se statement of additional grounds for review fails to make out a prima facie case of error.
We affirm the judgment and sentence.
For the Court: Cox, J., Agid, J., Ellington, J.