State v. Ollivier

Decision Date31 October 2013
Docket NumberNo. 86633–3.,86633–3.
Citation178 Wash.2d 813,312 P.3d 1
PartiesSTATE of Washington, Respondent, v. Brandon Gene OLLIVIER, Petitioner.
CourtWashington Supreme Court

OPINION TEXT STARTS HERE

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioners.

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondents.

MADSEN, C.J.

¶ 1 Brandon Ollivier contends that his rights to a speedy trial under CrR 3.3, the Sixth Amendment to the United States Constitution, and article I, section 22 of the Washington State Constitution were violated by delay in bringing him to trial. He also maintains that evidence obtained in a search of his apartment must be suppressed because of misrepresentations and other defects in the affidavit in support of probable cause to issue the warrant, and CrR 2.3(d) was violated because he was not presented with a copy of the search warrant prior to commencement of the search. We conclude that the delay in bringing Ollivier to trial did not violate speedy trial rights when defendant's own counsel requested the continuances causing the delay and no claim of ineffective counsel is made related to those continuances, that probable cause for the search warrant was sufficiently established by qualifying information in the affidavit, and no violation of CrR 2.3(d) occurred because a copy of the search warrant was posted upon seizure of property pursuant to the warrant. We affirm the Court of Appeals' decision upholding Ollivier's conviction for possession of child pornography.

FACTS

¶ 2 In March 2007, Brandon Ollivier, a registered sex offender, was living with roommates who also were registered sex offenders. When one of the roommates, Eugene Anderson, was arrested for a violation of community custody, he told his Community Corrections Officer (CCO) on March 8, 2007, that Ollivier had shown him child pornography on Ollivier's computer in their apartment. After this information was relayed to King County Sheriff's Office Detective Dena Saario, she took a taped statement from Anderson. Anderson told Saario that Ollivier had shown him a video of a young girl and boy having sexual relations. He also stated that Ollivier had shown him photographs of young girls about nine years old who were dressed but posed provocatively. In addition, Anderson told Saario that Ollivier kept a locked red box that contained pornography, including “ Playboy ” and “ Barely Legal ” magazines.

¶ 3 Detective Saario prepared an affidavit to obtain a search warrant for the apartment. Among other things, she incorrectly stated that Anderson informed her that the red box contained photographs of unclothed children in sexually explicit poses. The warrant was issued and on April 5, 2007, it was executed. Ollivier was the only one in the apartment when detectives arrived to search it. During the search, detectives seized two desktop computers, one laptop computer, several compact disks, USB (Uniform Serial Bus) drives, and other storage media. At the conclusion of the search, Detective Saario posted a copy of the warrant on a bookcase in the apartment.

¶ 4 A detective who initially examined the computer images concluded they contained over 14,000 images of child pornography and about 100 video files of child pornography. The vast majority were images of children under 15 years of age who were purposefully posed to expose their genitals and the same children in various sex acts with other children and adults, as well as other sex acts.

¶ 5 On April 13, 2007, Ollivier was arrested and charged with possession of depictions of minors engaged in sexually explicit activity. On April 18, 2007, he was arraigned, with an initial speedy trial expiration date of June 29, 2007. Trial began on March 9, 2009, following 22 continuances. Defense counsel sought most of the continuances to allow time for investigation, to obtain expert review of computer content, to obtain discovery material from the Washington State Department of Corrections and the King County Sheriff's Office, and because of a new investigator on the case. Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. In addition, shortly after executing the search warrant, Detective Saario was investigated for misconduct and she resigned. A continuance was requested to permit time to obtain information about the investigation into her conduct. Ollivier did not object to the first two of these continuances, but he did object to nearly all of the rest.

¶ 6 King County Detective Barry Walden conducted a forensic search of the computers. It is undisputed child pornography was found. Among other things, Walden found a file folder on a computer registered to “Brandon” (Ollivier's first name) in an unusual location. This computer contained hundreds of images of child pornography and numerous video files, including four video files showing young girls appearing to be ages 5, 7, 7, and 12 in sexually explicit situations. Ollivier stipulated these videos satisfied the definition of child pornography and they were not shown to the jury.

¶ 7 Anderson testified at Ollivier's trial that he stayed with Ollivier one week before he was arrested on the community custody violation. He testified he never used the computer he saw in Ollivier's apartment, that he saw Ollivier use it daily, and that he never saw anyone else use it. He testified that Ollivier showed him child pornography on the computer. Another roommate, Daniel Whitson, testified on Ollivier's behalf that he (Whitson) had never seen Ollivier use the computer to view pornography.

¶ 8 Ollivier was convicted of one count possession of depictions of minors engaged in sexually explicit conduct 1 and was sentenced to a standard range sentence. He appealed. The Court of Appeals affirmed his conviction. State v. Ollivier, 161 Wash.App. 307, 254 P.3d 883 (2011).

ANALYSIS
Right to a Speedy Trial Under CrR 3.3

¶ 9 Mr. Ollivier maintains that the time-for-trial rule in CrR 3.3 was violated when the trial court granted 22 continuances without, he asserts, making sufficient inquiry into the reasons for the delays. A trial court's decision to grant or deny a motion for a continuance is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Kenyon, 167 Wash.2d 130, 135, 216 P.3d 1024 (2009).

¶ 10 CrR 3.3 accords with the United States Supreme Court's determination that states can prescribe reasonable periods for commencement of trials consistent with constitutional standards. Barker v. Wingo, 407 U.S. 514, 524, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). While the rule has the purpose of ensuring that a defendant's constitutional right to a speedy trial is effectuated, complying with it does not necessarily mean that no constitutional violation occurs. Kenyon, 167 Wash.2d at 136, 216 P.3d 1024;see Barker, 407 U.S. at 531, 92 S.Ct. 2182 (noting that the balancing test the Court adopted for Sixth Amendment speedy trial purposes requires courts to consider the constitutional right on an ad hoc basis and no set time is constitutionally sufficient for all cases); see State v. Iniguez, 167 Wash.2d 273, 287, 217 P.3d 768 (2009) (“CrR 3.3 provides a framework for the disposition of criminal proceedings without establishing any constitutional standards”).

¶ 11 Under CrR 3.3(b)(1)(i), an individual held in custody pending trial must be tried within 60 days of arraignment. Certain time periods are excluded from the computation of time, including continuances granted by the trial court. CrR 3.3(e). CrR 3.3(f)(2) explains:

On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.CrR 3.3(f)(2) also provides that a motion for continuance “by or on behalf of any party waives that party's objection to the requested delay.”

[178 Wash.2d 824]¶ 12 Here, Ollivier's own counsel sought the continuances about which he complains, and as the rule expressly provides, any objection is therefore waived.2

¶ 13 Ollivier contends, however, that the trial court did not state on the record as to each continuance that it was required in the administration of justice and that the defendant was not prejudiced. For example, Mr. Ollivier says as to the October 19, 2007 ruling that the court indicated the continuance was granted in the administration of justice but failed to comply with the requirement that the delay not prejudice the defendant. However, the order explains the reason for the continuance was that the time was needed for a defense expert to do work before trial. Implicit is the idea that if the expert lacked sufficient time to complete the work, the defense would suffer or be incompletely prepared.

¶ 14 Each order continuing the trial provides a reason for the continuance. In his opening brief in the Court of Appeals, Mr. Ollivier “concede[d] that any of the continuances, standing alone, would not be an abuse of discretion.” Appellant's Opening Br. at 20 (emphasis omitted). This is a concession that each request for a continuance was a legitimate request for an extension of time to pursue matters in preparation of his defense and that the trial court properly granted the motions for continuances.

¶ 15 State v. Saunders, 153 Wash.App. 209, 220 P.3d 1238 (2009) and Kenyon, 167 Wash.2d 130, 216 P.3d 1024, on which Ollivier heavily relies, do not compel a different conclusion. Neither involved a similar situation. In Saunders, three continuances at issue were granted that the Court of Appeals found to be unsupported by convincing and valid reasons.3 Indeed, the continuances were granted to permit ongoing plea...

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