State v. Adamski

• Decision Date: 29 September 1988
• Docket Number: No. 54694-1,54694-1
• Citation: 761 P.2d 621,111 Wn.2d 574
• Parties: The STATE of Washington, Respondent, v. Wayne N. ADAMSKI, Petitioner.
• Court: Washington Supreme Court

Page 574

111 Wn.2d 574

761 P.2d 621

The STATE of Washington, Respondent, v. Wayne N. ADAMSKI, Petitioner.

No. 54694-1.

Supreme Court of Washington En Banc.

Sept. 29, 1988.

Neil M. Fox, Washington Appellate Defender Ass'n, Seattle, for petitioner.

Norman Maleng, King County Prosecutor, James W. Leslie, Deputy Prosecutor, Juvenile Div., Seattle, for respondent.

UTTER, Justice.

A juvenile defendant seeks reversal of convictions for first and second degree vehicle prowl on the basis that the trial court abused its discretion in granting a continuance which delayed his trial beyond the speedy trial expiration date mandated by JuCR 7.8. Finding that the State's failure to properly serve a subpoena on its key witness fell below the "due diligence" necessary to justify a continuance, we reverse.

Wayne Adamski was charged by information filed July 18, 1984 with third degree theft. Arraignment was scheduled for August 1. The State filed an amended information on July 31 charging Adamski with third degree theft (count 1), second degree vehicle prowl (count 2), and first degree vehicle prowl (count 3). An agreed order waiving arraignment was entered on August 1. Both parties acknowledge that the speedy trial expiration date under JuCR 7.8 would be September 30, 60 days from August 1. The court entered an order setting the case for trial on September 25.

On September 19, the prosecution moved for a continuance of the trial date to October 9 because a police officer failed to honor a subpoena and was vacationing in Hawaii. Adamski objected to the motion since it would place the trial beyond the 60-day trial period. Finding that the absence of the police officer was not due to any fault by the prosecution and that a continuance would not prejudice the defendant, the court granted the motion. Although Adamski objected to this continuance at trial, it is not challenged before this court.

On October 9, the court granted the State's motion to dismiss count 1. The State also moved for a second continuance on the ground that an essential witness, Jim Byman, was not present. Byman resided in the Kiwanis Vocational Home in Centralia. In accordance with the Home's procedures, the prosecutor mailed a subpoena to Byman at the Home's address so that it could be recorded in a logbook. However, when Byman failed to appear that day at the hearing, the prosecutor called the Home and discovered that Byman never received a subpoena. Indeed, officials at the Home had no record of receiving the subpoena. Nonetheless, the court found that the State had exercised due diligence in mailing the subpoena to the Home and granted the continuance. Defendant objected to this continuance on the ground that it violated his right to a speedy trial.

The case came to trial on October 22, 82 days after arraignment was waived. Adamski's motion to dismiss the charges due to the violation of JuCR 7.8 was denied. After a brief trial, Adamski was found guilty as charged. Adamski was given two consecutive sentences of 30 days in detention. ¹

Adamski appealed the convictions to the Court of Appeals. That court rejected his argument that the second continuance was improper. Since the prosecutor followed the Home's procedures for serving subpoenas to its residents, the court concluded that the State exercised due diligence despite failing to comply with the requirements of CR 45(c). State v. Adamski, 49 Wash.App. 371, 742 P.2d 1252 (1987). We granted defendant's petition for review which challenges only the second continuance.

I

JuCR 7.8(b) provides that an adjudicatory hearing on a juvenile offense shall begin within 60 days following the juvenile's arraignment. If the adjudicatory hearing is not held within the time limits of the rule, the information must be dismissed with prejudice. JuCR 7.8(g). However, continuances or other delays may be granted on motion from the prosecuting attorney if

(ii) the State's evidence is presently unavailable, the prosecution has exercised due diligence, and there are reasonable grounds to believe that it will be available within a reasonable time; or

(iii) required in the due administration of justice and the alleged juvenile offender will not be substantially prejudiced in the presentation of his or her defense.

JuCR 7.8(e)(2)(ii) and (iii). ²

The issue before the court is whether the prosecutor exercised "due diligence" in sending a subpoena to an essential witness in a manner that failed to comply with CR 45(c) and that caused the witness to be absent on the trial date. Adamski contends that a subpoena which does not comply with CR 45 is a "nullity" and its issuance therefore cannot constitute "due diligence." We agree.

The granting or denial of a continuance rests within the sound discretion of the trial court and is reviewable on appeal only for manifest abuse of discretion. State v. Eller, 84 Wash.2d 90, 524 P.2d 242 (1974). In this case, the attempted service of a subpoena to Jim Byman did not constitute due diligence and the trial court's decision to grant a continuance was an abuse of discretion.

The issuance and service of subpoenas in juvenile cases is governed by CR 45(c). See JuCR 1.4(a) and (b) (civil and criminal rules apply in juvenile cases to the extent not inconsistent); CrR 4.8 (subpoenas shall issue in same manner as in civil cases). CR 45(c) states:

A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode....

The prosecution did not comply with these requirements in serving the subpoena on Jim Byman. The subpoena was not read to Byman. It was not given to Byman in person. And it was not left by the server at Byman's abode. Instead, it was mailed to a post office box in care of the Kiwanis Vocational Home. As the prosecutor admitted, there is no indication in the Home's logbook that a subpoena to Byman was even received.

Given that CR 45(c) was not followed, we conclude that the failure to properly subpoena an essential witness falls below the standards of due diligence. The failure to serve a subpoena in conformity with the rules "renders such service a nullity." Harrison v. Prather, 404 F.2d 267, 273 (5th Cir.1968). A subpoena that is not served is of no legal significance; if service requirements have not been met, the subpoena cannot be said to have been issued.

This court has long held the position that due diligence requires the proper issuance of subpoenas to essential witnesses. In State v. Smith, 56 Wash.2d 368, 370, 353 P.2d 155 (1960), this court expressly declared that

[t]he failure to cause a subpoena to issue clearly constitutes such a lack of diligence as to justify the denial of a motion for a continuance.

Although the procedural facts in Smith differ from this one in that the court was asked to reverse the trial court's denial of a continuance, whereas in this case the court is being asked to reverse the trial court's granting a continuance, the requirements of due diligence are the same. See State v. Leroy, 61 Wash. 405, 410, 112 P. 635 (1911); State v. Smythe, 148 Wash. 65, 67, 268 P. 133 (1928); State v. Gowens, 27 Wash.App. 921, 621 P.2d 198 (1980); State v. Toliver, 6 Wash.App. 531, 494 P.2d 514 (1972). As the Court of Appeals stated in Toliver, at page 533, 494 P.2d 514, a party's failure to make "timely use of the legal mechanisms available to compel the witness' presence in court" precluded granting a continuance for the purpose of securing the witness' presence at a subsequent date.

Although it concedes that CR 45(c) was not followed in this case, the State argued, and the Court of Appeals agreed, that it nonetheless acted with "due diligence" because the subpoena was mailed to the Home in accordance with the Home's internal procedures for handling subpoenas to its residents. We reject the proposition that such private arrangements can substitute for the official rules of the court.

The trial court and Court of Appeals determined that the second continuance would not prejudice Adamski. However, this determination was inappropriate. A violation of a defendant's right to a speedy trial caused by the State's failure to exercise due diligence cannot be excused simply because the defendant cannot show prejudice.

II

This court would be remiss to affirm the trial court on the alternative theory of "due administration of justice" suggested by the dissenting opinion of Durham, J. The reasons are numerous.

First, 75 years of Washington case law have held that a continuance is improper when the moving party has failed to exercise due diligence in issuing subpoenas for necessary witnesses. These cases are cited above. The court is unanimous in concluding that the State failed to exercise due diligence in this case, and all of our prior rulings on this subject compel us to reverse the granting of the continuance.

The dissent declines to follow these cases and instead favors a rule which suggests that it does not matter whether the moving party has exercised due diligence in procuring its witnesses. The dissent contends that the State's failure to exercise due diligence under JuCR 7.8(e)(2)(ii) can be ameliorated by a simple determination that a continuance is necessary in the "due administration of justice" under subsection (iii). This interpretation would thoroughly emasculate the speedy trial rule and the protection it provides to juvenile defendants. If "due administration of justice" can be invoked at any time to grant a continuance, even when the prosecution fails to exercise due diligence in procuring its witnesses, there is little point in having the speedy trial rule at all.

Second, there are obvious due process problems in affirming a trial court ruling in a criminal proceeding on an alternative theory against which the defendant has had no opportunity to present an argument. Neither the trial court nor the...