State v. Barton

• Decision Date: 29 May 1980
• Docket Number: No. 45539,45539
• Citation: 93 Wn.2d 615,611 P.2d 789
• Parties: The STATE of Washington, Respondent, v. Thomas J. BARTON, Jr., Petitioner.
• Court: Washington Supreme Court

Page 615

93 Wn.2d 615

611 P.2d 789

The STATE of Washington, Respondent, v. Thomas J. BARTON, Jr., Petitioner.

No. 45539.

Supreme Court of Washington, En Banc.

May 29, 1980.

Critchlow, Williams, Ryals & Schuster, Edward B. Critchlow, Richard M. Knoeber, Richland, for petitioner.

Curtis L. Ludwig, Benton County Pros. Atty., Prosser, for respondent.

BRACHTENBACH, Justice.

Defendant was charged with second-degree murder as a result of a shooting which followed an altercation between the occupants of two motor vehicles. After trial on the charge, the jury was unable to reach a verdict and a mistrial was declared. A new trial was scheduled by the superior court administrator for February 7, 1977, 94 days after the date of the mistrial. On February 4, 1977, defendant filed a motion to dismiss the charge with prejudice since more than 90 days had elapsed. The motion was denied.

Discretionary review was granted by the Court of Appeals which, by a split decision, upheld the trial court. State v. Barton, 17 Wash.App. 846, 565 P.2d 830 (1977). Judge McInturff, in his dissenting opinion (17 Wn.App. at 849, 565 P.2d 830), stated that 90-day time limitation of CrR 3.3(b) applied to a retrial following a mistrial. Defendant then petitioned this court for review. While this petition was pending, we released our decision in State v. Aleshire, 89 Wash.2d 67, 568 P.2d 799 (1977). Subsequently, we granted the petition for review and remanded this case by notation order to the Court of Appeals "with directions to reconsider". The Court of Appeals reconsidered, and by another split decision again upheld the trial court, holding that, since Aleshire had been decided after the trial proceedings, it should not govern. State v. Barton, 19 Wash.App. 322, 575 P.2d 730 (1978). Upon reconsideration, the majority found our decision in Aleshire to be a "newly adopted procedural rule" and stated, referring to CrR 1.3(a), that it should not be applied to "any acts done before . . . (Aleshire was decided) in any proceeding pending under rules of procedure in effect prior to . . . (the decision in Aleshire )." Barton, 19 Wash.App. at 325, 575 P.2d at 731.

We affirm the majority of Division Three of the Court of Appeals and deny the motion to dismiss.

The defendant presents no constitutional challenge to his second-degree murder conviction. Rather he complains of a 4-day violation of our voluntarily adopted time limits for a speedy trial as set out in CrR 3.3.

The question is whether the Aleshire case, supra, was a newly adopted procedural rule or whether it was an interpretation of the application of CrR 3.3 to retrials following a mistrial, not retrospective in nature. It is argued that the Aleshire rule should have been anticipated by the fact that we have examined previously the American Bar Association standards where a hiatus appears in CrR 3.3. State v. Elizondo, 85 Wash.2d 935, 540 P.2d 1370 (1975).

It is true that in State v. Elizondo, supra, we did look to the ABA standards for guidance in filling gaps inadvertently existing under CrR 3.3.

However, neither in Aleshire nor in Elizondo did we indicate, dictate or mandate that the ABA standards were the absolute and binding source of all solutions and answers to unstated issues of CrR 3.3. As Justice Rosellini said in dissenting in State v. Parmele, 87 Wash.2d 139, 143, 550 P.2d 536, 538, 539 (1976):

The majority assumes that the comments to the ABA Standards Relating to Speedy Trial have been incorporated in our rules. If so, it has been done sub silentio, and I do not believe that either lawyers or laymen should be expected to read into the rules qualifications or modifications which this court did not see fit to promulgate.

After all, we wrote the rules. We put there what we felt should be included, and presumably we omitted what we felt should be omitted. . . .

If it (the court) thinks they are inadequate or inappropriate, it should rewrite them. But it ought not to read into them provisions which are not there and read out of them the words that are written. They are complicated enough as they are. To further obscure them is to bring into focus the question whether the court itself, in its rule making operations, is not bordering on the denial of due process of law.

CrR 3.3 was not promulgated without substantial study and controversy. Its purpose remains desirable and attainable. Like all rules it cannot and did not anticipate all of the possible factual situations which arise in the day-to-day trial of cases.

The rule was not all things to all questions. We have amended it several times and other amendments are under consideration. More than 90 appellate decisions have construed or applied CrR 3.3 since it was adopted.

These facts alone should militate against the argument that the Aleshire interpretation was merely a proper interpretation of CrR 3.3 to retrials following mistrials when that situation is not even mentioned in the original rule.

We agree with the concurring opinion of Chief Justice Utter who advances forceful arguments as to why the retroactive application of the Aleshire principle would not effectively serve the purpose of the rule.

Therefore, we affirm the majority opinion of the Court of Appeals and deny the motion to dismiss.

STAFFORD, WRIGHT, HICKS and WILLIAMS, JJ., concur.

UTTER, Chief Justice (concurring).

I concur in the result for I find that under traditional standards of retroactivity, the decision in State v. Aleshire, 89 Wash.2d 67, 568 P.2d 799 (1977), cannot be applied to the present case, which was tried before the announcement of the Aleshire decision.

In Aleshire, we held for the first time that the speedy trial requirements of CrR 3.3 apply to retrials following a mistrial. Although the ABA Standards Relating to Speedy Trial provided some foreshadowing of this principle, the principle did not become a part of our law until it was adopted in Aleshire.

Under the retroactivity standards applied in prior cases, the question of whether a new rule is to be limited to prospective application turns on the particular rule and its purposes and effects. Three factors are deemed relevant to a resolution of the question: (1) The purpose of the new rule and whether retroactive application of the rule would effectively serve that purpose; (2) whether and to what extent law enforcement agencies, including courts, justifiably relied upon the preexisting rule; and (3) the effect of retroactive application upon the administration of justice, including the number of jurisdictions whose past procedures did not measure up to the new rule, the probable percentage of those individuals whose former trials would be invalidated by retroactive application of the new rule coupled with the practical difficulties which would be encountered in retrials of such persons, and the availability of remedies to correct the deficiencies aimed at by the new rule other than invalidation of former proceedings. All three factors must be examined, and the process is one of balancing each against the other.

Brumley v. Charles R. Denney Juvenile Center, 77 Wash.2d 702, 707, 466 P.2d 481 (1970). These standards have been employed to determine the retroactivity of new constitutional principles (see, e. g., Brumley ), as well as retroactivity of new interpretations of court rules. See, e. g., Wood v. Morris, 87 Wash.2d 501, 514-15, 554 P.2d 1032 (1976); see also Halliday v. United States, 394 U.S. 831, 832, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).

Applying the first of these tests to the present case, it is evident that the retroactive application of the Aleshire principle would not effectively serve the purpose of the rule. The underlying policy objectives of speedy trial guarantees are to "prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). The speedy trial rule accomplishes these objectives by requiring dismissal of the charges for violation of the speedy trial deadlines (see CrR 3.3(i)), and thereby establishing a deterrent to violation of these deadlines. Accordingly, the underlying purpose of the Aleshire rule, like other speedy trial requirements, is to deter violations of speedy trial deadlines by threatening the sanction of dismissal of the charges. It has been recognized in other contexts that when a procedural requirement is adopted for the purpose of deterring governmental misconduct, this purpose will not be furthered by applying the requirement retroactively to misconduct which occurred prior to announcement of the rule. See, e. g., Linkletter v. Walker, 381 U.S. 618, 636-37, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (nonretroactivity of newly announced state exclusionary rule for illegally seized evidence.)

The second of the three retroactivity tests provides some support for the position that the Aleshire holding should not be limited to prospective application. It was to a certain degree unjustifiable for law enforcement agencies to rely on an assumption that CrR 3.3 did not apply to retrials following mistrial, since the ABA standards called for application of speedy trial requirements in that context and our earlier decisions relied on the ABA standards in interpreting other aspects of CrR 3.3. However, this factor does not call strongly for retroactive application of Aleshire. The ABA standards were never declared binding on our construction of CrR 3.3, and we had not given any indication prior to Aleshire that we would follow the ABA standards on this point.

The third retroactivity factor does not tip the balance any further in favor of or against retroactive application of Aleshire. There are, it may be assumed, a number of cases that would be affected by a finding that Aleshire is...