State v. Brooks

• Decision Date: 24 March 2009
• Docket Number: No. 36181-7-II.,No. 36171-0-II.,36171-0-II.,36181-7-II.
• Citation: 203 P.3d 397,149 Wn. App. 373
• Parties: STATE of Washington, Appellant, v. Natalie Renee BROOKS, a/k/a Natalie Renee Pitts, Respondent. State of Washington, Appellant, v. Jason Brooks, Respondent.
• Court: Washington Court of Appeals

203 P.3d 397

149 Wn. App. 373

STATE of Washington, Appellant, v. Natalie Renee BROOKS, a/k/a Natalie Renee Pitts, Respondent.

State of Washington, Appellant, v. Jason Brooks, Respondent.

No. 36171-0-II.

No. 36181-7-II.

Court of Appeals of Washington, Division 2.

March 24, 2009.

J. Bradley Meagher, Lori Ellen Smith, Liam Michael Golden, Lewis County Prosecutors Office, Chehalis, WA, for Appellant.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 The State of Washington appeals the Lewis County Superior Court's decision granting Natalie Renee Brooks's and Jason Brooks's motions to dismiss their respective charges of first degree burglary, first degree robbery, and theft of a firearm due to governmental mismanagement and discovery violations under CrR 8.3. We hold that the trial court did not abuse its discretion because the State failed: to provide a 60-page victim's statement until the day before trial; to provide Jason Brooks's statement to a deputy from the night of the incident; to provide the lead detective's report, which likely would have revealed other witnesses that Natalie and Jason needed to interview, and; to subpoena the victim for trial. The trial court tried to force compliance by granting continuances as an alternative to dismissal, but its offers to extend time were not effective nor was there any assurance that the State would have provided the discovery even if the trial court offered it other alternatives. We hold that the State should have suggested alternatives if it felt that it needed more time and that it did not do so. The governmental mismanagement in this case materially destroyed Jason's and Natalie's ability to obtain a fair trial. The trial court did not abuse its discretion by ordering dismissal based on the extraordinary facts of this case. We affirm.

FACTS

¶ 2 On December 27, 2006, Billy Elkins knocked on Gary Greig's door and said that he wanted to repay a debt that he owed to Greig.¹ Elkins told Grieg that he could select a sword from Elkins's sword collection to satisfy the debt. Jason, Natalie, and a person named Candace accompanied Elkins to Greig's house, apparently with the intention of robbing Greig. The plan required Jason, Natalie, and Elkins to distract Greig while Candace stole various items from other parts of Greig's house. They would also attempt to sell items to Greig so that they could use the money to buy methamphetamine.

¶ 3 When Jason, Natalie, and Elkins left Greig's residence, Greig noticed that someone had moved a radio and tampered with his safe. Greig took a rifle and confronted the three near their vehicle. He found three of his crossbows and a pair of his binoculars in the vehicle. Candace appeared and a gunfight ensued, resulting in the deaths of Elkins and Candace, along with injuries to Greig.

¶ 4 The State charged Jason and Natalie with first degree burglary, first degree robbery, and theft of a firearm. The trial court arraigned Jason and Natalie on January 2, 2007, and established the speedy trial deadline² as March 2, 2007. The trial court set Jason's trial for the week of February 19, 2007, with an omnibus hearing set for February 1, and trial confirmation set for February 15. It set Natalie's trial for the week of February 12, with an omnibus hearing set for January 25, and trial confirmation set for February 8.

¶ 5 At Natalie's omnibus hearing on January 25, the State asked for a one-week continuance because it had just received some discovery. Natalie's counsel indicated that the only discovery he received thus far was the probable cause statement. The trial court continued Natalie's omnibus hearing to February 1.

¶ 6 On February 1, the trial court again called Natalie's omnibus hearing. Natalie's counsel indicated that he had received new discovery from the State the previous day and that the State provided its first round of discovery the previous Friday. The trial court continued Natalie's omnibus hearing to February 8, to allow the State time to provide the defense with additional discovery.

¶ 7 On February 8, the trial court completed Natalie's omnibus hearing. Her counsel indicated that he received "six more inches of discovery Friday afternoon." VRP (Natalie) (Feb. 8, 2007) at 12. The trial court recognized that it could continue Natalie's trial without violating her speedy trial rights, so it reset her trial date to the week of February 19, with trial confirmation set for February 15.

¶ 8 The trial court held Jason's omnibus hearing on February 8. On February 15, the trial court confirmed that Jason's trial would begin the following week, and also confirmed Natalie's trial date. Both trials would occur during the week of February 19. At Natalie's confirmation hearing, counsel indicated that he had just received the State's witness list for the witnesses the State planned to call during a scheduled CrR 3.5³ hearing. The trial court moved back the CrR 3.5 hearing to the same day as Jason's CrR 3.5 hearing so that both Natalie's and Jason's counsel could review the witness list.

¶ 9 During Jason's CrR 3.5 hearing, which occurred the morning of the first scheduled trial date, his counsel indicated that the State had provided him with over 138 pages of new discovery, including a statement to police that Jason made on December 27, 2006, the day of the incident. Jason's counsel stated that the State told him two weeks earlier that it knew that he did not have this statement and that the State would get it to him soon. Jason's counsel also received additional police reports, one of which indicated that Jason made two additional taped statements that neither his, nor Natalie's counsel knew about because the deputy did not mention them in his initial report. The State had not provided those two taped statements. The new discovery the State provided included taped statements from nine individuals, each of which the officers recorded between January 3, and January 10.

¶ 10 In addition to Jason's two taped statements, Jason's counsel indicated that he had not received an hour-long tape of Greig, the alleged victim, which police taped on December 27, 2006, the day of the incident. Jason's counsel testified that when he interviewed Greig, Greig provided statements that were inconsistent with an earlier statement that he gave to police the day after the incident. Accordingly, he argued that he needed Greig's statements from the day of the incident to determine consistency before he could examine Greig at a CrR 3.5 hearing. Further, he stated that he did not receive at least three diagrams described in the various police reports. Jason's defense counsel indicated that he spoke with the prosecutors assigned to this case many times to request additional discovery.

¶ 11 Accordingly, Jason requested a dismissal under CrR 4.7(h)(7) based on the State's failure to provide discovery. The State first countered that the defense should not be surprised by what the taped statements contained because the officers' reports contained summaries of the taped statements. The trial court corrected the State that CrR 4.7(a)(1)(ii) requires the State to provide the statement as opposed to a summary of the statement.

¶ 12 The State next contended that time remained before the speedy trial deadline expired and thus, the proper remedy was to continue the trial so that defense counsel could review the discovery and prepare his argument. When the trial court asked the State what was happening with the discovery problems in this case, the State responded, "I honestly can't tell the court." VRP (Natalie & Jason) (Feb. 20, 2007) at 13. When the trial court asked specifically about Greig's December 27, 2006 taped statement, the State responded that it did not yet have the Greig statement because the police had not yet transcribed it. The trial court next asked about the State's delay in providing its witness list on the morning of trial. The deputy prosecutor responded that when he took over Jason's case, the first thing he did was to check for a witness list, and when he did not see one, he asked another deputy prosecutor to prepare one.

¶ 13 The trial court considered the speedy trial deadline, noting that there is a cure period or a possible extension beyond the speedy trial date if necessary. The trial court sanctioned the State under CrR 4.7(h) and granted a continuance, moving the trial to March 2, the last day of his speedy trial window. The trial court also allowed Jason to file a motion to dismiss under CrR 8.3 based on governmental misconduct, which it scheduled for the morning of March 1.

¶ 14 The trial court then addressed the discovery issues in Natalie's case. Natalie's counsel noted similar discovery problems, but he indicated that he had not yet received the new stack of discovery that the State left in his assigned in-box at the prosecutor's office because defense attorneys do not have access to their in-boxes unless the office is open. Natalie incorporated all of Jason's arguments. Her counsel pointed out that the trial court had already continued her case once for discovery issues. Natalie's counsel noted that he was still missing 11 taped statements, three sketches, and the Greig statement. Natalie's counsel then asked for a dismissal based on governmental mismanagement, arguing that Natalie was forced to choose between effective assistance of counsel and her right to a speedy trial. The trial court continued Natalie's trial to March 2, the last day of her speedy trial window, and scheduled a motion hearing for the morning of March 1, to consider Natalie's CrR 8.3 motion to dismiss.

¶ 15 On March 1, 2007, the trial court heard both Natalie's and Jason's motions to dismiss. Natalie's counsel informed the trial court that the State did not provide the first discovery in this case until after the first omnibus hearing. He agreed to a continuance so the State could provide the...