State v. Burri
| Citation | 550 P.2d 507,87 Wn.2d 175 |
| Decision Date | 27 May 1976 |
| Docket Number | No. 43961,43961 |
| Parties | STATE of Washington, Appellant, v. Adolph BURRI, Respondent. |
| Court | United States State Supreme Court of Washington |
Paul A. Klasen, Jr., Pros. Atty., Ken L. Jorgensen, Deputy Pros. Atty., Ephrata, for appellant.
Collins & Hansen, James R. Brown, Ephrata, for respondent.
The state appeals a superior court's dismissal of an informating against defendant Adolph Burri.
On April 25, 1975, the defendant was charged by information with the theft of hay in violation of RCW 9.54.010. He pleaded not guilty. On June 12, 1975, in response to the prosecutor's application, defendant served on the prosecutor notice that he would rely upon an alibi defense, and provided the prosecutor with the names, addresses and telephone numbers of six alibi witnesses and statements supplied by four of them.
On July 16, 1975, over defendant's objection, the prosecutor held a special inquiry hearing under RCW 10.27 before a special inquiry judge in Snohomish County. All defendant's alibi witnesses were summoned to appear at the inquiry hearing.
At the hearing defendant's witnesses were questioned as to the defendant's alibi. The defense was not allowed to be present, and the defense witnesses were instructed not to discuss their testimony with any other person.
On August 1, 1975, defendant filed a motion to dismiss the information for interference with his witnesses. The motion was supported by affidavit generally to the effect that the special inquiry proceeding made his alibi witnesses unavailable to him for further questioning and investigation, which caused such hardship and prejudice to him that he was and is unable to properly prepare for trial.
On August 5, 1975, the court signed an order requiring the record of the special inquiry hearing be made available to defendant's counsel for examination and copying.
On August 6, 1975, the state filed a memorandum in the nature of argument in response to defendant's motion to dismiss. It states in part: (1) defendant is at liberty to interview his alibi witnesses, so long as he does not talk with them specifically about what testimony was given at the special inquiry hearing, (2) the state plans to use the transcript of the testimony given at the special inquiry hearing at trial, and (3) defendant has been notified that he may have access to the transcript for copying purposes.
On August 8, 1975, the trial court granted defendant's motion to dismiss. It held the use of the special inquiry proceeding of RCW 10.27 to examine defense witnesses was outside the special use authorized by the statute. It later entered findings of fact and conclusions of law in support of the dismissal.
The state basically contends: (1) its use of RCW 10.27 in the instant case is permissible, (2) alternatively, RCW 10.27 was properly used to investigate a crime separate from the theft charged, namely, a suspected conspiracy between defendant and the witnesses to fabricate an alibi and commit perjury; and (3) there is no showing defendant was prejudiced by the special inquiry proceeding. We disagree with the state and affirm the dismissal.
State v. Manning, 86 Wash.2d 272, 543 P.2d 632 (1975), decided while the instant case was pending on appeal, makes the state's first contention untenable. Manning held:
(W)e conclude that the statute (RCW 10.27) does not authorize use of the special inquiry proceeding to discover or gather evidence against an already charged defendant, as to crimes already charged.
State v. Manning, supra at 275, 543 P.2d 634. The court explained the purpose of RCW 10.27.170, a therein stated, is in the investigation of 'suspected crime or corruption.' State v. Manning, supra at 275, 543 P.2d 632. Since defendant was already charged with violating RCW 9.54.010 when the state instituted the special inquiry proceeding, the use of RCW 10.27.170 to gather evidence against defendant was not within its stated purpose.
The alternative argument that the state was properly using RCW 10.27 to investigate a crime separate from the theft charged by information, namely, a suspected conspiracy between defendant and the witnesses to fabricate an alibi and commit perjury, is also untenable. In the hearing on defendant's motion to dismiss the state said nothign concerning such a second crime. Rather, the record indicates the state's purpose was to gain information for use on the theft charge. To now seek to justify the otherwise impermissible use of RCW 10.27 on a theory neither urged nor relied on before the trial court is to fly in the fact of the well-settled rule that a judgment will not be reversed on a theory presented for the first time on appeal. See Peterson v. Neal, 48 Wash.2d 192, 194, 292 P.2d 358 (1956); State v. Moe, 174 Wash. 303, 308--09, 24 P.2d 638 (1933).
The state finally seeks to reverse the dismissal on the ground the record does not show defendant was prejudiced by the special inquiry proceeding. We do not agree. The affidavit filed in support of defendant's motion to dismiss states in part:
That the Grant County Prosecuting Atotrney, through his Deputy did thereupon proceed to initiate, over the objection of counsel, special inquiry proceedings pursuant to Chapter 10.27 of the Revised Code of Washington for the sole purpose of subpoenaing and interrogating the named alibi witnesses of the Defendant. That following the completion of such interrogation and questioning, the witnesses were instructed pursuant to RCW 10.27.090 that they were prohibited by law from disclosing their testimony before the special inquiry Judge. That since the above date the Defendant and his counsel have been unable to and prohibited from questioning the witnesses called before the special inquiry proceedings, or pursuing any discovery leading from such questioning. That RCW 10.27.090 provides no means by which the Defendant can obtain a record of the testimony before such proceedings as the criminal proceedings herein involved were already initiated and pending before the Court.
That the above-referred to interference with the witnesses of the Defendant has caused an extreme hardship and severe hardship to the Defendant and his counsel, and has caused him to be unable to properly prepare for trial in the above-entitled matter, and because of such prejudice the matter should be hereby dismissed with prejudice.
Although the trial court was not required by CrR 8.3 (dismissal) to enter formal findings of fact upon the dismissal, but only a statement of the reasons therefor, the court's finding of fact No. 4 is in effect such a reason. The finding states.
That the defense witnesses were interrogated at the Special Inquiry Proceeding, the defense was not allowed to be present, and the defense witnesses were instructed not to discuss their testimony therein with any other person.
The foregoing affidavit and finding evidence a substantial, unauthorized interference with all of defendant's alibi witnesses. The state's memorandum of August 6, 1975, concedes defendant cannot 'talk with them (defendant's alibi witnesses) specifically about what testimony was given at the Special Inquiry Proceedings.'
It is no answer to say that making a copy of the illegally obtained testimony available to defendant obviated the prejudicial effect of interfering with the right of defendant and his counsel to personally confer with and interview the alibi witnesses. The alibi defense was a vital part of defendant's case. The state, as it stated in the memorandum filed August 6, 1975, intended to use the special inquiry testimony at trial. Evidently the state's position was the testimony was beneficial to the state and injurious to defendant. It was important, therefore, the state not interfere with defendant's trial preparation. It was highly important for defendant to (1) ascertain whether the alibi witnesses had changed their testimony and if so, for what reason; (2) discover the areas in testimony that needed further investigation; (3) review with the witnesses any additional facts that might have been overlooked by the witnesses in their testimony supportive of the defendant's alibi; and (4) ascertain whether the illegally held special inquiry hearing--conducted in the absence of defendant and his counsel--had caused friendly witnesses to become hostile. The availability of a copy of their testimony without benefit of personal interview of the witnesses concerning the testimony given by them is not necessarily an adequate substitute.
The unauthorized interference described violates defendant's constitutionally protected right to a fair trial. U.S.Const. amend. 6, Const. art. 1, § 22 (amendment 10). A fair trial contemplates the defendant will not be prejudiced by the denial to him of his right to counsel and compulsory attendance of witnesses. Wood v. State, 155 Fla. 256, 260, 19 So.2d 872 (1944); See State v. Pryor, 67 Wash. 216, 219, 121 P. 56 (1912). As next appears, these rights include the opportunity to prepare for trial.
A defendant is denied his right to counsel (U.S.Const. amend. 6; Const. art. 1, § 22, (amendment 10)), if the actions of the prosecution deny the defendant's attorney the opportunity to prepare for trial. Such preparation includes the right to make a full investigation of the facts and law applicable to the case. State v. Hartwig, 36 Wash.2d 598, 601, 219 P.2d 564, 566 (1950) states:
The constitutional right to have the assistance of counsel, Art. 1, § 22, carries with it a reasonable time for consultation and preparation . . .
. . . (I)t was the duty of appointed counsel to make a full and complete investigation of both the facts and the law in order to advise his client and prepare adequately and efficiently to present any defenses he might have to the charges against him . . .
Preparation for trial also includes the right to confer with one's own witnesses:
It was fatal error to refuse the defendant the...
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