State v. Carter

• Decision Date: 11 December 1989
• Docket Number: No. 20783-1-I,20783-1-I
• Citation: 783 P.2d 589,56 Wn.App. 217
• Parties: STATE of Washington, Respondent, v. William Roosevelt CARTER, Appellant.
• Court: Washington Court of Appeals

Page 217

56 Wn.App. 217

783 P.2d 589

STATE of Washington, Respondent, v. William Roosevelt CARTER, Appellant.

No. 20783-1-I.

Court of Appeals of Washington,

Division 1.

Dec. 11, 1989.

Jesse Wm. Barton, Washington Appellate Defender, for appellant.

Marilyn Nowogroski, King County Deputy Pros. Atty., for respondent.

GROSSE, Acting Chief Judge.

William R. Carter, Jr. (Carter) appeals his conviction of first degree assault. Carter was originally charged with first degree robbery, but his trial on this count resulted in a hung jury mistrial. On retrial the prosecution was allowed to amend the information to one of first degree assault.

The issue on appeal is whether Carter was deprived of effective assistance of counsel because his counsel failed to raise a mandatory joinder objection under CrR 4.3(c)(3) at the time the prosecution made a motion to amend and/or change the charge from one of first degree robbery to one of first degree assault. Alternatively, he argues that he received ineffective assistance because his counsel failed to raise a speedy trial objection under CrR 3.3, again after the prosecutor moved to amend the charge to one of assault.

We must first look to the alleged errors that Carter claims forms the basis for the claim of ineffective assistance of counsel. ¹ CrR 4.3(c)(1) defines "related offenses" as follows: ²

Two or more offenses are related offenses, for purposes of this rule, if they are within the jurisdiction and venue of the same court and are based on the same conduct.

The State concedes the two charges here, the first degree robbery and the first degree assault, are based on the same conduct and that the offenses were "related" ³ as resulting from that conduct. Thus, the question is the scope of CrR 4.3(c)(3). ⁴

Our analysis must begin with State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984). Russell holds that the discharge of a hung jury on a criminal charge does not bar a retrial on the same charge and further holds that for purposes of CrR 4.3, a defendant has been "tried" when the issue has been submitted to the jury but a mistrial declared, thus leaving the issue of guilt or innocence unresolved. ⁵ Russell states that its analysis of CrR 4.3 is based on the rationale of "issue preclusion", Russell, 101 Wash.2d at 353, 678 P.2d 332, citing State v. Anderson, 96 Wash.2d 739, 638 P.2d 1205 (1982), and State v. Dailey, 18 Wash.App. 525, 569 P.2d 1215 (1977). Russell also cites to the ABA Standards Relating to Joinder and Severance 19 (Approved Draft, 1968) which state in part:

"[T]he purpose of this section of the standards is to protect defendants from 'successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge against the risk of an unsympathetic jury at the first trial, to place a "hold" upon a person after he has been sentenced to imprisonment, or simply to harass by multiplicity of trials.' "

Russell, 101 Wash.2d at 353 n. 1, 678 P.2d 332.

CrR 4.3(c)(3) provides:

A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense ... The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

(Emphasis added.)

Thus, dismissal of the amended information is mandated by the State's failure to comply with CrR 4.3. ⁶ While the State concedes the offenses are related, it asserts that any motion for dismissal would probably have been denied under CrR 4.3(c)(3) because "the ends of justice would have been defeated" if the motion had been granted and the assault charge dismissed. We disagree.

The term "ends of justice" has not been defined or explained by case law in this jurisdiction. The ABA standards and commentary on Joinder of Offenses and Defendants provide that the test for determining what the consequences for failure to join related offenses is:

[T]he same test as that concerning whether joinder should be required, as set forth in subsection (b) of the [ABA] standard [see CrR 4.3(b) ]. This being so, there is nothing to be gained by a prosecutor deferring or concealing charges of related offenses prior to the first trial. If the defendant knows before the first trial that related offenses have been charged and he makes the appropriate motion, the offenses are merely joined; if the defendant does not have this knowledge before the first trial, the defendant's subsequent motion will bar prosecution of related offenses in every case in which the offenses would have been joined but for the prosecutor's failure to charge or to apprise the defendant of the charge. Also, the prosecutor is discouraged from deferring or concealing charges of related offenses under the provisions of section 1.3 in that notification to the defendant that several related offenses have been charged puts the burden on him to move for joinder. As [previously] discussed ..., there are several reasons why a defendant might not so move [for joinder under CrR 4.3(b) ]; by contrast, there does not appear to be any reason why a defendant would fail to move for dismissal under section 1.3(c) [CrR 4.3(c) ].

ABA Standards Relating to Joinder and Severance § 1.3(c), Commentary at 23-24 (Approved Draft, 1968).

The State argues that the trial court "probably" would not have granted a motion to dismiss the amendment under CrR 4.3 because CrR 2.1(e) allows amendment of any information "at any time before verdict or finding ifsubstantial rights of the defendant are not prejudiced." The State points out that because the trial court allowed amendment of the information under CrR 2.1 at the beginning of the second trial, it follows that the trial court necessarily found the substantial rights of the defendant were not prejudiced. See CrR 2.1(e). ⁷ We would agree but for the fact we must interpret the Rules of the Court in concert with each other to give meaning to each rule. To agree with this argument would obviate CrR 4.3. That rule necessarily limits the broad application of CrR 2.1(e) as interpreted by the State. In short, if an amendment invokes an uncharged or not joined related offense as contemplated by CrR 4.3, then a "substantial right of the defendant" is prejudiced.

Neither the ABA standards nor the case law concerning CrR 4.3 help in an "ends of justice" analysis. ⁸ For want of a better analogy we turn to the rationale adopted by the United States Supreme Court under the Federal Rules of Civil Procedure (Fed.R.Civ.P. 60(b)(6)), see Ackermann v. United States, 340 U.S. 193, 200, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); and in turn the state courts under CR 60(b), specifically CR 60(b)(11), see State v. Keller, 32 Wash.App. 135, 140, 647 P.2d 35 (1982); see also In re Adoption of Henderson, 97 Wash.2d 356, 360, 644 P.2d 1178 (1982). CR 60(b)(11) allows relief from a judgment for " '[a]ny other reason justifying relief from the operation of the judgment' ". This rule is identical to Fed.R.Civ.P. 60(b)(6). The United States Supreme Court held in Klapprott v. United States, 335 U.S. 601, 615, 69 S.Ct. 384, 390, 93 L.Ed. 266 (1949) that this rule "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." However, "extraordinary circumstances" must be shown to exist to gain relief under Fed.R.Civ.P. 60(b)(6). Ackermann, 340 U.S. at 200, 71 S.Ct. at 212. Washington has applied a similar "extraordinary circumstances" standard to CR 60(b)(11) motions. In re Marriage of Flannagan, 42 Wash.App. 214, 221, 709 P.2d 1247 (1985), review denied, 105 Wash.2d 1005 (1986), citing State v. Keller, 32 Wash.App. 135, 647 P.2d 35 (1982).

Using this analogy, we hold that to invoke the "ends of justice" exception of CrR 4.3(c)(3), the State must show there are "extraordinary circumstances" warranting its application. In the case at bar, the State has not shown that the facts and circumstances here are such that they qualify as "extraordinary circumstances". In fact the State has merely made a bald assertion, without any supporting argument or authority, that to allow the dismissal of the amended charge would "defeat the ends of justice." We disagree. While we can conceive of a scenario where through no fault on its part the granting of a motion to dismiss under the rule would preclude the State from retrying a defendant or severely hamper it in further prosecution, such is not true here. The State can retry Carter on the original charge. Under CrR 4.3(c)(3) and Russell, failure to at least charge the related offense, or join it before the first trial and resulting mistrial mandates dismissal of the related charge.

This appeal is brought on the issue of ineffective assistance of counsel. The failure to assert a proper defense has previously been held to establish that ineffective assistance of counsel. See State v. Thomas, 109 Wash.2d at 226-27, 743 P.2d 816. Certainly, the failure to argue a rule requiring dismissal in the face of a motion to amend is an omission of equal or greater magnitude. The fact that counsel did not make a motion to dismiss pursuant to CrR 4.3(c)(3) cannot be characterized as a tactical decision or one of trial strategy. There was no advantage to be gained from defending a first degree assault charge as opposed to a first degree robbery charge, especially considering the latter charge initially resulted in a hung jury mistrial. Additionally, the penalty for assault could be, and indeed was, more harsh. Given the facts of the case, the first degree robbery was more difficult to prove, a circumstance benefiting the defense. An attorney is presumed to know the rules of the court. The record...