State v. Christensen, 40177

• Decision Date: 10 April 1969
• Docket Number: No. 40177,40177
• Parties: The STATE of Washington, Respondent, v. Lowell CHRISTENSEN, Appellant.
• Court: Washington Supreme Court

Page 678

75 Wn.2d 678

453 P.2d 644

The STATE of Washington, Respondent, v. Lowell CHRISTENSEN, Appellant.

No. 40177.

Supreme Court of Washington, En Banc.

April 10, 1969.

Rehearing Denied June 25, 1969.

Horrigan, Sullivan & McKinlay, Edward H. McKinlay, Pasco, for appellant.

C. J. Rabideau, Pros. Attys., Pasco, for respondent.

HALE, Judge.

Defendant claims a denial of his right to a speedy trial under article 1, section 22 (amendment 10) of the state constitution and amendment 6 of the constitution of the United States. His appeal also involves RCW 10.46.010 requiring that criminal cases be brought to trial within 60 days. The record also evokes questions concerning the sufficiency of defendant's request for a speedy trial.

Defendant was arrested in Pasco on July 6, 1967, on a justice court felony complaint charging him under RCW 9.79.080 with taking indecent liberties with a female person under the age of 15 years. He was promptly admitted to bail, and at all times since his arrest has been regularly employed and living in the community with his wife and children. The charge remained pending in justice court until August 23, 1967, when the Prosecuting Attorney for Franklin County superseded it with an information in superior court. When arraigned in superior court on the information, defendant, with counsel present, entered a plea of not guilty. His counsel made some comments to the court which, defendant contends, constituted an application for a speedy trial. Later, on defendant's motion, the court, under the 60-day statute (RCW 10.46.010), ordered the information dismissed, but refused to make it a dismissed with prejudice.

It is from this refusal, which in effect amounted to a denial of an order quashing the information, that the appeal is taken. Thus, the state does not appeal the order of dismissal granted pro forma under the 60-day statute and that order is not before us for review save as a part of the record. What we must determine is whether, under the state and federal constitutions, that order should have been made with prejudice, so as to constitute an undeniable predicate for a plea in bar to a trial upon the information. The cause is here on an agreed statement of facts.

The first proceedings, upon which defendant depends for a dismissal with prejudice, occurred before Judge John Thomas Day, presiding in superior court at arraignment. Present were Mr. McKinlay, counsel for the defendant, and Mr. Moore, representing the state:

Q. Then to the charge in the Information dated the 23rd day of August, 1967, alleging indecent liberties, what is your plea, guilty or not guilty? A. Not guilty. Q. A plea of Not Guilty will be received and the matter will be set over to the jury term. MR. McKINLA: Your Honor, I should go on the record here as having indicated to the Prosecuting Attorney this morning some prospect of it going over to the spring term, but the defendant indicates he would like it disposed of at this time, so * * * THE COURT: Will you advise Judge Lawless of this then? MR. MOORE: Yes, Your Honor, we will do so. THE COURT: That's all.

At that time under procedures then obtaining in that judicial district for setting cases for trial, counsel knew that after a plea of not guilty the case would come on automatically for setting and probably for trial before Judge James Lawless, the other judge of that district. Thus, on no more than the foregoing rather vague and indefinite colloquy occurring conversationally before one judge at arraignment, the defendant largely rests his contention that he demanded a speedy trial from another judge before whom the case would likely be set and tried. The matter, as will later appear, seems to have been left, so to speak, in a state of suspended animation, with no application for a trial setting to come before Judge Lawless, the prospective trial judge, except under the automatic trial setting procedures long employed and then in effect in that judicial district.

That the colloquy before Judge Day at arraignment amounted to no more than conversation may be seen in the vague and indefinite nature of defendant's assertions. Knowing that Judge Lawless under existing procedures would in all probability set the trial date and try the case, defense counsel's only comment concerning a trial date was that he had indicated to the Prosecuting attorney 'some prospect of it going over to the spring term, but the defendant indicates he would like it disposed of at this time.' To this comment, Judge Day, addressing Mr. Moore, the deputy prosecuting attorney, asked, 'Will you advise Judge Lawless of this then?' and to which Mr. Moore replied, 'Yes, Your Honor, we will do so.' That concluded the first episode on which defendant rests.

The sequel was equally vague, indefinite and uncertain. August 28, 1967, Mr. Moore, the deputy prosecuting attorney, addressed a letter to Judge Lawless at the Franklin County Courthouse with copy to Mr. McKinlay, defense counsel, stating merely:

On Friday, August 25, 1967, Mr. Christensen was arraigned and plead not guilty. He stated a desire to have the matter tried this term and Judge Day requested that we contact you for a setting date. I would estimate that the matter would take approximately one day to try, and I doubt that a settlement will be made.

Judge Lawless had no recollection of having received this letter of August 28. During the impending jury term, scheduled to run from September 11, 1967, until November 9, 1967, there were still available for jury trials 23 days. Needless to say, Judge Lawless did not set the case for trial during that term. Since the trial judge was unaware of hte prosecutor's letter, and defendant, although having a copy of it, made no application, orally or in writing, for a trial date, the case did not come on for setting until January 19, 1968--and then in the routine order of business. On that date, Judge Lawless, in the course of a regular call of the assignment calendar, announced from the bench sua sponte that the instant case was set for trial on February 25, 1968. Mr. McKinlay, defendant's attorney, in court on other matters, by happenstance heard the court announce the date of trial and immediately protested the setting, first because the date fixed would conflict with a civil case he was handling and secondly in objection to its 'being set at all.' Thereupon, apparently in an effort to reconcile counsel's conflict in trial dates, the court set the case for trial to be held on February 6, 1968.

A few days later, more than 60 days from the filing of the information, the defendant, on January 26, 1968, filed the instant motion for a dismissal with prejudice, basing it on the 60-day statute (RCW 10.46.010) and the state and federal constitutions. In granting the dismissal under the statute, but without prejudice to a refiling of the information, the court said, Inter alia:

The Prosecuting Attorney brought this on in a proper fashion; Judge Day referred it to me and asked the prosecuting attorney's office to advise me that the matter needed a date. Now, it is evident from the record that on August 28, the Deputy, Mr. Moore, directed a letter to me. In all honesty I have to tell you that I either read it and forgot it or I simply didn't read it. I have no recollection at all or receiving the letter, although I am certain that I must have received it, so in some fashion I lost the communication.

Now, I am also satisfied that the defendant did delay the matter to this extent. Had this Court been reminded in any fashion during the progress of the fall jury term, it would have received an immediate setting, and I suspect counsel is aware of that. Nothing was done by the defendant urging the setting of the matter, nor was there any effort to call it to the attention apparently of the Court or the prosecuting attorney's office until the time came for the setting of the spring term. Now as both counsel know the procedure likewise in this area is that all criminal matters and all matters in which a demand for jury has been made are automatically given a trial date without any request from counsel. This is how this matter happened to come on again. When this matter was given a date, then the defendant comes forward and urges too much time has gone by. Now, I am reasonably certain that the fact that this matter was delayed as long as it has been was with the understanding of the defendant, so as a consequence, I do not believe that the constitutional rights of the defendant have been in any wise aggrieved, and certainly not as a result of any conduct on the part of the prosecuting attorney's office, so I would enter the Order as presented.

I think I am obligated to dismiss it under the sixty-day rule, although I do not know what this acomplishes.

Despite the learned trial judge's most scrupulous acknowledgment of possible fault, we doubt that the record shows that either party requested a trial setting or showed any disinclination to depart from the established procedures for calling the assignment calendar. A judge cannot make his rulings gratuitously and out of thin air; he cannot be expected to divine the half expressed hopes of counsel nor convert their subtleties into a request for a judicial ruling. The court is not an adversary but a neutral, and nothing in this record suggests that either judge of record acted otherwise. Before a court can take responsive judicial action, it should be apprised with reasonable certainty what it is asked to do. To rule otherwise would make shambles of long-established and universally accepted procedures and arbitrarily place upon trial judges duties and standards of vigilance they cannot fulfill.

Defendant's counsel received a copy of the prosecuting attorney's letter to Judge Lawless but apparently ignored it. He made neither a motion nor an application nor a request for a trial setting. He did not indicate to the court what dates during the term he...