State v. Dailey

• Decision Date: 01 May 1980
• Docket Number: No. 46616,46616
• Citation: 93 Wn.2d 454,610 P.2d 357
• Parties: STATE of Washington, Respondent, v. David S. DAILEY, Petitioner.
• Court: Washington Supreme Court

Page 454

93 Wn.2d 454

610 P.2d 357

STATE of Washington, Respondent, v. David S. DAILEY, Petitioner.

No. 46616.

Supreme Court of Washington, En Banc.

May 1, 1980.

Peter Rothschild, Seattle, for petitioner.

Russ Juckett, Snohomish County Pros., James B. Roche, Deputy County Pros., Everett, for respondent.

STAFFORD, Justice.

In this case the trial court dismissed a negligent homicide charge prior to trial. The Court of Appeals reversed the trial court and remanded the cause for trial. We reverse the Court of Appeals.

On February 10, 1975, defendant David Dailey and Terry Pope were in an automobile which crossed the highway centerline striking another vehicle and killing its driver. Two and one half years later an information was filed charging both Dailey and Pope with negligent homicide.

At an omnibus hearing conducted on September 23, 1977, the State was ordered to provide Dailey with certain information including laboratory reports relating to the collision. The State was also ordered to provide the names and addresses of all witnesses to the occurrence. Dailey moved for a bill of particulars to determine whether the State intended to charge him or Pope as the driver of the automobile. The motion was continued until September 26, 1977 and the trial date was set for November 7, 1977.

On September 26, 1977, the motion for the bill of particulars was again continued on the State's suggestion that additional pleadings not yet filed would render the motion moot. On October 28, 1977, however, the motion was granted upon the State's failure to file any new pleadings mooting the issue. At that time the State orally indicated Dailey would be charged as the driver. The court also learned, for the first time, that the State had failed to provide Dailey with any of the information or laboratory reports outlined orally at the omnibus hearing of September 23, 1977. When questioned about the month-long delay, the State offered no reasonable explanation. Dailey also moved to dismiss the case on due process grounds, alleging the State had improperly permitted evidence to be destroyed, and that it had failed to file the information in a timely manner. The motion was continued until November 2, 1977 at the State's request. Late Friday afternoon, October 28, 1977, the State at last delivered the information and laboratory reports listed in the omnibus order.

On November 2-3, 1977, Dailey's motion to dismiss was argued and denied. The trial court did, however, give Dailey an opportunity for a continuance. Dailey indicated he was "still prepared to go to trial Monday morning . . . " Additionally, on November 3, 1977, only two court days before trial, the State filed pleadings dismissing the charge against Pope.

On November 4, 1977, the Friday before the Monday trial, the State finally furnished the supplemental list of witnesses required by the omnibus order filed October 28. The original information filed on August 12, 1977 had indicated only five persons were to be called as State's witnesses. The supplemental list increased that number to 16.

On the day of trial, November 7, 1977, Dailey again moved to dismiss the negligent homicide charge, contending the State's actions had violated due process. While characterizing the State's conduct as "reprehensible", the trial court denied the motion, and instead offered Dailey a continuance. Dailey thereupon suggested the alternative of proceeding to trial with the original list of witnesses and excluding the additional witnesses named in the State's tardy supplement list. Thereafter the court stated: "This Court's going to rule that you either try it with the original list of witnesses or I'll dismiss it." The State argued it could not try the case with only the witnesses originally listed in the information. The trial court then dismissed the case. The State appealed. The Court of Appeals reversed the trial court and remanded the cause for trial.

CrR 8.3(b) authorizes a trial court to dismiss any criminal prosecution "on its own motion in the furtherance of justice". ¹ This power to dismiss is discretionary and is reviewable only for manifest abuse of discretion. State v Burri, 87 Wash.2d 175, 550 P.2d 507 (1976); State v. Sulgrove, 19 Wash.App. 860, 578 P.2d 74 (1978). We have previously interpreted CrR 8.3(b) to require a showing of arbitrary action or governmental misconduct before dismissal of a prosecution is appropriate. State v. Burri, supra; State v. Starrish, 86 Wash.2d 200, 544 P.2d 1 (1975). However, we have made it clear that "governmental misconduct" need not be of an evil or dishonest nature, simple mismanagement is sufficient. State v. Sulgrove, supra.

The Court of Appeals held the trial court's ultimate decision to dismiss was not based upon CrR 8.3(b). Rather, the court reasoned, since "the trial court's ultimate decision to dismiss depended upon its approval of defense counsel's suggestion that it could require the State to proceed only with certain witnesses", the court acted pursuant to CrR 4.7(h)(7)(i), which provides:

(7) Sanctions.

(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.

State v. Dailey, 23 Wash.App. 233, 236, 596 P.2d 1351 (1979). The Court of Appeals also concluded the trial court's decision to dismiss constituted a suppression of evidence, the State having been presented with the choice of calling only its original witnesses or having the case dismissed. The Court of Appeals held such "suppression" to be improper because CrR 4.7(h)(7)(i) does not include the right to suppress evidence. State v. Stamm, 16 Wash.App. 603, 559 P.2d 1 (1976); State v. Glasper, 12 Wash.App. 36, 527 P.2d 1127 (1974); State v. Peele, 10 Wash.App. 58, 516 P.2d 788 (1973). We need not rule on the correctness of the court's characterization of the trial court's actions or on the remedies available under CrR 4.7(h)(7)(i). Clearly, the trial court dismissed the prosecution on the basis of CrR 8.3(b).

The trial court's oral opinion establishes that its decision to dismiss was based on the numerous incidents of prosecutorial mismanagement that occurred throughout the proceedings. The court commented:

Based on the whole record, the affidavits and materials provided by Mr. Rothschild (defendant's attorney) when the motion was originally heard, together with this late list of witnesses furnished Friday afternoon . . . I think the whole thing has become a farce.

So, I think simply, there's got to be a denial of due process in the way this whole thing has been handled, and I'll issue an order dismissing it.

In its subsequent written order dismissing the information, the court stated:

and the court being convinced that as a result of the actions of the . . . (State), that the defendant can not be given a trial consistent with the dictates of due process and the basic notions of fair play,...