State v. Duggins

• Decision Date: 11 January 1993
• Docket Number: No. 29094-1-I
• Citation: State v. Duggins, 844 P.2d 441, 68 Wn.App. 396 (Wash. App. 1993)
• Parties: STATE of Washington, Respondent, v. Demeco M. DUGGINS, Appellant.
• Court: Washington Court of Appeals

Page 396

68 Wn.App. 396

844 P.2d 441

STATE of Washington, Respondent, v.Demeco M. DUGGINS, Appellant.

No. 29094-1-I.

Court of Appeals of Washington Division 1.

Jan. 11, 1993.

Jessica Ryan, Seattle, for appellant.

Norm Maleng, Pros.Atty., and Sally Olsen, Seattle, for respondent.

FORREST, Judge.

Demeco Martinez Duggins, a juvenile, appeals his conviction of possession with intent to deliver a controlled substance.Duggins contends that his conviction must be vacated and the case dismissed solely because the trial court granted a 2-day continuance when the police officer was unavailable on the date of the fact-finding hearing.¹We disagree and affirm.

On May 24, 1991, Duggins was charged in juvenile court with one count of possession of a controlled substance (cocaine) with intent to deliver.

The hearing was originally scheduled for August 7, 1991.On that day, the State moved for a continuance of 1 or 2 days because one of the State's witnesses, Officer Lone, had not responded to the subpoena and was not present to testify.²The State served Officer Lone's subpoena on the police department and claimed that it left messages at the department and with the officer's colleagues directing Officer Lone to appear at the hearing.

Defense counsel objected to the continuance and moved to dismiss on the ground that Officer Lone had not been personally served with the subpoena.Noting that the continuance would not extend the hearing beyond the speedy trial period, the court granted a 2-day continuance.The court reserved ruling on Duggins's motion to dismiss pending a determination of whether Officer Lone had actually received the subpoena.At the hearing the following day, the State informed the court that Officer Lone never received the subpoena.The court denied the motion to dismiss.

Duggins was tried well within the speedy trial time provided by JuCR 7.8 so the speedy trial period was not violated.He argues, however, that there is no distinction between a continuance within the speedy trial time limit and a continuance outside it, relying on the language of JuCR7.8(e)(2)(ii):

Continuances or other delays may be granted as follows:

. . . . .

(2) On motion of the prosecuting attorney if:

. . . . .

(ii)the State's evidence is presently unavailable, the prosecution has exercised due diligence, and there are reasonable grounds to believe that it will be available within a reasonable time[.]

We disagree.No case has explicitly held that the limitations on continuances contained in JuCR 7.8 apply equally to continuances within and without the speedy trial period.³Nor do we find any compelling policy reason to ignore this distinction.Indeed, there are compelling reasons to treat the two situations differently.

Dismissal with prejudice of charges against a defendant convicted in a fair trial is a Draconian penalty.It frustrates the public interest in punishing those otherwise duly convicted of crimes and can only be justified by a compelling public policy.There is no more authoritative statement of public policy than the federal and state constitutions.However, even constitutional errors at trial need not result in reversal if the error is harmless beyond a reasonable doubt.This doctrine was developed to protect the central purpose of a criminal trial, determining a defendant's guilt or innocence, and to promote "public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error."Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674(1986).

For example, in Griffin v. United States, ⁴the Supreme Court held that an instruction which permitted conviction on an alternative means of committing a crime that was not supported by the evidence did not require reversal.In Arizona v. Fulminante, ⁵the Court found that even a coerced confession did not necessarily require reversal of the conviction.

The Washington Supreme Court has affirmed convictions involving substantial errors.For example, in State v. Whelchel, ⁶the court affirmed a conviction of first degree murder even though the trial court admitted self-serving, tape-recorded statements of two co-defendants that were not admissible as statements against penal interest under ER804(b)(3) or the confrontation clause.In State v. Wheeler, ⁷the court affirmed a conviction where the trial court admitted the defendant's answer to a detective's question concerning his acquaintance with a co-defendant given after the defendant had twice asserted his right to remain silent.

These cases illustrate the courts' concern to avoid retrials.Dismissal with prejudice is obviously far more damaging to the public interest in punishing the guilty than a retrial.Nonetheless, the Supreme Court as a matter of public policy has chosen to establish speedy trial time limits by court rule and to provide that failure to comply therewith requires dismissal of the charge with prejudice.Clearly, violation of the speedy trial rule is not subject to the constitutional harmless error analysis by virtue of the explicit terms of the Supreme Court rule.⁸This is one of the rare classes of cases where a trial court error cannot be remedied by a retrial nor found to be harmless error.Therefore, this court should not impose the same Draconian consequences on a continuance within the speedy trial period that are required by a continuance beyond the speedy trial period unless the Supreme Court has unequivocally so provided.There is simply no rational public policy requiring such an indefensible result.

The establishment of speedy trial limits by rule was designed to insure the prompt disposition of criminal cases in the interest of both the public and the defendant.⁹Obviously, that policy is not violated by a continuance within the speedy trial period.Accordingly, a dismissal for even an improper continuance should be confined to those situations where that consequence is necessary to effectuate the policy of the speedy trial rule.Plainly, in adopting the rule, the Supreme Court wanted to avoid situations where a prosecutor comes into court and says "I'm not ready for trial" and the court routinely grants a continuance that extends the trial beyond the speedy trial period, thus frustrating the purpose of the rule.We are not persuaded that in adopting the rule the Supreme Court meant to abolish the trial court's traditional discretion to grant continuances within the speedy trial time limits so long as the defendant is not unduly prejudiced thereby.In this context, undue prejudice to a defendant means there is some interference with his ability to present his case, for example, the unavailability of a witness or some substantial additional time in custody awaiting trial.It does not mean merely that if the case went to trial without the continuance, the defendant might be acquitted because of the absence of the witness.¹⁰

We conclude that the limitation on continuances contained in JuCR 7.8 is limited to situations involving a continuance beyond the speedy trial time limit and does not apply to a continuance within that period.

We are confirmed in this view by cases applying CrR8.3(b).¹¹The trial court's authority to grant a dismissal under this rule has been limited to truly egregious cases of mismanagement or misconduct by the prosecutor.¹²It does not extend to acts of simple negligence, as for example, failing to issue one subpoena involving a 1-day or 2-day delay.¹³

Criminal convictions should not be set aside for minor acts of negligence by third parties that are beyond the prosecutor's direct control where there is no prejudice to the defendant nor any violation of his speedy trial rights.Duggins's position would mean that once the trial is set in juvenile court, a continuance because of the unavailability of a witness mandates dismissal even though the prosecutor did act with due diligence in utilizing a reasonable and efficient, albeit unsuccessful, way of conveying a subpoena to the officer.For example if the process server serves a subpoena on the wrong officer because of name similarity, should the case be dismissed?We reject such application of the rule.

Finally, even if JuCR 7.8 does apply, it would not require reversal on the facts before us.State v. McPherson, 64 Wash.App. 705, 829 P.2d 179, review denied, 119 Wash.2d 1014, 833 P.2d 1389(1992) holds that the prosecutor's use of King County's interagency mail to provide for the delivery of a subpoena to a police officer does not constitute a lack of due diligence.¹⁴Duggins relies on a footnote in McPherson stating that the State bears the risk that the officer might not actually receive the subpoena.¹⁵Because the officer in question was served, this is dicta and, in our view, does not follow from the reasoning of the opinion.If the prosecutor acted with due diligence in arranging for the delivery of the subpoena through the interagency mail service, it would be perverse to hold that the prosecutor has become non-diligent because of a slip-up by third parties.The record does not disclose whether the error here took place in the mail room or whether the officer omitted to pick up his mail within the expected time or simply forget the date.But in any event, we do not find this to establish the prosecutor's lack of diligence.

State ex rel. Nugent v. Lewis ¹⁶ relied on by Duggins does not mandate a contrary result.In that case, the court stated that the "unexcused absence of a subpoenaed witness at the time of trial is not good cause for a continuance under JCrR 3.08."¹⁷Lewis, 93 Wash.2d at 84, 605 P.2d 1265.¹⁸

Lewis is distinguishable and not controlling.Cases subsequent to Lewis have recognized that the court's holding should not be interpreted as a blanket statement that a court may never grant a continuance when a subpoenaed witness's absence at...