State v. Estabrook

• Decision Date: 08 January 1993
• Docket Number: No. 14155-8-II,14155-8-II
• Parties: The STATE of Washington, Respondent, v. Lyle I. ESTABROOK, Appellant.
• Court: Washington Court of Appeals

Page 309

68 Wn.App. 309

842 P.2d 1001

The STATE of Washington, Respondent, v. Lyle I. ESTABROOK, Appellant.

No. 14155-8-II.

Court of Appeals of Washington Division Two.

Jan. 8, 1993.

Herbert D. Austad, Port Orchard, for appellant.

C. Danny Clem, Pros. Atty., and Pamela B. Loginsky, Deputy Pros. Atty., Port Orchard, for respondent.

SEINFELD, Judge.

Lyle Estabrook was convicted of two counts of indecent liberties. He represented himself at trial, but retained counsel after his conviction to represent him at sentencing and on several post-trial motions. He now appeals his conviction, making 21 assignments of error. We affirm.

J.H., the victim in this case, is mildly developmentally disabled, with a mental age about four years lower than her chronological age. At the time of the crime she was eleven, with a mental age of approximately seven; at trial she was fifteen, with a mental age of approximately eleven. In March of 1980, James Hart and Debbie (Stark) Hart adopted J.H. when she was five years old. The Harts were divorced in 1983 and James Hart gained custody of J.H. Later that year he married Sonya (Goetz) Hart. Lyle Estabrook, at the time of the crime and during trial, was Debbie's boyfriend.

On Friday afternoon, September 12, 1986, Debbie Stark picked up J.H. from Hart's house for a weekend visit. That night after J.H. was asleep in bed, Estabrook entered her room, removed her covers and clothes, and inserted his fingers in her vagina.

The next day, Saturday, September 13, Estabrook visited Stark's house and offered to take J.H. for a ride to the store; instead, Estabrook took J.H. to his house. He took her into his bathroom, removed her clothes, and forced her to put her hand on his penis until he ejaculated. When J.H. tried to escape, Estabrook punched her and took her back to the bathroom. He laid her on the floor, again took off her clothes when she refused to do so herself, and inserted his penis into her vagina.

After this incident, Estabrook returned J.H. to Debbie Stark's house, and Debbie returned J.H. to James Hart on Sunday evening, September 14, 1986. J.H. did not immediately tell the Harts what had happened.

On Tuesday, September 16, 1986, J.H. told James Hart that "Lyle" had touched her private area. The Harts reported the incident to the police. J.H. eventually told several other people what had happened. At this point, the only allegation J.H. had made was that Estabrook had inserted his fingers into her vagina.

J.H.'s revelation touched off a lengthy and contentious dispute concerning rights of visitation. As a result of the incident and of the feuding between her parents, J.H.'s emotional state deteriorated. Initially nervous and tense, she not only began acting out but also became withdrawn. She was unable to sleep at night and had difficulty staying awake during the day. During the three-year interim between the incidents and trial she was twice confined to a mental hospital for a period of six months each time. At the time of trial, she was still angry and frustrated and testified to being afraid of Estabrook and Stark.

Estabrook was charged by information with one count of indecent liberties on December 2, 1986; the court scheduled trial for March 16, 1987, the 84th day after arraignment. Estabrook was then represented by counsel. On March 16 1987, the State advised the trial court that it had concerns about witness tampering, and moved to dismiss without prejudice to allow further investigation. The trial court granted the motion.

In September of 1989, J.H. told Sonya Hart about the Saturday incidents in Estabrook's bathroom that had occurred three years earlier. She later told this story to others as well.

The State refiled the information on April 5, 1990, this time alleging two counts of indecent liberties. The trial court rearraigned Estabrook on May 2, 1990 and set the matter for trial on May 7, 1990. Estabrook formally waived counsel at his arraignment, choosing to proceed pro se. On May 4, 1990 the State filed a bill of particulars specifying the dates and circumstances of the crimes. On May 7, the court called the case and heard pretrial motions. Estabrook moved to dismiss the case based on the prior dismissal without prejudice. The court denied the motion and a jury was selected and sworn on May 8, 1990.

The jury convicted Estabrook on both counts of indecent liberties on May 14, 1990. Estabrook then obtained counsel, who appeared June 26, 1990. Estabrook then moved for arrest of judgment or a new trial and for release on bail; the court denied his motions and imposed an exceptional sentence. ¹

I. SPEEDY TRIAL RIGHTS

Estabrook first contends that his procedural speedy trial rights under CrR 3.3 were violated. However, the State met the requirements of the rule.

Arraignment triggers the speedy trial clock under CrR 3.3. Estabrook was neither detained nor subject to conditions of release, so the State had 90 days to bring him to trial after his arraignment on the 1986 charge. CrR 3.3(c)(1). The dismissal without prejudice ordered on the 84th day stopped the speedy trial clock. CrR 3.3(g)(4). The time between dismissal of a charge and the defendant's rearraignment following refiling of the same charge is excluded from the time period allowed for trial. CrR 3.3(g)(4). The State thus had six days from rearraignment to try Estabrook. The refiling in 1990 contained one new charge, but it arose out of the same occurrence and had the same elements of proof as the original charge. Thus the time period for speedy trial of that charge was the same as for the original charge. CrR 3.3(c)(5).

Rearraignment occurred on May 2, 1990. We assume, but do not decide in this case, that the day of rearraignment is counted in the 90-day period. Counting that day, it was necessary for the trial court to commence trial by May 7, 1990, the 90th day, to comply with the speedy trial rule. In fact, the court did call Estabrook's case to trial on May 7, and spent the first day hearing preliminary motions. Jury voir dire began on May 8, although a jury panel was available on May 7.

Although neither statute nor court rule specifies the triggering events that constitute the commencement of a trial for purposes of compliance with CrR 3.3, decisions from Divisions One and Three of this court suggest that trial commences when a necessary part of the trial begins. State v. Redd, 51 Wash.App. 597, 608, 754 P.2d 1041, review denied, 111 Wash.2d 1008 (1988), (Division One: trial commenced when the court called the case and considered preliminary motions); State v. Becerra, 66 Wash.App. 202, 207, 831 P.2d 781 (1992) (Division Three: CrR 3.3 satisfied when jury was selected within speedy trial limits although they were not sworn and the court did not hear pretrial motions until after the statutory time period). Here, the scheduled trial date of May 7, the day the court in fact called the case for trial, was not a date merely scheduled for hearing preliminary motions. The trial commenced that day and proceeded, without interruption, to jury selection and presentation of the State's case- in chief. Under these facts, Estabrook's case was called for trial within the 90 day period of CrR 3.3.

Estabrook also claims that his constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution was violated by the long delay between the dismissal of charges in 1987 and their subsequent refiling in 1990. However, the Sixth Amendment speedy trial clause does not apply after the State, acting in good faith, dismisses the case of a defendant who is not subject to any restraint on his liberty. United States v. MacDonald, 456 U.S. 1, 6-9, 102 S.Ct. 1497, 1500-02, 71 L.Ed.2d 696 (1982); see United States v. Loud Hawk, 474 U.S. 302, 310-12, 106 S.Ct. 648, 653-54, 88 L.Ed.2d 640 (1986). Any delay after dismissal, like any delay before charging, raises only a due process issue, not a speedy trial issue. MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501. Estabrook does not claim or argue a violation of due process.

Estabrook also asserts, without supporting argument, a violation of his speedy trial rights under the Washington State Const. Art. I, § 22. We will not consider a state constitutional issue where the proponent fails to present analysis of the factors set forth in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). See State v. Reading, 119 Wash.2d 685, 696, 835 P.2d 1019 (1992).

II. RIGHT TO SELF-REPRESENTATION

Estabrook next appears to claim that the procedure imposed by the trial court during the cross examination of J.H. violated his constitutional rights of self-representation under both the Sixth Amendment to the United States Constitution and Washington Const. Art. I, § 22. Rather than allow Estabrook to personally examine J.H. at J.H.'s competency hearing or at trial, the trial court directed Estabrook to submit his cross examination questions in writing to the court. The judge then asked those questions after advising the jury that:

At this time, as I have told you, Mr. Estabrook has the right of cross-examination. But because of the fact that he is not represented by an attorney, I am going to be asking the questions that he has asked me to ask.... They are Mr. Estabrook's questions.

During trial, the court gave Estabrook additional time after J.H.'s direct testimony to prepare his questions. In addition, the trial court allowed "Mr. Estabrook to ask all the questions he needs to ask," and refused to sustain any scope objections to Estabrook's proposed questions. ²

It appears from the record before us that the trial court imposed this procedure sometime before the commencement of the trial, but we have not been provided with a record of this ruling. Consequently, we are unable to determine if Estabrook objected to this method of cross examination and are unable to review the trial court's stated reasons for adopting this awkward procedure. Estabrook, ...