State v. Flinn

• Decision Date: 24 November 2003
• Docket Number: No. 51473-3-I.,51473-3-I.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Anthony Oren FLINN, Appellant.

80 P.3d 171

119 Wash.App. 232

STATE of Washington, Respondent, v. Anthony Oren FLINN, Appellant.

No. 51473-3-I.

Court of Appeals of Washington, Division 1.

November 24, 2003.

Susan Wilk, Wash. App. Project, Seattle, for Appellant.

Deric Martin, King County Prosecuting Atty., Seattle, for Respondent.

KENNEDY, J.

Anthony Flinn appeals his conviction for possession of an incendiary device, contending that the State was required to prove that he designed the device for the purpose of willful destruction. He also contends that the trial court violated his right to a speedy trial under CrR 3.3 by considering the dates of the fall judicial conference in rescheduling the trial, and should have dismissed the case for prosecutorial mismanagement under CrR 8.3(b). We reject these contentions and affirm the conviction.

FACTS

In the early morning hours of May 6, 2002, Seattle Police responded to a report of a burglar alarm at the Meany Middle School Complex. They arrived to find Anthony Flinn on the roof of the school, pacing back and forth and shouting obscenities. Officers could hear Flinn breaking fixtures and equipment on the roof and throwing things. Officer Anderson identified himself as a police officer, and Flinn responded with an epithet. A school janitor arrived and let the officers into the school, where they gained access to the roof and arrested Flinn. He told the officers that certain forces were after him and that they were going to shoot him. And he said that he had made a Molotov cocktail. The officers recovered a gasoline-filled beer bottle wrapped in a red sock and capped with a wick-like cloth from the roof of the school.

At the police station, Flinn said that he had ingested a large amount of methamphetamines, and that he had been chased all night by "forces" that had been firing shots at him. Because he wanted to show his pursuers that he was "serious" he made several Molotov cocktails. Police subsequently found a second Molotov cocktail in the backyard of a residence located near the school, and the broken remnants of two more — one on the roof where Flinn had been captured, and another that had been thrown from the roof through a window of the school.

The State charged Flinn with attempted arson in the second degree, possession of an incendiary device, and malicious mischief in the first degree. Flinn was arraigned on May 21, 2002, and the matter was set for trial on July 18, 2002.

On July 5, 2002, the defense sought and obtained a continuance to August 12, 2002, to obtain a psychological evaluation of Flinn. Flinn waived speedy trial until August 14, 2002. On August 2, 2002, the defense moved for a second continuance, in that more time was needed to prepare a mental defense to the charges. On August 21, 2002, the defense provided the State with notice of intent to assert a diminished capacity defense, and a copy of a report written by Dr. Kenneth Muscatel. The defense sought an additional continuance to September, 9, 2002, and Flinn again waived speedy trial to that date.

Dr. Muscatel's report did not include a curriculum vitae or a list of materials, such as mental health records and psychological tests or other diagnostic tools upon which the doctor had relied in reaching his opinion that Flinn was suffering from drug-induced psychosis at the time of the offenses. The prosecutor repeatedly tried to contact defense counsel to request these materials, but got no response, in that defense counsel was on vacation.

On September 9, 2002, the State filed a motion to compel discovery and sought a continuance to obtain the missing information, and to secure a rebuttal expert. The prosecutor requested two weeks in order to accomplish this.

Flinn objected to the State's request for continuance, and revealed for the first time that Dr. Muscatel had not contacted any of Flinn's prior mental health providers to obtain mental health records because there were none, had performed no diagnostic testing, and had relied only upon the police reports and his interview with Flinn in reaching his opinion. Flinn argued that the State had already had plenty of time to interview Dr. Muscatel and to get its own expert on board.

Criminal Presiding Judge Ramsdell found good cause to continue the trial, and expressed a desire "to keep [the case] on a short leash but not so short that [the parties would] have to come back again [to seek another continuance]." Clerk's Papers at 21. The court rescheduled the trial for October 15, 2002. When defense counsel asked if it could not be sooner than that, Judge Ramsdell indicated that he had been trying to work around the impending fall judicial conference set for early October that year.

Flinn subsequently waived his right to a jury trial and stipulated to a bench trial before Judge Alsdorf. That trial commenced on October 22, 2002. Flinn asked Judge Alsdorf to dismiss for violation of his CrR 3.3 speedy trial rights and for prosecutorial mismanagement under CrR 8.3(b), and the court denied the motion. After three days of trial, Judge Alsdorf acquitted Flinn of the attempted arson and malicious mischief charges, but found him guilty of possession of an incendiary device.

Judge Alsdorf entered the following findings of fact:, all of which are unchallenged on appeal:

1. The preponderance of circumstantial evidence is that on or shortly before May 6, 2002, the defendant Anthony Flinn ingested a large quantity of methamphetamines. His behavior when observed and ultimately apprehended and arrested by law enforcement officers was consistent with a person who is substantially under the influence of alcohol or drugs. Testing at Harborview confirmed the presence of methamphetamines but not alcohol in his body.

2. The preponderance of circumstantial evidence is that when he was first observed and apprehended by law enforcement officers, defendant believed he was still in danger from and being pursued by unknown assailants variously described by him as "The Man" or "Police" or "FBI".

3. The preponderance of the circumstantial evidence is that defendant believed that first by stealing gasoline from a Volkswagen and then by making Molotov Cocktails, and by engaging in other acts such as stealing a flag and a propane tank, he could convince his unknown (but non-existent) pursuers and potential assailants that he was serious and that they should leave him alone.

4. The preponderance of the circumstantial evidence is that defendant believed that despite these efforts, he was still being pursued, and that defendant believed he could hear bullets whizzing past his ears, and as a result he climbed a tree and jumped onto the roof of a structure at the Miller Community Center — Meany Middle School complex of buildings, where he began breaking windows and tearing off roofing vents and other structural items in order to gain attention and secure assistance in defending himself from his perceived pursuers and assailants.

5. The preponderance of the evidence is that defendant did not attempt to ignite any of the bottles he had in his possession before or after throwing them.

6. The preponderance of the evidence is that defendant had sufficient perception of the physical world around him to be able to use a lighter and to ignite the bottles had he decided to do so.

7. While there is some evidence suggesting the possibility that defendant has a pre-existing mental disease or defect, the evidence is insufficient to permit the Court to make a finding thereon; indeed, that evidence is so scanty as to be unlikely, standing alone, to raise even a question of reasonable doubt.

8. Despite the absence of credible competent evidence of any diagnosable genetic or other chronic mental disease or defect, the preponderance of the evidence is that defendant was in a state of drug-induced psychosis at the time of the acts charged in this case.

9. The preponderance of the evidence is that defendant was sufficiently aware of the physical world to be able to remember where he was, and where he had cut the Volkswagen's gas line, and to plug the vehicle's cut fuel line in order to avoid further fuel spillage or leakage after he took what he perceived he needed to construct the incendiary devices that he thought would provide him with a defense of sorts against his perceived pursuers and assailants. Nonetheless, the preponderance of the evidence is also that defendant suffered from delusions that some vehicles in his vicinity contained pursuers and also from hallucinations that he was actually being chased by real people and being fired at by real firearms and live ammunition. As a result, it is clear that the defendant could intend to do, and could competently perform, certain physical acts in a misguided attempt to defend himself from his non-existent pursuers, but that his actions cannot be deemed to have been taken with full knowledge of the real world or with malice toward either Meany Middle School or with gratuitous ill will even to the owner of the Volkswagen whose fuel line he had cut. His actions destroying property on the roof of the Meany Middle School were not taken to vex, harass or annoy any real person or entity, but to attract attention and to try to obtain what he perceived would be possible help in defending himself from what are now indisputably known to be imaginary assailants.

10. The preponderance of the evidence is that defendant knowingly manufactured and possessed an incendiary device, and that as a "Molotov Cocktail" it was capable of being used to ignite and/or fuel a fire and to be an instrument of willful destruction. However, the preponderance of the evidence also is that defendant had no intent to use it maliciously for the destruction of the property of others, or to vex, annoy or injure any person, entity or institution, but to use it only if necessary in the course of what he by delusion and hallucination perceived to be a crude form of self-defense. The preponderance of

...