State v. Gallagher

• Decision Date: 19 April 1976
• Docket Number: No. 1873--II,1873--II
• Citation: 549 P.2d 499,15 Wn.App. 267
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Appellant, v. Patrick J. GALLAGHER, Respondent.

Page 267

15 Wn.App. 267

549 P.2d 499

The STATE of Washington, Appellant, v. Patrick J. GALLAGHER, Respondent.

No. 1873--II.

Court of Appeals of Washington, Division 2.

April 19, 1976.

Quinby R. Bingham, Special Asst. Pros. Atty., Don Herron, Prosecuting Atty., Tacoma, for appellant.

John J. O'Connell, Tacoma, William E. Cullen, Olympia, for respondent.

PETRIE, Chief Judge.

The State of Washington has appealed an order dismissing a six-count information entered after the special assistant prosecutor concluded his opening statement to the jury at the commencement of trial. We affirm the order of dismissal with prejudice as to counts 2 through 6. The dismissal as to count 1 is affirmed in part and reversed in part.

Preliminarily, we deem it necessary to determine whether a trial court may dismiss a criminal information, valid on its face, at the conclusion of the prosecution's opening remarks to the jury prior to the presentation of evidence. Federal courts appear to possess that power. McGuire v. United States, 152 F.2d 577 (8th Cir. 1945). However, we have not been presented with, nor have we discovered, any direct authority in this jurisdiction which holds a trial court has that power. Furthermore, in the event the authority exists, we must determine under what circumstances the court should exercise it.

One eminent commentator views the office of the opening statement in a criminal trial in this fashion:

Basically, the purpose of the opening statement is to program the jurors so that they can follow and understand the evidence as it unfolds during the trial. It is not the office of an opening statement to argue that merits of the case, to discuss the pertinent law, to recite the anticipated testimony or other evidence at length and in detail, to advert to a confession or other inculpatory statement of the defendant, to point to the defendant's criminal record, or to note that another defendant has pleaded guilty or has otherwise been convicted.

(Footnotes omitted.) 3 C. Torcia, Wharton's Criminal Procedure § 493, pp. 378, 379 (1975). No mention is made of a defendant's right to have criminal charges filed against him dismissed because of the insufficiency of an opening statement.

There is some indication in this jurisdiction, however, that under a former statute, which seemed to Require an opening statement in Civil actions, the Supreme Court has at least twice discussed the possibility of entertaining a motion to dismiss a Criminal information after the prosecution's opening remarks to the jury. State v. Duncan, 124 Wash. 372, 214 P. 838 (1923) and State v. Fairfield, 161 Wash. 214, 296 P. 811 (1931). (The foundation statute, however, has since been repealed.) ¹

In Duncan the court was content to state merely:

If it be conceded that the court is bound to entertain such a motion upon its merits (a question which we do not determine), yet, we hold that it was properly denied.

State v. Duncan, supra, 124 Wash. at 375, 214 P. at 839.

In Fairfield the court explained:

But while it is true that the statute prescribing the manner of conducting trials (Rem.Comp.Stat., § 339) Seems to require an opening statement of the cause of action and the evidence expected to sustain it, too much stress must not be laid upon such statements. If it appears, from the facts recited that the party having the affirmative of the issue has no cause of action, a motion to dismiss will be in order. But it is hardly a remedy, even in a criminal case, for a mere defective statement. If the opposing party requires further enlightenment, he should move to have the statement made more complete, and resort to the motion to dismiss only when this has been denied him.

(Emphasis added.) State v. Fairfield, supra, 161 Wash. at 218, 296 P. at 813.

Because this procedural statute has been repealed, there is now neither statute nor rule which 'seems to require' a plaintiff in a civil or a criminal trial to make an opening statement. Nevertheless, if a plaintiff in a civil proceeding chooses to make an opening statement, the sufficiency thereof is subject to certain judicial scrutiny. Bartel v. Brockerman, 49 Wash.2d 679, 306 P.2d 237 (1957).

In Scott v. Rainbow Ambulance Serv., Inc., 75 Wash.2d 494 at 496, 452 P.2d 220, at 221 (1969), the court stated:

Occasionally, however, the opening statement deliberately and understandingly invites the court's ruling at that stage of the proceeding. The statement is framed so as to eliminate all factual differences of consequence, leave an isolated and determinative question of law, and thus make possible the expeditious conclusion of the matter.

In Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759 at 760, 458 P.2d 897 at 898 (1969), the court stated:

A motion to dismiss based on the failure of the complaint and the opening statement to state a claim upon which relief can be granted, can be granted only where it is clear beyond doubt from reading the complaint, hearing the opening statement, and considering offers of proof that plaintiffs cannot prove facts which would entitle them to relief.

In addition, RCW Title 10, which governs the conduct of criminal procedures, specifies:

The court shall decide all questions of law which shall arise in the course of the trial, and the Trial shall be conducted in the same manner as in civil actions.

(Emphasis added.) RCW 10.46.070.

We hold, therefore, that when a prosecutor chooses to make an opening statement to a jury, a defense motion to dismiss the charges may be granted only when it is clear beyond doubt that the statement affirmatively includes fact matter which constitutes a complete defense to the charge or expressly excludes fact matter essential to a conviction. In other words, charges frame the issues; statements of counsel do not. However, when some fact is clearly stated or admission is expressly made, leaving only an isolated and determinative issue of law, the court may resolve that issue. See Frisell v. Surry, 99 Wash. 201, 169 P. 317 (1917); Strmich v. Department of Labor & Indus., 31 Wash.2d 598, 198 P.2d 181 (1948); Scott v. Rainbow Ambulance Serv., Inc., supra; Halvorson v. Birchfield Boiler, Inc., supra.

Armed with this rule, we turn to the several counts in the information before us and the special prosecutor's statement pertaining thereto.

Counts 2 through 6 of the information charge Patrick J. Gallagher, Pierce County Commissioner in Commissioner District No. 1, with having committed the crime defined by article 11, section 14 of the Constitution of the State of Washington entitled 'Private Use of Public Funds Prohibited,' which provides:

The making of profit out of county, city, town, or other public money, or using the same for any purpose not authorized by law, by any officer having the possession or control thereof, shall be a felony, and shall be prosecuted and punished as prescribed by law.

The prosecution has never asserted that Mr. Gallagher made a profit out of public funds. Instead, the charging language common to counts 2 through 6, is that at various time intervals ranging from 1965 to 1972, Mr. Gallagher knowingly, willfully, and feloniously directed, authorized, and encouraged the Use of public money 'for a purpose not authorized by law.' As clarified by the special prosecutor's opening statement, the State contends that Commissioner Gallagher feloniously used 'county road fund' money (RCW 36.82.010) to construct roads within Commissioner District No. 1 at a time when those roads had not been specifically adopted into Pierce County's 'six-year road plan' (RCW 36.81.121) or its 'one-year plan' (RCW 36.81.130). The prosecutor explained, however, that when the county commissioners adopt each district's one-year road plan they routinely set aside a sum of money equal to 10 percent of that district's annual estimated county road costs and place the same into a so-called 'county force account' of that district's 'county road fund.' Funds from this 'county force account,' unallocated at the time the annual road plan is adopted, are used by county employees to construct and maintain roads for which the county commissioners had no specific construction or maintenance plans when the one-year plan was adopted.

The special prosecutor explained that counts 2 through 5 charge Commissioner Gallagher with having used this 'county force account' to establish, improve, and construct roadways within his Commissioner District 'in aid of and for the private benefit and gain of an individual, to-wit: Joseph J. Bath, and not for any proper county road purpose all being contrary to Article 11, Section 14 of the Washington State Constitution . . .' Count 6 is essentially the same, but it fails to specifically name the individual for whose benefit the funds were used.

Joseph J. Bath enters into four of these counts, according to the special prosecutor's statement, because on repeated occasions he either (1) obligated himself to others as a private contractor to construct several public roads to county standards within Commissioner Gallagher's district, or (2) personally undertook to subdivide and develop his own land, including construction of several roads within the development. In each instance, as recited in the statement, Mr. Bath either failed to perform his contractual obligations or failed to construct the roads in his personal development site in the manner that other contractors or developers would be required to do; and the county road crews, at Commissioner Gallagher's direction and under the supervision of Mr. Richard Corey, road supervisor of Road District No. 1, used 'county force account' road funds to complete Mr. Bath's construction obligations. Mr. Bath is reported to have said that 'he knew how to get roads built through the County Commissioner's office.' By resolutions, which were subsequently unanimously adopted, the Board of County Commissioners authorized the construction of these roads and...