State v. Greene

• Decision Date: 17 August 1987
• Docket Number: No. 17890-3-I,17890-3-I
• Citation: 49 Wn.App. 49,742 P.2d 152
• Parties: STATE of Washington, Respondent, v. James Daniel GREENE, Appellant.
• Court: Washington Court of Appeals

Page 49

49 Wn.App. 49

742 P.2d 152

STATE of Washington, Respondent, v. James Daniel GREENE, Appellant.

No. 17890-3-I.

Court of Appeals of Washington Division 1.

Aug. 17, 1987.

Neil M. Fox, Washington Appellate Defender, Seattle, for James Daniel Greene.

Norm Maleng, King County Pros. Atty., Ricardo S. Martinez, Deputy Pros. Atty., Seattle, for State of Wash.

SWANSON, Judge.

James Daniel Greene appeals from the judgment and sentence following his conviction for first degree robbery. Greene contends the trial court erred in failing to dismiss the charge following violation of his CrR 3.3 speedy trial rights and the State's violation of discovery rules.

At about 9:30 p.m. on May 24, 1985, a man flashing what appeared to be the handle of a gun robbed the Cafe Casino in downtown Seattle. The cashier gave the robber, who was carrying a yellow Nordstrom bag, approximately $250. The cashier later identified Greene as the robber.

Officers Stephen and Little responded to the robbery within several minutes. Officer Stephen eventually discovered the appellant, injured and bleeding, near the corner of 5th and Union. Greene told the officer he had been mugged by several men. Approximately $269 was recovered from Greene. On May 25, the next day, a security guard found a Nordstrom bag containing a plastic gun on a nearby roof or ledge.

Because of the severity of his injuries, Greene was taken to the hospital following his arrest; he remained immobilized in a body cast for several months. Det. Gordon Barnett, allegedly at Greene's request, went to the hospital on May 28, 1985, where Greene signed a written statement indicating that he had been jumped by three men after leaving the Cafe Casino and had fallen out of a tree while attempting to escape.

Greene was charged with first degree robbery and arraigned on June 19, 1985, while still hospitalized. Because of Greene's physical condition, his counsel subsequently sought a continuance; Greene executed a waiver of the speedy trial period to October 21, 1985. The primary issues on appeal arise from the following series of pretrial hearings.

October 15, 1985. Greene's case was assigned out and the parties appeared before Judge Haley for a CrR 3.5 hearing and for trial. Greene's counsel, Michael Iaria, indicated that he had been ready "up until about half an hour ago," when he learned for the first time of Greene's written statement to Det. Barnett.

Arguing that the existence of the statement "changed the defense case radically," Iaria requested that the statement be excluded or that he be granted a continuance to investigate the surrounding circumstances. Counsel stated that he would have to examine Greene's medical records and talk with persons who had contact with Greene at the time in order to determine whether the statement had been given voluntarily. When court reconvened in the afternoon, Iaria withdrew his request for a continuance, contending that the only proper remedy for the State's actions was exclusion or dismissal and that the defendant should not be forced to waive his speedy trial rights because of the State's failure to provide discovery. Charlotte Cassady, an investigator for the Public Defender's Office, maintained she would be unable to carry out the investigation in a week.

The court then informed Iaria he would have until October 21, the expiration of the speedy trial period, to investigate the matter as he deemed appropriate. The court also offered to authorize the expenditure of funds for an additional investigator and, apparently, signed an order requiring Harborview to have all of Greene's medical records made available for copying on the same day.

October 21, 1985. A minute entry records that the case was continued "because of illness of the D.P.A."

October 22, 1985. Iaria informed the court he had undertaken some investigation but had not yet spoken to all necessary parties. After inquiring about what Iaria had accomplished during the previous six days, the trial court denied the defense's motion to dismiss and declared that the proceedings would resume with the CrR 3.5 hearing. Iaria repeatedly maintained that he was unprepared to proceed.

The State called two witnesses who testified about Greene's oral statement at the scene of the crime and his written statement several days later. Iaria cross examined Det. Barnett only briefly regarding the written statement. The trial court then ruled both statements admissible. Following the CrR 3.5 hearing, the trial court heard and ruled on all of Greene's motions in limine.

Charlotte Cassady then testified about the extent of her investigations since October 15. Cassady, who had spent approximately 16 hours on the case, had interviewed 9 doctors and nurses, examined Greene's medical records, and subpoenaed the names of the officers who had been guarding Greene at the time the statement was made. Cassady maintained she still needed to contact eight medical persons in addition to interviewing the officers.

After reviewing Greene's medical records, Judge Haley again denied defendant's motion to dismiss, ruling that he could find no reason why defense counsel was not yet ready to proceed. Iaria then requested a continuance to pursue his investigation. The motion was granted.

October 23, 1985. The parties appeared before Judge Pekelis, who set a new trial date of November 5; Greene signed a speedy trial waiver to November 20, 1985. ¹

November 18, 1985. The proceedings resumed on this day before Judge Elston, who ruled on some, but not all, of the same motions in limine decided by Judge Haley on October 22. Defense counsel declined an opportunity to present additional arguments on the CrR 3.5 issues.

At trial, Greene maintained he had been in Seattle on May 24 working undercover for the King County Drug Enforcement Unit. Greene stated he was selling drugs in an attempt to infiltrate a gang dealing in tar heroin. A detective denied that Greene was working for the Drug Enforcement Unit.

Later in the day, Greene suspected that several of his clients might try to rob him of the drugs he was carrying and went to the Cafe Casino. Upon exiting the restaurant, Greene claimed he was attacked from behind by several men. After being hit numerous times with an unidentified object, Greene said that he managed to climb up on a ledge and from the ledge onto the building's roof. With the men still chasing him, he ran to another part of the roof and jumped onto one of the nearby trees. The tree failed to hold him, and Greene fell about 25 to 30 feet to the pavement. He then crawled closer to the building, where he was discovered by Officer Stephen. A jury found Greene guilty as charged.

Greene initially contends that his speedy trial rights were violated because he was not brought to trial within the time mandated by CrR 3.3. Because Greene remained essentially in police custody, he had to be brought to trial within 60 days of arraignment. See CrR 3.3(c)(1). It is conceded, however, that Greene waived his speedy trial rights at least through October 21, 1985. On October 21, the trial court granted a continuance because of the deputy prosecutor's illness; the proceedings resumed the next day. Consequently, if the one-day continuance was valid, the speedy trial period expired no earlier than October 22. See CrR 3.3(g)(2) (excluding from speedy trial period delays granted pursuant to CrR 3.3(h)).

Although the record does not reveal the portion of CrR 3.3 relied upon, at least two sections support the trial court's grant of a continuance on October 21. CrR 3.3(d)(8) ² permits the trial court to extend the time within which trial must be held for periods up to five days, even if the speedy trial period has expired. A CrR 3.3(d)(8) "extension" may be granted only when "unavoidable or unforeseen circumstances beyond the control of the court or parties" arise, provided the defendant will not be "substantially prejudiced in his or her defense." CrR 3.3(h)(2) ³ authorizes the court to grant a continuance "or other delay" upon the motion of a party or the court "when required in the administration of justice and the defendant will not be substantially prejudiced" in the presentation of his or her defense. The court must state "on the record or in writing" the reasons for the continuance.

Although the practical effect of these sections is similar--delaying expiration of the speedy trial period--CrR 3.3(d)(8) extensions and CrR 3.3(h)(2) continuances have slightly differing requirements and may apply in different circumstances. See generally State v. Raper, 47 Wash.App. 530, 736 P.2d 680, review denied, 108 Wash.2d 1023 (1987). The trial court's decision granting a continuance or extension is reviewed only for an abuse of discretion. State v. Terrovona, 105 Wash.2d 632, 651, 716 P.2d 295 (1986); State v. Eaves, 39 Wash.App. 16, 21, 691 P.2d 245 (1984).

Greene argues that the procedural requirements of CrR 3.3(d)(8) and CrR 3.3(h)(2) were not met because no formal motion for a continuance was entered and there was no express finding that a delay was necessary "in the administration of justice" or because of "unavoidable or unforeseen circumstances." Greene further maintains that the minute entry does not constitute a statement by the court "on the record or in writing" of the reasons for the continuance. However, there is no contention that Greene was "substantially prejudiced in the presentation of the defense" by the one-day delay. CrR 3.3(h)(2).

Although a continuance should be sought and entered upon a formal motion and record, a failure to do so does not nullify the proceeding if a record of the proceeding and the reasons for the continuance is otherwise made. State v. Freeman, 38 Wash.App. 665, 667, 687 P.2d 858 (1984) (construing JuCR 7.8); State v. Colbert, 17 Wash.App. 658, 663, 564 P.2d 1182, review denied, 89 Wash.2d 1010 (1977). In reviewing a continuance, the appellate court may examine the...