State v. Guajardo
| Decision Date | 17 December 1987 |
| Docket Number | No. 7433-1-III,7433-1-III |
| Citation | 50 Wn.App. 16,746 P.2d 1231 |
| Parties | STATE of Washington, Respondent, v. Segundo GUAJARDO, Appellant. |
| Court | Washington Court of Appeals |
Steven Aycock, Omak, for appellant.
Steven Lowe, Deputy Pros. Atty., Pasco, for respondent.
Segundo Guajardo appeals his conviction of first degree robbery, contending: (1) his speedy trial rights were violated; (2) the court erred in ruling his affidavit of prejudice untimely; (3) the court erred in admitting evidence concerning drug use; (4) he was prejudiced by ineffective assistance of counsel; and (5) cumulative error rendered the trial invalid. We reverse.
At approximately 10:25 p.m., on July 6, 1985, Taco John's restaurant in Pasco was the scene of an armed robbery. According to two employees at Taco John's, a dark complexioned man wearing western clothes entered the restaurant, talked to the employees briefly, and then displayed a gun. He told one of the employees to lie on the floor and the other to open the cash register. After the man fled with approximately $185, the employees called the police. Two witnesses reported observing an employee with her hands in the air and a man running from the restaurant. The witnesses saw the fleeing man jump into a car and leave the scene. The witnesses gave the police the car's license number. That evening, Pasco police officers viewed a videotape taken at the restaurant during the robbery. Officers Raymond and Nelson recognized the suspect as Segundo Guajardo. None of the other officers or witnesses were able to positively identify this defendant.
The following day, an automobile bearing the license plate numbers reported by the witnesses was found. The owner was Mr. Guajardo's cousin, Rudolfo. Later that evening, Mr. Guajardo was apprehended and arrested for first degree robbery. A jury found Mr. Guajardo guilty of first degree robbery after which he was sentenced to 48 months in prison. He appeals.
Mr. Guajardo first contends his CrR 3.3 right to speedy trial was violated. CrR 3.3(c)(1) requires that a defendant who is not released from jail pending trial must be tried not later than 60 days after arraignment. Mr. Guajardo's trial date was originally set for September 4, 1985, which was within the 60-day rule. Defense counsel was suspended from the practice of law for 30 days, and a hearing was held September 3 before Superior Court Judge Albert Yencopal. Mr. Guajardo was given two options: (1) proceed with substitute counsel, which would probably involve a 2-week continuance for trial preparation; or (2) waive his speedy trial rights until the following month when defense counsel could resume the practice of law. After conferring with substitute counsel, Mr. Guajardo refused to waive his speedy trial rights, but stated that if his case was continued, he would prefer original counsel. The court, finding good cause for a continuance, set the trial for October 9 but directed weekly extension hearings. On September 10, Superior Court Judge Fred Staples reviewed the September 3 ruling and confirmed the October 9 trial date, but, relying on CrR 3.3(h), concluded weekly extensions were not necessary.
CrR 3.3(d)(8) allows 5-day extensions of time if a trial cannot begin on the date set because of "unavoidable or unforeseen circumstances beyond the control of the court or the parties ..." Further extensions in increments of 5 days are permissible if the nature of the unforeseen or unavoidable circumstance continues. CrR 3.3(h)(2) provides that, upon motion of the State, the court, or a party, continuance may be granted when "required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense".
Under the facts of this case, the provisions of both rules were satisfied. The suspension of the defense attorney was not only an unavoidable or unforeseen circumstance beyond the control of the court or parties, but it also necessitated a postponement of trial in the administration of justice. Moreover, the record contains a thorough examination and balancing by the trial court of possible prejudice under any of the available options. See, e.g., State v. Guloy, 104 Wash.2d 412, 428, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986); and State v. Eaves, 39 Wash.App. 16, 20-21, 691 P.2d 245 (1984). Regardless of whether the delay was brought as a CrR 3.3(d)(8) extension, or CrR 3.3(h)(2) continuance, no abuse of discretion is apparent on the part of either judge. See, e.g., State v. Greene, 49 Wash.App. 49, 56, 742 P.2d 152 (1987). 1
The next issue is whether the trial court erred in ruling the affidavit of prejudice untimely. On October 9, 1985, defense counsel brought a pretrial motion for a change of trial judge pursuant to RCW 4.12.040 and .050, citing what the defendant perceived to be friction that had developed between the defendant and Judge Staples. The motion was denied as untimely since Judge Staples ruled he had exercised discretion during the September 10 hearing.
RCW 4.12.040 is a mandatory, nondiscretionary rule allowing a party in a superior court proceeding the right to one change of judge upon the timely filing of an affidavit of prejudice under RCW 4.12.050. State v. Hansen, 107 Wash.2d 331, 333, 728 P.2d 593 (1986); Marine Power & Equip. Co. v. Department of Transp., 102 Wash.2d 457, 461, 687 P.2d 202 (1984). The affidavit must be filed before the trial court makes any discretionary ruling, however. State v. Hansen, supra 107 Wash.2d at 334, 728 P.2d 593; In re Estate of Shaughnessy, 104 Wash.2d 89, 92, 702 P.2d 132 (1985); Marine Power, 102 Wash.2d at 460-61, 687 P.2d 202; State v. Dixon, 74 Wash.2d 700, 702-03, 446 P.2d 329 (1968); State v. Hightower, 36 Wash.App. 536, 547, 676 P.2d 1016 (1984). Grant or denial of a continuance is a discretionary ruling because the court must consider various factors, such as diligence, materiality, due process, a need for an orderly procedure, and the possible impact of the result on the trial. 12 R. Ferguson, Wash.Prac., Criminal Practice & Procedure § 1212, at 236 (1984); State v. Eller, 84 Wash.2d 90, 95, 524 P.2d 242 (1974); see also State v. Campbell, 103 Wash.2d 1, 14, 691 P.2d 929 (1984).
The September 10 hearing was entitled "Motion for Continuance" and was held because of the earlier decision that the continuance should be reviewed weekly, presumably to satisfy the requirements of CrR 3.3(d)(8). However, at the September 10 hearing, after a brief skirmish with Mr. Guajardo, regarding unacceptable dress, Judge Staples declined to rule on cause for continuance. The record contains the following colloquy:
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