State v. Haga

• Decision Date: 05 March 1973
• Docket Number: No. 1477--I,1477--I
• Citation: 8 Wn.App. 481,507 P.2d 159
• Parties: STATE of Washington, Respondent, v. Eric L. HAGA, Appellant.
• Court: Washington Court of Appeals

Page 481

8 Wn.App. 481

507 P.2d 159

STATE of Washington, Respondent, v. Eric L. HAGA, Appellant.

No. 1477--I.

Court of Appeals of Washington, Division 1, Panel One.

March 5, 1973.

Rehearing Denied March 9, 1973.

Rehearing Denied April 19, 1973.

Petition for Review Filed May 9, 1973.

Petition for Review Denied June 20, 1973.

Barokas, Martin & Richey, Jack A. Richey, Larry L. Barokas, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Lee D. Yates, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Defendant appeals from a jury conviction of the first degree murders of his wife and infant daughter.

The deaths occurred in the early morning of July 6, 1966. The defendant has maintained since that date that he was asleep in the bedroom of their rented home and awoke in the morning to find his wife and the youngest of two daughters strangled. A neighbor testified that the defendant appeared at his door on the morning in question and said, 'there was something wrong with Judy.' The neighbor accompanied the defendant into the house and found the wife's body in the living room, where, according to the defendant's testimony, she had slept that night because neither was feeling well. The body of the infant girl was found in a bedroom.

The state introduced evidence that the Hagas had been separated in the summer of 1965 and that Mrs. Haga had lived with another man for a short period of time prior to

their reconciliation. Evidence was introduced concerning the issuance of life insurance on the family, and other evidence was admitted showing that the defendant had lied on a loan application in an attempt to secure extra money for the purchase of a sports car. There was testimony that there had been several instances of prowlers in the neighborhood, and a prowler had been seen the afternoon of the crimes. A neighbor testified that he saw a man in the Haga living room about 6:40 a.m.[507 P.2d 162] wearing what appeared to be a coat. No evidence linked the defendant directly to the murders although it is undisputed that he was in the house during the night of the crimes. The time of the deaths was approximated as between midnight and 4 a.m.

DELAY IN PROSECUTION

The defendant contends that the delay from the commission of the crimes to the commencement of prosecution, a period of over 5 years, amounted to a denial to him of due process of law under the federal and state constitutions.

Any inquiry into delay in criminal prosecutions must begin with the relevant statute of limitations. '(T)he applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.' United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). There is no statute of limitations on murder in Washington. RCW 10.01.020.

The problem of 'pre-arrest' or 'pre-accusation' delay of a duration less than the relevant statute of limitations as potentially violative of constitutional safeguards is one with which the Supreme Court has only recently been concerned.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the majority held that the Sixth Amendment guarantee of a speedy trial did not apply to delays prior to indictment or arrest. In a concurring opinion, three justices argued that the speedy trial guarantee should apply. The opinion of the majority said:

The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. . . . (Statute of limitations) represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they 'are made for the repose of society and the protection of those who may (during the limitation) . . . have lost their means of defence.' Public Schools v. Walker, 9 Wall. 282, 288, 19 L.Ed. 576 (1869). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced. . . .

. . . It is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that The Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution.

(Footnotes omitted and italics ours.) The majority opinion concludes that, 'Events of the trial may demonstrate Actual prejudice, but at the present time appellees' due process claims are speculative and premature.' (Italics ours.) In a footnote, the court observed that most courts of appeal which have considered pre-indictment delay as a ground for dismissal have treated the question as one of due process and required a showing of actual prejudice.

Although the Marion case has been cited for the proposition that due process will require dismissal only when a pre-indictment delay is both actually prejudicial And intentionally caused by the prosecutor (United States v. Beitscher, 467 F.2d 269 (10th Cir. 1972); United States v. Daley, 454 F.2d 505 (1st Cir. 1972), the more prevalent view would dismiss a criminal prosecution when actual prejudice is shown, and the prosecutor had no reasonable justification for the delay. See United States v. Hauff, 461 F.2d 1061 (7th Cir. 1972); United States v. Iannelli, 461 F.2d 483 (2d Cir. 1972); United States v. Mones, 336 F.Supp. 1322 (S.D.Fla.1972).

While intentional pre-indictment delay which actually prejudices a defendant would be grounds for dismissal of a charge (See Stuart v. Craven, 456 F.2d 913 (9th Cir. 1972); Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363 (1965)), there may be circumstances Short of purposeful delay which, if actually prejudicial to a defendant, would require dismissal.

The factors relevant to a determination of the defendant's contention, which is based upon the due process clause, are similar to the factors delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), concerning the guarantee of a speedy trial. The court identified four factors which must be considered in determining whether the right to a speedy trial had been denied. These factors are: (1) the length of the delay; (2) the reson for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. See also State v. Rock, 8 Wash.App. 116, 504 P.2d 331 (1972).

Distinctions must be made between the speedy trial analysis applicable to post-accusation delays and the due process analysis relevant to pre-accusation delays. First, citizens cannot be expected to periodically search their consciences and demand that the state grant them exculpation. 'There is no constitutional right to be arrested.' Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966).

Second, the sort of prejudice likely to result from pre-accusation delays differs from that caused by post-accusation delays. The Barker case identifies three ramifications of post-accusation delay which may prejudice a defendant: (1) pretrial incarceration, (2) anxiety and concern of the accused and (3) impairment of the defense. Only the impairment of the defense seems relevant to this case. Impairment of an ability to offer a defense is the impairment of a vital interest. Barker v. Wingo, Supra; Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966).

With these considerations in mind, we turn to a discussion and weighing of the factors determinative of the defendant's contention.

The length of the delay between the crimes and initiation of formal accusation was over 5 years. In Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), Justice Brennan in a concurring opinion suggested that once delay reached a certain point substantial prejudice should be presumed. However, he did not specify at what point such a presumption would arise. The delay in this case is long enough to cause concern about the dimming of memories and lost evidence.

The sole reason for the delay was an apparent difference of opinion between the prosecuting attorney in office at the time of the crime and his successor, who took office in January 1971, as to whether there was sufficient evidence on which to prosecute. No other reason was offered at trial or on appeal. In pretrial proceedings, the prosecutor said: '(T)here has been a five year delay. I don't know why.' During oral argument on appeal, the following colloquy occurred:

THE COURT: What was there available to a prosecutor in 1971 that was not available to a prosecutor in 1965?

PROSECUTOR: I would have to say that either the evidence was the same or that the people who reviewed the case in 1966 weren't as thorough as the people who reviewed the case in 1971.

Three reasons are considered by courts as sufficient justification for delay:

1. The case may be of such a complex nature that considerable time was necessary to prepare the case for prosecution. United States v. Marion, Supra.

2. It would hinder effective law enforcement operations to charge the defendant immediately after the commission of the crime. This justification sometimes is tendered in cases involving organized crime. United States v. Russo 442 F.2d 498 (2d Cir. 1971): DuFrane v. Sheriff, Washoe County, Nev., 495 P.2d 611 (1972).

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