State v. Hoffman

• Decision Date: 14 January 2003
• Docket Number: No. 20561-4-III.
• Citation: State v. Hoffman, 115 Wn. App. 91, 60 P.3d 1261, 115 Wash.App. 91 (Wash. App. 2003)
• Parties: STATE of Washington, Respondent, v. Joseph Allan HOFFMAN, Appellant.
• Court: Washington Court of Appeals

60 P.3d 1261

115 Wn. App. 91

115 Wash. App. 91

STATE of Washington, Respondent, v. Joseph Allan HOFFMAN, Appellant.

No. 20561-4-III.

Court of Appeals of Washington, Division 3, Panel Five.

January 14, 2003.

Sharon M. Brown, Attorney at Law, Tri-Cities, WA, for Appellant.

Tamara A. Taylor, Deputy Prosecuting Attorney, Kennewick, WA, for Respondent.

KURTZ, J.

Joseph Hoffman appeals his conviction for sexual exploitation of a minor. He claims the superior court erred by revising the court commissioner's order dismissing his case. A commissioner dismissed the case because the State could not produce the victim for a defense witness interview prior to trial. After the State timely filed a motion for revision, the superior court judge revised the commissioner's order and directed that the case be set for hearing.

Under JuCR 7.8(b), if a juvenile offender is being detained pending the adjudicatory hearing, the hearing must be held within 30 days of the arraignment. If the hearing is not held within the time limits, the charge shall be dismissed with prejudice. JuCR 7.8(g). Under JuCR 7.8(d)(5), a motion for revision tolls JuCR 7.8(d) from the time a motion for revision is filed until the formal order for revision is entered. Here, the motion for revision did not toll the expiration of the speedy trial time period because it was filed after the period had expired. Mr. Hoffman's conviction is reversed and the charge is dismissed with prejudice.

FACTS

Joseph Hoffman is 17 years old. When he was 16 years old, he was convicted of the charge of sexual exploitation of a minor. RCW 9.68A.040(1)(b). The charge involved his 11-year-old cousin, to whom Mr. Hoffman paid $20 in exchange for two performances of live, nude dancing.

After a trial, Mr. Hoffman was convicted and sentenced to 30 days in jail, with 27 days of that time suspended upon the condition that he complete a Special Sex Offender Disposition Alternative. As a result of his conviction, Mr. Hoffman is required to register as a sex offender under RCW 9A.44.130(1). The order of disposition was stayed by order of the trial court, pending this appeal.

CrRLJ 3.3(c)(1) provides a juvenile not detained in jail shall be brought to trial not later than 60 days after arraignment. Mr. Hoffman was arraigned on June 6, 2001. His trial date was set for August 3—58 days after the arraignment. An omnibus hearing was scheduled for July 11.

Almost two weeks before Mr. Hoffman was arraigned, Tammy Wolf, a juvenile victim witness coordinator, sent an initial form letter to the 11-year-old victim and left a telephone message for the victim's mother. They were staying at a women's shelter. Two days after the arraignment, Ms. Wolf sent a second letter to the shelter, advising the victim and her mother of the trial date. She understood that the shelter offered temporary housing, but she had received no indication that the mother and child were not there and neither letter was returned to the prosecutor's office.

As scheduled, the omnibus hearing came on for hearing on July 11—23 days before the trial date. Before that date, the court had granted discovery requests stated in an omnibus application filed by the prosecutor. At the hearing, the prosecutor advised the court that she had attempted to contact the victim the preceding day, but that she had lost contact with the victim and her mother. Mr. Hoffman's counsel advised the court that he could not satisfy the requests stated in the prosecutor's omnibus application without talking to the victim. Both sides agreed to continue the hearing for one week.

In the interim, on July 13, Peggy Arnold, the prosecutor's victim witness coordinator, located the victim's mother. She had been taken by a Pasco police officer to a detox center and then moved to the mental health ward of Lourdes Hospital. The mother acknowledged that she knew about the trial date, but she refused to tell Ms. Arnold where her daughter was staying. Thereafter, Ms. Arnold contacted the victim's father, who provided an address for the mother. On July 13, subpoenas for the victim were mailed to the women's shelter, the Richland address provided by the father, and to the father at the address of victim's grandfather, where he was staying.

On July 14 or July 15, Ms. Arnold met with the father and personally served upon him a subpoena for the victim. At that time, the father did not have legal custody of his daughter, although he later would initiate such a proceeding on August 1. Despite these efforts, Ms. Arnold was not able to meet with the victim.

The continued omnibus hearing came on for hearing on July 18. The prosecutor advised the court of the information obtained by Ms. Arnold. In response, Mr. Hoffman's counsel orally moved to dismiss the case, stating his inability to interview the victim rendered ineffective his assistance to his client. The court continued the matter for an additional week, warning the prosecutor that appropriate arrangements for a witness interview must be made.

The omnibus hearing came on again for hearing on July 25. Sometime before the hearing, the prosecutor had obtained an order authorizing a deposition of the victim. Now, the prosecutor asked that this order be cancelled and, in its place, the court authorized a material witness warrant for the victim. In response, the court pressed the prosecutor for information regarding the location of the victim. The State revealed that the mother would not tell the prosecutor where her daughter was located. Additionally, the prosecutor informed the court that the police officer who had interviewed Mr. Hoffman would be on vacation on the August 3 trial date. The State asked for a five-day continuance.

In response, the court granted the prosecutor's request for a material witness warrant, but would not continue the case. The court warned the prosecutor that she should find the victim or face dismissal of the case, regardless of whether the police officer was available. In response to Mr. Hoffman's counsel's renewed motion to dismiss the case, the court identified two problems—Mr. Hoffman's right to a speedy trial and his right to effective counsel. Nevertheless, the court did not dismiss the case, but merely continued the matter until August 1. The court indicated that it wanted to know whether the victim was available for trial on August 3 before it considered the State's motion for continuance.

Two days later, on July 27, the prosecutor returned to court, armed with a written motion to continue the case so that the officer would not have to interrupt his vacation. Apparently, the matter came on for hearing without notice and before a different judicial officer than the court commissioner who had refused to continue the case. The court scheduled the matter for hearing before the court commissioner.

At the July 30 hearing, the police officer explained that he had received his subpoena the previous Monday, that the trial date conflicted with a long-scheduled commitment to a Boy Scout function, and that he would be available to testify on August 6, the Monday following the Friday, August 3 trial date. He further explained that his testimony concerned an interview with Mr. Hoffman. After hearing this testimony, the court found that there was good cause for the continuance and continued the case until August 6— a date 61 days after Mr. Hoffman's arraignment.

The omnibus hearing came on again for hearing on August 1, five days before the continued trial date. Mr. Hoffman's attorney had not been able to interview the victim and asked the court to dismiss the case. In response, the State offered the testimony of a number of witnesses regarding its efforts to locate the victim.

The victim's grandfather testified that he did not know his granddaughter's current location. Two weeks ago, he testified, the mother and child had moved. He further testified that his son Roger had been to court and obtained temporary, legal custody of the child, but Roger had never had actual, physical custody of her. Additionally, Ms. Wolf and Ms. Arnold testified regarding their efforts as victim coordinators to locate the victim and secure her presence at the trial. After hearing the testimony, the court made a finding that the prosecutor had acted with due diligence.

At this point, the court asked the prosecutor for assurances that the victim would be present for trial the following Monday, August 6. The prosecutor responded by saying that she had recently spoken with a "contact" person identified as "Cassidy" who reported that the victim's mother was trying to get her back for trial. Report of Proceedings (RP) at 59. But, the mother was unaware that the trial had been moved from August 3 to August 6. The prosecutor further informed the court that she had personally spoken with the mother on July 26. She learned that the mother was staying with her own mother, but both the victim and the mother were reluctant to testify. In response, the court summarized the prosecutor's position: "what we have ... [is] this contact person's assurance that she will try to get [the victim] here by Friday." RP at 61-62. To which the prosecutor added: "and [the mother's representation] that she was trying to get her daughter over here...." RP at 62.

The prosecutor asked the court for a one-week continuance of the August 6 trial date. In response, the court found that there was no reasonable likelihood that the State would be able to produce its witness on the trial date and, consequently, dismissed the case.

Thereafter, on August 9, the State filed a motion for revision. After considering the record, the superior court judge granted the State's motion. In a letter filed on August 23, the court stated: "the dismissal of the case was an abuse of discretion as there is no showing of arbitrary action or governmental misconduct. Neither is there a showing of prejudice to the rights of the accused which materially affect his right...