State v. Iniguez

• Decision Date: 08 April 2008
• Docket Number: No. 25218-3-III.,No. 25223-0-III.,25218-3-III.,25223-0-III.
• Citation: 143 Wn. App. 845,180 P.3d 855
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ricardo INIGUEZ, Appellant. State of Washington, Respondent, v. Jimmy Henry McIntosh, Appellant.

180 P.3d 855

143 Wn. App. 845

STATE of Washington, Respondent, v. Ricardo INIGUEZ, Appellant.

State of Washington, Respondent, v. Jimmy Henry McIntosh, Appellant.

No. 25218-3-III.

No. 25223-0-III.

Court of Appeals of Washington, Division 3.

April 8, 2008.

James Edward Egan, Kennewick, WA, Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Michelle Marie McMillen, Timothy E. Dickerson, Frank William Jenny II, Attorney at Law, Pasco, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 Richardo Iniguez and Jimmy McIntosh were both convicted of four counts of armed robbery (with firearms findings) after a joint trial. They each claim violations of their right to a speedy trial. We conclude that although the trial court complied with the speedy trial rights afforded the defendants under court rule, Mr. Iniguez's constitutional right to a speedy trial was violated. We therefore reverse Mr. Iniguez's conviction. We affirm Mr. McIntosh's conviction, but remand for correction of a scrivener's error in his judgment and sentence.

FACTS

¶ 2 On May 31, 2005, Mr. McIntosh and Mr. Iniguez were each charged with first degree robbery with a special firearm allegation. Mr. McIntosh was also charged with first degree burglary. Both men were arraigned on June 7. Trial was set for July 27. Both men remained in custody pending trial.

¶ 3 The matters were joined for trial on July 26. Mr. Iniguez's attorney requested a trial continuance to accommodate counsel's planned vacation. Mr. Iniguez refused to consent to an extension of his time for trial. The court granted a good cause continuance of his trial date to October 5. Mr. McIntosh stipulated to the continuance and signed a speedy trial waiver.

¶ 4 On September 27, trial was re-set at the State's request to allow time to interview defense witnesses.¹ Mr. McIntosh agreed to the continuance and waived his right to speedy trial up to November 16. The continuance was granted over Mr. Iniguez's objection.

¶ 5 Mr. McIntosh's counsel later requested a postponement of the November 16 trial date due to his trial schedule. Over Mr. McIntosh's objection, the trial was continued to January 4, 2006. Mr. Iniguez objected to continuing the trial date and moved for severance. The court denied the motion for severance and set a joint trial for January 4, 2006.

¶ 6 On December 30, 2005, the prosecutor informed the court that one of the victim witnesses who had been subpoenaed for an earlier trial date had left the country to visit family in Mexico without informing the State of his travel plans. The witness was scheduled to return on February 1, 2006. The prosecutor suggested a trial date of February 8, the first available trial date after the witness's return. The prosecutor asked for a good cause continuance. The trial court reserved ruling on the motion until Mr. Iniguez's counsel could contact his client.

¶ 7 At the next hearing on January 3, 2006, the trial court held that the State had taken reasonable steps to notify the subpoenaed witness, and the fact that the witness was out of the country for the holidays was a reasonable basis to reschedule the trial. The court determined that granting the continuance would not prejudice the defendants. The court also commented that if the witness had never been subpoenaed, the result would probably be different. The court balanced the inconvenience of the witness with the inconvenience of the defendants, and deemed it reasonable to continue the trial to February 8.

¶ 8 On February 8, trial commenced with jury selection on an amended information. Mr. McIntosh and Mr. Iniguez were each charged with four counts of first degree robbery during which each of them or an accomplice was armed with a firearm. The evidentiary portion of the trial began on February 15, which ended in a mistrial on February 16 when it was determined that the Spanish-speaking trial interpreter performed inadequately.

¶ 9 The case was retried on April 12, 2006. The jury found both defendants guilty of four counts of armed robbery in the first degree and found by special verdict that the men or accomplices were armed with a firearm.

DISCUSSION

1. SPEEDY TRIAL

A. Speedy Trial Rule

¶ 10 Mr. McIntosh and Mr. Iniguez both contend that their charges should have been dismissed under CrR 3.3(h) because their speedy trial rights were violated by a four-week delay requested by the State when it learned that a subpoenaed witness had left the country for the holidays without checking in to find out the new trial date.

¶ 11 CrR 3.3(b) requires that a defendant in custody be brought to trial within 60 days of the commencement date of the action. The commencement date is the date of arraignment, which in this case was June 7, 2005. Certain periods are excluded from the computation of the speedy trial deadline, including continuances granted by the court pursuant to CrR 3.3(f) and CrR 3.3(e)(3). CrR 3.3(f) permits the court to grant continuances (1) upon written agreement of the parties or (2) when a delay is required in the administration of justice and the defendant will not be prejudiced, so long as the parties agree in writing or on motion from a party or the court. When a period of time is excluded under CrR 3.3(e), the allowable time for trial "shall not expire earlier than 30 days after the end of that excluded period." CrR 3.3(b)(5).

¶ 12 According to Mr. McIntosh's calculations, the time for speedy trial under the rule expired on January 15, 2006. He claims and the court improperly continued the trial past that date. The appellate court will not disturb the trial court's ruling on a motion for continuance absent a showing of manifest abuse of discretion. State v. Campbell, 103 Wash.2d 1, 14, 691 P.2d 929 (1984) (citing State v. Miles, 77 Wash.2d 593, 597-98, 464 P.2d 723 (1970)).

¶ 13 When Mr. McIntosh waived speedy trial upon the July 26, 2005 continuance, 48 days of his speedy trial time had expired. The time in which Mr. McIntosh waived speedy trial — through November 16, 2005 — was properly excluded. CrR 3.3(f)(1). The court then granted a continuance on November 15 at Mr. McIntosh's counsel's request to accommodate his trial schedule, despite his client's objection. That Mr. McIntosh objected to his counsel's request is not controlling under the speedy trial rule when the continuance is required in the administration of justice and the defendant's presentation of his case is not prejudiced. Campbell, 103 Wash.2d at 14-15, 691 P.2d 929.

¶ 14 The continuances ordered over the defendants' objections (up to the last one involving the absence of the State's witness) constitute appropriate excludable delay where, as here, neither defendant shows prejudice to the presentation of his case. State v. Cannon, 130 Wash.2d 313, 327, 922 P.2d 1293 (1996) (continuance properly based on prosecutor's trial schedule); State v. Selam, 97 Wash.App. 140, 142-43, 982 P.2d 679 (1999) (excludable delay for defense counsel's vacation); State v. Flinn, 154 Wash.2d 193, 201, 110 P.3d 748 (2005) (granting a trial continuance to allow the State additional time for trial preparation occasioned by newly received discovery is not an abuse of discretion); State v. Eaves, 39 Wash.App. 16, 20-21, 691 P.2d 245 (1984) (defense counsel's participation in another trial constituted good cause for a continuance).

¶ 15 The continuance ordered on January 3, 2006, which was within the previous excludable period, was caused by the witness's departure from the country without informing the prosecutor. The unavailability of a material State witness may provide a valid basis for a continuance. State v. Day, 51 Wash.App. 544, 549, 754 P.2d 1021 (1988). The trial court does not abuse its discretion in granting a continuance when there is a valid reason for the witness's unavailability, the witness will become available within a reasonable time, and the continuance will not substantially prejudice the defendant. Id.

¶ 16 These requirements are not satisfied, however, unless the party whose witness is absent proves it acted with due diligence in seeking to secure that witness's presence at trial. State v. Nguyen, 68 Wash. App. 906, 915-16, 847 P.2d 936 (1993). "[A] party's failure to make `timely use of the legal mechanisms available to compel the witness' presence in court' preclude[s] granting a continuance for the purpose of securing the witness' presence at a subsequent date." State v. Adamski, 111 Wash.2d 574, 579, 761 P.2d 621 (1988) (quoting State v. Toliver, 6 Wash.App. 531, 533, 494 P.2d 514 (1972)). Thus, "the issuance of a subpoena is a critical factor in granting a continuance." State v. Wake, 56 Wash.App. 472, 476, 783 P.2d 1131 (1989).

¶ 17 Mr. McIntosh and Mr. Iniguez argue that because the State did not serve a separate subpoena to the witness for the January 4 trial date, the State cannot show due diligence. But the witness here was served for the previous trial date. Division One of this court has held that "a subpoena ordinarily imposes upon the summoned party a continuing obligation to appear until discharged by the court or the summoning party." State v. Tatum, 74 Wash.App. 81, 86, 871 P.2d 1123 (1994).

¶ 18 In State v. Alford, the defendant argued that the State did not act diligently to secure the attendance of a subpoenaed witness who was out of state at the time of trial. State v. Alford, 25 Wash.App. 661, 665, 611 P.2d 1268 (1980), aff'd sub nom. State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981). The court held that by showing the witness was under subpoena and unavailable for trial, the State complied with the basic requirements of due diligence. The court did not abuse its discretion in granting a trial continuance. According to the rule in Tatum, the same would be true here.

¶ 19 The trial court here noted that although the witness did not have a date certain for his appearance, he was under subpoena; he had simply failed to report before leaving. The court found...