State v. Lackey

• Decision Date: 22 December 2009
• Docket Number: No. 37682-2-II.,37682-2-II.
• Citation: 223 P.3d 1215,153 Wn. App. 791
• Parties: STATE of Washington, Respondent, v. Daniel Wayne LACKEY, Appellant.
• Court: Washington Court of Appeals

223 P.3d 1215

153 Wn. App. 791

STATE of Washington, Respondent, v. Daniel Wayne LACKEY, Appellant.

No. 37682-2-II.

Court of Appeals of Washington, Division 2.

December 22, 2009.

Thomas E. Weaver, Jr., Attorney at Law, Bremerton, WA, for Appellant.

Juelanne B. Dalzell, Attorney at Law, Prosecuting Attorney, Thomas A. Brotherton, Jefferson County Prosecuting Attorney, Port Townsend, WA, for Respondent.

OPINION PUBLISHED IN PART

SWEENEY, J.

¶ 1 Daniel Lackey appeals his conviction for delivery of a controlled substance. He argues that the trial court erred in denying his motion to dismiss for violation of his CrR 3.3 speedy trial rights. Washington's speedy trial rule requires that a defendant be brought to trial within 90 days of arraignment if he is not confined in jail. Here, the defendant was tried 323 days after he was arraigned. Some of the delays were chargeable to the defendant, some to the State; many were the result of what we conclude was routine court congestion. But due to Washington's vacuous speedy trial rule, CrR 3.3, we are constrained to conclude that the defendant's right to a speedy trial was not violated. We also conclude that his constitutional right to a speedy trial, and his rights to counsel, to confront the witnesses against him, and to compel witnesses were not violated. And we, therefore, affirm his conviction for delivery of a controlled substance.

FACTS

¶ 2 Jefferson County sheriff's deputies worked with an informant, Joey Morris, in the spring of 2007. Mr. Morris bought drugs from Daniel Lackey on April 2 and April 9, 2007. The officers recorded the transaction on April 9 by outfitting Mr. Morris with a body wire.

¶ 3 On May 7, the State charged Mr. Lackey with one count of delivery of a controlled substance. The same day, the court arraigned Mr. Lackey and set a trial date of July 2. Mr. Lackey was free after posting bond. Mr. Lackey then filed an affidavit of prejudice against the only judge in Jefferson County. On June 22, Mr. Lackey's first attorney moved to withdraw. The court denied the motion without prejudice. On July 20, Mr. Lackey's attorney again moved to withdraw, and the court granted his motion.

¶ 4 On July 23, Mr. Lackey appeared in court without counsel. The court discussed Mr. Lackey's finances and appointed a lawyer to represent him. The State told the court that the withdrawal of Mr. Lackey's first attorney restarted the speedy trial time. The court nevertheless asked Mr. Lackey to sign a speedy trial waiver. Mr. Lackey complained that he was being forced to sign the waiver. The court responded that it was purely Mr. Lackey's decision whether or not to sign the waiver. Mr. Lackey asked whether he could speak with his newly appointed attorney before signing the waiver. The court replied that the dates for hearings and the trial had to be set that day. Mr. Lackey signed the waiver. But the waiver does not set out a new trial commencement date or an expiration date for the waiver.

¶ 5 On August 10, the State moved for a continuance because one of its witnesses, Detective Miller, was ill. Mr. Lackey, through new counsel, objected to any continuance beyond the speedy trial date. The court granted the continuance and set the trial for October 1. On August 31, the State moved for a second continuance because a police witness was not available. The court moved the trial date to the next date a visiting judge would be available, October 29. And Mr. Lackey and his lawyer agreed to the October 29 trial date and signed a second speedy trial waiver.

¶ 6 The State complained, in September and October, that Mr. Lackey had violated the conditions of his release. And the court raised Mr. Lackey's bail. On October 19, Mr. Lackey's attorney moved to continue the trial date to November 5 to allow time to prepare. The court treated the defense request for a November 5 trial as a waiver of Mr. Lackey's speedy trial right for the period covered by the motion. The court set a hearing for October 26 to set a new trial date.

¶ 7 On October 26, Mr. Lackey's attorney again requested a November 5 trial start date. The court clerk responded that the day was no longer available, and December 10 was the next available date. The defense attorney responded that he was not available on December 10 because he would be in trial on another case. The court said that the next open trial date would be in March 2008. The trial court asked Mr. Lackey whether he would again waive his speedy trial rights. Mr. Lackey expressed his frustration with the proceedings dragging out for nearly one year; he also explained that the extended proceedings interfered with his search for a better job. He asked to speak with his attorney, who was appearing by phone, before responding to the court's request for a speedy trial waiver.

¶ 8 Mr. Lackey's attorney asked the court for a November 5, 2007, scheduling hearing to allow more time for him to discuss with Mr. Lackey the trial scheduling issue. Mr. Lackey had received an offer for an out-of-town job. On November 5, the court set Mr. Lackey's trial date for January 7 and 8, 2008. On December 28, 2007, at another hearing, the State reported that another case had priority and was also scheduled to go to trial on January 7 and 8. Mr. Lackey's attorney responded that he "previously preserved our speedy trial right," was prepared to go to trial on January 7, and refused to waive speedy trial. Report of Proceedings (RP) (Dec. 28, 2008) at 4. The court rescheduled Mr. Lackey's trial for February 4, 2008.

¶ 9 On January 25, the State again moved for a continuance because a witness was hospitalized with a heart condition. The State represented that the witness, Detective Miller, needed roughly four weeks. Mr. Lackey objected and urged that the court was obligated to try him on November 5, 2007, at the latest. The court reset the trial for March 24.

¶ 10 On February 4, Mr. Lackey moved to dismiss the case for violation of his right to speedy trial. The court concluded that the last commencement date for purposes of the speedy trial rule, CrR 3.3, was December 19 2007,¹ and the State had 90 days from that date to try Mr. Lackey. So Mr. Lackey's speedy trial period would run on March 18, 2008, according to the court. RP (Feb. 4, 2008) at 28. The court denied his motion to dismiss and set the trial for March 24. Mr. Lackey objected that March 24 was beyond the date even the court said the speedy trial time would run, March 18. The court relied on a letter from Detective Miller's doctor that the detective should "defer trial and work assignments until March 2008" to find good cause to continue the trial until March 24. RP (Feb. 4, 2008) at 38-39.

¶ 11 On March 24, the court heard pretrial motions including a motion to suppress evidence gathered through the informant's body wire tapes. The court concluded that the body wire was authorized and denied the motion to suppress.

¶ 12 Mr. Lackey's trial started on March 25. The State called Mr. Morris as one of its witnesses but questioned him about the April 2, 2007, buy only; the State asked no questions about the April 9 transaction. Without objection, the court admitted both the tape and the transcript from the body wire that Mr. Morris wore on April 9. On the tape, Mr. Morris can be heard greeting Mr. Lackey. Ex. 10. Mr. Morris then abruptly counts out $50 cash that he apparently gives to Mr. Lackey. Ex. 10. Mr. Lackey states, "Okay, what, oh okay good." Mr. Morris then states "Forty," and changes the subject of the conversation. Ex. 10. Mr. Lackey did not testify and called no witnesses. He tried to call a female cohort, Bonita Halverson, to testify about the April 2 events. But she asserted her right to remain silent. The jury found Mr. Lackey guilty on both counts.

DISCUSSION

Speedy Trial—CrR 3.3

¶ 13 Mr. Lackey contends that the delays here violated his CrR 3.3 right to speedy trial. The State notes that continuances are discretionary with the trial judge and urges us to defer to those decisions. Br. of Resp't at 12-13. But exactly which decisions (of the many decisions to continue the trial date) we are supposed to defer to is unclear. And, just as importantly, it is unclear what the State would urge as tenable grounds for any specific decision to continue and whether and how such grounds meet the requirements of the various exceptions set out in CrR 3.3.

¶ 14 The State then makes the general and conclusory statement that "[t]hese problems were not routine and were unavoidable." Br. of Resp't at 14. But again, the State offers nothing by way of analysis to explain why specific decisions were neither routine nor unavoidable. And there is no finding or explanation by the trial court on why the "problems" were neither routine nor unavoidable. CrR 3.3(f)(2) (requiring the court to state on the record or in writing the reasons for the continuance).

¶ 15 The application of CrR 3.3 to the facts of this case is a question of law that we review de novo. State v. Hardesty, 110 Wash.App. 702, 706, 42 P.3d 450 (2002), rev'd on other grounds, 149 Wash.2d 230, 66 P.3d 621 (2003). We read the rule to avoid unnecessary dismissal with prejudice, whenever possible. Id.

¶ 16 Mr. Lackey was free on bail, so he had a right to be tried within 90 days of the date he was arraigned. CrR 3.3(b)(2). He was arraigned on May 7, 2007. The court would then have had to assign a trial date of not later than approximately August 6, 2007. CrR 3.3(b)(2); CrR 8.1; CR 6. But Mr. Lackey's attorney withdrew, and that started the 90-day clock anew. See State v. Thomas, 95 Wash.App. 730, 738, 976 P.2d 1264 (1999).

¶ 17 On July 23, 2007, Mr. Lackey appeared in court without a lawyer and the court talked him into signing a waiver of speedy trial. RP (July 23, 2007) at 6-7, 9. Ultimately, however, Mr. Lackey, new defense counsel, and the State all agreed on a new trial date, October 29, 2007. And Mr. Lackey waived his right to speedy trial. RP (...