State v. Newcomer

• Decision Date: 04 June 1987
• Docket Number: No. 9355-3-II,9355-3-II
• Citation: 48 Wn.App. 83,737 P.2d 1285
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Norman Willis NEWCOMER, Appellant.

Page 83

48 Wn.App. 83

737 P.2d 1285

STATE of Washington, Respondent, v. Norman Willis NEWCOMER, Appellant.

No. 9355-3-II.

Court of Appeals of Washington Division 3, Panel Two.

June 4, 1987.

Robert W. Huffhines, Jr., Court appointed Atty., Kelso, for appellant.

Robin M. Force, Deputy Pros. Atty., Kelso, for respondent.

THOMPSON, Acting Chief Judge. ^*

Norman Newcomer appeals his conviction for two counts of first degree robbery, contending the trial court erred in not dismissing both counts based on: (1) violation of his Sixth Amendment speedy trial right; (2) running of the statute of limitation on count 2; and (3) precharging delay on count 2 violated his rights to due process under the Fifth and Fourteenth Amendments. He also assigns error to the trial court's denial of his motion to expend public funds for hiring a defense psychiatric expert, and contends he was denied effective assistance of counsel. We affirm.

On October 5, 1980, the bartender of the Oregon Way Tavern in Longview, Washington was robbed at gunpoint by a customer who waited in the bar until closing time. Later, on October 18, 1980, a Stop 'N Go market in North Kelso was also robbed by a lone gunman. The victims in both robberies identified Norman Newcomer's photograph from a photo lineup.

An information was filed October 20, 1980, alleging Mr. Newcomer committed the Oregon Way Tavern robbery. On October 21, 1980 an arrest warrant was obtained.

Thereafter, Cowlitz County authorities learned that Mr. Newcomer was arrested November 10, 1980 for an offense in Oregon, and sentenced to Oregon State Penitentiary February 6, 1981 for that offense. The Cowlitz County Sheriff's office wrote to the Oregon State Penitentiary on February 9, 1981, enclosing the October 21, 1980 arrest warrant, stating: "Please use our warrant as a detainer for our department. We would like to extradite Mr. Newcomer to our jurisdiction on local charges. Please advise when he would be available for transport." The superintendent of the penitentiary acknowledged the detainer on February 23, 1981, and provided the Cowlitz County Sheriff with information on Mr. Newcomer's sentence and anticipated release date.

On June 5 and June 17, 1981, Mr. Newcomer wrote Judge Hallowell of the Cowlitz County Superior Court asking help in getting the detainer dropped or held in abeyance, because he wished to take advantage of the mentally-emotionally disturbed program at Oregon State Hospital; with a detainer in place, rehabilitative programs were denied prisoners at the Oregon Penitentiary. The deputy prosecutor for Cowlitz County wrote a reply to Mr. Newcomer on June 30, 1981, saying he had no intention of dropping the matter and suggesting the defendant forward the necessary paper work so that the matter could be adjudicated. Later, after more letters, the detainer was lifted as requested by Mr. Newcomer. The record does not indicate whether the defendant participated in the mentally disturbed program.

Upon his release from the Oregon prison, he was arrested and brought back to Washington to be tried on the charge already filed, alleging he robbed the Oregon Way Tavern. A second amended information was filed on May 16, 1985, charging him for the first time with commission of the Stop 'N Go robbery. Mr. Newcomer's attorney moved to dismiss count 1 on constitutional speedy trial grounds, and moved to dismiss count 2 on due process and statute of limitation grounds. The motions were denied.

On July 17, 1985, Mr. Newcomer filed a motion for leave to enter a plea of not guilty by reason of insanity, and for an order committing the defendant to Western State Hospital for evaluation. On July 18, 1985, Mr. Newcomer filed a formal written plea of not guilty by reason of insanity. The court granted the commitment request to Western State Hospital for observation, and a report was obtained. The report indicated Mr. Newcomer was competent to stand trial and sane at the time the offenses were committed. The court refused to expend further public funds for another psychiatric evaluation. Mr. Newcomer's counsel attempted to obtain psychiatric evaluations from Oregon authorities, but was denied access.

A jury trial was held on the two counts of robbery in the first degree. Mr. Newcomer refused to attend. He was convicted and sentenced to two 30-year terms in the state prison, to run consecutively.

The first issue is whether Mr. Newcomer's constitutional right to a speedy trial was violated by a trial 5 years after the information was filed, during which 5 years he was imprisoned on other charges in another state. This issue involves the relationship of federal and state constitutional rights to a speedy trial with the Interstate Agreement on Detainers (IAD), RCW 9.100, et seq. It does not involve compliance with CrR 3.3 because CrR 3.3(g)(6) excludes the time during which a defendant is detained in jail or prison outside Washington. ¹

When a person is incarcerated in another jurisdiction, the possibility a long delay in going to trial will impair his ability to defend himself is markedly increased. For this reason, the Supreme Court has required that states make a diligent good faith effort to bring the defendant back for trial. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). States usually accomplish this through adoption and utilization of the interstate detainer compacts. ² The purpose of these compacts is: "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints". IAD, article 1; RCW 9.100.010. Action can be initiated by either the prisoner or the "receiving state" under articles 3 and 4 of RCW 9.100.010. See State v. Peterson, 90 Wash.2d 423, 430, 585 P.2d 66 (1978); State v. Gilchrest, 37 Wash.App. 531, 534, 681 P.2d 865 (1984). Article 3 requires the prisoner to deliver "to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment ..." Article 4 allows the appropriate officer of the "receiving state", i.e., where the untried indictment is pending, to request temporary custody of the prisoner.

While the agreement itself places no responsibility on a receiving state to bring the prisoner to trial, absent an article 3 request by the prisoner or actual custody in the receiving state pursuant to an article 4 temporary custody request, the fact a defendant is in prison in another jurisdiction and the minimal requirements of the IAD provisions do not relieve the State of its Sixth Amendment responsibilities. Smith v. Hooey, supra; United States v. Dowl, 394 F.Supp. 1250 (D.Minn.1975); see also State v. Dean, 42 Md.App. 155, 399 A.2d 1367, 1372 (1979); People v. Rodriguez, 47 Mich.App. 483, 209 N.W.2d 441 (1973).

It is impossible to determine with clinical precision when an accused's constitutional speedy trial right has been denied. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). For this reason, the United States Supreme Court, in Barker, created a balancing test to be applied on an ad hoc basis. The factors to consider are: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. None of the four factors identified by the court were regarded as either a necessary or sufficient condition to a finding of deprivation of the right to speedy trial.

Application of the 4-part Barker balancing factors is complicated in this case by what the State characterizes as Mr. Newcomer's waiver of his speedy trial rights. The State argues his letters asking the court and prosecutor to drop the arrest warrant and detainer effectively waived any speedy trial right. However, a waiver of the constitutional right to a speedy trial must be knowing, intelligent, and voluntary and will not be presumed. Barker; In re James, 96 Wash.2d 847, 851, 640 P.2d 18 (1982); State v. Williams, 87 Wash.2d 916, 557 P.2d 1311 (1976). A defendant has no duty to bring himself to trial, nor is he under a duty to demand a speedy trial at the expense of otherwise waiving the right. Barker, 407 U.S. at 531, 92 S.Ct. at 2192; State v. Wernick, 40 Wash.App. 266, 271, 698 P.2d 573 (1985); McQueary v. State, 21 Wash.App. 658, 664, 585 P.2d 1197 (1978). There is no clear showing Mr. Newcomer understood his request was a waiver of his speedy trial right for the time between his June 1981 letters and his trial in October 1985. We find his request was not a waiver of his right to a speedy trial. However, his conduct is certainly relevant when applying the four Barker balancing factors.

The length of delay, approximately 5 years, is long enough to presumptively affect Mr. Newcomer's rights in that he was "available", if the State had pursued the IAD article 4 procedures. See Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93. The reason for the delay can be determined by examining the events surrounding Mr. Newcomer's request to drop the detainer. The State's inaction from February 9, 1981, when it notified Oregon and lodged its detainer, to June 5, 1981, when Mr. Newcomer wrote his first letter to Judge Hallowell, is inexplicable in that the State's communication with Oregon clearly invoked article 4 of the IAD. Oregon then had 30 days before the request had to be honored. While Oregon acknowledged the request on February 23, 1981, no further action was taken by the Cowlitz County prosecutor until June 30, 1981, when by letter the prosecutor informed Mr. Newcomer he had no intent to drop the matter and suggested the prisoner "forward the necessary paperwork", alluding to the article 3 procedure. Also, there is...