State v. Norby
| Decision Date | 09 September 1993 |
| Docket Number | No. 59354-0,59354-0 |
| Citation | 122 Wn.2d 258,858 P.2d 210 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Donald NORBY, Daniel Hunt, Payton Stephens, David Friedman, Linda Riley, Timothy Graham, John Doe, Michael Robertson, Mark Kester, Robert Allen, Michael Riley, Brian Doring, Edward Simpson, Duane Veter, Deborah Schucker, Patty Gilstrap, David Gilstrap, Margaret Harder, Robert C. Hunt, Thomas Crain and Vernon Anderson, Respondents. En Banc |
Donald C. Brockett, Spokane County Prosecutor, Kevin M. Korsmo, Deputy, Spokane, for petitioner.
Brian O'Brien, P.S., Charles S. Dorn, Pat Stiley & Assoc. P.S., Patrick K. Stiley, Spokane, for respondents.
The State charged the defendants in this appeal with various felony drug or theft charges arising from separate incidents. These charges were filed anywhere from 6 to 33 months after the defendants allegedly committed the crimes in question. The defendants each raised motions to dismiss, arguing their due process rights were violated by this preaccusatorial delay. The trial court consolidated these cases for the purposes of the motion, and granted the defendants' motion to compel the State to answer detailed interrogatories about police and prosecutorial investigative and charging practices, as well as interrogatories about the number of individual cases involved in the delay. The court also allowed individuals who are not yet charged with crimes to participate in the defendants' motion to dismiss. The State appeals these rulings. We reverse each of these rulings and remand for a determination of whether any of the individual defendants suffered actual prejudice from the charging delay.
The Spokane County prosecutor lost three attorney positions in 1987 because of a county budget shortfall. As a result, the prosecutor reorganized the office and placed priority on cases involving homicide and other major crimes. Felony drug, fraud, and misdemeanor traffic cases were designated as lower priority cases. Only one deputy prosecutor was available to prosecute the county's drug cases during this period.
An additional deputy prosecutor was added to the office in January 1988, and 20 percent of his caseload involved county drug cases. The county's backlog of unfiled drug cases reached 250 by September 1988, and 350 by December 1988. In January 1989, the prosecutor received additional funding, and the drug unit was increased to three full-time deputy prosecutors.
In April 1990, the Spokane County prosecutor charged defendant Norby with two counts of violating the Uniform Controlled Substances Act. Norby's alleged offenses occurred in late March 1988. Norby filed a motion to dismiss because of the 24-month delay in filing charges. The Spokane County prosecutor filed charges against the other defendants in this case in either 1990 or early 1991, and these defendants also filed motions to dismiss because of similar charging delays.
The defendants then filed motions to consolidate their cases with Norby's for the purpose of their motions to dismiss. Some unnamed individuals, who had not yet been charged with any crime, also filed motions to "join" in the motions to consolidate and dismiss.
The defendants served interrogatories on the State in which they sought to discover detailed information about the State's investigations and charging policies and the number of cases involved in the prosecutor's backlog. 1 The State did not answer these interrogatories. The defendants raised a motion to compel the State to answer.
On March 1, 1991, the trial court heard argument on both the motion to compel discovery and the defendants' motions to consolidate their cases. The court determined the defendants' cases "share common questions of fact and law" regarding the "extent and nature of [the State's] pre-accusatorial delay", and these common issues must be resolved before looking to the facts of each individual case. Findings of fact 20, 23; Clerk's Papers, at 360-61. The court thus granted the motion to consolidate. It also ruled the uncharged and unnamed individuals could "join" in the defendants' motion to dismiss.
The trial court also granted the defendants' motion to compel the State to answer the interrogatories. In its oral ruling, the court noted that no provision of the criminal rules expressly provides for interrogatories, but Superior Court Civil Rule (CR) 33 provided authority for compelling the discovery in this case. The court did not enter a finding that the information the defendants sought was material or that their discovery request was reasonable.
The State raised a motion for reconsideration. In support of this motion, the State filed affidavits from the sheriff and the police department. According to these affidavits, sheriff and police staff would have to review thousands of cases requiring over 17,000 hours of work in order to prepare the information sought by the defendants. The trial court denied the motion for reconsideration. The State appealed the trial court rulings, and this court accepted direct review.
This appeal raises three issues. First, did the trial court err in consolidating the defendants' cases without first determining whether any of the defendants suffered actual prejudice as a result of the charging delay? Second, did the trial court err in compelling the State to answer the interrogatories? Third, did the trial court err in allowing uncharged individuals to "join" in the defendants' motion to dismiss?
A preaccusatorial delay may violate a defendant's right to due process under the United States Constitution. 2 United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The Court in Lovasco cautioned, however, that the due process clause:
does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining "due process," to impose on law enforcement officials our "personal and private notions" of fairness and to "disregard the limits that bind judges in their judicial function."
Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049 (quoting Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952)); see also State v. Dixon, 114 Wash.2d 857, 863, 792 P.2d 137 (1990). Prosecutors thus have broad discretion in their charging determinations. As this court has recognized:
Allowing prosecutors broad discretion to delay the filing of charges until they are "completely satisfied that [they] should prosecute and will be able promptly to establish guilt beyond a reasonable doubt", Lovasco, 431 U.S. at 795, 97 S.Ct. at 2051, serves important societal interests. Forcing prosecutors to proceed precipitously may waste scarce resources on cases in which the defendant's guilt cannot be established beyond a reasonable doubt. More devastating, however, is the risk that incomplete police investigation will result in charges being brought against innocent persons. These are costs that society should not bear. Lovasco, at 793-94, 97 S.Ct. at 2050-51.
State v. Lidge, 111 Wash.2d 845, 850, 765 P.2d 1292 (1989).
The court applies the following 3-part test from Lovasco for determining when a preaccusatorial delay violates an individual's right to due process:
(1) The defendant must show he [or she] was prejudiced by the delay; (2) the court must consider the reasons for the delay; and (3) if the State is able to justify the delay, the court must undertake a further balancing of the State's interest and the prejudice to the accused.
Lidge, 111 Wash.2d at 848, 765 P.2d 1292 (quoting State v. Alvin, 109 Wash.2d 602, 604, 746 P.2d 807 (1987)). With these principles in mind, we now turn to the issues in this case.
The State argues the trial court erred in consolidating the defendants' cases because the defendants have not yet met the first part of the test requiring that they show prejudice. The defendants argue the 3-part test does not require an inflexible order of proof, and a trial court may inquire into the State's reasons for the delay without first determining whether any of the defendants suffered any prejudice.
The 3-part test clearly indicates a defendant cannot prevail on a claim of preaccusatorial delay unless he or she demonstrates actual prejudice resulting from this delay. If a defendant demonstrates this actual prejudice, the court will then consider the State's reason for the delay and balance the State's interests against this prejudice. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050-51 (9th Cir.1990) ().
The defendants assert that even if they must meet an initial burden of showing actual prejudice, the court can infer prejudice from the prefiling delay alone. We reject this argument. The mere possibility of prejudice is not sufficient to meet the burden of showing actual prejudice. State v. Ansell, 36 Wash.App. 492, 498-99, 675 P.2d 614, review denied, 101 Wash.2d 1006 (1984). A mere allegation that witnesses are unavailable or that memories have dimmed is insufficient; the defendant " 'must specifically demonstrate the delay caused actual prejudice to his defense.' " State v. Gee, 52 Wash.App. 357, 367, 760 P.2d 361 (1988) (quoting State v. Bernson, 40 Wash.App. 729, 729, 734, 700 P.2d 758, review denied, 104 Wash.2d 1016 (1985)), review denied, 111 Wash.2d 1031 (1989). A court will presume prejudice if the juvenile court loses jurisdiction over a defendant as a result of a preaccusatorial delay. Dixon, 114 Wash.2d at 860-61, 792 P.2d 137. None of the defendants in this case, however, alleges the loss of juvenile court jurisdiction.
A trial court's ruling consolidating cases is reviewed under the abuse of discretion standard. See State v. Orange 78 Wash.2d 571, 573, ...
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