State v. Ollivier

• Citation: 161 Wash.App. 307,254 P.3d 883
• Decision Date: 18 April 2011
• Docket Number: No. 63559–0–I.,63559–0–I.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent,v.Brandon Gene OLLIVIER, Appellant.

161 Wash.App. 307

254 P.3d 883

STATE of Washington, Respondent,

v.Brandon Gene OLLIVIER, Appellant.

No. 63559–0–I.

Court of Appeals of Washington, Division 1.

April 18, 2011.

Stephen Paul Hobbs, Office of the Prosecuting Attorney, Seattle, WA, for Respondent.Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.GROSSE, J.

[161 Wash.App. 311] ¶ 1 It is not an abuse of discretion for the trial court to grant multiple continuances to ensure that defense counsel is adequately prepared even though the defendant objects to the majority of those continuances. Brandon Ollivier also raises additional issues, none of which have any merit. We affirm.

FACTS

¶ 2 Brandon Ollivier is a registered sex offender. In March 2007, he was living with two roommates both of whom were registered sex offenders. While in police custody for a community custody violation, Eugene Anderson, one of Ollivier's roommates, gave a taped interview to Detective Dena Saario. In that interview, Anderson stated that Ollivier had shown him a video of a young girl having sexual relations with a young boy. He also stated that Ollivier showed him other provocative photographs of young girls approximately 9 years old, who, although clothed, were provocatively posed.

¶ 3 Ollivier was arrested on April 13, 2007 and charged with possession of depictions of minors engaged in sexually explicit activity. He was arraigned on April 18, 2007. His initial speedy trial expiration date was June 29, 2007. A total of 22 continuances were granted before the trial took place 22 months later on March 9, 2009. Ollivier objected to 19 of the 22 continuances. There were primarily three reasons defense counsel sought the continuances: (1) need for an expert to review the computer content, (2) need to obtain information from the Washington State Department of Corrections (DOC), and (3) need to obtain information regarding the lead detective's resignation from the sheriff's office because an internal investigation found the detective dishonest.

¶ 4 Ollivier was convicted by jury of one count of possession of depictions of minors engaged in sexually explicit conduct and sentenced to 30 months.

¶ 5 Ollivier appeals contending that under the court rules and the state and federal constitutions, his right to a speedy trial was denied. Additionally, Ollivier argues that the informant's information was unreliable and that the search warrant was overbroad, not supported by probable cause, and improperly served.

ANALYSIS

Speedy Trial

¶ 6 Ollivier contends that the 22 continuances violated his constitutional right to a speedy trial under both the court rule and the federal and state constitutions. A trial court's decision to grant a continuance under CrR 3.3 will not be disturbed absent a showing of manifest abuse of discretion.¹ Even when the defendant objects, the granting of a continuance to allow counsel to adequately prepare and ensure effective representation does not constitute an abuse of discretion.² As noted in Ollivier's own briefing, each of “the continuances, standing alone, would not be [an] abuse of discretion.” Under these circumstances, the trial court did not abuse its discretion in granting each of the continuances under CrR 3.3. The risk of going to trial without the requested information, for which defense counsel was waiting, far outweighed any delay in going to trial. There was no violation of the court rule.

¶ 7 CrR 3.3 was enacted for the purpose of enforcing a defendant's constitutional right to a speedy trial.³ But it is a court rule and, as noted in State v. Iniguez,⁴ compliance therewith does not necessarily guarantee that there has been no constitutional violation. Ollivier claims his constitutional rights were violated because he was incarcerated for over 22 months. He argues that such a length of time is presumptively prejudicial and violated his speedy trial rights under article I, section 22 of the Washington Constitution and the Sixth Amendment to the United States Constitution.

¶ 8 A denial of Sixth Amendment rights is reviewed de novo. ⁵ In Iniguez, our Supreme Court held that article I, section 22 does not afford a defendant greater speedy trial rights than the federal Sixth Amendment does.⁶ The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” ⁷ The right to a speedy trial “is as fundamental as any of the rights secured by the Sixth Amendment.” ⁸ When a defendant's constitutional speedy trial rights are violated, the remedy is to dismiss the charges with prejudice.⁹

¶ 9 To determine whether a defendant's constitutional speedy trial rights were violated, courts balance four interrelated factors.¹⁰ As a threshold matter, “a defendant must show that the length of the delay crossed a line from ordinary to presumptively prejudicial.” ¹¹ Once the defendant meets the threshold determination, the remaining factors need to be addressed. Citing Barker v. Wingo, ¹² the Iniguez court noted the relevant factors to be the length and reason for the delay, whether the defendant asserted his right, and the ways in which the delay may have caused prejudice to the defendant.¹³ Under the Barker inquiry, we consider the extent to which the length of delay stretches beyond the bare minimum required to trigger the inquiry.¹⁴ Stated another way, the longer the delay, the more scrutiny should be applied to the circumstances surrounding the delay. The State agrees that under these circumstances, a 22–month delay here was presumptively prejudicial.¹⁵ However, merely the fact that the time is presumptively prejudicial does not constitute a constitutional violation.

¶ 10 Here, Ollivier was originally charged with multiple counts of possession of depictions of minors engaged in sexually explicit conduct which could have subjected him to a long sentence. However, in the middle of the trial, the additional counts were dismissed and only one count went to the jury, resulting in an indeterminate sentence with a minimum of 30 months and a maximum of 10 years. In Barker, a 10–month incarceration was not found to be sufficiently oppressive. Indeed, “[l]ower courts have reached the same conclusion as to substantially longer periods of imprisonment” than that involved in Barker.¹⁶

¶ 11 Moreover, the presumption of prejudice needed to reach the additional Barker factors is not sufficient in and of itself to find actual prejudice. Although Ollivier objected to his counsel's requests for continuance, he does not specify what prejudice he in fact suffered. Actual prejudice to the defense is required.¹⁷ None is present here.

¶ 12 Defense counsel requested each of the continuances. Five of the continuances were attributable to the defense's need to obtain an expert's opinion on the computer. On November 30, 2007, the basis of the continuances was the defense's need to obtain additional information from DOC and third parties. In September 2008, defense counsel discovered that the detective who had sworn out the warrant had resigned from the sheriff's office after facing allegations of dishonesty. The final seven continuances were entwined with obtaining the information from that internal investigation and briefing to suppress information obtained as a result of the warrant. Prejudice to Ollivier would have resulted had he gone to trial with an unprepared attorney. Although 22 months is a long time, that in and of itself does not establish actual prejudice, particularly, where, as here, the continuances were all requested by defense counsel. Our holding is in accord with the United States Supreme Court's holding in Vermont v. Brillon.¹⁸ There, the defendant, who was arrested on felony domestic assault and habitual offender charges, did not come to trial until three years later. The Brillon Court held that the delays incurred by Brillon's counsel and Brillon himself were not attributable to the State for speedy trial purposes. Although a delay from a systemic “breakdown in the public defender system” could be ascribed against the State, this was not the case either in Brillon or here. ¹⁹ The Brillon Court found that the two years that defense counsel “failed to move the case forward” were attributable to the defendant because the public defenders were not state actors.²⁰

¶ 13 Although Ollivier remained in custody for over 22 months, it was not necessarily an undue delay. This is particularly true because the continuances were all requested by defense counsel who asserted that she was not prepared to go to trial without the necessary information. None of the continuances can be described as unreasonable.²¹

Validity of Search Warrant

¶ 14 Ollivier argues that there was insufficient probable cause to issue a search warrant and that the informant's information was unreliable. An affidavit for a search warrant establishes probable cause if it sets forth facts sufficient for a reasonable person to conclude that the defendant is probably involved in criminal activity and that the police will find evidence of that criminal activity at the place to be searched. ²² The issuance of a search warrant is a “highly discretionary” act. ²³ Although the issue here was somewhat complicated with falsehoods by the detective, there was sufficient probable cause to issue the warrant even with all alleged falsehoods redacted therefrom. In State v. Coates ²⁴ and State v. Gaines,²⁵ the Supreme Court held that a search warrant was still valid because, after the illegally obtained information was excluded, the remaining information independently established probable cause. Here, the information remaining established probable cause. Eugene Anderson, a registered sex offender and Ollivier's roommate, told his Community Corrections Officer (CCO) that Ollivier was looking at pornographic images on his computer, and Anderson was living with Ollivier at the same address that Ollivier registered as a sex...