State v. Pacheco
| Decision Date | 23 October 1986 |
| Docket Number | No. 50434-2,50434-2 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Joseph Albert PACHECO, Appellant. |
Mestel & Muenster, John Muenster, Seattle, for appellant.
Seth Dawson, Snohomish County Prosecutor, Seth A. Fine, Deputy Co. Prosecutor, Everett, for respondent.
The defendant, Joseph Pacheco, appeals his conviction of first degree robbery. His appeal is based on a claim of violation of his right to speedy trial and alleged evidentiary and instructional errors at trial.
On January 5, 1983, a complaint was filed in a Snohomish County District Court charging the defendant with the robbery of the owner of a grocery store in Snohomish County, and a warrant for his arrest was issued. Bench warrants for probation violations were subsequently issued in both Snohomish and King Counties.
The defendant was arrested by Seattle Police on August 26, 1983. After King County Jail authorities confirmed with the Snohomish County Jail that the two Snohomish County warrants were outstanding, the defendant was booked and held in the King County Jail. No notice was given to the Snohomish County Prosecutor of Pacheco's arrest or incarceration.
On October 13, 1983, Pacheco was arraigned in King County Superior Court on the King County probation violation. Upon learning of the status of the robbery warrant, the Superior Court judge in King County deferred disposition of the probationary hearing and issued an order transferring the defendant to Snohomish County.
On October 17, 1983, Pacheco appeared in Everett District Court on the robbery charge, and the Snohomish County Prosecutor first learned that Pacheco had been arrested. The next day an information was filed in Snohomish County Superior Court charging him with the first degree robbery of the grocery store owner. On October 20, 1983, he was arraigned in Snohomish County Superior Court.
On October 20, the defendant filed a written objection to the date of arraignment and moved to dismiss the information under CrR 3.3 and 8.3(b). The defendant claimed that the date of arraignment exceeded the time specified in CrR 3.3 and that no trial date could comply with CrR 3.3. The motion to dismiss was denied and trial began on December 6, 1983.
During trial, defense counsel moved that the testimony of one Bruce Thompson be admitted. The Everett police apparently had questioned Thompson about the robbery because Thompson looked like the defendant. Defense counsel wanted to show that another person could match the description of the person who had robbed the grocery store even though Thompson was in a Minnesota jail when the robbery occurred. The trial court refused to allow Thompson to testify or sit in the courtroom during trial.
Also during trial, the owner of the grocery store testified that Daryle Pacheco had been a customer in the store and that the defendant was the person who had robbed him with a knife. A customer also testified that the defendant was armed with a knife. A video tape had been made on an in-store camera at the time of the robbery. It showed that a robbery was taking place and clearly corroborated that the perpetrator of the crime used a knife to threaten the store owner. There was a clear visual threat to use a deadly weapon. See State v. Hentz, 99 Wash.2d 538, 663 P.2d 476 (1983). Also during the trial, a detective testified, over objection, that the Pacheco family lived 12 blocks from the grocery store. When the prosecutor asked the detective whether Daryle Pacheco was the defendant's brother, defense counsel's objection was quickly followed by an affirmative answer. The objection was overruled.
At the conclusion of the testimony, defense counsel requested an instruction on second degree robbery (RCW 9A.56.210) and on unlawful display of a weapon with intent to intimidate (RCW 9.41.270) which were refused. During closing argument the prosecutor argued that the defense had been manufactured because mistaken identity was the only defense available under the evidence. The prosecutor made several negative comments and gestures regarding the defense's proposed testimony that another person looked like the defendant. Defense counsel's objections to these closing arguments were overruled and his motion for mistrial was denied.
The defendant raises on appeal: (1) whether the dates of arraignment and trial provided Pacheco were within the time limits set by CrR 3.3; (2) whether the government's actions were excusable or were misconduct justifying dismissal of the charge pursuant to CrR 8.3(b); (3) whether the trial court erred in not allowing Bruce Thompson to testify and forbidding him from being present in the courtroom; (4) whether the trial court erred by permitting the testimony of the detective; (5) whether the trial court erred in not instructing the jury on the lesser included offenses of robbery in the second degree and unlawful display of a weapon with intent to intimidate; and (6) whether the closing argument by the prosecutor constituted reversible error.
The following time intervals are determined from the record. Pacheco was detained by King County Jail authorities for 52 days prior to his appearance in Everett District Court. The information was filed 1 day after the Everett District Court appearance. He was arraigned in Superior Court 2 days after the information was filed. Trial began 47 days after arraignment.
CrR 3.3 reads in applicable part as follows:
(c) Time for Arraignment and Trial.
(1) Cases Filed Directly in Superior Court. If the defendant is detained in jail or subject to conditions of release, the defendant shall be arraigned not later that 14 days after the date the information or indictment is filed directly in superior court....
(2) Cases Filed Initially in District Court.
(i) If after proceedings have been initiated in district court an information or indictment is filed with the superior court, and if at the time the information or indictment is filed the defendant is detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after the date the information or indictment is filed.... A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment, less time elapsed in district court....
(ii) "Time elapsed in district court" means the following: ... If at the time a complaint is filed with the district court the defendant is not detained in jail or subjected to conditions of release, time elapsed in district court commences on the date of the defendant's appearance in district court which next follows the filing of the complaint. Time elapsed in district court ends with the earlier of (a) an oral or written order of dismissal entered by the district court, or (b) the filing of an information or indictment in superior court....
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(f) Setting of Trial Date--Notice to Parties--Objection to Trial Date--Waiver.
(1) The court shall, within 15 days of the defendant's actual arraignment in superior court, set a date for trial which is within the time limits prescribed by this rule, and notify counsel for each party of the date set.... The notice shall set forth the proper date of the defendant's arraignment as established at the time of arraignment, the date set for trial and the number of days which will elapse before the trial date. A party who objects to the date set upon the ground that it is not within the time limits prescribed by this rule must, within 10 days after the notice is mailed or otherwise given, move thatthe court set a trial within those time limits. Failure of a party, for any reason, to make such a motion shall be a waiver of the objection that a trial commenced on such date, or on an extension of such date properly granted pursuant to this rule, is not within the time limits prescribed by this rule.
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(g) Excluded Periods. The following periods shall be excluded in computing the time for arraignment and the time for trial:
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(2) Preliminary proceedings and trial on another charge ...
No violation of the time for arraignment or trial is found applying the time intervals in this case to CrR 3.3. A defendant shall be arraigned not later than 14 days after the date the information is filed in superior court. CrR 3.3(c)(2)(i). Pacheco was arraigned 2 days after the information was filed. Arraignment was timely because it occurred 12 days before the latest date required by CrR 3.3(c). Also, a defendant shall be brought to trial not later than 60 days after the date of arraignment less time spent in district court. CrR 3.3(c)(2)(i). If the defendant is not detained in jail at the time a complaint is filed with the district court, the time elapsed in district court commences on the date of the defendant's appearance in district court, which next follows the filing of the complaint and ends when the information was filed. CrR 3.3(c)(2)(ii). Pacheco was not in jail when the complaint was filed. He was at large. He first appeared in district court on October 17 and the information was filed 1 day later.
Trial was timely because it commenced before the expiration of the time period set forth by CrR 3.3(c). There was no violation of the time for arraignment or trial. Under CrR 3.3 the time spent in King County Jail under the authority of his arrest for probation violations was time during which he was held for hearing on another charge.
The defendant contends that CrR 3.3 and CrR 4.1(a) do not authorize an exclusion of time between the defendant's arrest and his Superior Court arraignment citing State v. Carpenter, 94 Wash.2d 690, 619 P.2d 697 (1980), State v. Alexus, 91 Wash.2d 492, 588 P.2d 1171 (1979), and State v. Striker, 87 Wash.2d 870, 557 P.2d 847 (1976).
State v. Carpenter, supra, and State v....
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