State v. Rohrich

Decision Date19 June 2003
Docket NumberNo. 72540-3.,72540-3.
PartiesSTATE of Washington, Petitioner, v. Gregory Michael ROHRICH, Respondent.
CourtWashington Supreme Court

James Henry Kaufman, Spokane, Pamela Beth Loginsky, Washington Assoc of Prosecuting Atty, for Petitioner.

John S. Snyder, Snyder Law Office, Pullman, for Respondent.

OWENS, J.

At issue is whether the trial court properly dismissed under CrR 8.3(b) a first degree child molestation charge filed 18 months after the apparent completion of the investigation. The Court of Appeals affirmed the dismissal on the grounds that, as a result of the preaccusatorial delay in charging the defendant, witnesses' memories could have faded, thereby prejudicing the defendant's right to a fair trial. Because we agree with the State's position that dismissal under CrR 8.3(b) due to a delay in charging requires a showing of not merely speculative prejudice but actual prejudice to the defendant's right to a fair trial, we reverse the Court of Appeals.

FACTS

In 1993, a jury found Gregory Rohrich guilty of the first degree rape and first degree child molestation of his eight-year-old stepdaughter. On June 18, 1996, Division Three of the Court of Appeals reversed the convictions and remanded the matter for a new trial. State v. Rohrich, 82 Wash.App. 674, 679, 918 P.2d 512 (1996) (holding that, because child had not testified within meaning of RCW 9A.44.120, trial court abused its discretion by admitting hearsay statements without proof of unavailability and corroborative evidence). On July 3, 1997, this court affirmed the Court of Appeals. State v. Rohrich, 132 Wash.2d 472, 474, 939 P.2d 697 (1997) (concluding that child does not testify within meaning of statute "when she does not give testimony describing the acts of sexual contact alleged in the hearsay").

On August 15, 1997, Rohrich appeared with counsel at a pretrial release hearing before the original trial judge. Whitman County Prosecutor James H. Kaufman stated at that hearing that investigations were pending regarding an additional victim and her sister, both of whom had been interviewed the previous day.

The details of the origin and progress of that investigation were later recounted in the December 10, 1997, affidavit of Deputy (later Sergeant) Kirk Banks of the Whitman County Sheriff's Office. According to Deputy Banks, the mother of K.V. (age 12) and A.V. (age 10) contacted Sergeant Hamilton on August 7, 1997, to report that her daughters "had disclosed" that Rohrich had "sexually assaulted" them five years prior. Clerk's Papers (CP) at 111. The Banks affidavit explained the delay as follows:

The reason for the long gap between the assault and the reporting is Greg was convicted in a previous sexual assault case and was sentenced to prison. Greg had appealed his prior conviction and was currently incarcerated ... awaiting transfer to Whitman County Correctional Facility for his Appeal Hearing. The issue of Greg being released has been talked about in the family and was overheard by [K.V.] and [A.V.] prompting them to make the disclosure to [their mother].

Id.; see also CP at 2.

Deputy Banks interviewed K.V. on August 8, 1997. He taped the interview and afterward told K.V.'s mother that a second interview might be needed. Deputy Banks interviewed A.V. the following day. According to his affidavit, he was also present (behind a two-way mirror) when both K.V. and A.V. were subsequently interviewed by Dr. Greg Wilson of Wilson Psychological Services in Pullman. That interview apparently occurred in September 1997 because Dr. Wilson, who had begun working with K.V. and A.V. in August 1997 (and had, "[w]ith their mother's consent, ... recorded some disclosure sessions"), recalled that "[a] law enforcement officer observed two of the videotaped interviews in September, 1997." CP at 173.

The prosecutor received the Banks affidavit in December 1997, and on December 16, 1997, Rohrich's attorney Charles Dorn executed a declaration mentioning "an uncompleted investigation of our client."1 In mid-June 1998, the prosecutor's office forwarded a police report (allegedly the Banks affidavit) to Rohrich's attorneys.

Negotiations regarding the original charges concluded on November 24, 1998, when Rohrich pleaded guilty to one count of attempted first degree child molestation and was sentenced to 51 months; with time served and good time credit, he was released on community supervision. The State's "Checklist for Plea Negotiations" limited the plea agreement to the remanded proceedings, excluding "any other case or investigation." Pl's Ex. 2, at 2.

Continuing the investigation of the August 1997 allegations,2 on December 14, 1998, Dr. Wilson again interviewed K.V. and provided the taped statement to the Whitman County Sheriff's Office. On March 23, 1999, the prosecutor received a transcript of the taped statement.

On July 1, 1999, Rohrich was charged with one count of first degree child molestation for his alleged attack on K.V., occurring between June 1, 1991, and June 30, 1993. Rohrich moved to dismiss the charge on November 19, 1999, but did not file his initial brief on the motion until October 20, 2000. The State filed a memorandum in opposition on October 31, 2000, and further pleadings and memoranda were filed "up to the day arguments commenced on December 5, 2000." CP at 176. The State filed supplemental materials on December 18, 2000. Among those materials was Dr. Wilson's December 15, 2000, letter to the prosecutor, in which Dr. Wilson had summarized his contacts with law enforcement:

As part of my work with the children, I conducted intake interviews with the children. Because the children reported sexual abuse, I contacted law enforcement and Child Protective Services about their disclosures. With their mother's consent, I also recorded some disclosure sessions. A law enforcement officer observed two of the videotaped interviews in September, 1997. In addition, I provided an audiotape and other details of disclosures to law enforcement of further disclosures. At no time over the last three years, has anyone from your office, CPS, or law enforcement requested written records from my office.... As you are aware, the videotape that was made in 1997 was requested by law enforcement several days ago. That tape was provided to law enforcement today after a copy was made for our files.

CP at 173 (emphasis added); see CP at 188 (identifying the tape that Dr. Wilson provided on December 15, 2000, as the September 10, 1997, videotape of his interviews with K.V. and A.V.).

In a memorandum opinion dated April 22, 2001, the trial court dismissed the charges under CrR 8.3(b); the order dismissing the cause with prejudice was filed May 8, 2001. The Court of Appeals affirmed the trial court. State v. Rohrich, 110 Wash.App. 832, 43 P.3d 32 (2002). This court granted the State's petition for review.

ISSUE

In affirming the trial court's dismissal of the first degree child molestation charge against Rohrich, did the Court of Appeals erroneously conclude that, because the witnesses' memories could have faded, the State's 18-month delay in filing the charge had deprived Rohrich of a fair trial?

ANALYSIS

Standard of Review for Dismissals under CrR 8.3(b). The State contends that the Court of Appeals erred in affirming the trial court's CrR 8.3(b) dismissal of the State's July 1, 1999, child molestation charge against Rohrich. CrR 8.3(b), originally adopted in 1973,3 was amended in 1995 to include the italicized clause:

The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution ... when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.

The amendment thus narrowed the rule, which had "appear[ed] to grant largely unfettered discretion to the trial court to dismiss a criminal prosecution." 4A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE CrR 8.3, at 487 (6th ed.2002). The drafters of the amendment correctly noted that prior Washington case law, which had "severely restrict[ed] this discretion," supported the rule change. Id.; see State v. Michielli, 132 Wash.2d 229, 239, 937 P.2d 587 (1997)

(observing that amendment "merely reflects preexisting common law requirements for dismissing charges"). Indeed, this court has long recognized that "[d]ismissal of charges is an extraordinary remedy ... available only when there has been prejudice to the rights of the accused which materially affected the rights of the accused to a fair trial." State v. Baker, 78 Wash.2d 327, 332-33, 474 P.2d 254, 654 (1970) (emphasis added); City of Seattle v. Orwick, 113 Wash.2d 823, 830, 784 P.2d 161 (1989) (adopting the language from Baker). In light of the prior case law and the 1995 amendment, this court has determined that a trial court may not dismiss charges under CrR 8.3(b) unless the defendant shows by a preponderance of the evidence (1) "arbitrary action or governmental misconduct" and (2) "prejudice affecting the defendant's right to a fair trial." Michielli, 132 Wash.2d at 239-40,

937 P.2d 587; see State v. Starrish, 86 Wash.2d 200, 205, 544 P.2d 1 (1975) (acknowledging "that CrR 8.3(b) is designed to protect against arbitrary action or governmental misconduct").

When reviewing a trial court's dismissal of charges under CrR 8.3(b), appellate courts must ask whether the trial court's conclusion that both elements were satisfied was a "manifest abuse of discretion." Michielli, 132 Wash.2d at 240,937 P.2d 587. The reviewing court will find an abuse of discretion "when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993); Michielli, 132 Wash.2d at 240,937 P.2d 587. A decision is based "on untenable...

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