State v. Schapiro

• Decision Date: 13 April 1981
• Docket Number: No. 8300-7-I,8300-7-I
• Citation: 626 P.2d 546,28 Wn.App. 860
• Parties: STATE of Washington, Respondent, v. Joseph Edward SCHAPIRO, Appellant.
• Court: Washington Court of Appeals

Page 860

28 Wn.App. 860

626 P.2d 546

STATE of Washington, Respondent, v. Joseph Edward SCHAPIRO, Appellant.

No. 8300-7-I.

Court of Appeals of Washington, Division 1.

April 13, 1981.

Stroh & Funk, P. S. Inc., James J. Lamont, Bellevue, appointed for appellant.

Norm Maleng, King County Pros. Atty., Troy Yancey, Deputy Pros. Atty., Seattle, for respondent.

DURHAM, Judge.

Joseph E. Schapiro appeals his conviction of first degree theft and unlawful issuance of checks or drafts. In 1978, Schapiro opened a retail dairy products store in Seattle and decided to establish a franchise for Haagen-Dazs ice cream of St. Louis, Missouri. He estimated that he would need approximately $50,000 for this venture. An attorney friend introduced Schapiro to Michael Rosen, another attorney, who introduced him to Kent Adamson. Adamson agreed to the proposal and invested $50,000 in November 1978. A new business, Island Monarch, Ltd., was established to facilitate the business, and a checking account was opened under that name at Rainier Bank. Schapiro, Adamson, and Rosen were the only persons authorized to write checks on the Island Monarch, Ltd. account.

By November and December 1978, some $30,000 had disappeared from the Island Monarch, Ltd. account. According to Schapiro, the money was taken by his nephew, who worked at Schapiro's Seattle store, and used to buy cocaine. Schapiro testified that Adamson had authorized the nephew to purchase cocaine with Island Monarch funds, sell the cocaine and redeposit the money. Nothing was ever redeposited. Adamson denied this arrangement and testified that either Schapiro or the nephew had stolen the money.

On January 18, 1979, Schapiro withdrew $15,000, leaving about $2,000 in the account. The record reflects conflicting testimony as to the ensuing events. Schapiro stated that he believed that the Island Monarch, Ltd. account remained open through April 1979. He testified that Adamson telephoned him from Alaska about April 1, 1979, and told him that all the money had been recovered from the nephew and that soon plans could continue for the Haagen-Dazs franchise. Adamson then instructed Schapiro to purchase various items of camera and stereo equipment, marine supplies, jewelry, and clothing for him, using the Island Monarch, Ltd. account. Schapiro purchased the merchandise, $30,000 worth, using checks drawn on the account, on April 7 and 8, a Saturday and Sunday, and took it home. The checks were all dishonored.

Adamson's version differs considerably. He denied ever calling Schapiro from Alaska. He testified that he closed the Island Monarch, Ltd. account on February 16, 1979. On that day or the next he telephoned Schapiro and told him that the account was closed. Rosen was with Adamson during this conversation and testified that Adamson did not say that the account was closed, but rather that there was no money in the account. The branch manager of Rainier Bank testified that the account was closed on February 16, 1979. Statements for November and December 1978 were mailed to Rosen's downtown office. However, Schapiro arranged for the January and February 1979 statements to be sent to his home. The statement dated February 16, 1979 indicated that the balance of the Island Monarch, Ltd. account was zero.

Schapiro was arrested on April 16, 1979 and released the following day. On June 18, 1979, he was charged with first degree theft in Seattle District Court. His preliminary hearing began on July 13, 1979 and was continued to July 20 and July 27 for further testimony and additional investigation. The case was bound over to superior court on July 27, 1979. Prior to trial, Schapiro filed a motion for dismissal on the basis of violation of the speedy trial rule, which was denied. Trial commenced on October 22 and Schapiro stipulated to all elements of the crimes charged except the intent to defraud.

During trial, all witnesses were excluded from the courtroom. In the course of the proceedings it was discovered that a friend of Adamson was recording the trial with a tape recorder. Adamson testified that he had asked her to do this, but did not know that there was anything wrong with it and that he wanted the tape out of curiosity. At the time the tape was made, Adamson had already completed his testimony in the case.

The court found Schapiro guilty of the charges. Schapiro cites three general assignments of error: (1) denial of his right to a speedy trial, (2) failure of the trial court to exclude Adamson's testimony or to dismiss the case for violation of the witness exclusionary rule due to the tape recording, and (3) failure to dismiss based on insufficiency of the evidence.

We will first address the speedy trial issue. Schapiro has shown no prejudice resulting from the 6-month delay between his arrest and trial, and he therefore has no valid constitutional claim of a violation of his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). His speedy trial argument must be based on a violation of CrR 3.3. Such a violation would require dismissal with prejudice, CrR 3.3(i), and thus, eliminate the need to consider the other issues.

Former CrR 3.3(b)(1) (adopted November 17, 1978) provided that the 90-day period applicable to defendants not held in custody

shall commence to run from the date: (a) of the order binding the defendant over to the superior court following a preliminary hearing pursuant to JCrR 2.03 or (b) of the tenth day following the defendant's arrest in the event a preliminary hearing is not held or the charge is initially filed in the superior court.

Schapiro argues that his case must be dismissed because State v. Edwards, 94 Wash.2d 208, 616 P.2d 620 (1980) interpreting this language, requires that a defendant be bound over to superior court within 100 days of arrest. The time between Schapiro's arrest and bindover was 102 days.

The State notes that Edwards was decided after the relevant events in this case transpired, and urges us to give Edwards prospective effect only. It cites State v. Barton, 93 Wash.2d 615, 611 P.2d 789 (1980), which applied prospectively the rule of State v. Aleshire, 89 Wash.2d 67, 568 P.2d 799 (1977), relating to the time within which a retrial must be had following a mistrial. The Barton court found that this rule was a "newly adopted procedural rule", not an interpretation of an existing rule, and would, therefore, be prospective in nature. Barton, 93 Wash.2d at 617, 611 P.2d 789.

In Edwards we find the reverse. It is true that the Barton court paid particular attention to whether the Aleshire rule could have been anticipated in deciding whether that rule was "newly adopted" or a construction of an existing rule. Although no one could reasonably have anticipated Edwards, the rule announced in that case seems to be nothing more than an interpretation of an existing rule, the former CrR 3.3.

The effect of the Supreme Court's construction of a statute has been described as follows:

It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into it. (Citations omitted.) In other words, there is no "retroactive" effect of the court's construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment.

Johnson v. Morris, 87 Wash.2d 922, 927-28, 557 P.2d 1299 (1976). Rules of court should generally be construed in the same manner as statutes. State v. McIntyre, 92 Wash.2d 620, 600 P.2d 1009 (1979). Thus, the rule in Edwards applies to cases tried before that decision was announced, including the present case.

However, application of the Edwards holding to the facts here exposes an ambiguity in that decision. In Edwards both the preliminary hearing and bindover occurred long after the critical 100-day deadline. Schapiro's preliminary hearing began on July 13, 1979, only 88 days after his arrest, and was continued to two later dates. It ended, and he was bound over, on July 27, 1979, 102 days following arrest. Unfortunately, the Edwards opinion refers to "preliminary hearing" and "bindover" interchangeably, without distinguishing the two events. For example, the opinion frames the issue of the case as "whether the possibility of timely trial irrevocably 'expires' if a preliminary hearing is not held within 100 days of defendant's arrest ..." Edwards, 94 Wash.2d at 210, 616 P.2d 620. Yet the court later speaks of "bindover" as the event which would "serve to postpone untimeliness." (Italics omitted.) Edwards at 212, 616 P.2d 620. This provides little guidance in those cases where the preliminary hearing and the bindover fall on separate dates, or where the hearing begins within the 100-day period but is concluded after the deadline.

We conclude that the preliminary hearing is the event required to transpire by Edwards, and that a preliminary hearing begun within the 100-day period following arrest will satisfy the rule, even if that hearing is not concluded until afterwards. Several reasons support this result. First, other portions of CrR 3.3 that speak of triggering events do so in terms of the commencement of the event. For example, a defendant must be "brought to trial" within a certain time period. CrR 3.3(b)(2), (3). The rule does not require that the defendant's trial be concluded within the limits set by the rule, but rather that the trial begin within the 60 or 90 days. See State v. Aleshire, supra; People v. Amati, 63 Cal.App.3d 10, 134 Cal.Rptr. 61 (1976).

Second, preliminary hearings and bindovers frequently do not occur on the same day, and in fact could be weeks apart, as in this case. The preliminary hearing is a significant step in the determination of probable cause to bind the defendant over to superior court and...