State v. Shandola, No. 27923-1-II (Wash. App. 2/3/2004)
| Decision Date | 03 February 2004 |
| Docket Number | No. 27923-1-II,27923-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LAWRENCE PAUL SHANDOLA, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 01-1-00426-5. Judgment or order under review. Date filed: 09/07/2001.
Counsel for Appellant(s), Brett Andrews Purtzer, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Lawrence P. Shandola appeals his conviction of first degree murder, claiming that the 64 month interval between the homicide and the State's filing charges against him created prejudicial preaccusatorial delay. He also alleges that the court erred in admitting evidence acquired through an illegal search and in violation of his right against self incrimination; in denying his request for a bill of particulars; in allowing discovery violations; in ruling on the admission of evidence; and in denying a post judgment motion. Finding no prejudicial error, we affirm.
At about 5:40 p.m. on September 11, 1995, Robert Henry was shot multiple times at close range in a parking lot outside of his office by an unidentified shooter. Henry died of his wounds. Many witnesses heard the shooting and several observed a suspect wearing dark clothing and a mask; the suspect immediately left the parking lot on a black motorcycle.
Upon learning of the homicide, Paula Henry, Henry's wife, called police and identified Shandola, her co-worker and Henry's former business partner, as a possible suspect. The police questioned Shandola that evening on the front porch of his home. Shandola denied knowledge of the homicide, stating that he had been repairing his house all day.
Near the same time, police found shotgun shells at the crime scene. And in April 1998, a shotgun was found under blackberry bushes on a hill near the parking lot where Henry died. The State linked the shotgun to the crime scene, but it could not directly connect the weapon to Shandola.
Before the police completed their investigation, two potential witnesses died. Jason Graham, who had provided the police with a description of a car parked near the crime scene, died in a car accident in August 1996. And Roscoe Buffington, who had told police about seeing Shandola at his home on the day of the crime, died in July 1998.
On January 23, 2001, the State charged Shandola with first degree murder for Henry's homicide. The trial court denied Shandola's motions to suppress evidence and to dismiss the charge based on alleged discovery violations, and the matter proceeded to trial on July 2, 2001. Sixty four State witnesses and eighteen defense witnesses testified.
James Graham, Jason Graham's father, testified about the silver blue Mercedes that he and his son had observed near the crime scene in the early afternoon of Henry's murder, a vehicle that was very similar in appearance to the Mercedes Shandola owned. Henry's widow and his former acquaintances described the conflict between Shandola and Henry that arose out of their former business partnership. The dispute between Henry and Shandola culminated in a 1993 New Year's Eve altercation where Shandola punched Henry. Henry later sued Shandola, seeking a judgment to recover his medical damages.
Some of Shandola's co-workers testified that soon after the homicide, Shandola offered to sell them a shotgun and another co-worker who had cooperated with the police investigation testified that Shandola had threatened him. Paula Henry testified that she had obtained a restraining order against Shandola for harassing her after Henry's death.
Shandola presented an alibi defense, asserting, contrary to his earlier statement to the police, that he was at the home of a friend, Reta Peck, at the time of the murder. The jury rejected the defense and found Shandola guilty as charged. The court then denied Shandola's motion for arrest of judgment or, alternatively, for a new trial and, instead, sentenced him to 380 months in prison.
Shandola first argues that the State's delay in charging him severely prejudiced his right to a fair trial because of the deaths of Buffington and Jason Graham in the intervening period. He claims that those two witnesses could have provided evidence that would have supported his alibi defense and that `no meaningful investigation {of Henry's murder} occurred after October, 1998.' Br. of Appellant at 67.
Preaccusatorial delay can violate due process protections. When considering whether such a violation occurred, the court must consider: (1) prejudice to the defendant's right to a fair trial; (2) the reasons for the delay; and (3) if the State can justify the delay, balancing prejudice to the defendant against the State's reason for the delay. United States v. Lovasco, 431 U.S. 783, 97 S. Ct 2044, 52 L. Ed. 2d 752 (1977); State v. Rohrich, 149 Wn.2d 647, 657-58, 71 P.3d 638 (2003) (discussing State v. Norby, 122 Wn.2d 258, 858 P.2d 210 (1993)). If the defendant fails to show prejudice — the first required showing — we need not continue our analysis. Norby, 122 Wn.2d. at 263-64.
The State has broad discretion in deciding when to file criminal charges; a defendant's `mere allegation that witnesses are unavailable or that memories have dimmed is insufficient' to satisfy the prejudice requirement. Norby, 122 Wn.2d. at 264. Consequently, the court will rarely find prejudicial preaccusatorial delay absent fundamental or egregious circumstances. See State v. Dixon, 114 Wn.2d 857, 861, 792 P.2d 137 (1990) (). We review the trial court's prejudice analysis under a manifest abuse of discretion standard. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
Here, the jury had an opportunity to evaluate Shandola's central alibi defense, that he was at Reta Peck's home at the time of Henry's murder, by hearing both Peck's and Shandola's testimony. And Shandola has not shown substantial prejudice from his inability to present testimony from Buffington or from Jason Graham.
As to Buffington, the record merely shows that he could have testified that he saw Shandola at home at about 1:00 p.m., about four hours before the murder.1 This fact was not in dispute and this evidence came in through Shandola, who testified that he had been home working on his house the afternoon of Henry's homicide. The mere showing of the inability to present testimony corroborating a fact not in dispute is insufficient to establish prejudice.
As to Jason Graham, the record shows that he observed the Mercedes near the crime scene along with his father, James Graham. Although it appears that much of Jason's testimony would have duplicated his father's testimony, the jury did not hear about Jason's later observations of Shandola's vehicle and Jason's comparison of it to the Mercedes parked near the crime scene.2
Although this testimony may have been helpful to rebut the inference that Shandola's car was near the crime scene earlier during the day of the homicide, this is speculative. Apparently Jason would have acknowledged that both cars were Mercedes, both were blue, and both had a dent in the body. But when Jason saw Shandola's car nine days later, he noted slight differences that led him to believe that they were different cars. His father, James Graham, did not note these differences.
In any event, this testimony does nothing to support Shandola's alibi defense that at the time of the shooting, he was at Peck's home. Thus, Shandola has not met the high evidentiary standard necessary to establish actual prejudice in the preaccusatorial delay context. See Rohrich, 149 Wn.2d at 657 ().
Because the trial court denied Shandola's motion to dismiss for preaccusatorial delay based on the absence of prejudice, it did not move to step two and analyze the reasons for the charging delay. We note, however, that the State did not recover the murder weapon until after Jason Graham's death. The absence of this key piece of evidence, along with the absence of an eye witness who could identify the shooter, clearly supports the decision to delay charging. Given these circumstances, we find it unlikely that the trial court would have found the charging delay to be an abuse of the prosecutor's broad discretion or so egregious as to warrant dismissal. Further, prosecutorial delay in filing criminal charges often is in a potential defendant's best interest. As the Washington Supreme Court stated in Norby:
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.
122 Wn.2d at 263 ().
Thus, we find no abuse of trial court discretion in denying Shandola's motion to dismiss for preaccusatorial delay.3
Shandola next challenges the admission of evidence that the police obtained from his home and his work locker. `We review the denial of a motion to suppress by determining whether substantial evidence exists to support the trial court's findings of fact, and whether those findings support the trial court's conclusions of law.' State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). We will review only those facts to which the appellant has assigned error on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
To continue reading
Request your trial