State v. Smith

• Decision Date: 31 October 1974
• Docket Number: 43204,Nos. 43196,s. 43196
• Citation: 527 P.2d 674,84 Wn.2d 498
• Parties: STATE of Washington, Petitioner, v. David Terron SMITH, Respondent. Ronald G. FORSYTH, Petitioner, v. STATE of Washington, Respondent.
• Court: Washington Supreme Court

Page 498

84 Wn.2d 498

527 P.2d 674

STATE of Washington, Petitioner, v. David Terron SMITH, Respondent.

Ronald G. FORSYTH, Petitioner, v. STATE of Washington, Respondent.

Nos. 43196, 43204.

Supreme Court of Washington, En Banc.

Oct. 31, 1974.

Christopher T. Bayley, Pros. Atty., Marco J. Magnano, Jr., Michael P. Ruark, Asst. Pros. Attys., Seattle, for appellants.

Lanning, Mahoney & Bryan, Bill Lanning, Robert S. Bryan, Seattle, for respondents.

FINLEY, Associate Justice.

The two cases here on certiorari have been consolidated for consideration and disposition by the Supreme Court because of common issues of law. The first question to be resolved is whether the right to bail and release from custody After conviction and pending appeal is limited or subject to specific provisions of the State Constitution. A related, second question is double headed: Is the right to bail and release from custody After conviction and pending appeal procedural and therefore subject to and governed by court rules or is it substantive and therefore subject to and governed by legislatively enacted limitations, requirements, and standards? The question of the right to bail and release from custody Prior to conviction is not involved in any manner in either of the two consolidated cases.

Our Washington State Constitution, Art. I, § 20 provides as follows: 'All persons charged with crime shall be bailable by sufficient sureties, Except for capital offenses when the proof is evident, or the presumption great.' (Italics ours.) The crystal clear, literal meaning of the quoted provision of our State Constitution makes it applicable Solely to all persons charged with crime. There is certainly no reference or implication in this particular constitutional provision or elsewhere in the constitution that this provision and limitation is or should be applicable to bail and release of criminal defendants After conviction and pending appeal. We have therefore previously held that the Constitution confers no right to bail pending appeal. In re Berry, 198 Wash. 317, 88 P.2d 427 (1939). See also, State v. Haga, 81 Wash.2d 704, 504 P.2d 787 (1972). Other jurisdictions have similarly construed their constitutions. See State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953); Braden v. Lady, (Ky.) 276 S.W.2d 664 (1955); In re Scaggs, 47 Cal.2d 416, 303 P.2d 1009 (1956). By correlative analysis, it is equally clear that the Constitution places no limitation on the conferral of bail pending appeal. We see no need for resorting to interpretation to change the crystal clear, literal meaning of the above constitutional provision, and we refrain from interposing any judicial engrafting to alter or amend the literal meaning of the constitutional language involved. In short, the constitution is not apposite to these cases. ¹

However, the legislature has provided in RCW 10.73.040 that:

In all criminal actions, except capital cases in which the proof of guilt is clear or the presumption great, Upon an appeal being taken from a judgment of conviction, the court in which the judgment was rendered, or a judge thereof, must, by an order entered in the journal or filed with the clerk, fix and determine the amount of bail to be required of the appellant; . . .

(Italics ours.) This legislative enactment is clearly inconsistent with the provisions of CrR 3.2(h) as promulgated by the Supreme Court:

Release After Verdict. A defendant (1) who is charged with a capital offense, or (2) who has been found guilty of a felony and is either awaiting sentence or has filed an appeal, shall be released pursuant to this Rule, unless the court finds that the defendant may flee the state or pose a substantial danger to another or to the community. If such a risk of flight or danger exists, the defendant may be ordered detained.

This conflict can be resolved by either of two modes of analysis. First, courts have certain limited inherent powers; among these is the power to prescribe rules for procedure and practice. See R.E.W. Const. Co. v. District Court of Third Jud. Dist., 88 Idaho 426, 400 P.2d 390 (1965); Appeal of Dattilo, 136 Conn. 488, 72 A.2d 50 (1950); State v. Roy, 40 N.M. 397, 60 P.2d 646 (1936); In re Sparrow, 338 Mo. 203, 90 S.W.2d 401 (1933). Although a clear line of demarcation cannot always be delineated between that is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. See State v. Pavelich, 153 Wash. 379, 279 P. 1102 (1929); In re Florida Rules of Criminal Procedure, (Fla.) 272 So.2d 65 (1972). These guidelines, however, are expressive of the common law and should be applied in consonance therewith whenever possible. Apropos of this, the fixing of bail and the release from custody traditionally has been, and we think is, a function of the judicial branch of government, unless otherwise directed and mandated by unequivocal constitutional provisions to the contrary. The power of the courts at common law is very well paraphrased in 8 Am.Jur.2d Bail & Recognizance, § 8 (1963), pp. 787--88.

Authority to grant bail generally is incidental either to the power to hold a defendant to answer, or to the power to hear and determine the matter in which the defendant is held. At common law courts had inherent power to grant bail to prisoners before them and over whom they had jurisdiction. Granting bail and fixing its amount is generally a judicial or quasi-judicial function (Footnotes omitted.) Since the inherent power to fix bail is grounded in the power to hold a defendant, and thus relates to the Manner of ensuring that the alleged offense will be heard by the court, we believe it to be implicit that the right to bail is essentially procedural in nature. Therefore, we hold that CrR 3.2(h) was validly promulgated by the Supreme Court pursuant to its inherent rule-making authority to prescribe rules of procedure.

Since the promulgation of rules of procedure is an inherent attribute of the Supreme Court and an integral part of the judicial process, such rules cannot be

As a second and alternative rationale, See Bernhardt v. State, e, (Fla.) 268 So.2d 490 (1974); Burton v. Mayer, 274 Ky. 263, 118 S.W.2d 547 (1938); Parkison v. Thompson, 164 Ind. 609, 73 N.E. 109 (1905). Thus, the right to bail (and release) after verdict and pending appeal in the two cases consolidated and considered in this opinion is governed solely by the provisions of CrR 3.2(h).

As a second and alternative rationale, but not the principal or basic one, for our holding today, it is clear that in any event the legislature has delegated to this court the power to prescribe rules for bail pending appeal. This was accomplished in RCW 2.04.190 and RCW 2.04.200.

RCW 2.04.190 enunciates the following:

The supreme court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, Practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts and justices of the peace of the state. In prescribing such rules the supreme court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits.

(Italics ours.)

RCW 2.04.200 provides:

When and as the rules of courts Herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect.

(Italics ours.) Since we have concluded in the preceding discussion that the granting or denial of bail is essentially a procedural matter, it follows that the right to prescribe regulatory rules falls within the ambit of RCW 2.04.190. Further, pursuant to RCW 2.04.200, Supra, and the subsequent adoption of CrR 3.2(h), no Statutory rights to bail or statutory limitations or provisions concerning the right to bail pending appeal are presently viable and extant. Rather, the right to bail pending appeal or any limitations thereon are solely within the jurisdiction of this court in the exercise of its rule-making power as now promulgated in CrR 3.2(h). As such, the trial court in the instant cases proceeded within its authority under CrR 3.2(h) in exercising its discretion in granting bail to the defendant Smith pending appeal, and in revoking bail pending appeal of the defendant Forsyth.

It is argued, however, in each of the consolidated cases that the trial court abused its discretion. In State v. Smith, No. 43196, David Terron Smith was charged with murder in the first degree for the premeditated killing of Nicholas Kyreacos on November 20, 1973, in an alley in Seattle, Washington. On the date that he was charged with the crime in question, November 26, 1973, the defendant was incarcerated in the King County jail with no bail. On February 27, 1974, the defendant presented a motion to the court asking that he be released on his personal recognizance or on bail since there existed the likelihood that his mother would not live longer than 2 or 3 days following an operation. The state objected to the the defendant's motion under advisement. The following day the court heard testimony and the arguments of counsel and denied the defendant's motion for release. Subsequently, but prior to trial, the defendant made further...