State v. Sponburgh

• Decision Date: 08 August 1974
• Docket Number: No. 42868,42868
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Garland SPONBURGH et al., Appellants.

Page 203

84 Wn.2d 203

525 P.2d 238

STATE of Washington, Respondent, v. Garland SPONBURGH et al., Appellants.

No. 42868.

Supreme Court of Washington, En Banc.

Aug. 8, 1974.

Clinton, Andersen, Fleck & Glein, James A. Andersen, Ferguson & Burdell, William Wesselhoeft, John M. Woodley, Seattle, for appellants.

Christopher T. Bayley, King County Pros. Atty., Norman K. Maleng, Chief Civil Deputy Pros. Atty., Seattle, for respondent.

WRIGHT, Associate Justice.

This is an appeal from a King County Superior Court order releasing certain grand jury evidence after the indictment of several named individuals had been dismissed.

On September 28, 1971, an indictment was returned by the King County grand jury charging appellants Hittle, Hood and Eldridge, present members of the Washington State Liquor Control Board, and appellant Sponburgh, a former member, with offenses in connection with liquor administered over by the liquor board.

After the return of the indictment, on April 30, 1973, the case was assigned to the trial court. On May 29, 1973, respondent, the prosecuting attorney for King County, presented a trial brief to the trial court. Such brief contained some facts derived from the grand jury investigation. On May 30, 1973, appellants moved to quash and suppress the trial brief and for a protective order sealing it.

On June 1, 1973, the trial court, upon appellants' motion entered an order dismissing the indictment against all appellants herein for the following reasons: (1) the grand jury had not been called pursuant to the requirements of RCW 10.27.030; (2) the grand jury lacked jurisdiction over appellants; (3) appellants were accorded immunity under RCW 10.52.090; and (4) the indictment was unconstitutionally vague. No appeal was taken from that order. A protective order was concurrently entered sealing all grand jury evidence herein. Such order stated in two separate paragraphs that it was entered 'pending further order of this court.'

On June 18, 1973, respondent made a motion for the release of the grand jury evidence which had been sealed by the protective order; and on June 25, 1973, the trial court entered an order for the release of that evidence, effective July 15, 1973. The pertinent portions of the order provide as follows:

IT IS HEREBY ORDERED that the protective order of 1 June 1973 is not quashed:

IT IS FURTHER ORDERED that the Grand Jury evidence relating to the above entitled case and only such case, be made available on or after 15 July 1973 for the following:

(1) The Attorney General of the State of Washington;

(2) The Prosecuting Attorney of Thurston County;

(3) The Auditor of the State of Washington;

(4) The Governor of the State of Washington; and

(5) The general public.

(Italics supplied.)

The italicized portions of the above order are those from which this appeal is taken, and such portions of the order were stayed by this court on July 5, 1973 pending appeal.

The first issue raised on appeal is whether the trial court had jurisdiction to enter the order of June 25, 1973.

The argument of appellants on this issue is trifurcated. First, appellants contend that since the trial court dismissed the indictment herein on the basis, among other things, of the grand jury's lack of jurisdiction, the court itself was without jurisdiction to subsequently enter the order releasing the subject evidence, and since no appeal was taken from the dismissal order, lack of jurisdiction is the law of the case and res judicata. Second, appellants contend that the protective order of June 1, 1973, from which respondent took no appeal, was a final order, and was, therefore, not subject to any further action by the court after expiration of the time permitted for a motion for reconsideration. Third, appellants contend that, for the above reasons, respondent failed to timely file his motion for release of the grand jury evidence sealed by the protective order, and, therefore, the court lacked jurisdiction to enter the order releasing such evidence.

The trial court retained jurisdiction to modify the protective order, despite the dismissal of the indictment. Under RCW 10.27.090(4), the prosecuting attorney has access to all grand jury evidence and may introduce such evidence before any trial in which it may be relevant. Thus, the evidence specified in the protective order properly became part of the court record in the instant case.

From the time an action is commenced, the superior court acquires jurisdiction. Const. art. 4, § 1 et seq.; Swan v. Landgren, 6 Wash.App. 713, 495 P.2d 1044 (1972); Daniel v. Daniel, 116 Wash. 82, 198 P. 728 (1921). This includes the control of its own records. RCW 2.28.010; 2.28.150; 2.32.050.

The protective order, which was entered concurrently with the order of dismissal, specifically retained the trial court's jurisdiction over the above-mentioned evidence by stating in two separate paragraphs that it was sealing all grand jury evidence 'pending further order of this court.' Moreover, this protective order was not a final judgment requiring a specific time for the filing of a motion for reconsideration or the perfection of an appeal, because it did not constitute a final determination of the rights of the parties in this action in regard to the release of evidence. See Nestegard v. Investment Exchange, 5 Wash.App. 618, 489 P.2d 1142 (1971); In re Estate of Halle, 29 Wash.2d 624, 188 P.2d 684 (1948); Bishop v. Lynch, 8 Wash.2d 278, 111 P.2d 996 (1941); In re Horse Heaven Irrigation District, 11 Wash.2d 218, 118 P.2d 972 (1941). Therefore, the trial court retained jurisdiction for the limited purpose involved herein.

The second issue raised on appeal is whether, for reasons of public policy, the release of grand jury evidence in the instant case should not be allowed on the basis that release of such evidence would interfere with the proper functioning of a state agency or its officers.

In regard to this issue, appellants make two contentions. First, appellants contend that RCW 66.08.100 provides that an action against the liquor board or any member thereof must be brought in Thurston County and that board members are not personally liable for acts performed in the course of their duties. Second, appellants contend that the release of the evidence in question can only lead to a 'street trial' and disruption of the liquor board's functions.

Appellants' first contention constitutes a challenge to the jurisdiction of the grand jury and an assertion of statutory immunity. These issues were favorably decided in behalf of appellants in the trial court's oral decision on which the order of dismissal was based. And when an indictment is dismissed, unless the matter is then referred to the grand jury, the order of dismissal is a final order. See Annot., 112 A.L.R. 386, at 387 citing Commonwealth v. Smith, 140 Ky. 580, 131 S.W. 391 (1910). Since no appeal was timely taken by respondent under ROA--I 46 from the trial court's order of dismissal, these rulings became the law of the case. Nevertheless, as pointed out above, the trial court retained jurisdiction over the evidence specified in the order of June 25, 1973. As to appellants' second contention, the record is devoid of any evidence of harassment or intent to intimidate or hamper the functioning of a state agency.

The third issue raised on appeal is whether the evidence involved herein constituted a grand jury report improperly released by the June 25, 1973 order. Appellants rely upon RCW 10.27.160.

The trial court's order of June 25, 1973 does not purport to release a grand jury report, nor does the record indicate that respondent was requesting that a grand jury report be released. A grand jury report contains the conclusions, recommendations and suggestions of the members of the grand jury. RCW 10.27.160. In the instant case, respondent requested that certain specified evidence introduced before the grand jury be released.

The fourth issue raised on appeal is whether all the evidence obtained by the grand jury is precluded from use for any purpose whatsoever following the dismissal of the indictment on the basis stated by the trial court in the instant case.

First, appellants, relying upon RCW 10.27.030, contend that the grand jury term in which the grand jury indicted appellants was not called by an order signed by a majority of the judges of the King County Superior Court, and was, therefore, illegal and its acts void. Second, appellants contend that the evidence in the instant case therefore comes within the 'fruit of the poisonous tree' doctrine, so as to preclude its use in any manner whatsoever.

The first contention of appellants was favorably decided in their behalf in the trial court's oral decision on which the order of dismissal was based; and since no appeal was taken from that final order, this ruling became the law of the case.

As to appellants' second contention, the 'fruit of the poisonous tree' doctrine bars the prosecution's use at trial of any evidence obtained through illegal means. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Kinnear, 162 Wash. 214, 298 P. 449 (1931). However, appellants cite no authority for their assertion that this doctrine bars release of evidence in the instant case; and, therefore, this court will not consider this proposition. State v. Rutherford, 66 Wash.2d 851, 857, 405 P.2d 719 (1965). Thus, for this reason, while cautioning that the evidence to be released in the instant case may be barred for use at trial by the prosecution, we do not here determine that the above-mentioned doctrine precludes the trial court's jurisdiction to release evidence introduced before the grand jury for any purpose permitted by law.

The fifth issue raised on appeal is whether the June 25, 1973 order complies with the provisions of RCW 10.27.090.

Appellants contend that the requirements of RCW 10.27.090(3) and (5) were not satisfied in the instant...