State v. Stephans
| Decision Date | 05 May 1987 |
| Docket Number | No. 8654-9-II,8654-9-II |
| Citation | 736 P.2d 302,47 Wn.App. 600 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Appellant, v. Leonard A. STEPHANS, Respondent. |
Debra Conklin-Taylor, Deputy Pros. Atty., Port Angeles, for appellant.
Karen L. Unger, Clallam-Jefferson Public Def., Port Angeles, for respondent.
The State appeals dismissal of statutory rape and indecent liberties charges against Leonard A. Stephans "in the furtherance of justice" pursuant to CrR 8.3(b). We affirm.
Stephans was arrested in early October 1984, after the charges were filed initially in District Court. Throughout all of the ensuing proceedings, which terminated with the dismissal order entered on April 8, 1985, he remained in jail because of a probation hold from another county. The probation hold was placed on Stephans only because of these charges.
It became apparent early on that both sides were headed for difficulty in preparing for trial. The child victims were in Alaska throughout much of the time, as were several potential witnesses, and the children's custodians, the potential witnesses, and the Alaska authorities all were uncooperative. Notwithstanding those difficulties, however, the legal foundation for the ultimate dismissal was laid when the court entered an omnibus order on November 30, 1984, and when it entered an order on February 8, 1985 appointing an expert to assist the defense.
The omnibus order specifically required the State, on or before January 15, 1985, to serve and file a witness list, to provide defense counsel with the names, addresses, qualifications and subject of testimony of any expert witnesses the State planned to use at trial, and to supply reports obtained by the State of any physical or mental examinations. The State did not object to any part of the order and, in fact, suggested the due date. The State did not comply by the due date, and we are unable to tell from the record whether and to what extent it ever complied. As late as March 29, 1985, it had not yet supplied a witness list.
On February 8, 1985, the defense moved for appointment of an expert to evaluate the children and to assist in the defense. Because of the later acts of the State, its response to the motion is significant:
(Italics ours.)
From this point on, the difficulties accelerated. Seven more hearings on discovery matters were conducted, and Stephans, although in jail the whole time, twice waived a speedy trial because defense counsel, lacking information from the State, was unable to prepare a defense. During these hearings, the trial court referred at least nine times to its order for examination of the victims, and repeatedly announced its intention to dismiss the charges unless the order was complied with.
Although the State's position was that it had no better witness cooperation than did the defense, and had no obligation to produce witnesses for the defense, it is clear from the record that the State at least had access to the victims, whereas the defense did not. It is also clear--and significant--that the victims' custodians sought advice from the State concerning the order for examination, and that the State gave egregiously bad advice. 2
Near the end of this procession of hearings, defense counsel moved to dismiss, contending that the State had generally mismanaged the case and had refused to make discovery as ordered by the court. The court at first denied the motion, but later reconsidered and granted it, stating that the crowning blow was the State's willingness to assist the victims' parents if they refused to get the victims to the court appointed expert.
The dispositive issue is whether the trial court properly exercised its discretion by dismissing the charges under CrR 8.3(b). 3 We hold that it did.
CrR 8.3(b) permits a court to dismiss a criminal prosecution on its own motion "in the furtherance of justice." Its power is discretionary and is reviewable for manifest abuse. State v. Laureano, 101 Wash.2d 745, 682 P.2d 889 (1984). Discretion is not unlimited. State v. Whitney, 96 Wash.2d 578, 637 P.2d 956 (1981); State v. Boldt, 40 Wash.App. 798, 800, 700 P.2d 1186 (1985). There must be a showing of some governmental misconduct or arbitrary action materially infringing upon a defendant's right to a fair trial. The purpose of the rule is to ensure that, once an individual has been charged with a crime, he or she is treated fairly. Whitney, 96 Wash.2d at 580, 637 P.2d 956. As the underlying issue is one of fairness to the defendant, the required governmental misconduct need not be evil, venal or dishonest; simple mismanagement is sufficient. State v. Dailey, 93 Wash.2d 454, 610 P.2d 357 (1980). Dismissal, however, is an extraordinary remedy, appropriate only when there has been such prejudice to the defendant's right to a fair trial that the matter could not otherwise be remedied. Laureano, 101 Wash.2d at 762-63, 682 P.2d 889; Whitney, 96 Wash.2d at 580, 637 P.2d 956; State v. Baker, 78 Wash.2d 327, 474 P.2d 254 (1970).
We find in this case misconduct sufficient to justify the dismissal.
There is no doubt that difficulty and confusion attended the efforts by both sides to prepare for trial. At some point, however, confusion and difficulty will not suffice to excuse non-compliance with court orders. It is the State, after all, that filed the charges and must present a case. The defendant cannot prepare a defense without knowing what the State's case will be, and cannot know that without at least being formally advised as to the State's witnesses. See CrR 4.7(a)(1)(i); Dailey, 93 Wash.2d at 456-58, 610 P.2d 357. The State's failure to supply a formal witness list was symptomatic of the State's poor management of this case. Even so, we would be inclined to hold that dismissal was too drastic a remedy but for the State's conduct concerning the court's order for evaluation of the child witnesses.
We cannot characterize the State's actions concerning that order as other than egregious misconduct. The State's advice to the children's...
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State v. Cochran
...action. Laureano, 101 Wash.2d at 762, 682 P.2d 889; State v. Whitney, 96 Wash.2d 578, 637 P.2d 956 (1981); State v. Stephans, 47 Wash.App. 600, 603, 736 P.2d 302 (1987); Sulgrove, 19 Wash.App. at 863, 578 P.2d 74. The required misconduct need not be evil, venal or dishonest; simple mismanag......
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...the trial court's order that portions of the body wire recording could not be played to the jury. Relying on State v. Stephans, 47 Wash.App. 600, 604, 736 P.2d 302 (1987), Jones claims that this "[n]oncompliance with court orders constitutes misconduct." Br. of Appellant at 8. We ¶ 16 Befor......
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...action or governmental misconduct. Illustrative of fact patterns where a dismissal is governed by CrRLJ 8.3(b) are State v. Stephans, 47 Wash.App. 600, 736 P.2d 302 (1987) (dismissal proper where State encouraged two witnesses to disobey the court's discovery order); State v. Sherman, 59 Wa......
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State v. Brooks
...the State's failure to provide a witness list along with its encouragement that a witness disobey a court order. State v. Stephans, 47 Wash.App. 600, 604, 736 P.2d 302 (1987). They contend that the trial court did not abuse its discretion by failing to address the new ¶ 33 Regardless, the t......