State v. Valdobinos

• Decision Date: 09 September 1993
• Docket Number: Nos. 59711-1,59712-0,s. 59711-1
• Citation: 858 P.2d 199,122 Wn.2d 270
• Parties: STATE of Washington, Respondent, v. Ventura Murillo VALDOBINOS, Appellant. STATE of Washington, Respondent, v. Rafael Mendoza GARIBAY, Appellant. En Banc
• Court: Washington Supreme Court

Page 270

122 Wn.2d 270

858 P.2d 199

STATE of Washington, Respondent, v. Ventura Murillo VALDOBINOS, Appellant.

STATE of Washington, Respondent, v. Rafael Mendoza GARIBAY, Appellant.

Nos. 59711-1, 59712-0.

Supreme Court of Washington,

En Banc.

Sept. 9, 1993.

Mansfield, Reinbold & Gardner, Rodney M. Reinbold, Okanogan, for appellant Valdobinos.

Paul J. Wasson, Spokane, for appellant Garibay (appointed counsel for appeal).

Michael E. McNeff, Okanogan County Prosecutor, Joe Solseng, Deputy, Okanogan, for respondent.

Christine O. Gregoire, Atty. Gen., Tommy Prud'homme, Asst., Olympia, amicus curiae, for respondent on behalf of WA Nat. Guard.

UTTER, Justice.

Ventura Valdobinos and Rafael Mendoza Garibay appeal their sentences and convictions for delivery, conspiracy to deliver and possession of cocaine. We affirm their convictions but strike the portion of their sentences based on the use of a weapon under RCW 9.94A.125.

On December 10, 1990, an Okanogan County drug task force undercover agent, Vilchez, went to the Lincoln Tavern to make a drug buy. Vilchez testified that he had a conversation with Valdobinos at that time, and that Valdobinos offered to sell him cocaine. At trial, Vilchez also testified that Valdobinos introduced him to Garibay, and told him that Garibay had brought the cocaine from California.

On December 12, 1990, Superior Court Judge Edwards signed a search warrant directing peace officers to search the mobile home of Valdobinos and Garibay. Clerk's Papers, at 12. The next day, a nine person search party arrived at the home. The search party included approximately five law enforcement officers and four National Guardsmen who volunteered to serve under the Federal Drug Interdiction Program.

The local police authorities arrested, questioned and searched the defendants and took them to the Okanogan County jail. Garibay was found to have $2,140 in one pocket, Report of Proceedings, vol. II at 150, of which $350 had serial numbers matching the buy money used in the December 10, 1990 drug transaction. The home was then cleared. The four guardsmen were directed by the law enforcement officers to re-enter and were assigned to search the bedroom. It is uncontested that at all relevant times the Guardsmen were supervised by local law enforcement authorities.

One of the National Guardsmen found a black bag containing $1,875, 846 grams of cocaine, and a bus ticket bearing Garibay's name under a bed.

On December 18, 1990, Valdobinos and Garibay were charged, and a jury trial was set for February 25, 1991. Although the cases were initially consolidated, Garibay and Valdobinos were ultimately tried separately.

After a jury trial, Valdobinos was convicted of delivery of a controlled substance, cocaine, RCW 69.50.401(a)(1)(i); conspiracy to deliver a controlled substance, cocaine, RCW 69.50.401(a)(1)(i); and possession of a controlled substance with intent to deliver while armed with a deadly weapon. RCW 69.50.401(a)(1) and RCW 9.94A.125. After a bench trial on stipulated facts, Garibay was charged and convicted of the same counts: possession, delivery and conspiracy to deliver cocaine. Both cases were consolidated for the purpose of this appeal. We affirm the convictions, but strike the portions of their sentences imposed for being armed with a deadly weapon. The assignments of error common to both Valdobinos and Garibay are treated together; those made singly by one or the other defendant are discussed separately.

Common Assignments of Error

I. Speedy Trial

Valdobinos and Garibay argue the trial court violated their right to a speedy trial. That contention is without merit. The right to a speedy trial may be waived. State v. Williams, 87 Wash.2d 916, 557 P.2d 1311 (1976). Waivers may be implied from a defendant's request for a continuance. See State v. Freeman, 54 Wash.App. 734, 737, 775 P.2d 993 (1989) (citing State v. Colbert, 17 Wash.App. 658, 564 P.2d 1182, review denied, 89 Wash.2d 1010 (1977)).

On February 21, 1991, when the two cases were consolidated, Garibay, Valdobinos, and a third defendant made a motion to continue their trial dates until April 15, 1991, and promised written waivers of their right to a speedy trial. At that time, Valdobinos's attorney explained that he wished a continuance to permit his client to retain new counsel. He specifically promised to waive Valdobinos' speedy trial right until the end of April: "I have a motion for a continuance.... And I am asking for a continuance to April 15th. My client is willing to waive until April 30th." (Italics ours.) Report of Proceedings (February 21, 1991), Hearing on Motion to Consolidate at 6. He emphasized, "And I think my client clearly is willing to waive his speedy trial right. He has the right to hire counsel of his own choosing." Report of Proceedings (February 21, 1991), Hearing on Motion to Consolidate at 8. Garibay's attorney joined in the motion to continue, stating, "I would also join in Mr. Stuart's motion for a continuance until April 15, and my client would also waive." Report of Proceedings (February 21, 1991), Hearing on Motion to Consolidate at 7. The continuance was granted.

Thereafter, Garibay also decided to retain new counsel. On March 7, the parties asked the trial court for a second continuance until April 15 so that Garibay's new attorney could familiarize himself with the case. At that time, Garibay's attorney again waived Garibay's speedy trial rights: "Both Mr. Garibay and his codefendant are in custody, and he's willing to waive any speedy trial considerations. So, we'd ask that there be a continuance to allow him to employ private counsel." Report of Proceedings (Valdobinos) (March 7, 1991), at 3. The continuance was granted. Valdobinos's new attorney, Mr. Reinbold, claimed that Valdobinos's previous attorney had moved for a continuance without Mr. Reinbold's knowledge, and stated he objected to waiver of his client's right to a speedy trial. ¹ The court continued the trial that had been set for the following week. Report of Proceedings (Valdobinos) (March 7, 1991), at 9. Garibay's attorney reminded the court: "One of the things that was discussed at the time when Mr. Stuart asked for an extension for Mr Valdobinos to hire Mr. Reinbold was that we agreed to waive to the end of April." (Italics ours.) Report of Proceedings (Valdobinos) (March 7, 1991), at 12-13.

Although the promised written waivers were never received, the record reveals that the first continuance was granted at Valdobinos's request, the second at Garibay's, and both on the assurance the court would receive written waivers extending until the end of April. Under these circumstances, it cannot reasonably be said that the defendants did not waive their right to a speedy trial.

II. Failure to Exclude Evidence Found in a Search by National Guardsmen

A. The Posse Comitatus Act

Valdobinos and Garibay assert next that the trial court erred in refusing to suppress the evidence found in the search by police officers assisted by the National Guard. They maintain the search violated 18 U.S.C. § 1385, which prohibits military forces from executing the laws.

18 U.S.C. § 1385 was originally adopted by Congress in the post-Civil War era as a response to perceived abuses in the use of military forces during Reconstruction. See United States v. Hartley, 796 F.2d 112, 114 (5th Cir.1986). See also State v. Short, 113 Wash.2d 35, 38, 775 P.2d 458 (1989); Airway Heights v. Dilley, 45 Wash.App. 87, 89, 724 P.2d 407 (1986). The statute is commonly referred to as the posse comitatus act. It provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

(Italics ours.) 18 U.S.C. § 1385.

Appellants contend the evidence seized should have been excluded by the trial court because it was the product of an illegal search. Even assuming a violation of the posse comitatus act occurred, a question we do not reach, the favored remedy for such a violation is not exclusion of the evidence. See State v. Short, 113 Wash.2d at 40, 775 P.2d 458.

First, the statute itself identifies the potential consequences of a violation: a fine or imprisonment or both. The Legislature thus manifestly contemplated the question of remedies and provided those it intended. That is one reason why attempts by criminal defendants to use violations of the act as a ground to exclude evidence have been generally unavailing. See J.W. Julian, Noriega: The Capture of a State Leader and Its Implications on Domestic Law, 34 Air Force L.Rev. 153, 172 (1991) (discussing United States v. Hartley, 796 F.2d 112 (5th Cir.1986)). See also Airway Heights v. Dilley, 45 Wash.App. at 89, 724 P.2d 407; United States v. Roberts, 779 F.2d 565 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986). Cf. Taylor v. State, 645 P.2d 522 (Okla.Crim.App.1982).

Second, we are reluctant to resort to the exclusionary remedy for violations of the posse comitatus act. We have previously stated that "evidence obtained in violation of the act is not excluded unless there is an unauthorized assertion of military authority or a need for exclusion as a deterrent to future violations." Short, 113 Wash.2d at 40, 775 P.2d 458 (citing Taylor v. State, supra; Lee v. State, 513 P.2d 125, 126 (Okla.Crim.App.1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974); United States v. Roberts, supra; United States v. Walden, 490 F.2d 372 (4th Cir.1974), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974)).

On this record, there is neither a showing of unauthorized assertion of military authority, nor persuasive evidence such a remedy is necessary to deter future violations. The trial court therefore did not err in failing to...