State v. Waters, 16927-8-III

• Decision Date: 11 February 1999
• Docket Number: No. 16927-8-III,16927-8-III
• Parties: STATE of Washington, Respondent, v. Thomas Lawrence WATERS, Jr., Appellant.
• Court: Washington Court of Appeals

Page 969

93 Wn.App. 969

971 P.2d 538

STATE of Washington, Respondent, v. Thomas Lawrence WATERS, Jr., Appellant.

No. 16927-8-III.

Court of Appeals of Washington,

Division 3,

Panel One.

Feb. 11, 1999.

R.J. Sloan Jr., Omak, for Appellant

Karen C. Calhoun-Wells, Deputy Prosecutor, Mt. Vernon, for Respondent.

Molly Roberts, Okanogan, Pro Se.

SWEENEY, A.C.J.

Generally, an affidavit of prejudice must be filed before a case is set for trial in a one-judge county. RCW 4.12.050. And, as we will conclude, an affidavit of prejudice against a visiting judge in a one-judge county is timely if fled before the judge has made a discretionary ruling.

Okanogan County is a one-judge county. During a Thursday afternoon pretrial conference, the resident judge, Judge Jack Burchard, told the lawyer for defendant Thomas Waters that he would not be presiding over Mr. Waters' trial the following Monday and that a substitute judge, Judge Kenneth Jorgensen, would instead preside. On Monday morning, the first day of trial, Mr. Waters filed an affidavit of prejudice. Judge Jorgensen concluded that the affidavit was untimely and refused to step down. The dispositive question is whether that affidavit was timely. We conclude that the affidavit was timely, reverse the trial court's ruling to the contrary and remand for a new trial.

FACTS

The Okanogan River divides the city of Omak. The On February 20, 1997, at around midnight, Sergeant Rogers and Officer Shove were on patrol in a marked police car. In West Omak, they saw Mr. Waters' car stopped at the stoplight. When the light changed, he revved his car engine loudly, squealed its tires, and crossed the centerline toward the police. These are civil traffic infractions. The officers turned around and followed the car across the river into East Omak. They activated their emergency lights. Mr. Waters refused to stop. He raced through a residential area in East Omak, exceeding the speed limit and running stop signs. The police activated their siren.

Colville Indian Reservation includes East Omak. Law enforcement in East Omak is provided primarily by the City of Omak. Mr. Waters is an enrolled member of the Colville Confederated Tribes. Frank Rogers is an Omak City Police Sergeant, a commissioned County Deputy Sheriff, and a commissioned Colville Tribal Law Enforcement Officer. Omak Police Officer Pete Shove is also a commissioned tribal officer.

With Sergeant Rogers and Officer Shove in pursuit, after an hour-long, high-speed chase on state highways, Mr. Waters' car turned off Highway 155 and entered Upper HUD, a tribal reservation trust property housing project in Nespelem. Sergeant Rogers, assisted by Tribal Officer Bob Merriman and Officer Shove, arrested Mr. Waters for felony eluding, driving while license suspended, driving while under the influence, and resisting arrest.

Mr. Waters was arraigned in Okanogan County Superior Court and his case was set for trial. Before trial, he moved to dismiss, arguing that the officers did not have authority to arrest him on the reservation. Judge Burchard denied the motion. Mr. Waters waived his speedy trial right until July 31, 1997. Trial was set for Monday, July 14, before Judge Burchard. On Thursday, July 10, Judge Burchard assigned the case to visiting Judge Kenneth Jorgensen.

On Monday morning, before trial, Mr. Waters filed an affidavit of prejudice against Judge Jorgensen. Judge Jorgensen rejected it as untimely. After a bench trial on stipulated

facts, he found Mr. Waters guilty on all four charges. Judge Burchard sentenced Mr. Waters to 24 months, an exceptional sentence, on the ground the standard range was clearly too lenient in light of Mr. Waters' extensive unscored misdemeanor history.

DISCUSSION

Affidavit of Prejudice.

Any party may establish prejudice by motion, supported by affidavit, that the judge before whom an action is pending is prejudiced. In counties where there is but one resident judge, the motion and affidavit must be filed not later than the day on which the case is called to be set for trial. RCW 4.12.050.

Our Supreme Court has made it abundantly clear that any party to a suit has the right to remove one superior court judge from a case subject only to the timely filing of a motion and affidavit in compliance with RCW 4.12.040 and .050. State v. Cockrell, 102 Wash.2d 561, 565, 689 P.2d 32 (1984). Under the plain wording of the rule, once a party complies with the terms of the statute, prejudice is deemed established and the judge is "divested of authority to proceed further into the merits of the action.' " Id. (quoting State v. Dixon, 74 Wash.2d 700, 702, 446 P.2d 329 (1968)). No showing of actual prejudice is required. Marine Power & Equip. Co. v. Department of Transp., 102 Wash.2d 457, 460, 687 P.2d 202 (1984). All considerations of judicial efficiency are secondary. Id. at 464, 687 P.2d 202. But in a one-judge county, the affidavit of prejudice must be filed on or before the date the case is called to be set for trial. RCW 4.12.050.

We apply this statute to effect its legislative intent. State v. McCraw, 127 Wash.2d 281, 295, 898 P.2d 838 (1995).

The State urges us to apply the "one-judge county rule" liberally. But to do so ignores its purpose. Underlying the requirement of early filing of an affidavit of prejudice is the fact that in a one-judge county the defendant knows who will try the case the only judge in the county. That assumption fails, however, when, as here, one business day before the trial a visiting judge is substituted.

Any other application of this statutory scheme would effectively gut the protection of the statute. A party must file an affidavit of prejudice before trial is set in a one-judge county to avoid the scheduling havoc that would follow last minute filings.

Here, Mr. Waters and his attorney moved toward trial assuming that the trial judge would be the county's only judge, Judge Burchard. It was not until the Thursday preceding the start of his trial on the following Monday that Mr. Waters' lawyer knew that the trial judge would not be Judge Burchard, but instead would be Judge Jorgensen. Satisfying the deadline then imposed by RCW 4.12.050, the one-judge county rule, thus became impossible.

The only relevant requirement, given the change of judges, should have been whether the judge had made a discretionary ruling. RCW 4.12.050. Judge Jorgensen had not. The motion therefore was timely.

Here, 13 days remained in the speedy trial period.

The State argues that the affidavit was a delaying tactic. It may well have been, but motive is irrelevant. Marine Power, 102 Wash.2d at 461-62, 687 P.2d 202. Both the defendant and the State may make motions, schedule witnesses, and make objections because they believe it to be in the best interests of their client. Our inquiry is whether the tactic is legal.

The State also complains that Mr. Waters showed no prejudice because the case was not tried to a jury but was submitted on police reports. Again, he need not show actual prejudice. Id. at 460, 687 P.2d 202.

The affidavit of prejudice was timely; the trial court's ruling to the contrary is reversed and the case is remanded for a new trial.

We address the remainder of Mr. Waters' assignments of error since they will be issues on retrial. Jurisdiction.

Mr. Waters contends that the court lacked jurisdiction because he was arrested on the reservation and forcibly returned to Omak.

Where the location of the crime is not in dispute, jurisdiction is a matter of law which we review de novo. State v. L.J.M., 129 Wash.2d 386, 396, 918 P.2d 898 (1996). Here the court had both subject matter and personal jurisdiction.

Subject Matter Jurisdiction. "The superior court shall have original jurisdiction ... in all criminal cases amounting to felony...." Wash. Const. art. IV, § 6 (amend.28); RCW 2.08.010; State v. Bowman, 69 Wash.2d 700, 703, 419 P.2d 786 (1966). This was a felony criminal prosecution.

Personal Jurisdiction. If the defendant enters a plea of not guilty and is in court on the day of trial, the court has jurisdiction over his person. State v. Ryan, 48 Wash.2d 304, 305, 293 P.2d 399 (1956). If the court has jurisdiction over the defendant, it is not a ground for dismissing a criminal prosecution that he was not lawfully arrested. Davis v. Rhay, 68 Wash.2d 496, 499, 413 P.2d 654 (1966). "No authority has been cited to this court which requires dismissal of a charge merely because of an illegal arrest. We hold it does not." City of Pasco v. Titus, 26 Wash.App. 412, 417, 613 P.2d 181, review denied, 94 Wash.2d 1005 (1980). This is the rule articulated in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886) and Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and generally followed in Washington. Titus, 26 Wash.App. 412, 613 P.2d 181.

Mr. Waters appeared and pleaded not guilty. His pretrial motion to dismiss does not allege lack of superior court jurisdiction. The motion and counsel's trial brief in support of the motion assert only that the arrest was illegal an any resulting evidence should be suppressed.

No Washington case has applied the Ker-Frisbie rule to an Indian jurisdiction dispute, but most other states do apply the rule to extradition from Indian reservations. See, e.g., State v. Lupe, 181 Ariz. 211, 889 P.2d 4 (1994); Primeaux v. Leapley, 502 N.W.2d 265 (S.D.1993). ¹ In arguing for an exception here, Mr. Waters relies on the New Mexico case of Benally v. Marcum, 89 N.M. 463, 553 P.2d 1270 (1976), which rejected the Ker-Frisbie doctrine as applied to extradition from an Indian reservation.

Benally is distinguishable on its facts. Mr. Benally was charged with municipal code misdemeanor violations, not a felony. And Benally's holding rests on the absence of state jurisdiction because there was no felony involved. Therefore, the "fresh pursuit" doctrine did not apply. Id. at 466, 553 P.2d 1270.

Here, the charge against...