State v. Henderson , 26 Wash. App. 187 ( 1980 )

Roe, J.

(dissenting)—Reluctantly, I must dissent because although I believe there is sufficient evidence of guilt, I cannot excuse the failure to comply with CrR 3.3.

The question before the court is whether the prosecution has exercised due diligence.

In State v. Sulgrove, 19 Wn. App. 860, 578 P.2d 74 (1978), the State sought two successive 1-day continuances to marshal admissible evidence. The continuances would have placed the trial 1 day beyond the CrR 3.3 limit. The trial court denied the request and dismissed the case on the basis of CrR 8.3(b).⁷ On appeal, the court concluded that prosecutorial unpreparedness, including simple mismanagement by the prosecutor's office, conflicted with the spirit of CrR 3.3 and affirmed the dismissal.

Due diligence to compel the attendance of a witness includes not only the issuance of a subpoena, but also "the taking of necessary steps to enforce attendance." State v. Toliver, 6 Wn. App. 531, 533, 494 P.2d 514 (1972). See State v. Fortson, 75 Wn.2d 57, 59-60, 448 P.2d 505 (1968). The prosecutor must show that he has made timely use of the legal mechanisms available to compel the attendance of witnesses. State v. Smith, 56 Wn.2d 368, 353 P.2d 155 (1960); State v. Toliver, supra. See also the dissent in State v. Yuen, 23 Wn. App. 377, 383, 597 P.2d 401 (1979).

In the case at bench, the prosecutor did not notice that Nobles had not been served until the 58th day of confinement. This was 1 day before the trial which was set on the 59th day. Officers had been unable to locate Nobles to serve the subpoena. It was not until after the granting of the first continuance that any other steps were taken by the State to find Nobles. No bench warrant was issued for him until after the first continuance was granted.

At the hearing for the second continuance, the judge stated he was inclined to grant a 1-week continuance to allow Nobles to be found. However, since Thanksgiving was approaching, and there might be problems getting a jury, the court granted a 3-week continuance. Nobles was arrested on November 17, 10 days before the hearing, and 16 days after the 60 days had expired. Thus, the State's witness was available for at least 10 days before the trial commenced, on the 86th day of confinement. There was no showing of actual difficulty in getting a jury or trying the case during the Thanksgiving week. This shows disregard for the rule of strict application of CrR 3.3. See State v. Striker, 87 Wn.2d 870, 877, 557 P.2d 847 (1976).

Although this case was decided on the basis of the rules existing at the time of the event, the strictness with which the rules are to be enforced is exemplified by the new CrR 3.3, under which continuances may be granted:

(f) • ■ •

(2) . . . when required in the due administration of justice and the defendant will not be substantially prejudiced in the presentation of his defense. . . .

(g) . . . The court may extend the time in which a trial must be held for no more than five days when, because of unavoidable and unforeseen circumstances beyond the control of . . . the parties, . . .

The spirit of the rule, as reaffirmed in the new enactment, compels me to conclude that 5-day increments, but not 20 days as in this case, are permissible. The last continuance was improperly granted.

I would reverse.

Reconsideration denied June 16, 1980.

Review denied by Supreme Court September 5, 1980.

7 CrR 8.3(b) states:

"The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order."