State v. Smith

Kennedy, J.

(dissenting) — I respectfully dissent.

Supplemental Statement of Facts

On September 11, 1989, shortly after 3 p.m., Smith's case was assigned for trial before the Honorable Arthur Piehler, judge of the King County Superior Court. Smith had previously signed an order extending the speedy trial expiration date to September 11, 1989. Smith's defense counsel was Ms. Olson. Moments before Ms. Olson entered the courtroom, the prosecutor assigned to the case handed her a year-old followup police report and a month-old laboratory report. These documents had not previously been produced by the State. The discovery order in the case required the prosecutor to provide all such reports by 2 weeks before trial. The record contains no explanation of why these two reports were not provided to the defense until moments before the trial was due to commence.⁴

Ms. Olson immediately recognized that these two reports were both material and "horribly" prejudicial to her planned defense. Based on the discovery earlier provided by the State, and based on a defense investigator's pretrial interview of one Officer Keefe, Ms. Olson believed that she could establish that, although Officer Keefe mistakenly beheved that Smith had given the bogus name of Johnson at the time of his arrest, Keefe had actually arrested a man named Johnson and mixed up Johnson's cocaine with Smith's cocaine — by mistakenly assigning Smith's incident number to the drugs taken from Johnson.

The year-old followup pohce report confirmed Ms. Olson's theory that there really was a suspect by the name of Johnson, that is, that Johnson was a distinct individual from Smith. The followup report contained an address and a telephone number for Johnson — none of the earlier reports had contained that information. Ms. Olson recognized that she needed to locate and interview Johnson in order to test out the defense theory. The new, month-old laboratory report caused Ms. Olson the greatest concern. It seemed to explain away the apparent flaws in the State's chain of evidence. Moreover, the new lab report raised new chain of evidence issues that the defense had not previously explored. Ms. Olson also recognized that the followup police report necessitated a followup interview with Officer Keefe. Ms. Olson was concerned that Officer Keefe may have discovered that Smith and Johnson were not the same individual after all. Ms. Olson had subpoenaed Officer Keefe in the expectation that he would testify that Smith and Johnson were the same individual.

Mr. Smith had some trouble finding the courtroom that day. He did not arrive until approximately 3:30 p.m. Court was convened at 3:30 p.m. Thus, Ms. Olson had no opportunity to discuss the newly produced pohce and laboratory reports with her client.

In preparing for trial, Ms. Olson had based Smith's whole defense on the pretrial discovery. That discovery appeared to be consistent with the defense theory of a mixup between Smith and Johnson and between the physical evidence taken from those two individuals. The newly produced, year-old followup pohce report and the new, month-old lab report caused Ms. Olson to conclude that the defense theory was either fatally flawed or substantially undermined. Ms. Olson explained her dilemma to Judge Piehler and moved to dismiss based on State v. Price,⁵ stating:

[W]e are horribly prejudiced by the fact that this discovery is being given to us right now.

I am going to have to take time to talk to Mr. Smith to decide what to do. Our whole defense has been formulated — your Honor, this is incredible. This is a — I have been working here for four years, and I need a minute to — this has totally blown our defense.

To which the court responded:

THE COURT: We will do some preliminaries and then you will have the whole evening to talk to Mr. Smith.

MS. OSLON: Well, your Honor, will the record reflect our motion under State versus Price to dismiss at this time? We are not prepared to go to trial, this is the last day of speedy trial, I have received —

THE COURT: Well, I take it you know how to get a continuance if you think that is what you need.

MS. OLSON: Your Honor, I believe that will require Mr. Smith to be in the position of either waiving his right to a speedy trial or going to trial unprepared.

THE COURT: Well, that's an election that you are going to have to decide on.

The court then proceeded with other preliminary matters and court was recessed until the following day, September 12, 1989. On that morning, Judge Piehler again called the case. The prosecutor revealed that Officer Keefe was ill and would not be able to appear that day. Defense counsel renewed her motion to dismiss, advising the court that the telephone number for Johnson, which was on the year-old followup police report, was no longer a working number. Thus, Ms. Olson had not been able to interview Johnson. The motion was again denied. The court stated that because Officer Keefe was ill and because the court had only until noon on the following day to finish the trial, the case would have to go back to the presiding department for reassignment or for a continuance. Judge Piehler instructed the defense to notify the presiding judge that he had denied the motion to dismiss.

The parties then proceeded to the presiding department, where the Honorable Susan R. Agid entered an order continuing the trial because: "State provided discovery during trial which had not been provided earlier, which is material and which defense is not prepared to respond to."

The case was eventually tried before the Honorable James McCutcheon, commencing January 2, 1990. Judge McCutcheon, although disinclined to review the merits of Judge Piehler's ruling denying dismissal, allowed the defense to renew the motion in order to supplement and preserve the record as to whether Smith had proved by a preponderance of the evidence that the State's lack of diligence with regard to discovery had forced him to choose between his right to a speedy trial and his right to be represented by adequately prepared counsel. See State v. Price, 94 Wn.2d at 814. Judge McCutcheon then ruled that the State's delayed production of the discovery documents had not prejudiced Smith.⁶

Following the trial, Smith was convicted. This appeal followed.

Discussion

I

The State has filed a motion in connection with this appeal requesting the opportunity to present new evidence that, following the continuance granted by Judge Agid, the defense interviewed Johnson and decided not to call him, as his testimony would not have been helpful to the defense. The motion should be denied because that evidence is entirely irrelevant to the issue on appeal. The issue here is whether the State's lack of diligence in timely providing the discovery which had been ordered at the omnibus hearing placed Smith in the position of having to choose between his CrR 3.3 speedy trial right and his right to be represented by adequately prepared counsel. That issue must be viewed as of the date the State finally provided the belated discovery, on the speedy trial expiration date, September 11,1989. At that point, the defense had no way of knowing whether Johnson's testimony would be helpful to Smith or not. The defense attorney had an obligation, once it was confirmed that there really was a Johnson, and that the State had his address, to find out whether Johnson would be helpful or not. The defense attorney also had an obligation to explore the new chain of evidence issues that were raised by the new, month-old lab report. Common sense dictates that we conclude, and the record confirms, that the defense attorney was unable to meet these obligations between 3:30 p.m. on September 11, and the recommencement of trial on the morning of September 12, 1989. Moreover, Officer Keefe's illness and his resulting lack of availability for any immediate followup interview by the defense compounded the problem faced by the defense. It simply was not possible for Smith to receive, on September 11-12, 1989, both his CrR 3.3 speedy trial rights and his constitutional right to be represented by adequately prepared counsel. That Smith eventually went to trial on a similar theory to that which he had originally prepared, and without calling Johnson as a witness, begs the question. The question is whether it was permissible, in view of the State's unexcused lack of diligence in providing material discovery, to force Smith to choose between two conflicting rights — the right to a speedy trial under CrR 3.3 or the right to be represented by adequately prepared counsel. Under State v. Price, 94 Wn.2d at 814, a defendant cannot be forced to make that choice. The appropriate remedy is dismissal. See also State v. Sherman, 59 Wn. App. 763, 769-70, 801 P.2d 274 (1990).

II

CrR 4.7(h)(7)(i) places considerable discretion in the trial court to determine an appropriate sanction for a party's failure to comply with an applicable discovery rule or order. However, it is the responsibility of the court to ensure a trial in accordance with CrR 3.3 to each person charged with having committed a crime. CrR 3.3(a). Moreover, CrR 1.1 provides that "[tjhese rules shall not be construed to affect or derogate from the constitutional rights of any defendant."

The constitutional right to have the assistance of counsel, Art. I, § 22, carries with it a reasonable time for consultation and preparation, and a denial is more than a mere abuse of discretion; it is a denial of due process of law in contravention of Art. I, § 3 of our constitution.

State v. Hartwig, 36 Wn.2d 598, 601, 219 P.2d 564 (1950). A defendant is denied his Sixth Amendment right to counsel if the actions of the State deny the defendant's attorney the opportunity to prepare for trial. "Such preparation includes the right to make a frill investigation of the facts and law applicable to the case." State v. Burri, 87 Wn.2d 175, 180, 550 P.2d 507 (1976).

Here, the State's lack of diligence in providing material information until the waning hours of the speedy trial expiration date left the defendant's attorney unprepared to proceed with the trial. Judge Agid, then serving as the presiding judge, so determined and the State has not assigned error to that ruling.⁷

The trial court's discretion under CrR 4.7(h)(7)(i) must be measured in view of the court's dual responsibility to ensure compliance with CrR 3.3 and to ensure a defendant’s constitutional right to the effective assistance of counsel. Where a defendant is forced, by reason of the State's failure to comply with an applicable discovery rule or order, to choose between those rights, the appropriate remedy is dismissal of the charges. As this court recognized in State v. Sherman, 59 Wn. App. at 769-70, the appropriate remedy for discovery problems is not, invariably, a continuance:

To require [appellant] to request a continuance under these circumstances would be to present [him] with a Hobson's choice: [he] must sacrifice either [his] right to a speedy trial or [his] right to be represented by counsel who had sufficient opportunity to prepare [his] defense. The Supreme Court recognized this problem in State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980):

We agree that if the State inexcusably fails to act with due diligence, and material facts are thereby not disclosed to defendant until shortly before a crucial stage in the litigation process, it is possible either a defendant's right to a speedy trial, or his right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part of his defense, may be impermissibly prejudiced. Such unexcused conduct by the State cannot force a defendant to choose between these rights.

In circumstances such as these, we do not believe a defendant should be asked to choose between two constitutional rights in order to accommodate the State's lack of diligence.

I would reverse and remand for a dismissal because I believe the trial court abused its discretion by forcing Smith to make the Hobson's choice which we and the Supreme Court disapproved in Sherman and Price.

Review denied at 121 Wn.2d 1019 (1993).

4 Whether the State's failure to timely provide the reports was deliberate or by reason of simple mismanagement is irrelevant. In either event "governmental misconduct" occurred here, which was sufficient to warrant a dismissal under CrR 8.3(b). See State v. Dailey, 93 Wn.2d 454, 457, 610 P.2d 357 (1980); State v. Sherman, 59 Wn. App. 763, 768, 801 P.2d 274 (1990).

5 94 Wn.2d 810, 814, 620 P.2d 994 (1980).

6 This ruling appears to be in direct contradiction to Judge Agid's determination, on September 12, 1989, that the belated discovery was "material" and that the defense was "not prepared to respond". It is per se "prejudicial" to force a defendant to choose between his right to a speedy trial under CrR 3.3 and his constitutional right to be represented by adequately prepared counsel. It is not necessary for the defendant to demonstrate some additional prejudice.

7 The majority is not convinced that the late documents posed such a problem to the defense as to warrant a continuance. Majority, at 854-55. I heartily disagree. Furthermore, the record on appeal does not include the proceedings before Judge Agid. Her rulings as to the materiality of the documents are the law of the case and are not properly before this court. Judge McCutcheon's ruling that the appellant was not prejudiced by the late discovery was error in my view. In any event, there is no indication in the record that Judge McCutcheon was aware of Judge Agid's earlier ruling or that he intended to reverse that ruling. Judge McCutcheon was clearly aware of Judge Piehler's earlier ruling and disinclined to reverse it. Judge McCutcheon's ruling was for the primary purpose of preserving the record for this appeal. Finally, because fundamental due process prohibits the State from forcing a defendant to choose between his CrR 3.3 speedy trial right and his constitutional right to be represented by adequately prepared counsel, the burden is on the State to prove beyond a reasonable doubt that its failure to timely comply with the discovery rules and order was harmless error, i.e., that the contents of the two reports were not material and required no additional time in order for defense counsel to adequately prepare for trial. The State has not met this burden. See State v. Sherman, 59 Wn. App. at 771.