State v. Fulps

988 P.2d 1002, 97 Wash. App. 935

• Court: Court of Appeals of Washington
• Decided: November 18, 1999
• Docket: 17315-1-III
• Status: Published

Opinions

Brown, J.

Glen R. Fulps appeals his conviction for possession of marijuana, arguing his speedy trial rights under CrR 3.3 and the constitution were violated. Further, he argues the trial court erred by failing to dismiss the charges due to confidential informant (Cl) misconduct, failing to order production of the Cl at a suppression hearing, and failing to suppress evidence due to violation of the “knock and announce” rule. We decide Mr. Fulps was not “held to answer” as that term is discussed in State v. Parmele, 87 , 550 P.2d 536 (1976), when approximately four and one-half months elapsed after his release on cash bail before an information was filed, and another three weeks elapsed before he was arraigned. We reject Mr. Fulps’s other contentions. Accordingly, we affirm.

FACTS

On January 17, 1997, the Othello Police Department executed a search warrant at Mr. Fulps’s residence. The warrant, issued the day before, permitted the officers to search for marijuana, drug paraphernalia and other materials used in processing, packaging and selling marijuana. The warrant was based on information provided by a Cl. The Cl told the officers Mr. Fulps was selling large amounts of marijuana from his residence. Based on this information, the Cl was allowed to make a controlled buy.

When the officers arrived at Mr. Fulps’s apartment, they could see him through the window. Officer Brian K. Taylor’s report states that the lead officer then knocked on Mr. Fulps’s door. Mr. Fulps was slow to answer, so the officer tried the door. Discovering it unlocked, he entered the apartment and announced the officers’ presence. Mr. Fulps denied the officers knocked and announced their presence. Once inside, the police advised Mr. Fulps of his constitutional rights. He waived his right to remain silent and stated: “Sure, I’ll tell you guys I smoke dope. Let me show you where it is.” The police then located several bags of marijuana, weighing over 40 grams, two guns, scales, packaging material, a pipe and a roll of money consisting of $67. The money included marked money used in the controlled buy.

Mr. Fulps was arrested and taken to jail in Ritzville. The booking charge was possession of marijuana with intent to deliver. An Adams County District Court judge signed a “Statement of Arresting Officer and Preliminary Finding of Probable Cause” form that set cash bail at $3,000. Although the form is captioned for the Adams County Superior Court, it did not contain a case number, provide any conditions of release, or set any time to appear back in court for further proceedings. Essentially, the form provided a police incident number and recited the facts set forth above. Mr. Fulps posted bail and was released the same day without personally appearing before the court.

No further proceedings occurred until June 5,1997, when the State filed an information in superior court charging Mr. Fulps with one count of possession of marijuana over 40 grams and one count of possession with intent to deliver. Mr. Fulps was arraigned on June 30, where he pleaded not guilty, and trial was set for September 16. Mr. Fulps does not challenge the 25 days between the filing of the information and his arraignment.

Prior to trial, Mr. Fulps filed several motions to dismiss and/or suppress evidence, alleging the same issues he raises in his appeal. The trial court denied Mr. Fulps’s motions, entering findings of fact and conclusions of law. Neither the State nor Mr. Fulps challenges the trial court’s findings, making them verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). The court concluded there was no violation of Mr. Fulps’s speedy trial rights under CrR 3.3 and the federal constitution because his speedy trial clock did not begin to run until the information was filed. The court also concluded Mr. Fulps did not have a right to know the identity of the Cl, there was no Cl misconduct, and the entry into Mr. Fulps’s apartment was legal.

Following a bench trial on partial stipulated facts, the court convicted Mr. Fulps of possession of marijuana over 40 grams. This appeal followed.

ANALYSIS

Speedy Trial

The issue is whether the trial court erred by rejecting Mr. Fulps’s speedy trial motion under either constitutional or procedural principles and concluding Mr. Fulps was not “held to answer” for purposes of speedy trial calculations from January 17, 1997, when he was released on cash bail under these facts.

Whether to grant a motion to dismiss is left to the trial court’s discretion. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587, 71 A.L.R.5th 705 (1997). “Discretion is abused when the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.” Id. (citing State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)). For cases filed directly into superior court, CrR 3.3(c)(1) establishes the time limits for arraignment and trial. Generally, a defendant has a right to be arraigned within 14 days of the filing of the information and brought to trial for the crime charged within 90 days of his or her arraignment, if the defendant is not being held in custody.

First, we examine the State’s contention that the filing of the information triggers the CrR 3.3 limitations when a defendant is subject to conditions of release. Disregarding other court rules and arguably applicable case law discussed next and assuming the facts most broadly in favor of Mr. Fulps, under CrR 3.3(c)(1) his constructive arraignment date would be June 5, 1997 plus 14 days, or June 19. Thus, because his trial date was set for September 16, 1997, it met the 90-day requirement of CrR 3.3(c)(1). Accordingly, the State is correct, but this begs the question posed by Mr. Fulps.

Mr. Fulps contends that he was “held to answer” from January 17, because he then posted cash bail. In State v. Parmele, 87 Wn.2d 139, 142, 550 P.2d 536 (1976), our Supreme Court, interpreting prior CrR 3.3, held the time for trial begins to run from the date the defendant is held to answer. Even though CrR 3.3 has been extensively and significantly amended since Parmele, we again look at this problem from Mr. Fulps’s point of view.

Mr. Fulps was arrested on January 17, 1997, when a search warrant was executed at his home. He was taken immediately to jail. Erobable cause was determined, presumably under CrR 3.2A. Mr. Fulps was released on cash bail. Apparently, the sole authority for Mr. Fulps’s release was the district court judge’s signature at the bottom of the “Statement of Arresting Officer and Preliminary Finding of Probable Cause” form. The form simply provided the affiant’s bail recommendation in addition to the probable cause information.

Notably, no specific order for release is set forth in the form or can be found in this record. The form and the procedure used to secure release are thus, conspicuously deficient under CrR 3.2. Most important here, the form does not mention any time for reappearance or set any conditions for release. It is thus, indefinite as to term and purpose. Further, no preliminary appearance was conducted under CrR 3.2B, as would be expected in the normal course of events. The next date that action is noted in this record is June 5, 1997, when the form together with an information was filed into the superior court.

The omission of a formal preliminary appearance does not alter its requirements or the application of its underlying principles. CrR 3.2B(c)(l) partly provides: “Unless an information or indictment is filed or the affected person consents in writing or on the record in open court, a defendant shall not be detained in jail or subjected to conditions of release for more than 72 hours after the defendant’s detention in jail or release on conditions, whichever occurs first.” (Emphasis added.) CrR 3.2B(c)(2) exonerates a defendant from conditions of release if no complaint, information or indictment is filed by the end of the 72-hour period. “If no complaint, information or indictment has been filed by the time set for release or reappearance, the defendant shall be immediately released from jail or deemed exonerated from all conditions of release.” CrR 3.2B(c)(2) (emphasis added).

Here, because no preliminary appearance was conducted within the terms of CrR 3.2B, and no information was filed within the 72-hour time requirements of the rule, Mr. Fulps was no longer subject to court conditions of release under CrR 3.2B(c)(l). Further, because he was not in jail at the expiration of the 72-hour period, he was “deemed exonerated from all conditions of release” under CrR 3.2B(c)(2). The latter provision operates consistently to execute the requirements of the former provision.

Additionally, under Parmele, contrary to Mr. Fulps’s argument, he cannot be considered “held to answer.” Mr. Fulps’s status after the 72-hour period is similar to that of Mr. Parmele. Mr. Fulps’s release was conditioned by implication under the applicable court rules upon the filing of an information just as in the case of Mr. Parmele. Parmele, 87 Wn.2d at 142-43. Any ambiguity in Mr. Fulps’s status is thus resolved consistently with Parmele, and the interests of justice to avoid the absurd result of necessarily assuming Mr. Fulps was released for an indefinite period. Id. To hold otherwise would be to place suspects in Mr. Fulps’s position “on a treadmill to oblivion.” Id. To hold otherwise would be to condone amorphous restraints on a defendant’s liberty; a result severely criticized in Parmele. Id.

Similarly, in State v. Poirier, 34 Wn. App. 839, 840, 664 P.2d 7 (1983), a defendant argued because he was arrested and then released by posting a bail bond, he was being held to answer from the time of his release. In response, Division Two held Mr. Poirier was not held to answer in the sense that he was subjected to conditions of release because he was “deemed exonerated from all conditions of release” by operation of a prior court rule. Id. Thus, Mr. Fulps’s speedy trial requirements did not apply until the June events placed both an information and Mr. Fulps before the court.

In sum, we conclude Mr. Fulps was not “held to answer” as that term is used in Parmele. Thus, Mr. Fulps was treated under CrR 3.3(c)(1) as “not detained in jail or subjected to conditions of release.” The speedy trial clock did not begin to run until his arraignment, which was within 14 days after his initial appearance following the filing of the information. CrR 3.3(c)(1). Mr. Fulps’s case was set within 90 days of his arraignment, and he waived any claim to speedy trial violations beyond the 90 days. Accordingly, we hold Mr. Fulps’s speedy trial rights under CrR 3.3 have not been violated under these facts. Mr. Fulps’s speedy trial requirements did not apply until the June events placed both an information and Mr. Fulps before the court.

Mr. Fulps also contends his Sixth Amendment right to a speedy trial was violated. The constitutional right to a speedy trial is violated after a reasonable, not a fixed time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (citing State v. Higley, 78 Wn. App. 172, 184-85, 902 P.2d 659, review denied, 128 Wn.2d 1003 (1995)), review denied, 133 Wn.2d 1015 (1997). The threshold for establishing a constitutional violation is high; it requires a weighing of four factors: “ ‘[L]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” In re Personal Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). Mr. Fulps was arrested on January 17, 1997. Assuming for argument the clock began to run on that date, it was eight months from January 17 to the day he entered his first waiver of speedy trial rights. Eight months is not unreasonable. See Benn, 134 Wn.2d at 920 (defendant charged in May 1988 and brought to trial in March 1990).

Further, the delay resulted simply from the State’s decision not to immediately file charges in January 1997; no ill motive is alleged. Mr. Fulps did not assert his grievance to the trial court until after what he now claims was excessive delay. Mr. Fulps now merely asserts the loss of use of the cash bail in the interim period between January and June 1997 caused him prejudice even though under our analysis all conditions were exonerated in January 1997. When the conditions of bail are exonerated, assuming there are any, the court must give the cash bail back to the defendant. State v. Paul, 95 Wn. App. 775, 778, 976 P.2d 1272, 1274 (1999).

Here, by Mr. Fulps’s delay in asserting his claimed right, the trial court did not have an opportunity to first address the concern he presents in this appeal. In this sense, Mr. Fulps created any resulting prejudice by the loss of use of the cash bail money by not seeking its return. While the court held the bail, it was still Mr. Fulps’s property. Id. Mr. Fulps has not shown he was prejudiced in his ability to mount a defense to the charge because of the delay. Accordingly, after balancing the above factors, we conclude Mr. Fulps’s Sixth Amendment right to speedy trial was not violated.

As a final note, both parties and the trial court discussed State v. Phillips, 66 Wn. App. 679, 833 P.2d 411 (1992). This opinion was vacated by the Supreme Court almost four years prior to Mr. Fulps’s trial. State v. Phillips, 121 Wn.2d 1001, 847 P.2d 919 (1993). The parties do not raise the issue of whether the court abused its discretion or committed reversible legal error by relying on Phillips. However, in light of our above discussion of the application of the court rules and case law, this oversight does not affect our reasoning or amount to an abuse of trial court discretion or reversible error as a matter of law. One of the court’s conclusions of law states that the court did not have the power to act until it had “both the charge and the defendant” before it, citing Phillips to support this conclusion. While Phillips was vacated, there is still the authority discussed above to support the court’s decision.

Additionally, CrR 3.3(a) states:

It shall be the responsibility of the court to ensure a trial in accordance with this rule to each person charged with having committed a crime.

(Emphasis added.) According to this rule, the trial court does not have the responsibility to ensure a speedy trial until it has a person and a charge before it. The trial court’s conclusion fairly reiterates this rule.

In sum, even assuming the trial court was mistaken when citing Phillips, we may still reject the trial court’s reasoning and affirm on other grounds established in the record. State v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996), review denied, 131 Wn.2d 1017 (1997). Our above reasoning fits squarely within the parameters of the rule just stated in Frodert.

Affirmed.

A majority of the panel having determined that only the foregoing portion of this opinion and the dissent will be printed in the Washington Appellate Reports and that the remainder, having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Sweeney, J., concurs.