State v. Smith

841 P.2d 65, 67 Wash. App. 847, 1992 Wash. App. LEXIS 472

Opinions

Grosse, C.J.

Larry Del Smith appeals his conviction for delivery of cocaine. In response, the State has moved to take new evidence on review. A commissioner of this court referred the matter to the panel for accelerated review pursuant to RAP 18.12. We affirm.

Officers Liggins and Saucier of the Seattle Police Department testified that at approximately 1:15 a.m. on September 14, 1988, they participated in an undercover drug operation. As they drove toward an area of reported drug activity, they saw several young men standing together. They contacted one man, later identified as Reed, Smith's codefendant. Saucier asked Reed if he had a "20", which was street parlance for $20 worth of cocaine. Another man, Smith, approached the car and showed what looked like rock cocaine in his hand. Saucier gave Smith a marked $20 bill for the rock; Smith and Reed then left but were arrested by another team of officers. Smith was charged with delivery of cocaine. The police recorded these events in an incident report.

Trial was originally scheduled for April 13, 1989; however, Smith failed to appear. Trial was rescheduled for July 28, 1989. In June the trial court entered an order on omnibus hearing, ordering the State "to provide police followup reports, if any, by 2 weeks before trial." On July 28, 1989, trial was continued to August 28, 1989, because "officer has not provided discovery and counsel has vacation 8-21 to 8-25." Smith signed an order agreeing to extend the speedy trial period to September 11, 1989.

Prior to the trial date, the prosecutor provided defense counsel with the incident report and a police statement written by Officer Keefe, who had arrested another man during the same incident, at the same location. Keefe's statement, bearing the case number for Smith, identifies the suspect only as Johnson. The report states that the suspect was standing around the area with other people when Officer Saucier made the cocaine buy. Keefe searched Johnson and found $131 and a small quantity of suspected marijuana in his pocket. In Johnson's groin area, Keefe found a baggie containing suspected rock cocaine. At the end of the statement is the following sentence: "Suspect Johnson's information and the evidence seized was inadvertently left off the major report so I typed up the followup with the same SPD case number including the rest of the information." Also before trial, the defense had been provided a lab report also bearing Smith's case number. The report, by a Ms. Holler, stated that material in a plastic bag consisted of cocaine weighing .1 gram.

On September 11, 1989, the date set for trial, defense counsel reported to the trial court that moments before, the prosecutor had handed her a followup police report by Officer Keefe, dated September 14, 1988, and an additional lab report dated August 10, 1989, signed by Edward Suzuki, forensic scientist. The followup report identified Johnson as "Suspect #3" and gave his address. This report stated that Johnson was arrested in the . same area while police were arresting "Suspects #1 & #2".

The new lab report listed an envelope containing .15 grams of cocaine and another envelope containing a baggie of marijuana and a baggie of cocaine. The prosecutor explained that he asked for a new lab report when he discovered that Ms. Holler, the scientist who performed the first test, had left the area and thus was not available to testify.

The record reveals no explanation by the State for the delay in providing the followup report. As to the month-old lab report, the prosecutor stated to the trial court only that he had received it that day.

Contending that late receipt of these documents was a violation of the omnibus order, the defense moved to dismiss. Counsel argued that the new information destroyed the defense theory of the case embodied in its trial memorandum. Defense counsel stated to the trial court that it had believed Keefe would testify that "a third person was the person who sold the narcotics to Officer Saucier and not Mr. Smith." The defense also argued that it had based its defense on the lab report regarding an envelope with only one baggie of cocaine weighing .1 gram. Thus, defense counsel argued, because of late discovery on the last day of the speedy trial period, Smith was forced to choose between prejudicing either his right to a speedy trial or his right to an opportunity for an adequately prepared defense.

The prosecutor and the trial court both noted that the defense had at least some notice of the marijuana, which was fisted in the evidence sheet, and of Johnson's involvement in the case as mentioned in Keefe's first report. The defense responded that it had concluded from these facts and from an investigator's interview with Keefe that somehow the police had mishandled the evidence and had confused two separate incidents under the same case number. According to this theory, Officer Keefe actually arrested someone named Johnson but mistakenly gave Smith's case the same number as Johnson's.

The trial court denied the defense motion to dismiss on September 11 and a renewed motion on September 12. At the end of argument on September 12, the trial judge sent the parties to the presiding department, apparently to continue the trial date. On September 12, the court entered an order continuing the trial date to September 26 because: "State provided discovery during trial which had not been provided earlier which is material and which defense is not prepared to respond to."

Trial finally began on January 2, 1990, before a different judge. Again Smith moved to dismiss the case, repeating his argument regarding the discovery violation. The trial court denied the motion, concluding there was no prejudice to Smith. Smith was convicted by the jury as charged.

CrR 4.7(h)(7)(i) provides that the trial court may grant a continuance, dismiss the action, or enter another appropriate order as a sanction for failure to comply with a discovery order. The purpose of the rule is to protect against surprise that might prejudice the defense. State v. Clark, 53 Wn. App. 120, 124, 765 P.2d 916 (1988), review denied, 112 Wn.2d 1018 (1989). The trial court's decision in dealing with violations of a discovery order is discretionary. State v. Bradfield, 29 Wn. App. 679, 630 P.2d 494, review denied, 96 Wn.2d 1018 (1981). "[T]he question of whether dismissal is an appropriate remedy is a fact-specific determination that must be resolved on a case-by-case basis." State v. Sherman, 59 Wn. App. 763, 770-71, 801 P.2d 274 (1990). The court's power to dismiss is reviewable only for a manifest abuse of discretion. State v. Laureano, 101 Wn.2d 745, 762, 682 P.2d 889 (1984), overruled on other grounds in State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988). However, dismissal for violation of discovery procedures is an extraordinary remedy. State v. Laureano, supra. The court rules clearly allow the trial court to grant a continuance "when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense." CrR 3.3(h)(2); State v. Guloy, 104 Wn.2d 412, 428, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1208 (1986).

Smith argues the trial court erred in denying his motion to dismiss. He relies on the following language in State v. Price, 94 Wn.2d 810, 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. The defendant, however, must prove by a preponderance of the evidence that interjection of new facts into the case when the State has not acted with due diligence will compel him to choose between prejudicing either of these rights.

Price, at 814. Smith thus contends he was impermissibly forced to choose between prejudicing either his right to a speedy trial or his right to counsel who had sufficient opportunity to prepare his defense. The State argues there was no error, but has also moved in this court to allow the taking of additional evidence that purportedly shows the late discovery caused Smith no prejudice in preparing his defense.

We reject Smith's contention that the trial court erred in denying his motion to dismiss. We do not read State v. Price, supra, as altering the rule that the trial court's decision regarding the remedy for violation of discovery is discretionary. State v. Bradfield, supra. The language in Price, relied upon by Smith, is permissive and conditional. The court there recognized that as a result of late discovery one of the defendant's rights "may be impermissibly prejudiced." (Italics ours.) Price, at 814. We do not interpret this language to require dismissal in every instance where untimely discovery by the State affects the defendant's ability to prepare the defense within the speedy trial period.

Accordingly, we also reject the apparent premise of the dissenting opinion that Price established a per se rule of dismissal in such cases. In a subsequent case, State v. Guloy, supra, the Supreme Court again addressed a situation involving a conflict between the right to a speedy trial and the right to an adequate opportunity to prepare a defense. In Guloy, the trial date for two codefendants was July 30. Two days before trial the State released the names of six additional witnesses it planned to call at trial. One defendant sought a continuance which the other defendant opposed. The court was faced with having to deny either the right of one defendant to a speedy trial or the other defendant's right to an adequate opportunity to prepare his defense. The trial court compromised by continuing the trial 1 day beyond the speedy trial period. The Supreme Court held that a continuance was proper pursuant to CrR 3.3(h)(2)¹ "when the administration of justice requires it and a defendant will not be substantially prejudiced in the presentation of his defense." Guloy, at 428. We note again, as we did in State v. Greene, 49 Wn. App. 49, 57 n.4, 742 P.2d 152 (1987) that Guloy does not cite Price or discuss the criteria of due diligence by the State or injection of new material facts into the case. In summary, we conclude that the rule in Price is not an absolute bar to granting a continuance beyond the speedy trial period to enable the defense to address new discovery.²

In this case the trial court did not abuse its discretion in resolving the discovery issue. First, we note that the record does not clearly demonstrate why the discovery was late. Smith had the burden of showing by a preponderance of the evidence that the State's lack of diligence resulted in the interjection of new material facts into the case. Price, at 814. The transcript reveals that there was no real exploration of why discoveiy was late. Smith merely argued he was unprepared to proceed in light of the new documents. The trial court made no findings with regard to the State's diligence.³

Applying the rule in Price, we hold that Smith has not shown the late discovery "impermissibly prejudiced" the preparation of his defense. Indeed, we are not convinced that in this case the late documents posed a problem to the defense sufficient to warrant a continuance. The only new evidence in the followup report was the address and telephone number of the suspect Johnson. Officer Keefe's statement, which was timely provided to the defense, disclosed the fact that Johnson had been arrested at the same time as Smith; that a search had disclosed a baggie of suspected marijuana and a baggie containing suspected rock cocaine; and that these had been placed in a separate sealed evidence bag. There is nothing in the tardily disclosed followup report that is inconsistent with those facts. We are at a loss to explain how, in the face of Keefe's statement, defense counsel could develop the defense strategy she argued was upset by the late disclosure. That defense is simply unsupported in the record. Furthermore, there has been no showing that Smith could not have dealt with the "new" information by attempting to contact Johnson on the first day of trial or that evening, the remedy that the trial court suggested when the new materials were first proffered to the defense. Nor has Smith shown that defense counsel could not have interviewed Officer Keefe or consulted with Smith during the same timeframe if she believed it necessary.

The new lab report, at most, upset the defense theory challenging the State's chain of evidence. Here again, the officers' first report and "statement" disclose that two evidence bags were involved in this case; one for Smith containing one piece of suspected rock cocaine, and one for Johnson containing both marijuana and rock cocaine. The second lab report only confirms those facts. The production of potentially incriminating evidence does not necessarily result in unfair or unjust prejudice to the defense. State v. Day, 51 Wn. App. 544, 550, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). The mere fact that the alleged discrepancies in the chain of evidence were explained by the new reports does not show that Smith was unfairly prejudiced.

In summary, the "new" information did not constitute new evidence of guilt or deprive Smith of any defense. It merely eliminated his erroneous and uninvestigated assumption that the officers had confused the cases. Even assuming, arguendo, that Smith needed additional time to meet the new discovery, we hold that a continuance beyond the speedy trial period was permissible under Guloy and Price. Under all the circumstances of this case, the trial court's denial of the motion to dismiss was not a manifest abuse of discretion.

Pursuant to RAP 9.11, the State has moved in this court to take additional evidence on review which allegedly demonstrates Smith was not prejudiced by the late discovery regarding Johnson. In view of our holding here, this relief is not necessary. Accordingly, we deny the State's motion to take additional evidence and affirm the trial court decision.

Affirmed.

Forrest, J., concurs.

1 CrR 3.3(h)(2) provides:

"On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance."

2 In addition to Price, the dissenting opinion relies heavily on State v. Sherman, 59 Wn. App. 763, 801 P.2d 274 (1990). In that case, this court merely held that the trial court did not abuse its discretion in dismissing the case where there were numerous instances of the State's mismanagement of the case in addition to its total failure to produce certain documents as ordered. This court noted that "[w]hen the defendant is forced to abridge his or her speedy trial right in order to obtain discovery necessary to prepare his or her defense, we believe that the trial court may properly exercise its discretion by granting dismissal." (Italics ours.) Sherman, at 771 n.3. We do not disagree. In fact, we adhere to the Sherman court's statement that "the question of whether dismissal is an appropriate remedy is a fact-specific determination that must be resolved on a case-by-case basis." Sherman, at 770-71. We do not view Sherman as establishing an absolute rule requiring dismissal in such cases.

We do, however, disagree with one aspect of the Sherman analysis. The dissent quotes a passage from Sherman stating that a defendant should not be "asked to choose between two constitutional rights in order to accommodate the State's lack of diligence." (Italics ours.) Sherman, at 770. We believe that this statement confuses the speedy trial rule, CrR 3.3, with the constitutional right to a speedy trial. The Supreme Court in Price, at 813-14, clearly limited its analysis to the speedy trial rule under CrR 3.3. A violation of the court rule does not necessarily result in a constitutional violation. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989). Smith has not argued a violation of the constitutional right, and we reject any suggestion that this right is at issue here.

3 In a similar vein, we also reject the dissenting opinion's statement that " 'governmental misconduct' occurred here”. Dissent, at footnote 4. No argument or finding about misconduct was made below.