State v. EricksonState v. Erickson
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- Before:
- Reed
The Clark County Superior Court dismissed a criminal charge with prejudice because the defendant was not afforded a "speedy trial" pursuant to CrR 3.3. 1 The State appeals and we affirm.
On May 11, 1977, defendant Stanley Richard Erickson was arrested for second-degree burglary and reckless driving after a high-speed chase in rural Clark County. During an impound-inventory search of his vehicle, a .25 caliber pistol was found in the glove compartment. Defendant was carrying a fully loaded ammunition clip in his coat pocket.
Preparatory to his first court appearance, defendant disclosed to a pretrial release interviewer that he had the following previous convictions: (1) first-degree burglary (Montana 1959); (2) armed robbery (Montana 1961); (3) first-degree burglary (Oregon 1971); and (4) "bad checks" (Montana 1960). Defendant further stated he had served in excess of 11 years in prison because of these convictions. The release on own recognizance (ROR) form, recording this information, was furnished to the prosecuting attorney prior to defendant's appearance on May 12. On May 13 defendant entered a plea of not guilty to second-degree burglary and second-degree theft charges. Apparently defendant had been unable to secure his release on these charges when, on June 6, Oregon authorities lodged a parole suspension hold with Clark County. 2
On July 15, 1977, defendant, having remained in continuous custody for 65 days, moved to dismiss the Clark County charges. On that date the deputy prosecuting attorney orally moved for dismissal with prejudice, citing the pendency of the Oregon proceedings and representing to
The proceedings leading to this appeal were initiated on August 4, 1977, when the State charged defendant with a violation on May 11, 1977, of
that the prosecuting attorney's office had sufficient knowledge of all essential elements of the crime . . . more than 60 days prior to the filing of this information. [And that] Possession of a firearm by a burglary suspect is sufficiently related to the burglary to require that [defendant] would be considered "held to answer" under the interpretations of CrP 3.3 by the courts.
This appeal followed.
CrR 3.3 does not directly address the question of when the "speedy trial" clock starts to run if the State files a new charge or charges against a defendant already "held to answer" for another crime. The issue has been addressed by the courts of this state, however. In
State v. Peterson,
When time commences to run.
The time for trial should commence running, without demand by the defendant, as follows:
(a) from the date the charge is filed, except that if the defendant has been continuously held in custody or on bail or recognizance until that date to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, then the time for trial should commence running from the date he was held to answer;
(Italics ours.)
In
State v. McNeil,
If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the consequence should be absolute discharge. Such discharge should forever bar prosecution for the offense charged and for any other offense required to be joined with that offense.
(Italics ours.) The court also cited the comment to the italicized portion of § 4.1, which reads:
The provision that discharge should bar prosecution for "any other offense required to be joined with that offense" incorporates by reference standards as to required joinder.
(Footnote omitted.) The McNeil court did not mention ABA Standards Relating to Speedy Trial, supra, § 2.2.
When applied to the factual situations of
Peterson
and
McNeil,
the ABA Standards provide a ready solution. Both the firing upon separate individuals during a running gun fight and the making of a series of bookkeeping entries within a given time frame clearly qualify as acts arising from the same conduct or episode. The connection between the pistol found in Erickson's vehicle and the burglary is not so obvious. The State apparently drew no such connection because it did not charge defendant with possession or use of the pistol in the commission of the burglary. Nor did the State attempt to use defendant's possession of the weapon to elevate the crime to burglary in the first degree,
On the other’hand, defendant was apprehended only moments after the burglary had occurred and as the result of a hot pursuit from the scene. When arrested he was carrying a loaded clip of ammunition for the weapon. It is fair to infer that defendant had. carried the gun with him into the dwelling and that he hád been able to thrust it into the glove box during the chase. Furthermore, if the State had
The State contends that the rule should not be strictly applied in Erickson's case, however, because the State lacked definite proof of his guilt until it received certified copies of his out-of-state convictions so that the prosecutor could be sure they were constitutionally obtained and were for "violent crimes." Further, the State argues it would have been improper to charge Erickson solely on the basis of his ROR admissions.
These arguments have some persuasive force in this case because, in order to convict on the weapons charge, proof was needed of some fact or facts extrinsic to the physical conduct or activity constituting the principal crime of burglary. We agree with the State's proposition that the speedy trial clock should not be activated on an ancillary or related offense of this category until the State has probable cause to charge. On the other hand, probable cause to charge may be present even though the prosecution does not yet possess sufficient admissible evidence to prove its case beyond a reasonable doubt. In such cases the charge should be filed; if, when the trial date becomes
This interpretation of CrR 3.3 is consistent with the provisions of CrR 4.3(c)(2) and (3),
5
which pertain to the consequences of the State's failure to join "related offenses" and also permit the trial court to consider the actual state of the prosecution's evidence in passing upon a motion to dismiss. The State can take no comfort in this interpretation of CrR 3.3 in the instant case, however, because the
The prosecutor should base his decision whether to file an information on his knowledge of the availability of evidence which will be admissible at trial and which is sufficient to establish a case against the accused.
(Italics ours.)
Affirmed.
Pearson, C.J., and Petrie, J., concur.
Notes
CrR 3.3 requires a dismissal with prejudice if a defendant, unable to secure his release from custody, is not brought to trial within 60 days and within 90 days otherwise.
From the record it is not clear whether defendant could have obtained a release on the Clark County charges had it not been for the Oregon detainer. The State has stipulated, however, that defendant remained in the custody of Clark County 'May 11, 1977 to July 15,1977 due to the defendant's arrest and prosecution in Clark County Superior Court.*
CrR 4.3(a)(2) reads as follows:
"(a) Joinder of Offenses. Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
"(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan;"
CrR 3.3(e)(2)(ii) reads as follows:
"(e) Continuances. Continuances or other delays may be granted as follows:
"(2) On motion of the prosecuting attorney if:
"(ii) the state's evidence is presently unavailable, the prosecution has exercised due diligence, and there are reasonable grounds to believe that it will be available within a reasonable time;..."
CrR 4.3(c)(2) and (3) provide:
"(c) Failure to Join Related Offenses.
"(2) When a defendant has been charged with two or more related offenses, his timely motion to join them for trial should be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion were granted. A defendant's failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
"(3) A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in section (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted." (Italics ours.)