Opinion
No. 21735-3-III.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No. 01-1-02292-5. Judgment or order under review. Date filed: 12/13/2002. Judge signing: Hon. James P Hutton.
Counsel for Appellant(s), Douglas Kell Garrison, Garrison Law Offices PS, PO Box 269, Sunnyside, WA 98944-0269.
Counsel for Respondent(s), Kevin Gregory Eilmes, Attorney at Law, Pros Atty Offc Rm 329, 128 N 2nd St, Yakima, WA 98901-2639.
Miranda Martinez was convicted of first degree theft. On appeal, she claims: (1) she was not timely arraigned on the amended information; (2) untimely discovery from the State rendered her counsel ineffective; (3) a State's witness committed perjury and thus denied her right to confrontation; (4) the court improperly excluded defense witnesses; (5) the jury did not consider the evidence; (6) the court erred by refusing to replace an ill juror with an alternate; and (7) the judge improperly commented on the evidence. We affirm.
Ms. Martinez worked as a bookkeeper for Long's Drugs in Yakima. The store had received variance reports that indicated the amount of money orders issued did not match the amount of money received. On December 17, 2001, Keith Cole, the Loss Prevention Manager for Long's Drugs, began surveillance of the money order machine at the Yakima store. The tape showed Ms. Martinez printing money orders and taking them for herself. On December 19, Joe Kennish, the manager of the Yakima store, spoke with Ms. Martinez about taking money. She admitted she had taken $63,275.12 from the store. She also admitted to Mr. Cole and the arresting officer that she took the money.
Ms. Martinez was convicted of first degree theft. The court imposed an exceptional sentence of four months imprisonment, which was converted to three months of home monitoring and one month in jail. She was also ordered to pay $53,557.31 restitution. This appeal follows.
The State initially charged Ms. Martinez with first degree theft and arraigned her on that charge on December 24, 2001. On December 27, the State amended the information by changing the dates she was alleged to have committed the crime. She was not arraigned on the amended information until August 5, 2002.
Ms. Martinez claims the court should have dismissed the case when it did not promptly rearraign her on the amended changes. Generally, a defendant must be arraigned no later than 14 days after the information is filed. Former CrR 3.3(c)(1) (2003). The arraignment at issue is on the amended charge. Former CrR 3.3(c)(5) (2003) states:
Rearraignment. If a defendant is required to be rearraigned on a charge that arises out of the same occurrence and has the same elements of proof as those upon which the defendant was previously arraigned, the time for trial established in this section shall commence on the date of the previous arraignment in superior court.
Ms. Martinez was arraigned on the initial charge on December 24. The amended information only changed the dates she was alleged to have committed the crime and thus arose from the same occurrence and had the same elements of proof as the initial charge. Under former CrR 3.3(c)(5), her speedy trial time is calculated from her initial arraignment on December 24, 2001.
On August 5, 2002, when Ms. Martinez was rearraigned, the defense made no claim that speedy trial rights were violated other than by her untimely arraignment. But the State's failure to promptly rearraign Ms. Martinez caused her no prejudice. Indeed, she argues only that prejudice is presumed. It is not. State v. Frank, 112 Wn. App. 515, 523, 49 P.3d 954 (2002). The late rearraignment does not require dismissal.
Ms. Martinez further claims the court erred by refusing to dismiss the case because of the State's discovery violations. On August 5, 2002, Ms. Martinez's counsel filed a motion to dismiss based on the State's failure to provide prompt and adequate discovery. Defense counsel had earlier received a packet of information including one page of discovery. That page was a variance report indicating the store was short $330.91. On July 23, 2002, defense counsel received 504 pages, some illegible, of discovery. On July 24, counsel received additional discovery, including 196 pages of register tapes, a video tape, and an audio tape. On August 5, counsel received even more material, including variance reports reviewed and initialed by Ms. Martinez. Defense counsel then asked the court to exclude all the additional discovery materials for untimely discovery.
The court ruled that the 500-plus pages of discovery received on July 23 were inadmissible as well as the register tapes. The court also determined that the audio tape, the video tape, and variance reports initialed by Ms. Martinez were admissible.
Ms. Martinez claims the court's remedies were improper. Possible sanctions for discovery violations include discovery of undisclosed information, a continuance, dismissal, or other action the court deems necessary. CrR 4.7(h)(7). The sanction imposed is a matter within the court's discretion, and we review the sanctions imposed for a manifest abuse of discretion. State v. Smith, 67 Wn. App. 847, 851, 841 P.2d 65 (1992), review denied, 121 Wn.2d 1019 (1993). Dismissal for a discovery violation is an extraordinary remedy. Id. at 852. The trial court may instead grant a continuance "when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense." Id. (quoting former CrR 3.3(h)(2) (2003)).
Here, the court found several discovery violations. In fact, it deemed most of the additional discovery material inadmissible. The only items admissible were the variance reports initialed by Ms. Martinez, an audio tape, and a video tape, all of which were pieces of evidence Ms. Martinez was aware of and stored in the police evidence room. They were not lengthy or difficult for the defense to interpret. The court did not abuse its discretion by admitting them.
But Ms. Martinez claims that the State's discovery violations were so severe that dismissal was the only remedy warranted. Dismissal for a discovery violation, however, is an extraordinary remedy available only when the defendant has been prejudiced by the prosecution's action. State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996). Other than by mere argument, Ms. Martinez has failed to establish she was actually prejudiced by the late discovery.
She further asserts that she should not have been forced to choose between waiving her right to speedy trial or her right to be represented by adequately prepared counsel. If the State inexcusably fails to act with due diligence and material facts are thus not disclosed to the defendant until shortly before a crucial stage in the litigation process, it is possible that either a defendant's right to a speedy trial or his right to be represented by counsel who has had sufficient opportunity to present a defense may be prejudiced. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). The defendant must show by a preponderance of the evidence that the interjection of new facts compelled her to choose between prejudicing either of these rights. Id.
Ms. Martinez cannot make the required showing here. The items in the discovery documents at issue did not contain facts of which she was unaware. She knew she initialed variance reports. She could have requested a continuance, but none was sought. There was no error. Ms. Martinez contends Mr. Cole, a State's witness, committed perjury and thus denied her right to confront him. Yet she cites no legal authority to support this claim. Without it, an assignment of error is waived. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
She also assigns error to the court's exclusion of a defense witness. Ms. Martinez listed as a witness Charlene Mort, a former employee of Long's Drugs, who had been questioned in the same manner as she had. Ms. Martinez wanted her to testify to demonstrate how she was treated during her interview. By pointing to Ms. Mort's experience, Ms. Martinez wanted to establish that her own statements were not voluntarily given. Stating her situation had no relevance to this case, the court excluded Ms. Mort. We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). ER 402 permits the admission of all relevant evidence. ER 401 defines relevant evidence as `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'
Although Ms. Martinez mentions three witnesses in her brief, the record reflects but one witness who was excluded.
How Ms. Mort felt or was treated during her interview had no bearing on Ms. Martinez's situation. Any testimony Ms. Mort could have given was simply not relevant. The court properly excluded the witness.
Ms. Martinez further asserts she was entitled to a new trial because the jury committed misconduct. A trial court's decision on a motion for new trial based on juror misconduct or juror bias will not be disturbed on appeal unless the ruling is based on an erroneous interpretation of the law or constitutes an abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). Appellate courts are generally reluctant to inquire into the manner in which a jury reaches its verdict. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 897, 1 P.3d 587 (2000), review denied, 146 Wn.2d 1016 (2002). "A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury." Id. (quoting State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994)).
Ms. Martinez first claims the jury did not deliberate long enough to consider all the evidence. But she again cites no legal authority supporting her argument. The assignment of error is thus waived. Smith, 106 Wn.2d at 451-52.
Ms. Martinez also claims she was entitled to a new trial because an ill juror was not replaced with an alternate. Shortly after the jury began deliberations, the bailiff told defense counsel that one of the jurors was sick and wanted to go home. The court was never told and a verdict was rendered 32 minutes later. Ms. Martinez claims this information should have been given to the court so that the alternate juror could have been seated.
When the jury returned with a verdict, defense counsel did not advise the court what the bailiff had told him. Counsel did nothing to alert the court to any potential error. His failure to act on this information waives the issue. See State v. Williams, 96 Wn.2d 215, 226, 634 P.2d 868 (1981) (a claimed irregularity does not result in an unfair trial if the defendant fails to timely assert the irregularity).
Ms. Martinez claims the judge improperly commented on the evidence. Judges may not comment on the evidence. Wash. Const. art. IV, sec. 16. A judge violates this rule if he communicates to the jury his feelings about the truth value of a witness's testimony. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).
During the trial, defense counsel told the court it had come to his attention that the judge was making facial expressions and gestures that could be interpreted as comments on the evidence. The judge indicated he would do his best to control his facial expressions and gestures and also instructed the jury that it should not interpret any expressions or gestures as comments on the evidence. This was proper.
Moreover, the jurors were cautioned before trial, during trial, and in the written instructions to disregard any apparent comment on the evidence. They are presumed to have followed these instructions. State v. Ingle, 64 Wn.2d 491, 499, 392 P.2d 442 (1964).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and SCHULTHEIS, J., concur.