State v. Austin

Quinn-Brintnall, A.C.J.

(dissenting) — The appellant, Leroy F. Austin, lived with the nine-year-old girl and her family but moved after the girl reported that Austin had sexually molested her. When the Pacific County sheriff’s deputy interviewed Austin concerning the first degree rape of a child charges, Austin was staying at a hotel, was transient, and provided no residence address.

Today the majority imposes a new duty on the State: to warn a defendant that a warrant for his arrest has issued and thus provide him an opportunity to surrender or flee. If the State fails to forewarn of its intention to arrest, the majority holds, dismissal of felony child rape charges is mandated under CrR 3.3, a wholly court-created procedural rule. I believe that the majority opinion extends law and I respectfully dissent.

At an interview with the sheriff’s deputy on February 3, 2000, Austin did not have, nor did he later make available to the Pacific County authorities, a permanent address. *330Austin did tell the sheriff’s deputy that he was represented by an attorney, Eric Valley, and gave the deputy Valley’s business phone number in an adjoining county. Valley did not contact the sheriff’s office to confirm that he was representing Austin, nor did he provide a guaranty that he would surrender Austin in the event charges were filed.4 Thus, Austin’s claim that Valley was representing him on February 3, 2000, was not confirmed.

Austin demanded that police contact him only through a particular person, an attorney. But our Supreme Court has ruled that a criminal defendant may not appear through counsel. See State v. Hackett, 122 Wn.2d 165, 857 P.2d 1026 (1993) (defense attorney’s notice of appearance and demand that the State send all correspondence through the attorney insufficient to demonstrate defendant’s presence before the court or trigger the running of the timely trial limits under CrR 3.3(d)(2)). Here, as in Hackett, neither the court nor the State had any information about Austin’s whereabouts or any assurance that he would appear.

According to the majority, the State must accept a transient suspect’s representations at face value and send a summons to whomever the suspect demands before requesting that the court issue a warrant. I do not believe that court rules applicable to this case, current case law, or our state and federal constitutions require law enforcement to make such an unreasonable and potentially dangerous leap of faith.

CrR 3.3 is a rule enacted by the Supreme Court under its procedural authority to regulate the flow of cases through the superior court. See RCW 2.04.200 (court rules supersede statutes). In my view the superior court lacks both the power and the authority to apply these procedural rules until both the defendant and the charge are before it. State v. Galbreath, 109 Wn. App. 664, 668, 37 P.3d 315 (2002). Moreover, neither CrR 3.3 nor the cases interpreting it preclude a court from issuing a felony arrest warrant *331until the State has proved that a summons is futile.5 Nothing in the cases relied on by the majority requires that a person charged with a felony be given notice and an opportunity to flee before service of an arrest warrant. Finally, State v. Perry, 25 Wn. App. 621, 623, 612 P.2d 4 (1980), which holds that the State has no duty to search out a defendant for whom an arrest warrant has issued,6 (ii)is still good law and neither common sense nor case law requires that we abandon it.

Here, under the law existing at the time, the trial court properly exercised its discretion to issue an arrest warrant *332for a transient defendant charged with first degree child rape. The notice requirements applicable to a summons to appear, expressed in State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976), and State v. Greenwood, 120 Wn.2d 585, 845 P.2d 971 (1993), are inapplicable when the court has issued a valid arrest warrant. Because the superior court lacked the authority to proceed to trial until it had both Austin and the charge before it, former CrR 3.3 (1995) was not violated. Thus I dissent.

Valley did not file a notice of appearance in the case until July 20, 2001, 14 days after Austin was arrested on the warrant.

But the recently amended CrR 2.2(a)(3) (effective September 1, 2003) may do so:

(3) Ascertaining Defendant’s Current Address.
(i) Search for Address. The court shall not issue a warrant unless it determines that the complainant has attempted to ascertain the defendant’s current address by searching the following: (A) the District Court Information System database (DISCIS), (B) the driver’s license and identicard database maintained by the Department of Licenses, and (C) the database maintained by the Department of Corrections listing persons incarcerated and under supervision. The court in its discretion may require that other databases be searched.
(ii) Exemptions from Address Search. The search required by subdivision (i) shall not be required if (A) the defendant has already appeared in court after filing of the same case, (B) the defendant is known to be in custody, or (C) the defendant’s name is unknown.
(iii) Effect of Erroneous Issuance. If a warrant is erroneously issued in violation of this subsection (a)(3), that error shall not affect the validity of the warrant.

Whatever the wisdom of this new rule, it did not take effect until September 1, 2003, and does not control our decision in this case. Nor is it clear how the address search requirement of CrR 2.2(a)(3) relates to the court’s ability to issue a warrant when it has reasonable cause to believe that the defendant will not appear in response to a summons issued in a misdemeanor or gross misdemeanor case. See CrR 2.2(b)(2):

When summons must issue. If the indictment or information charges only the commission of a misdemeanor or a gross misdemeanor, the court shall direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent bodily harm to the accused or another, in which case it may issue a warrant.

In Perry, we held that the law of this state “has not yet reached the point where the Prosecuting Attorney, or the law enforcement agencies, have to physically go out and search the countryside for defendants who have either given the wrong address to the Court or who moved from that address without leaving forwarding information.” 25 Wn. App. at 623.