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STATE OF WASHINGTON,                                                                  i—•

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                                                  No. 73814-3-1                          po
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                     Respondent,                                                                   "-:.-:..


                                                  DIVISION ONE
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STEPHEN J. HOPE,                                  UNPUBLISHED OPINION                         v


                     Appellant                    FILED: August 22. 2016

       Spearman, J. — It is within the trial court's sound discretion to dismiss criminal

charges against a defendant when a necessary witness for the State is unavailable for

trial. The exercise of that discretion requires the trial court to make reasonable efforts to

learn whether the witness can be made to appear within a reasonable time. The extent

of the trial court's efforts and what constitutes a reasonable time are specific to the facts

of each case. In this case, the trial court abused its discretion when it dismissed the

charge against the defendant without knowledge of when the witness would appear and

more information would have soon been available without causing a delay in the

proceedings. We reverse and remand.

                                           FACTS

       Early in the morning on May 16, 2014, a yellow Chevrolet pickup truck was

reported stolen from Sicklesteel Cranes in Mount Vernon, Washington. The truck was

equipped with a global positioning system (GPS) tracking device and it was quickly
located by the Snohomish County Sheriff's Office. Deputy Dixon Poole saw the truck
No. 73814-3-1/2



pass him going in the opposite direction. The deputy got a clear look at the driver — a

white male wearing sunglasses, a blue hardhat, and a flagger vest.

       Poole and other deputies followed the truck to 8125 108th St. NE, Arlington,

Washington, defendant Stephen Hope's home address. Hope was charged with

possession of a stolen vehicle. Trial was set for February 27, 2015. On February 26,

2015, the parties obtained a continuance and the new trial date was May 1, 2015. On

April 2, 2015, the parties jointly requested another continuance and the court set a new

date of June 19, 2015.

       The State requested a third continuance on May 21, 2015, because the deputy

prosecutor assigned to the case would be taking medical leave. Defense counsel was

amenable to the extension but Hope was not. The trial court found good cause for the

continuance but extended the date only to July 2 instead of the requested date of July

24. On July 2, the State moved to continue trial again because Poole, a material

witness, had a prescheduled family vacation. Poole was the only officer who could

identify Hope as the driver of the stolen vehicle. The trial court reset the trial date to July

24,2015.

       At trial call on July 24, both parties answered ready and trial was set to begin the

following Monday, July 27, at 9:00 a.m. On that day both parties indicated that their

witnesses were "ready to go." Verbatim Report of Proceedings (VRP) at 19-20. The trial

was expected to last three days, concluding on Wednesday, July 29. The court heard

motions in limine, completed jury selection and gave the jury preliminary instructions

before recessing for lunch. When trial reconvened at 1:30 p.m., the State indicated for
No. 73814-3-1/3



the first time that it had been unable to contact or locate Poole, who was scheduled to

testify that afternoon.

       MR. GRANT: The second issue, over the lunch hour the State found out
       that they're having a difficult time contacting one of their witnesses so I
       may ask that we recess early today. I anticipated that witness being here
       and he is not here at this time, but we are ready to proceed with some
       evidence at this point.

       THE COURT: Who are you missing?
       MR. GRANT: Dixon Poole.
       THE COURT: Where is he?
       MR. GRANT: I don't have an answer for Your Honor.
       THE COURT: How could you not have an answer?
       MR. GRANT: Because I can't get ahold of him.
       THE COURT: How about his supervisor?
       MR. GRANT: He doesn't know where he is either. He's not signed in and
       his supervisor is unaware of where he's at right now.
       THE COURT: Is he supposed to be working? Why is this difficult to get
       this information? (sic)
       MR. GRANT: It's not a regular -
       THE COURT: Is he scheduled to be working today?
       MR. GRANT: No, he's subpoenaed to be here, he's not scheduled to work
       today. This is not a regularly scheduled date for him. I will know by close
       of business today where he's at and hopefully he will be here in the
       morning to testify.
       THE COURT: First issues first, is that acceptable to the defense to have
       him here at 9:00 to take care of that issue?
       MS. RANCOURT: Yes, Your Honor.
       MR. GRANT: He may show up today. He's not here yet.

VRP (7/27/15) at 39-41. Poole did not show up later that day, and the State's other

scheduled witness, Deputy Gibson, had gotten the dates mixed up and also failed to

appear. The State had no other witnesses to call and asked the court to recess for the

day, about two hours earlier than its usual time. The court granted the request.

       The next morning, the State notified the court that Poole had recently suffered

"an unforeseen injury." VRP (7/28/15) at 84. The State did not know when the injury

occurred, but indicated that he had had surgery during the previous week. It
No. 73814-3-1/4



represented that Poole would not be available to testify that day because he had been

prescribed and was taking a high dosage of painkillers. Poole was scheduled to see his

doctor at 11:30 that morning, after which he expected to have more information, but it

was possible that he might not be available until the following week.

      The State requested that trial proceed with the available witnesses, then find out

during the noon recess when Poole would be available to testify, and depending on his

availability, recess the trial until then. Hope's counsel objected and indicated that "we

will be making a motion to dismiss." VRP (7/28/25) at 86. Both counsel requested an

opportunity to brief the issue. When it appeared to the State that the court was not

inclined to grant a lengthy recess, it asked for a short recess at that pointto determine

Poole's availability. The court refused to grant the State another recess and indicated

that it would grant a motion to dismiss. The court stated:

       THE COURT: ...It is conceded that Deputy Poole is the State's chief
       material witness. Without him the case folds. We've had difficulty getting
       ahold of Deputy Poole. He's known at least for a week what's going on....
       He's under an obligation to notify the State and the State is under an
       obligation to know where their witnesses are. I don't find any plausible
       excuse for the failure of him to keep the State and the defense and the
       Court informed of his whereabouts. This case was continued twice, once
       by Judge Kurtz to the 17th and another one by Judge Appel over the
       defendant's objection to accommodate Deputy Poole. Even with that
       accommodation he seems unwilling to keep us informed of his
       whereabouts.

VRP (7/28/15) at 86-91. The trial court also relied on the State's representation that the
witness would "potentially" not be available until the following week and cited some
potential concerns about juror availability. The written order of dismissal, entered on
July 28, 2015, stated that "[t]he court is not willing to recess this matter until Deputy
No. 73814-3-1/5



Poole is available and the State is unable to proceed without Deputy Poole." Clerk's

Papers at 1. The State appeals.

                                      DISCUSSION


      The State argues that the trial court abused its discretion when it dismissed the

charges against Hope. It argues that the court should not have decided whether

dismissal was appropriate until after it learned later that day when the absent witness

would be available to testify. We agree.

      A trial court's decision to dismiss criminal charges is reviewed for abuse of

discretion. State v. Koerber, 85 Wn. App. 1, 3, 931 P.2d 904 (1996). A trial court abuses

its discretion if its decision is manifestly unreasonable or based on untenable grounds or

reasons. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004). A decision is

based on untenable grounds or for untenable reasons ifthe trial court applies the wrong

legal standard, relies on unsupported facts, or takes a view that no reasonable person

would take. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.2d 638 (2003).

       In this case, the morning of the second day of trial, the State advised the

trial court that its key witness had recently had surgery and was unavailable to

testify that day. The State suggested that the deputy might not be available until

the following week, but that the actual length of any recess request was

contingent on the information the State received during the noon hour after

Poole's appointment with his doctor. The record shows that the State had three

witnesses present and that it was ready to proceed with those witnesses during

the morning session. The court offered no explanation as to why it could not

proceed with the trial and await more definite information on the length of a
No. 73814-3-1/6



proposed recess. Instead it relied on the State's speculation that Poole would not

be available until the next week, concluded that a delay of that length was

unwarranted and dismissed the charge.

      The issue in this case is not the trial court's substantive decision that in

light of all the circumstances a recess to the following week was unwarranted.

Instead the issue concerns when the court made the decision, what information

the court had before it and whether gathering additional information would have

impeded the trial. We conclude it was manifestly unreasonable for the trial court to

dismiss the case when it did because the information upon which it relied was

uncertain and more reliable information was likely available to the court without

causing a delay in the proceedings.

       Koerber is instructive. Koerber, 85 Wn. App. at 3-4. In that case, the night

before trial was to begin, the State became aware that one of its critical witnesses

was sick with the flu. The State was unable to advise the court when the witness

would be able to appear. The trial court dismissed the case because the witness

"was not presently available." jd at 3. We concluded that the dismissal was an

abuse of discretion and reversed because "the judge could have proceeded and

waited to see whether the witness became well enough to testify within a

reasonable time." Id. at 4, n.2.

       Similarly here, there was no need for the trial court to decide whether
dismissal was warranted at the point it did. The trial could have gone forward with

the available witnesses. The court was aware that in a few hours it would likely

know when Poole would be available to testify. The reasonable course would
No. 73814-3-1/7



have been to proceed with the trial that morning until the extent of Poole's

unavailability became certain that afternoon. The court could then make an

informed decision about whether a recess was warranted.1 The trial court abused

its discretion because it dismissed the charge against the defendant when it was

uncertain when the witness would appear but the necessary information would

have soon been available without causing a delay in the proceedings. We reverse

the decision of the trial court and remand for further proceedings consistent with

this opinion.

       Reversed and remanded.




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WE CONCUR:




                                                            ^Se<^&iP




        11t is possible, of course, that when court reconvened after lunch, the State would either have no
new information or confirm that Poole would not be available for a week or more. We express no opinion
on whether, in either of those circumstances, dismissal would have been proper.
