No. 64957-4-I.The Court of Appeals of Washington, Division One.
Filed: February 22, 2011.
BECKER, J.
The State appeals dismissal of a burglary charge against D.A.R., a juvenile. D.A.R. committed two burglaries on the same day against two different victims. The police investigated and referred charges for the two crimes sequentially instead of concurrently. As a result, D.A.R. had already been charged with and accepted a deferred prosecution for one burglary before being arraigned on the second. The trial court dismissed the second charge under rules that allow dismissal for governmental misconduct or unreasonable delay in the referral of a charge to the prosecutor. We reverse.
The first burglary occurred at 1:15 p.m. on May 18, 2009, at the home of David Reis. The perpetrators fled when Reis came downstairs. Reis gave chase and momentarily cornered one of them. He later identified the 15 year old youth in a photo montage as D.A.R.
The second burglary occurred a few blocks away and about two hours later in the home of Nancy Goree. D.A.R. became a suspect in the Goree burglary as well.
Both burglaries were assigned to Detective Neil Woodruff of Seattle police for follow-up investigation. He investigated the Goree burglary first. He submitted his final report on the Goree burglary to the King County prosecutor on July 6, 2009. By July 13, 2009, he was investigating the Reis burglary. On August 11, he interviewed D.A.R. as part of his investigation. Detective Woodruff finished his work on the Reis case on August 12 and referred it to the prosecutor on August 13, where it was received the next day.
The prosecutor arraigned D.A.R. for the Goree burglary on August 13. On August 28, D.A.R. attended a case setting hearing for the Goree charges. The prosecutor’s office did not inform defense counsel that police had recommended charging D.A.R. for the Reis burglary. D.A.R. requested a deferred prosecution for the Goree burglary. The hearing on the request was set for September 23, 2009.
The prosecutor filed the Reis burglary charge on September 21. D.A.R. was assigned different counsel for the Reis burglary. Defense counsel in the Goree matter was still unaware of the Reis matter.
On September 23, the court granted D.A.R.’s request for a deferred prosecution in the Goree matter, conditioned on D.A.R.’s agreement to remain drug and alcohol free and maintain regular attendance and passing grades in school.
On October 5, D.A.R. was arraigned on the Reis burglary. D.A.R. pled not guilty.
On December 29, D.A.R. moved to dismiss the charge in the Reis burglary. By this time, defense counsel had learned of the deferred prosecution in the Goree matter and had become concerned that the State would offer evidence of the Goree burglary at his trial on the Reis matter.
At the hearing, defense counsel informed the court that D.A.R. was doing well with the conditions of deferred prosecution imposed in the Goree case. The trial court asked the State to consider combining the second charge with the already deferred prosecution of the Goree case to further the remedial goal of the Juvenile Justice Act of 1977. The prosecutor said he did not think the State had agreed to the first deferment and as a matter of policy would not agree to defer prosecution of two burglaries. The hearing proceeded, and the parties disputed whether the State’s handling of the Reis charge had resulted in actual prejudice. The court granted D.A.R.’s motion to dismiss the Reis charge under both LJuCR 7.14(b) and CrR 8.3(b), finding D.A.R. would be prejudiced from the “delay in filing” by having the Goree burglary used against him at trial under ER 404(b). The State appeals.
This court reviews a dismissal for a manifest abuse of discretion. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638
(2003).
In King County, a trial court may dismiss a charge against a juvenile under a local rule, LJuCR 7.14(b), “if it is established that there has been an unreasonable delay in referral of the offense by the police to the prosecutor and respondent has been prejudiced.”
For purposes of this rule, a delay of more than two weeks from the date of completion of the police investigation of the offense to the time of receipt of the referral by the prosecutor shall be deemed prima facie evidence of an unreasonable delay.
LJuCR 7.14(b).
The rule governs the period between when the police complete an investigation and when they refer it to the prosecutor. D.A.R. contends it also governs the amount of time the police may take to complete an investigation once it is begun and the amount of time the prosecution may take to file charges after receiving the referral. Neither of those periods are delays contemplated within the language of the rule. State v. Cantrell, 111 Wn.2d 385, 388, 758 P.2d 1 (1988) (“The 1988 rule . . . permits dismissal if there has been an unreasonable delay in referral of the offense by the police to the prosecutor.“). Here, the prosecutor’s office received the referral of the Reis case two days after Detective Woodruff completed his investigation. D.A.R. argues that the rule gives a trial court unlimited discretion to decide whether a delay is unreasonable. But discretion must be exercised on a tenable basis. It is untenable to say that two days was an unreasonable delay.
A trial court may also dismiss charges under CrR 8.3(b) if satisfied by a preponderance of the evidence that there was (1) arbitrary action or governmental misconduct and (2) prejudice affecting the defendant’s right to a fair trial. Rohrich, 149 Wn.2d at 654. As to the first element, government misconduct does not have to be evil or dishonest in nature; simple mismanagement is sufficient. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997).
D.A.R. contends mismanagement is established by Detective Woodruff’s failure to investigate the two burglaries at the same time and the prosecutor’s failure to file the charges together. But D.A.R. offers no authority on this point. The rule is not designed to grant courts the authority to substitute their judgment for that of the prosecutor or second guess law enforcement investigations. Cantrell, 111 Wn.2d at 389-90. This case is not like Michielli, where the facts strongly suggested that the prosecutor’s delay in adding extra charges was done to harass the defendant. See Michielli, 132 Wn.2d at 244. D.A.R. does not offer a tenable basis for concluding there was anything unprofessional or conspiratorial about the way the two matters were handled by agents of the State. Having been interviewed by the detective on August 11 in connection with the investigation of the Reis burglary, D.A.R. himself could have informed defense counsel in the Goree matter there was another charge being considered.
D.A.R. did not establish unreasonable delay by the police in referring the Reis matter, and he did not establish governmental misconduct. The trial court abused its discretion by dismissing under LJuCR 7.14(b) and CrR 8.3(b).
This court may affirm the trial court’s order of dismissal “on any ground within the pleadings and proof.” Michielli, 132 Wn.2d at 242. D.A.R. contends the mandatory joinder rule furnishes an alternative basis for the dismissal because he included it in his argument below. In general, under this rule, a defendant who has been tried for one offense is entitled to dismissal of a charge for a related offense. CrR 4.3.1(b)(3). For two or more offenses to be related, they must be “based on the same conduct.” CrR 4.3.1(b)(1). Based on the same conduct means “conduct involving a single criminal incident or episode.” State v. Lee, 132 Wn.2d 498, 503, 939 P.2d 1223
(1997). Two offenses that involve different victims do not involve a single incident or episode, and thus are not based on the same conduct. See Lee, 132 Wn.2d at 503-05. The mandatory joinder rule does not apply.
Reversed.