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State v. Clark

August 8, 1996

STATE OF WASHINGTON, PETITIONER,
v.
RICHARD M. CLARK, RESPONDENT.



Appeal from Superior Court, Snohomish (95-1-00528-9) County; Honorable Richard J. Thorpe, Judge. Judgment Date: 12-15-95.

Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Alexander, Sanders, J.j., Concurring.

The opinion of the court was delivered by: Talmadge

EN BANC

TALMADGE, J. -- After deciding to seek the death penalty for Richard M. Clark, the State did not serve the special notice on Clark or his counsel personally. Instead, relying on a long-standing agreement between the Snohomish County Prosecutor's Office and the Public Defender Office for daily pickup of papers, the State left the notice in a designated box, and a Public Defender staff person picked it up, stamped it "received," and delivered it to the defendant's attorney. Although the notice was filed and received by defense counsel within the statutory time period, the Snohomish County Superior Court found service was not timely under RCW 10.95.040 and barred the possibility of a death sentence in this case.

We hold the notice was timely filed and served for purposes of RCW 10.95.040(2) when it was served on the Public Defender Office in accordance with the requirements of CR 5. We reverse the order of the Snohomish County Superior Court and remand the case for further proceedings pursuant to RCW 10.95.

ISSUE

Was the notice of special sentencing proceeding properly served under RCW 10.95.040?

FACTS

Seven-year-old Roxanne Doll disappeared the night of March 31, 1995. Several days later, her body was found. Defendant Clark was a friend of Roxanne's family. Relying on physical evidence and information provided by his relatives, the police arrested Clark. On April 14, 1995, he was charged with first degree kidnapping, rape, and aggravated murder in connection with the crime. *fn1

Clark was arraigned on April 17, 1995. Bill Jacquette, the director of the Snohomish County Public Defender Association, appeared on Clark's behalf. At Jacquette's request, the trial court extended the time for filing and service of the death penalty notice until 5:00 p.m. on September 22, 1995.

On September 19, 1995, a deputy prosecutor phoned Jacquette and advised him the death penalty notice would be filed. It is undisputed the notice was timely filed in the Snohomish County Superior Court on that date. That same day, pursuant to an agreement between the Public Defender Office and the Prosecutor's Office, the notice was left in the Public Defender Office box in the Prosecutor's Office with a cover memorandum. The death penalty notice and memorandum were picked up by a Public Defender Office staff person and carried to that office where they were stamped "Received Sep 20 1995 Sno. Co. Public Defender." It is not disputed the notice was received by counsel for Clark within the statutory period.

The trial court described the arrangement between the offices as follows:

VIII.

The offices of the prosecuting attorney and the public defender have an agreement for transferring correspondence and other papers. Twice each day a non-attorney staff person of the public defender's office delivers its correspondence and other papers for the prosecuting attorney to the prosecutor's office and retrieves the correspondence and other papers from ...


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