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State v. Ramos

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
KEVIN ALLEN RAMOS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-04702-1. Date filed: 09/21/95. Judge signing: Hon. Jo Anne Alumbaugh.

Authored by Faye C. Kennedy. Concurring: C. Kenneth Grosse, Susan R. Agid

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- The State appeals the trial court's orders permitting withdrawal and substitution of defense counsel, denying its motion for reconsideration, and dismissing the VUCSA charge against Kevin Ramos under CrR 4.7 and 8.3(b). The State contends that because there was no actual conflict of interest, the trial court erred in permitting the withdrawal and substitution of defense counsel. The State also contends that the trial court abused its discretion in dismissing the charge because the prosecutors committed neither discovery violations nor mismanagement, and the record fails to reflect any prejudice to Ramos. We agree with the State's position on both issues and reverse and remand for reinstatement of the VUCSA charge.

FACTS

On July 7, 1995, Kevin Ramos and Tina Holdman, also known as Tina Holden, were charged with Violation of the Uniform Controlled Substances Act for delivering cocaine within 1000 feet of a school. An omnibus hearing was set for August 25, 1995, with trial to begin on September 6, 1995. The speedy trial expiration date was September 18, 1995.

At the omnibus hearing on August 25, 1995, the State learned that Holdman was considering entering a guilty plea to the VUCSA charge. On September 5, 1995, counsel for Holdman indicated that Holdman was willing to testify for the State against Ramos. On the morning of trial, September 6, 1995, Holdman pleaded guilty to the VUCSA charge and entered into a plea agreement in which she promised to testify for the State at Ramos's trial. Immediately following the entry of Holdman's guilty plea, the deputy prosecutor contacted Ramos's counsel to notify him of the plea and of Holdman's agreement to testify for the State. Later that same day, prior to jury selection, the special prosecutor again informed Ramos's counsel that Holdman would be a witness for State, and showed him the original plea agreement and sentencing materials filed in her case. The special prosecutor provided Ramos's counsel with copies of the plea agreement the next morning.

Before September 6, 1995, both parties believed that Holdman's true surname was Holden, and that Holdman was an alias. The two names appeared, at times simultaneously and at times alternatively, on documents produced throughout discovery. For example, the incident report and police statements submitted to the defense on July 7, 1995, set forth Holdman's name as Tina Holdman, but indicated that at the precinct the officers had discovered that her true name was Tina Holden. The document entitled "For Determination of Conflicts," also provided on July 7, 1995, identified Holdman as "Tina Marie Holden." Although the conflicts document listed Holdman's date of birth as April 2, 1972, her true date of birth is April 27, 1972, as reflected in some of the police reports. *fn1 Both the regular and the special deputy prosecutors assigned to Ramos's case testified that the State first learned that Holdman's true name was Holdman rather than Holden when she entered her guilty plea on September 6, 1995. At that time, Holdman struck "Holden" from the caption of the State's pleading papers and replaced it with "Holdman." Ramos asserts that his trial counsel first learned Holdman's true name when he received a copy of her guilty plea from the State on September 7, 1995.

On the morning of September 7, 1995, Ramos's counsel informed the court that a potential conflict of interest had arisen because the Public Defender Association (PDA), of which he was a member, had previously represented Holdman on a theft charge. Citing the Rules of Professional Conduct (RPC), Ramos's counsel moved for substitution of counsel because his obligation to maintain Holdman's confidences and secrets conflicted with his duty to Ramos to attack her credibility if she testified. The State responded that the claim of conflict was unsupported. Moreover, arguing that the attorney-client privilege belonged to Holdman, the State contended that any conflict would be resolved if Holdman waived her privilege. Although Holdman did, in fact, appear in court with her counsel and waive her attorney-client privilege with full knowledge of her rights, Ramos's counsel argued that her waiver did not resolve the conflict and requested that the court appoint new counsel to advise Ramos on "how to proceed on the conflict of interest issue." Vol. 2 Report of Proceedings, at 11.

The trial court ordered that independent counsel be appointed to advise Ramos. The court appointed Michael Danko, who appeared in court and stated that it was his opinion that an actual conflict existed, and who informed the court that Ramos requested substitution of counsel. Noting that neither side was aware of what was going to happen in this particular case, the court found that there was an actual conflict of interest and accordingly granted Ramos's request for substitution of counsel. After Danko expressed his intention to move for a dismissal of the charges against Ramos based on discovery violations by the State, the court appointed Danko as substitute counsel and recessed the trial pending a hearing on the motion to dismiss.

On September 14, 1995, the State moved for reconsideration of the trial court's order permitting withdrawal and substitution of counsel. The State's motion was denied. The court then heard Ramos's motion to dismiss. Ramos argued that the State had mismanaged the case by failing to properly identify Holdman, thereby precluding an accurate conflicts check, and by proffering her as a witness on the "eve of trial." Ramos argued that the State's mismanagement forced him to choose between effective assistance of counsel and his right to a speedy trial. The State responded that because it disclosed Holdman's true name promptly upon learning it, there was no discovery violation or mismanagement of the case. Moreover, the State argued, because Ramos's trial had already begun on September 6, with speedy trial not expiring until September 18, 1995, any claim of prejudice was unsupported.

Finding that the State was not at fault for failing to earlier identify Holdman as a witness, the trial court nonetheless granted Ramos's motion to dismiss because "the State was in a position to provide correct information about her identity to the defense much earlier than it did."

Clerk's Papers at 137. The court found:

10. The State has held the keys to handling this whole problem.

The State could have chosen to go forward with its case without calling Ms. Holdman as its witness, but the State was adamant in insisting on calling the co-defendant as a witness.

11. The State's failure to timely identify the actual identity of Tina Holden as Tina Holdman constitutes mismanagement based on the readily available information in the prosecutor's office during the pendency of this case which established her actual identity as Tina Holdman. While the mismanagement is not dishonest, it remains mismanagement. Clerk's Papers at 138. The court concluded that the mismanagement of the information regarding Holdman's true identity constituted "violations of the duties imposed under CrR 4.7(h)(7)(i) and of the obligations created by CrR 8.3(b)," and dismissed the case with prejudice. Clerk's Papers at 138.

The State timely appealed the trial court's orders permitting withdrawal and substitution of counsel, denying its motion for reconsideration, and dismissing the prosecution under CrR 4.7 and 8.3(b).

Discussion

I

The State contends that the trial court erred in finding an actual conflict of interest and permitting the withdrawal and substitution of counsel. Ramos responds that the trial court had no duty to determine that an actual conflict existed before permitting the withdrawal ...


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