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State v. Maupin

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
DAVID MAUPIN, APPELLANT.



Appeal from Superior Court of Skagit County. Docket No: 94-1-00038-1. Date filed: 07/01/94. Judge signing: Hon. Michael E. Rickert.

PER CURIAM. David Maupin appeals from the judgment and sentence entered following his convictions of manufacturing a controlled substance and conspiracy to manufacture a controlled substance. Maupin contends that his CrR 3.3 right to a speedy trial was violated and that there was insufficient evidence to support his convictions. We conclude that all three of his trial dates met the requirements of CrR 3.3 and that his convictions are supported by the evidence.

FACTS

In July 1993, an anonymous informant contacted a deputy sheriff in Skagit County to report that Pat Coyle was growing marijuana in a rental house in Alger, Washington. The police conducted a preliminary investigation and later enlisted the assistance of the Drug Enforcement Agency (DEA). A search warrant for the rental property was ultimately issued. The warrant was executed on November 15, 1993. The search team discovered a marijuana growing operation in the basement consisting of approximately 89 plants. David Maupin, the owner of the property, was arrested at the scene.

Maupin was charged with manufacturing a controlled substance and conspiracy to manufacture a controlled substance. He was convicted of both counts and standard range sentences were imposed. Maupin appealed.

DECISION

CrR 3.3 Speedy Trial Violation Maupin contends that his CrR 3.3 right to a speedy trial was violated because he was arrested on November 15, 1993, but was not tried until May 17, 1994, "some 197 days after his arrest". Maupin's argument is without merit.

First, Maupin does not contend that there was an inordinate delay between the time of his arrest and arraignment. Therefore, his arraignment date is the date critical to the calculation of speedy trial under CrR 3.3, not the date of his arrest. According to Maupin's own brief, he was arraigned on November 23, 1993. Because Maupin was out of custody, CrR 3.3(c)(1) required that his trial commence within 90 days. Maupin's first trial began on February 7, 1994 which was within 90 days of his arraignment.

The first trial ended in a mistrial on February 9, 1994. The court ruled that the testimony leading to the mistrial was inadvertent. That ruling has not been challenged on appeal. Because of the mistrial, the State was afforded a new 90-day period in which to try Maupin. CrR 3.3(d)(3). An order was entered setting the new expiration date at May 10, 1994. No objection was raised to this calculation. A pretrial hearing was set for April 29 and trial was scheduled for May 9.

In April, Judge Michael Rickert heard a motion to suppress the evidence found in the execution of the search warrant in the companion case of State v. Coyle. The court granted the motion on April 29. At that time, Maupin's counsel appeared and indicated that he would file a suppression motion on the same grounds successfully argued by Coyle. The court instructed Maupin's counsel to brief the matter including the question of standing.

On May 6, the court entertained the State's motion for reconsideration in State v. Coyle and Maupin's motion for suppression. The court had been made aware of State v. Olson, No. 92-1-00309-0, an unpublished case from Division One that reversed a decision of one of Judge Rickert's superior court colleagues. The decision was interpreted by Judge Rickert as changing the prior law regarding the foundation necessary to establish that a person had the expertise to detect the odor of marijuana. The State advised Judge Rickert that the State had moved for publication. Because such a change in the law could alter his decision on reconsideration in the Coyle case and would likewise be significant in addressing Maupin's motion to suppress, Judge Rickert decided to continue the State's motion for reconsideration and extend Maupin's speedy trial expiration date by five days to May 16 to determine whether the court of appeals intended to publish State v. Olson, thus making it binding precedent. Maupin's counsel objected to the extension of speedy trial.

Maupin argues on appeal that the trial court erred in granting the five-day extension because continuing "the trial for the purpose of ruling on a defense motion [is] an improper purpose under the provisions of CrR 3.3". Maupin cites State v. Tidwell, 32 Wash. App. 971, 651 P.2d 228 (1982) in support. The contention fails.

Tidwell was a juvenile case presenting the question of whether an extension of time to entertain a defense motion was an excluded period under JuCR 7.8(c). Analogizing to the excluded periods listed for adult defendants under CrR 3.3(d), which has since been designated as CrR 3.3(g), this court held that because defense motions were not specifically enumerated as excluded periods under the rule, the time for considering defense motions was presumably not intended to be excluded. Tidwell, at 978. Accordingly, Tidwell does not stand for the proposition that the court does not have the authority to grant a five-day extension of trial under CrR 3.3(d)(8) to accommodate an unforeseen circumstance that arises as a result of a defense motion.

A court's decision to grant a five-day extension pursuant to CrR 3.3(d)(8) is reviewed on appeal for manifest abuse of discretion. State v. Kelley, 64 Wash. App. 755, 761, 828 P.2d 1106 (1992). Judge Rickert granted the extension for the purpose of determining whether State v. Olson *fn1 would be published and, therefore, become binding precedent. Contrary to Maupin's assertion, Judge Rickert did not improperly consider an unpublished case as precedent, but merely delayed his decision in order to determine if Olson would be published. The court's reason for granting the extension was tenable and we find no abuse of discretion.

After denial of Maupin's motion to suppress, the case was assigned to Judge Stanley Bruhn for trial on May 16. Maupin filed an affidavit of prejudice against Judge Bruhn. Maupin's trial began with jury empaneling on May 17 before Judge Rickert. Due to "administrative difficulties" that are not explained in the record, the trial did not reconvene until June 1, 1994. Maupin contends that this ...


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