Appeal from Superior Court of King County. Docket No: 94-1-00541-0. Date filed: 10/07/94. Judge signing: Hon. Richard M. Ishikawa.
Authored by Susan R. Agid. Concurring: Walter E. Webster, William W. Baker.
The opinion of the court was delivered by: Agid
AGID, J. -- Edward Rivera appeals his conviction for delivery of a controlled substance while armed with a deadly weapon, arguing that the trial court erred in denying his motions to dismiss for violation of his speedy trial rights and to suppress evidence seized as a result of a search incident to an arrest for which there was no probable cause, permitting the State to amend the information on the day of trial when the State had agreed not to do so, and refusing to instruct the jury on entrapment and on the lesser included offenses of possession and attempted possession of a controlled substance. We affirm.
Because this opinion will not be published and the parties are familiar with the record, we proceed without an introductory summary of the facts.
Rivera first contends that his right to a speedy trial was violated. Under CrR 3.3(c)(1) a defendant not released from jail must be brought to trial no later than 60 days after arraignment. CrR 3.3 defines a judicially-granted procedural right to a speedy trial but does not define the limits of the constitutional speedy trial right. State v. Andrews, 66 Wash. App. 804, 809, 832 P.2d 1373 (1992), review denied, 120 Wash. 2d 1022, 844 P.2d 1017 (1993) (citing State v. Fladebo, 113 Wash. 2d 388, 393, 779 P.2d 707 (1989)). Because the rules are designed to protect, not guarantee the right to a speedy trial, a violation of the rules is not necessarily a constitutional deprivation. Fladebo, 113 Wash. 2d at 393; Andrews, 66 Wash. App. at 810. A trial court's decision to grant or deny a request for an extension of time is reviewed only for manifest abuse of discretion. State v. Campbell, 103 Wash. 2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526, 105 S. Ct. 2169 (1985). A court abuses its discretion only if its decision is based on untenable grounds or made for untenable reasons. Andrews, 66 Wash. App. at 810.
Rivera argues that the court violated his right to a speedy trial when it continued his motion for withdrawal of counsel on March 10, because counsel for his codefendants were not present. According to Rivera, that decision triggered a "chain of events" that delayed his trial date to May 19. The State objected to his motion for withdrawal of counsel and co-counsel did not object when the court granted his motion 8 days later on March 18, 1994. Thus, Rivera argues, the delay should be imputed to the State. First, the case on which Rivera relies for his argument that the 8-day delay in hearing his motion for withdrawal should be imputed to the State is distinguishable. State v. Price, 94 Wash. 2d 810, 814, 620 P.2d 994 (1980), rests on inexcusable conduct by the State in failing to provide information which, in turn, forced the defendant to choose between his right to a speedy trial and going to trial with counsel who was unprepared. Here there is no such Hobson's choice. Rather, the State had a legitimate argument that, because the withdrawal could also affect the rights of Rivera's codefendants and it was unclear in what capacity his prior attorney's agency had represented Jones, *fn1 there might be no conflict serious enough to warrant delaying Rivera's trial date. Moreover, as the trial court noted when it denied Rivera's motion, his own failure to inform co-counsel of his motion when their clients' rights might also be affected by it was a major cause of the need to continue his motion for withdrawal of counsel. The record is clear that each continuance during the 8-day delay was because counsel for Rivera's codefendants were not present, not because of any action or inaction by the State. The trial court did not abuse its discretion by continuing the motion to withdraw until counsel for all three defendants were present, and there is no basis for imputing that delay to the State.
Second, Rivera misstates the length of the delay that followed his first counsel's withdrawal. The court granted his new attorney an extension for 28 days to April 25 to prepare for trial. Although Rivera objected to his new attorney's motion for a trial preparation extension, defense counsel admitted below that the court did not grant him a continuance beyond the time he actually needed. The other extensions to May 19 were granted because counsel for both the State and the defense were in trial, and Rivera does not argue that any one of these was improper. See State v. Kelley, 64 Wash. App. 755, 761, 828 P.2d 1106 (1992) (a court may grant a continuance based on CrR 3.3(d)(8) where counsel is on trial on another matter if unavoidable or unforeseen circumstances beyond the court's or the parties' control justify the extension and no prejudice to the defendant results from the continuance). Neither the 28-day delay to allow Rivera's new attorney to prepare for trial nor the later extensions granted because both counsel were in trial were an abuse of the court's discretion.
Rivera moved for a continuance on May 24 to procure Ochoa as a witness. He contends the resulting 28-day delay should be included in the 60-day speedy trial period because it was forced upon him when the State indicated on May 23 that it did not intend to amend the delivery charge. Although Rivera contends he would not have called Ochoa as a witness had he known the State would later amend its information, that is irrelevant because he did not request an order to transport Ochoa until the afternoon of May 24, too late to have Ochoa present for trial at any time that week. In other words, had Ochoa's transport been arranged in time to assure his presence during the week scheduled for trial, the trial would have proceeded as scheduled on the delivery charge. Indeed, when Rivera moved for the continuance, prospective jurors had already been sworn for voir dire. In the circumstances, the trial court properly declined to impute to the State the delay resulting from Rivera's request for a continuance.
Rivera next argues that the trial court erred when it permitted the State to amend its information on the first day of trial. The right to amend an information is governed by CrR 2.1(d), which provides:
The court may permit any information or bill of particulars to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.
See also State v. Schaffer, 120 Wash. 2d 616, 621, 845 P.2d 281 (1993) (CrR 2.1(e) allows amendments which do not prejudice a defendant's "substantial rights"). Amendments are liberally allowed and continuances granted if defendants need them to respond to the altered charge. State v. Johnson, 119 Wash. 2d 143, 150, 829 P.2d 1078 (1992). We will not reverse a conviction because of a late amendment, unless the defendant shows specific prejudice to a substantial right. State v. James, 108 Wash. 2d 483, 490, 739 P.2d 699 (1987). Prejudice exists if the defendant was misled or surprised by the amendment. State v. Brisebois, 39 Wash. App. 156, 163, 692 P.2d 842 (1984), review denied, 103 Wash. 2d 1023 (1985).
On May 23, in response to a defense request that it elect the charge under which it intended to proceed, the State said that it did not intend to amend the information from delivery to possession with intent to deliver "at this point." Defense counsel said at the time that he needed to decide which of several defenses Rivera would rely on during the trial both parties still expected would follow immediately. But there is no indication of any direct link between the State's election on May 23 and Rivera's request the next day for an order to transport Ochoa. Defense counsel later argued below that, had the State not amended its information, his strategy would have been to bring a Knapstad *fn2 motion, arguing that there was insufficient evidence to show a delivery occurred. Defense counsel agreed, however, that the State did notify him of its intent to amend the information on May 26, almost 4 weeks prior to trial. Although the State may have moved to amend because it made a mistake about the version of the statute under which Rivera was charged and Rivera's trial strategy may have shifted in response to that amendment, defense counsel conceded below that the amendment of the charge did not prejudice Rivera. State v. Brown, 55 Wash. App. 738, 743-44, 780 P.2d 880 (1989), review denied, 114 Wash. 2d 1014 (1990) (no prejudice from amending the information on the first day of trial because reduced charge involved same evidence and did not affect defendant's ability to prepare a defense). Rivera had clearly been aware for some time that he could be charged with either delivery or possession with intent to deliver, and the amended information arose ...