Appeal from Superior Court of King County. Docket No: 93-1-02920-5. Date filed: 04/01/94.
Petition for Review Denied July 8, 1997,
Authored by Faye C. Kennedy. Concurring: Susan R. Agid, C. Kenneth Grosse.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Ricky Arntsen appeals his conviction of second degree felony murder, contending that the trial Judge improperly failed to submit a 'to-convict' instruction to the jury *fn1; that he was denied effective assistance of counsel; that discovery violations and mismanagement of the case denied him a fair trial; that the prosecutor committed misconduct; and that the trial court abused its discretion in denying his in forma pauperis request for a transcript of trial proceedings. In his personal restraint petition and pro se supplemental brief, Arntsen contends that the evidence was insufficient to support the guilty verdict, and raises additional claims of prosecutorial misconduct and ineffective assistance of trial counsel. Finding no prejudicial error at trial, we affirm with respect to the direct appeal and dismiss the personal restraint petition.
On the afternoon of April 22, 1993, Seattle Police Officers responded to a call of shots fired at the Jefferson Apartments in Seattle. The officers found Gregory Collier lying in a stairwell, bleeding heavily from several gunshot wounds to the torso. Collier died of his wounds at the hospital. An eyewitness provided a description of the shooter that closely resembled a man whom the officers had seen minutes earlier in front of the apartment building, and they broadcast the description of the suspect and the red Toyota he was in over the police radio.
Two hours later, another Seattle Police officer who had earlier heard the description over the radio saw the red Toyota and followed it to the Embassy Suites hotel in Bellevue. All of the occupants of the Toyota were related to Ricky Arntsen and the car was registered to Arntsen's mother. After interrogating the car's occupants, detectives determined that another member of the Arntsen family, Ricky Arntsen, had not yet been seen nor interviewed. Inconsistencies in Arntsen's relatives' stories made the detectives suspicious, and they returned to Seattle to obtain a photograph of Ricky Arntsen.
The detectives obtained a five-year old booking photograph of Arntsen and assembled a photographic montage. Officer Ferreira identified the photograph of Arntsen as the person he had seen in front of the apartments. The detectives returned to the Jefferson Apartments and showed the photographic montage to two apartment tenants, who identified Arntsen as the shooter. Based on these identifications and a description of the suspect by another tenant, the detectives returned to the Embassy Suites in an attempt to locate Ricky Arntsen.
At the hotel, detectives discovered Arntsen asleep on the floor of the hotel room registered to the Arntsen family. He identified himself as Maurice Grant, and denied knowing Ricky Arntsen's whereabouts. Arntsen's true identity was discovered when he was fingerprinted. He was charged by information with second degree felony murder for causing Gregory Collier's death while engaging in a second degree assault upon him.
Before trial, the defense moved three times, unsuccessfully, to dismiss on the basis of discovery violations. The defense also moved to suppress several witnesses' pre-trial identifications of the shooter, but requested that the court reserve ruling until after each witness had testified at trial.
The jury found Arntsen guilty as charged. The court denied a post-trial defense motion for a complete transcript of the trial proceedings for the purpose of making a new trial motion, and denied the subsequent new trial motion. Arntsen was sentenced within the standard range, and now appeals.
Arntsen contends that the court's decision not to dismiss the case after the State repeatedly failed to meet discovery deadlines was an abuse of discretion. Arntsen, who agreed to the extension of speedy trial more than once due to the State's delays in providing discovery, contends that the repeated untimely disclosure of discovery material, including fingerprint, blood and ballistics analyses which the State earlier denied even existed and then provided at the last minute before trial, forced him to choose between his right to a speedy trial and his right to effective assistance of counsel, and denied him due process, i.e., the ability to effectively prepare for trial. A trial court's decision not to dismiss an action is reviewable only for a ...