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State v. S.H.

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
S.H., B.D. 10-13-77, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-8-01992-9. Date filed: 09/05/95. Judge signing: Hon. Richard J. Thorpe.

PER CURIAM. S.H. appeals from his juvenile Disposition for second degree vehicle prowling, contending that the trial court abused its discretion when it granted the State's motion for a continuance to obtain a witness for trial. He argues that the court should not have granted the continuance because the State failed to exercise due diligence to assure that its witnesses would be available. Because the State did exercise due diligence under these circumstances, we affirm.

FACTS

On October 1, 1994, S.H. broke into a car and took an amplifier and two speakers. The State charged him with second degree vehicle prowling on May 15, 1995. Before the scheduled fact finding hearing, the State moved for a continuance because J.L., a witness who would testify that S.H. admitted to the crime, was not available to testify. The prosecutor told the court that J.L. was in Alaska until the end of August and could not be present for the planned July 12, 1995, hearing. The prosecutor knew that J.L. planned to be in Alaska for the summer, but had believed that the State could proceed with its other witnesses. Shortly before trial, the prosecutor learned that another witness, who had been subpoenaed and would also testify that S.H. admitted to the crime, could not be located. J.L. was the only other witness who could offer similar testimony. S.H. objected to the continuance because it extended the date for trial past his speedy trial date. The court found that J.L. was a material witness and was not amenable to service because he was in Alaska. On the basis of these findings, it granted the State's motion and continued the hearing until September.

Discussion

S.H. argues that the trial court abused its discretion by granting the continuance because the State failed to exercise due diligence to obtain J.L. for trial. A juvenile's fact finding hearing must begin within 60 days of arraignment. JuCR 7.8(b). If the hearing does not commence within that time, the court generally must dismiss the information with prejudice.

JuCR 7.8(g). But a court may grant continuances beyond the speedy trial time if the State's witness is unavailable, will be available within a reasonable time, and the State has exercised due diligence to get the evidence by the time of trial. JuCR 7.8(e)(2)(ii). This court will not disturb a trial court's decision on a motion for a continuance absent a manifest abuse of discretion. State v. Adamski, 111 Wash. 2d 574, 577, 761 P.2d 621 (1988).

S.H. contends that the State did not exercise due diligence because there is no evidence in the record that it attempted to serve J.L. in Alaska or to expedite his return to Washington. A crucial witness' unavailability for a hearing may be valid grounds for granting a continuance. State v. Nguyen, 68 Wash. App. 906, 915, 847 P.2d 936, review denied, 122 Wash. 2d 1008, 859 P.2d 603 (1993). However, to meet the burden of due diligence, the State must "make 'timely use of the legal mechanisms available to compel the witness' presence in court.'" Adamski, 111 Wash. 2d at 579 (quoting State v. Toliver, 6 Wash. App. 531, 533, 494 P.2d 514 (1972)).

The State asks this court for leave under RAP 9.11 to supplement the record with a declaration from an employee at the prosecutor's office who did issue a subpoena to J.L. We need not reach this motion because, even if the State did not subpoena J.L., it exercised due diligence to have all its witnesses present at trial. The State was prepared to go to trial without J.L., knowing that he would be out of the state and not amenable for service. It reasonably believed that his testimony would be unnecessary because it had properly subpoenaed another witness who would offer comparable testimony. The State exercises due diligence to obtain a witness when it properly serves a subpoena, even if the witness is unable to comply. See Nguyen, 68 Wash. App. at 914-15 (due diligence was satisfied when officer was served but could not attend trial). Due diligence does not require the State to subpoena apparently unnecessary witnesses in the event that it later learns that its subpoenaed witnesses cannot be located.

Here, it was only after the State's first witness could not be located that J.L.'s testimony became necessary, and he was not amenable to service at that time. So long as J.L. was in Alaska, he could not be compelled to return to Washington for trial even if the State did mail a subpoena to him. CR 4(f), 45. Under these circumstances, the State exercised due diligence to obtain its witnesses for trial, and the trial court did not abuse its discretion when it granted the motion for a continuance to allow the State to replace the witness who disappeared.

Affirmed.

19970331 ...


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