Appeal from Superior Court of King County. Docket No: 95-1-06202-1. Date filed: 02/29/96. Judge signing: Hon. Kathleen J. Learned.
PER CURIAM - Willie Macklin challenges his conviction for second degree robbery. He argues the prosecutor's late disclosure of a police report was a violation of the discovery rules and case mismanagement requiring dismissal. He contends the trial court should have suppressed his pretrial confession because it was the product of unlawful police coercion. And he asserts the victim's identification of him as the robber was the product of an impermissibly suggestive one-person showup and unreliable, requiring suppression. Macklin fails to establish he was prejudiced by the state's belated disclosure or unfairly coerced into confessing. We also hold the showup was not unduly suggestive. Therefore, we affirm Macklin's conviction.
Late discovery The trial court set Macklin's omnibus hearing for October 27 and his trial date for November 7, 1995. At the omnibus hearing, the court ordered pretrial hearings on Macklin's motions to suppress statements and the identification. It also ordered the state to provide follow-up police reports by November 2.
Because counsel were unavailable, the case was not sent to trial until November 20. Macklin filed an affidavit for change of Judge and moved to dismiss because the state had not provided several police reports. The court denied the motion and reset the case for December 4, noting the affidavit extended the speedy trial deadline 30 days. The prosecutor provided all missing police reports except that of Officer Church.
On December 6, Macklin renewed his motion to dismiss, arguing the state failed to act with due diligence by untimely providing the police reports. He alleged violations of CrRs 4.7 and 8.3, as well as of his constitutional rights to due process, counsel and speedy trial. The court denied his motion. Macklin received Officer Church's report December 7. On December 12, counsel presented opening statements to the jury. Church testified December 14.
On appeal, Macklin attacks the court's ruling, arguing violations of CrRs 4.7(a)(1) *fn1 and 8.3(b) *fn2 justified dismissal. CrR 4.7(h)(7)(i) provides that the trial court may grant a continuance, dismiss the action, or enter another appropriate order as a sanction for failure to comply with a discovery order. The purpose of the rule is to protect against surprise that might prejudice the defense. *fn3 The trial court's decision in dealing with violations of a discovery order is discretionary. *fn4 The same standard applies to a decision under CrR 8.3. *fn5 Discretion is abused when the trial court's decision is exercised on untenable grounds, or for untenable reasons, or is manifestly unreasonable. *fn6 Dismissal under CrRs 4.7 or 8.3 for a violation of discovery is an extraordinary remedy. *fn7 To obtain a dismissal, the defendant must show he was prejudiced by the late discovery. *fn8 Macklin has failed to establish prejudice. He maintains the prosecutor's late disclosure of Officer Church's report prevented counsel from fully investigating Church's dog-tracking evidence. Macklin notes trial counsel's expressed reservations about being adequately prepared to cross-examine Church, but he provides no specifics as to how counsel's preparation would have differed had she been given Church's report in a more timely fashion. In addition, Macklin ignores the fact that a defense investigator interviewed Church on November 28, counsel received Church's report on December 7, and Church did not testify until December 14.
Moreover, by filing an affidavit of prejudice on November 20, Macklin extended his speedy trial deadline 30 days. Therefore, trial counsel could have moved for a continuance of the December 6 start of trial without implicating Macklin's speedy trial rights. Macklin attempts to minimize this fact by asserting that a defendant should not have to choose between exercising his statutory right to remove a Judge for prejudice and preserving his right to move to dismiss. But the record does not show that Macklin filed his affidavit of prejudice to buy more time for an unprepared counsel.
The question of whether dismissal is an appropriate remedy is fact-specific and must be resolved on a case-by-case basis. *fn9 The facts of this case--which include Macklin's possession of the victim's traveler's check and a receipt with her name on it, as well as a valid confession--combined with Macklin's vague assertions of prejudice, belie his argument he was harmed by the State's tardy disclosure of Church's report. The trial court did not abuse its discretion by denying his motion to dismiss.
As a result of the victim's description of the robber, the police detained Macklin as he walked through a park near the scene of the crime. Officers held him until the victim identified him as the robber, then arrested him. Officers advised him of his Miranda *fn10 rights, which Macklin waived. He denied committing the offense. The following morning, Officer Winters visited Macklin at the jail. He readvised Macklin, who again agreed to talk. According to Macklin, Winters told him that if he confessed, he would "'recommend'" that he be charged with first degree theft rather than robbery, so he could avoid facing conviction for a "strike" under the "three strikes" statute. Winters testified he promised Macklin nothing in exchange for a confession. He also testified that, based on his examination of Macklin's criminal history, he was not a "three strikes" candidate.
Macklin assigns error only to the court's finding that any Discussion about the potential charges was nothing more than a description of the crimes and "did not amount to an implied promise or coercion sufficient to overcome defendant's will to remain silent . . . ." The court denied the motion to suppress and provided copies of the transcript of Macklin's taped confession to the jury.
Macklin argues Winters coerced him into confessing when he suggested a theft charge could be filed in exchange for a confession. The voluntariness of a confession is determined by examining the totality of the circumstances in which the confession was made. *fn11 A confession that appears to be voluntary may be rendered involuntary by any direct or implied promise, however slight. *fn12 The circumstances here do not support Macklin's argument. First, the court disbelieved Macklin's testimony that Winters said he would recommend a charge of first degree theft, and instead believed Winters' testimony. The trial court's credibility determinations are not subject to review. *fn13 In addition, Macklin received and waived his Miranda warnings at least three times before confessing. Third, a court may consider the defendant's physical condition, age, experience, mental abilities, and the conduct of the police. *fn14 Macklin had prior experience with police, having been previously convicted of four felonies as an adult. He did not argue Winters' conduct was forceful or in any way threatening. Finally, even if the court had found Winters' made a promise, an officer's promise of leniency or a promise to talk with the prosecutor does not automatically render a confession involuntary. *fn15 The trial court did not err by denying Macklin's motion to suppress his confession.
At about 9:30 or 10 p.m., the victim stopped her car at her mail box. As she walked a few steps to a nearby dumpster, she saw a black male walking toward her. At first she thought the man was her neighbor, but she became uneasy when she realized he was not. She turned around and walked quickly toward her car. The man approached her from behind, pushed her into the car, stood over her at face-to-face distance, and took her purse. The victim went to her neighbor's house and her neighbor called police, who arrived in a matter of minutes.
The victim described the robber to police as a black male in his late 30s, standing 5 feet 10 inches tall, with a medium build, goatee, wearing a black T-shirt with a sports logo on the front, dark pants or jeans and tennis shoes. She also said he was smoking a cigarette. About 30 minutes later, officers detained Macklin at a nearby park. He was wearing dark pants, a dark shirt with a sports figure on the chest, a goatee and appeared to officers to match ...