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State v. Ross

Court of Appeals of Washington, Division 2

May 21, 2019

STATE OF WASHINGTON, Appellant,
v.
TOMMY ROSS, JR., a.k.a. TOMMY McDONALD, TOMMY CARTER, TOMMY WALLACE, MARVIN JOHNSON, ANTHONY JOHNSON, Respondent.

          MAXA, C.J.

         Both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to a speedy trial, which is a fundamental constitutional right. State v. Iniguez, 167 Wn.2d 273, 281-82, 217 P.3d 768 (2009). The United States Supreme Court has made clear that "the primary burden" falls "on the courts and the prosecutors to assure that cases are brought to trial." Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). If the State violates a defendant's speedy trial right, we have no choice but to dismiss the charges no matter how horrendous the charged crimes may be. See Iniguez, 167 Wn.2d at 282.

         Here, the State charged Tommy Ross in Clallam County with aggravated first degree murder in 1978. But the State did not pursue prosecution of that charge for over 38 years. Instead, the State allowed Ross to be extradited to Canada for trial on another murder charge without ensuring that he would be returned for trial in Clallam County. And then while Ross was incarcerated in Canada the State made no meaningful effort for decades to obtain his return to the United States for trial.

         The trial court ruled that the State violated Ross's constitutional right to a speedy trial by not prosecuting the murder charge against him for over 38 years, and the court dismissed that charge. Applying the four-part balancing analysis set out in Barker, we also conclude that the extraordinary delay in prosecuting Ross violated his speedy trial right. Accordingly, we are constrained to affirm the trial court's dismissal of the murder charges against Ross.

         FACTS

         Arrest, Removal to Canada, and Conviction

         On June 10, 1978, the State charged Ross in Clallam County with aggravated first degree murder, and the court issued a warrant for his arrest. Ross was accused of the April 24, 1978 killing of a woman in Port Angeles. Canadian authorities also had issued a warrant for Ross's arrest for the May 14 murder of a woman in Victoria, British Columbia. Law enforcement in Los Angeles arrested Ross in December 1978 on both warrants as well as on California attempted rape and burglary charges.

         Clallam County prosecuting attorney Craig Ritchie left office on January 8, 1979 and was replaced by Grant Meiner. In a meeting before Meiner took office, Ritchie informed Meiner that "under no circumstances, should he relinquish the County's jurisdiction over [Ross] and let him go to Canada to stand trial first" on the Canadian murder charge. Clerk's Papers (CP) at 484-85. Ritchie gave Meiner all the reasons he could think of why Canada would never return Ross and advised Ritchie in strong terms that Clallam County should try Ross first before letting Canada take him.

         Detective Robert Vail of the Port Angeles police department interviewed Ross in jail in Los Angeles on January 10, 1979. Ross denied ever meeting the murdered woman. Vail did not ask Ross to waive extradition from California to Washington.

         The next day, an officer from the Victoria police department interviewed Ross in jail. Ross denied any involvement with the Victoria murder and signed an extradition waiver stating that he would voluntarily agree to return to Canada to face prosecution. At the time of his waiver, Ross was illiterate and unrepresented.

         On January 11, Victoria crown counsel[1] Richard Anthony called Meiner to inform him that Ross had agreed to waive extradition to Canada. Anthony stated that California authorities would not release Ross to Canada without Clallam County's consent. Meiner memorialized this conversation in a memorandum. The memorandum conveyed that Meiner had spoken with Anthony, who stated that Ross would be "ejected" from Canada after his trial there and that Anthony would obtain a waiver of extradition to Clallam County from Ross. CP at 208.

         Anthony then telegraphed Meiner to inform him that Ross was deportable from Canada as a fugitive from justice on the Clallam County warrant. The telegraph added that Ross was detainable on a deportation warrant "if charges in Victoria fail." CP at 210.

         Later the same day, Meiner informed California authorities that Clallam County authorized them to release Ross to Canadian authorities. Ross was flown to Victoria the next day.

         Meiner later stated that he was "open to allow the prosecution of Mr. Ross for murder in Victoria to precede the murder prosecution in Clallam County" because he believed the evidence against Ross in the Victoria case was stronger. CP at 202. Meiner hoped that the evidence of a prior conviction of a very similar murder in Victoria would increase the chances of convicting Ross in Clallam County. Meiner "concluded that the prosecution in the Port Angeles case would benefit by waiting until after the conclusion of the Victoria trial." CP at 203.

         Ross ultimately was convicted of murder by a Canadian court on July 13, 1979. He was sentenced to life in prison, with a minimum incarceration of 25 years before he was eligible for parole.

         Appointment of Public Defender

         In May 1979, Clallam County public defender Christopher Shea requested that his office be appointed on an interim basis to represent Ross in the Clallam County case. Shea attempted to obtain discovery from the State and gather other information about the case.[2] The State refused to provide Shea with discovery because by rule the State was not required to produce discovery until the omnibus hearing, and no omnibus hearing had yet been held because Ross was still in Canada. The trial court declined to require discovery.

         Initial Attempts to Return Ross to Washington

         In June 1979, Meiner wrote to crown counsel Richard Law and stated that Anthony had agreed to deliver Ross to Clallam County immediately after the conclusion of the Victoria trial. Meiner stated his understanding that Ross would be deported regardless of the outcome of the trial.

         J.W. Anderson, regional crown counsel, replied to Meiner's letter and informed him that Anthony no longer was employed by the Ministry of Attorney-General and that Anthony's apparent assessment of Ross's case "seems to have been based upon an over-simplification of the situation and its ramifications." CP at 219. Anderson further stated that because Ross was convicted and sentenced in Canada, there were no legal means to return him to the United States while his sentence was being served.

         Meiner wrote to crown counsel Law again in August, stating that he planned to request extradition of Ross. Meiner acknowledged the crown counsel's position that "since Ross has been convicted in Canada, he may not be extradited . . . until he has served at least one-third of his sentence in Canada," but he set out his opinion that extradition treaties allowed for Ross's extradition to the United States. CP at 221.

         In October, Meiner spoke on the telephone to Digby Kier, counsel with the Canada Department of Justice, and stated that he wanted to extradite Ross to Clallam County to face a murder charge. Kier responded that Ross was not eligible to be extradited until he had served the 25-year minimum of his sentence. Kier enclosed a decision of the British Columbia Supreme Court holding in a similar case that a prisoner serving a sentence could not be extradited until that sentence was completed. He noted that Ross might be deported to the United States once Canada paroled him.

         In February 1980, Meiner wrote to Kier following up on the extradition issue. Kier said that immigration authorities had informed him that after a convicted person was released on parole he would be deported. In contrast, if Clallam County obtained an extradition order, "he would have to serve the full term of the sentence in Canada" before being transferred to the United States. CP at 242. Kier concluded, "I feel that deportation rather than extradition would be the quickest way to have Ross received in your Country." CP at 242.

         Meiner later stated that his thinking was that if he obtained an extradition order, Ross would have to serve the full term of his sentence in Canada before being released to the United States. But he concluded that "if my office did not seek extradition, Mr. Ross could possibly receive an earlier parole and would then be subject to deportation." CP at 205.

         In April 1981, Port Angeles's police chief wrote to Meiner to inform him that a recent case holding that Washington's death penalty was unconstitutional seemed to remove one of the obstacles to obtaining Ross's return from Canada.[3] He requested that all efforts be made to extradite Ross to prosecute him for the charged murder.

         Meiner responded that if he obtained an extradition order, Ross would have to serve 25 years in Canada before he could be extradited. But if he did not obtain an extradition order, Ross could be paroled sooner. Meiner concluded that he was "not presently inclined" to seek extradition. CP at 300.

         Subsequent Developments

         In May 1987, Ross applied for a transfer to a prison in the United States. Canadian authorities approved the transfer in December.

         In response to Ross's apparent desire to return to the United States, the State moved in November 1987 to quash the outstanding warrant for his arrest in Clallam County and the warrant was quashed.[4] The Clallam County prosecuting attorney serving at that time was concerned that Ross's "reappearance here may force a premature decision regarding the prosecution." CP at 246. He also stated that "two material witnesses are not now available - one has disappeared, the other is dead, and the primary investigator from the Port Angeles Police Department is no longer with the police department." CP at 247.

         In June 1988, Ross appeared at a hearing in a Canadian prison before a United States magistrate judge regarding his transfer request. The magistrate judge advised Ross that he had charges pending against him in the United States. Ross said that he understood and recognized that he might have to address the charges if he returned to the United States. The judge stated that a van was available to take him to the United States that day. Ross stated that he wished to be transferred to a prison in California, but the judge cautioned that his wish likely would not be accommodated. Ross responded that he might as well stay in Canada because he could not see his family either way. Ross decided not to proceed with the transfer.

         In March 1994, Ross wrote to the Port Angeles Police Department, requesting that the department inform him whether he had any outstanding charges in Clallam County. Ross also requested all information relating to the death of the murdered woman. The record does not include the response, if any, Ross received.

         In 2002, Sylvie Bordelais, a Canadian lawyer representing Ross, wrote to the Port Angeles Police Department and asked "whether there is a procedure to have [Ross] brought back to the United States to face the charges related to some outstanding arrest warrants in [Clallam] County." CP at 276. The police department referred Bordelais to the Clallam County prosecuting attorney in office at the time, Deborah Kelly.

         Bordelais called Kelly sometime in 2003 to say that Ross would like to return to the United States if Kelly would take the death penalty "off the table." CP at 274. Although Kelly was not certain whether the death penalty was a viable option in Ross's case due to recent changes in the law, she told Bordelais that if the death penalty was viable, she would not remove it. Kelly later stated, "I was not enthusiastic about the idea of bringing back a cold twenty-five year old murder case" because of recent budget cuts. CP at 273.

         In 2008, Ross's second application for a transfer to a prison in the United States again was approved. His attorney advised Ross against transferring because it was possible that upon return to the United States, Ross could be incarcerated in federal prison far away from his mother in California and because he would fare better seeking parole in Canada rather than in the United States. Ross ultimately withdrew the transfer request, stating that "[m]y efforts now are focusing on that of realizing a full parole for deportation to the U.S." CP at 284.

         Nothing in the record shows that during his incarceration in Canada, Ross ever made a formal request that he be returned to Clallam County to face the first degree murder charge.

         In February 2014, the State moved to quash any existing arrest warrant for Ross on the murder charge because of the age of the case (at that time, 36 years) and the fact that "witnesses and physical evidence may be difficult to pull together for trial." CP at 401. The trial court issued an order quashing the warrant.

         In 2016, the Canadian parole board scheduled a hearing to consider paroling Ross. Clallam County prosecutors sent a letter to the Canada corrections service with a copy to the parole board recommending against his release and encouraging Ross's continued confinement in Canada.

         Clallam County Prosecution

         The Canadian parole board released Ross from prison in November 2016 and Canada deported him on November 15. The same day, Ross was taken into custody at the United States border.

         Ross first appeared in Clallam County Superior Court on November 16, and the trial court found probable cause for Ross's arrest and the filing of the information. The court set bail at $1.5 million. Ross's arraignment came approximately 38 and a half years after he was first charged with murder. In April 2017, the State amended Ross's information, charging one count of first degree murder, one count of second degree murder, and one count of first degree felony murder.

         Trial was continued several times on the motions of both parties. The first continuance moved the trial from January 30, 2017 to August 28, 2017 by agreement of the parties because of the extensive evidence in the case. In June, the State moved to continue trial again because it was awaiting the completion of DNA testing on crime scene evidence. The trial court set a new trial date of March 19, 2018. In February 2018, Ross moved to continue the trial, citing the Victoria Police Department's refusal to turn over unredacted police reports, receipt of the recent DNA testing results, and the defense's desire to obtain police reports from the Whatcom County Sheriff related to Ross's arrest at the border. The trial was continued to October 1, 2018. On August 14, the trial was continued a fourth time from October 1 to March 19, 2019 to allow Ross's new second chair defense attorney to become familiar with the case.

         During this time, both parties filed numerous pretrial motions. These included motions to admit or exclude evidence, to request additional findings from CrR 3.5 hearings, perform DNA testing, to appoint experts, to remove restraints, to file an amended information, to dismiss the case based on governmental misconduct under CrR 8.3(b), to evaluate Ross for competency and provide him with psychiatric services, and to compel discovery.

         On August 27, 2018, Ross moved to dismiss all charges on speedy trial grounds. The motion was filed over 21 months after Ross was arraigned.

         On October 17, the trial court granted the motion to dismiss in a memorandum opinion. The trial court concluded that the 38-year delay was "extraordinary," and "long enough to be considered presumptively prejudicial." CP at 55-56 (internal quotation marks omitted). The court rejected the State's argument that Ross failed to assert his speedy trial right by signing a waiver of extradition to Canada. The court also determined that the defense was greatly impaired by the passage of time, noting the loss of evidence and faded memories or deaths of witnesses in the intervening years.

         Finally, the trial court found that the reason for the delay was that no Clallam County prosecuting attorney ever sought Ross's extradition from Canada, but instead hoped that Ross would return voluntarily. The court noted that treaties between the United States and Canada made Ross's extradition possible and concluded that the State did not exercise due diligence to pursue prosecution resulting in a violation of Ross's speedy trial right. The trial court stated, "The reason for the delay in this case is that Clallam County through its prosecuting attorney chose to defer prosecution of Mr. Ross in favor of first sending him to a foreign country." CP at 64.

         The trial court entered findings of fact and conclusions of law to support its decision. The court also signed an order dismissing all charges against Ross with prejudice based on a violation of Ross's speedy trial right. The State appeals the dismissal of Ross's murder charges.

         ANALYSIS

         The State argues that Ross's constitutional right to a speedy trial was not violated by the 38-year delay in bringing him to trial on the murder charge because the ...


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