Douglas W. Knapstad was charged with possession of a controlled substance, to wit: marijuana, with intent to manufacture or deliver. RCW 69.50.401(a)(1). The trial court dismissed the charges prior to trial on the basis that the State had insufficient evidence as a matter of law to support a conviction. The Court of Appeals affirmed, stating that the trial court had the inherent authority to dismiss an information prior to trial. We affirm and take this opportunity to clarify the procedures for pretrial dismissals of criminal charges for insufficiency of evidence to support a conviction.
Douglas Knapstad and his brother Gary were jointly charged with possession of approximately 160 grams of marijuana which the police found in a box hidden in the attic of a residence in Mountlake Terrace. (The seizure of the box has not been challenged.) Before the omnibus hearing, the prosecutor informed defense counsel that the State had decided to invoke the informant's privilege and
The prosecutor described the State's evidence as follows: (1) Douglas Knapstad's brother Gary was a resident of the house where the marijuana was found; Gary had also been present when the search warrant was executed; (2) Drug paraphernalia was found in common areas of the house; (3) A gasoline credit card receipt issued to Douglas Knapstad several months prior to the search was found in a dresser drawer in one of the bedrooms. Knapstad's address on the receipt is not the same as that of the residence in which the marijuana was found; (4) The police found a traffic ticket which Douglas Knapstad had been issued about 2 weeks before the search; the ticket showed Douglas Knapstad's address as other than that of the house where the marijuana was found; (5) The investigating officer saw Douglas Knapstad's vehicle parked at the searched residence on three occasions prior to the search; each time the vehicle was seen after 2 a.m.
The trial court held that, "even considering all reasonable inferences [from this evidence] most favorably to the State ..., there is insufficient ... evidence tending to prove that Doug Knapstad owned or had knowledge, control, or possession of the subject marijuana or that he was a resident" of the searched house. Clerk's Papers, at 4. The court held that prosecuting Knapstad under these circumstances would amount to arbitrary action on the part of the
The Court of Appeals affirmed, holding that the trial court has the inherent power to dismiss a prosecution prior to trial when it is apparent that the State has insufficient evidence to take the case to a jury. State v. Knapstad, 41 Wn.App. 781, 706 P.2d 238, review granted, 105 Wn.2d 1001 (1985).
PRETRIAL DISMISSAL FOR INSUFFICIENT EVIDENCE
The State does not contend that it could present any evidence against Knapstad other than that introduced in the omnibus hearing. It is clear that this evidence is insufficient as a matter of law to prove that Knapstad actually or constructively possessed marijuana. Compare State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (evidence of constructive possession held sufficient to go to a jury) with State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969) (evidence held insufficient). No rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). Fairness and judicial efficiency both demand that in such a case a procedure be made available to the trial court to dismiss the prosecution prior to trial for insufficient evidence.
Contrary to the assertion of the State, State v. Morton, 83 Wn.2d 863, 523 P.2d 199 (1974) is not controlling. In Morton the defendant asked the trial court to decide a disputed factual question of whether the defendant was a public official, as charged in the information, or a school teacher, as he alleged. "Public official" was defined by statute to include every person who executes or assumes to execute any of the functions or powers of a public officer. Morton, at 865-66. This court held that the trial court could not test the sufficiency of the evidence on this issue until the conclusion of the State's case at trial. Morton, at 868-69. Unlike the instant prosecution, the parties in Morton did not agree that the material facts were uncontroverted.
As the Court of Appeals recognized, Knapstad did not ask the court to resolve any disputed factual questions. The court was instead asked to decide whether the State's evidence, if believed, was legally sufficient to support a conviction. The State as much as concedes that a conviction is unwarranted in this prosecution. Nonetheless, the State argues that it is entitled to proceed with the prosecution because the trial court lacks authority to dismiss the case until the State's evidence is presented to the trier of fact. This is an artificial requirement, and the additional expense in keeping this case alive is unwarranted.
The State contends that the Superior Court Criminal Rules do not provide for a summary judgment type procedure. The only court rule the trial court cited was CrR 8.3(b), which allows a court to dismiss a prosecution "in the furtherance of justice". This court has previously confined its interpretation of CrR 8.3(b) dismissals to require a showing of arbitrary action or governmental misconduct. See State v. Laureano, 101 Wn.2d 745, 682 P.2d 889 (1984); State v. Dailey, 93 Wn.2d 454, 610 P.2d 357 (1980); State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976); State v. Starrish, 86 Wn.2d 200, 544 P.2d 1 (1975). The principal standard for the charging decision is the prosecution's ability to prove all elements of the charge. State v. Campbell, 103 Wn.2d 1, 26, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094,
(Italics ours.) 1 American Bar Ass'n, Standards for Criminal Justice, Std. 3-3.9(a) (2d ed. 1980). Insistence by the State on proceeding in the face of clear inability to make a jury issue thus may constitute arbitrary action permitting the trial court to invoke CrR 8.3(b).
Construing its counterpart to CrR 8.3(b), the Supreme Court of Montana has held that where there are insufficient facts to bring a defendant to trial, the court may dismiss the information. State v. Cole, 174 Mont. 380, 571 P.2d 87 (1977) (decided under the Montana statute providing that the court may, on its own motion and in furtherance of justice, order an information dismissed). See also State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971) (information dismissed for insufficient evidence to establish constructive possession).
The court in State v. Maurer, 34 Wn.App. 573, 577, 663 P.2d 152 (1983) held that the trial court has the power to dismiss a criminal prosecution before trial without prejudice if the facts as alleged by the State, if true, would not prove the charge.
(Footnote omitted.) Maurer, at 576-77.
Thus, a trial court may dismiss if the State's pleadings including any bill of particulars, are insufficient to raise a jury issue on all elements of the charge. Akin to Gallagher and Maurer, when the material facts of a prosecution are
In the case below, the trial court held that, "even considering all reasonable inferences [from this evidence] most favorably to the State ..., there is insufficient ... evidence tending to prove that Doug Knapstad owned or had knowledge, control, or possession of the subject marijuana or that he was a resident" of the searched house. Clerk's Papers, at 4. The court therefore properly granted Knapstad's motion to dismiss the information.
Nevertheless, the State is correct in its assertion that there should be a clarification of the procedure for ruling on such motions. Several questions we need to address are: (1) when such a motion should be filed; (2) whether the State's evidence should be presented by affidavit or by in-person testimony; (3) whether a summary of the State's evidence is sufficient; and (4) whether the State can refile the charge if it obtains new evidence after the case is dismissed. The State suggests that these questions are the proper subject of formal rulemaking proceedings pursuant to GR 9. While we are in basic agreement, we will not prohibit the trial court from exercising its inherent authority to dismiss a criminal prosecution where the State lacks sufficient evidence to support a conviction. The defendant should not be required to be tried on an unsupportable criminal charge solely because this court has not promulgated a rule governing pretrial motions. Trial courts are often asked to decide procedural questions which have not before arisen and for which there exist no formal, written rules. Trial courts must necessarily have some inherent authority to devise appropriate rules in such situations. This court will later determine whether these actions are a proper exercise of the trial court's authority.
The question, then, is whether the trial court abused its authority by proceeding as it did. We find the trial court's actions appropriate and take this opportunity to clarify this pretrial motion procedure by this opinion and suggest a
We find guidance in this matter from our sister jurisdictions of Massachusetts and Florida which have established procedures which govern pretrial motions to dismiss for lack of a prima facie case. The Massachusetts procedure was promulgated by opinion in Commonwealth v. Brandano, 359 Mass. 332, 269 N.E.2d 84 (1971). The Brandano procedure provides that when dismissal is proposed by the defendant or by the judge without consent of the State, the defendant shall file an affidavit in support of dismissal which shall contain all facts and law relied upon in justification of dismissal. The State may file a counter affidavit, and, as to matters contained in the affidavits which are in dispute, there shall be a hearing, unless the judge concludes that on the face of the affidavits the "interests of justice" do not warrant a dismissal. If the judge concludes that the "interests of justice" require a dismissal, findings of fact and reasons for the action must be entered. The State has a right to appeal. Brandano, at 337. The use of the Brandano procedure to test the sufficiency of evidence received approval in Rosenberg v. Commonwealth, 372 Mass. 59, 63, 360 N.E.2d 333 (1977):
The procedure in Florida is promulgated in the Florida Rules of Criminal Procedure. Fla. R. Crim. P. 3.190(c)(4) provides that the court may entertain a motion to dismiss on the following grounds:
Fla. R. Crim. P. 3.190(d) further provides:
If the motion to dismiss is granted, the court may order the defendant held in custody or admitted to bail for a reasonable, specified time pending the filing of a new indictment or information. If no new indictment or information is filed the defendant shall be discharged. Fla. R. Crim. P. 3.190(e).
The committee notes to these rules indicate that this procedure will permit a pretrial determination of the law of the case where the facts are not in dispute. In a sense, this is somewhat similar to summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to a
In State v. Pettis, 397 So.2d 1150 (Fla. Dist. Ct. App. 1981) the court stated that the function of a Fla. R. Crim. P. 3.190(c)(4) motion to dismiss is to ascertain whether the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt. The motion to dismiss should be granted only where the construction most favorable to the State would not establish a prima facie case of guilt. In considering a Fla. R. Crim. P. 3.190(c)(4) motion, the trial court may neither try to determine factual issues, nor may it consider the weight of conflicting evidence or the credibility of witnesses in determining whether there exists a genuine issue of material fact. If material factual allegations in the motion are denied or disputed in the traverse, denial of the motion to dismiss is mandatory. Accord, State v. Lewis, 463 So.2d 561 (Fla. Dist. Ct. App. 1985); State v. Upton, 392 So.2d 1013 (Fla. Dist. Ct. App. 1981); State v. Hunwick, 446 So.2d 214 (Fla. Dist. Ct. App. 1984).
A defendant has no right to appeal a denial of the motion to dismiss. RAP 2.2(a). The State has a right of appeal. RAP 2.2(b). A dismissal and discharge under this procedure is not a bar to a subsequent prosecution for the same offense based on additional evidence.
The proceedings in the trial court below essentially complied with this procedure. The defendant initiated the motion by sworn affidavit alleging with specificity that the undisputed material factual allegations did not establish a prima facie case of criminal possession. The State did not respond by affidavit, but summarized its evidence in the hearing on the motion in essentially the same fashion as set forth by the defendant's motion. The trial court considered this undisputed evidence with all reasonable inferences most favorably to the State and held that there was insufficient evidence of a prima facie case.
The majority opinion directly conflicts with our previous case law and circumvents this court's traditional rulemaking process. Therefore, I dissent.
This court has twice held that a trial court does not have the inherent power to dismiss criminal charges before trial
Equally troubling is the manner in which the majority establishes an entirely new procedure for criminal trials. Such sweeping changes are better adopted through this court's rulemaking procedures than by opinion. GR 9; RCW 2.04.190. Rulemaking is appropriate because all interested and affected parties are given the opportunity to be heard on the proposal. Certainly in the case of a proposed procedure for the pretrial dismissal of criminal actions, this court would want to receive comments from prosecutors, defense counsel, the Superior Court Judges Association, and others on the possible consequences of the new rule. GR 9(e). The purposes of the rulemaking process are worth noting here:
(Italics mine.) GR 9(a).
Upon receiving comments on such a proposed rule, we would then be in the best position to adopt, reject, or modify it. To adopt a rule with sweeping implications for criminal procedure by opinion, thus circumventing the rulemaking procedure, is precipitous.
DOLLIVER, C.J., and ANDERSEN and CALLOW, JJ., concur with DURHAM, J.