*1 result, need As we given. for the reasons above case of error. assignments remaining consider the are stated, convinced above For the reasons habitual in the must be reversed and sentence judgment direc- remanded with and the cause criminal proceeding, upon a new sentence impose appel- vacate it tions to attempted petit his conviction of solely upon lant based larceny.
It is so ordered.
JJ.,
Rosellini,
Hale,
concur.
Hunter,
J., Hill,
C.
September
En Banc.
1969.]
39402.
[No.
Jerry Ralph
Washington,
Respondent,
Adams, Appellant.*
*Reported in
J. appellant for counsel (appointed appeal). Wilcox, E. Merle E. Schillberg,
Robert Donald Hale, J. A. for Bruce Keithly, respondent. is an from a J. This conviction appeal of first Neill, returned a degree murder..The for recommendation penalty pronounced as the sentence. the death which was sufficiency entirely The evidence is circumstantial. challenged by deem defendant; so the evidence is necessary detail. to set forth considerable factual body her in her home
The victim’s discovered was daughter midnight Saturday, 11, 1966. The about June daughter immediately police. summoned the Police investi- gation died as a result of a revealed that the victim number object, head inflicted blunt believed blows body. to be a hammer found near her The handle was claw wrapped awith cloth. definitely
The time of the death established. Testimony of established that the victim several witnesses Thursday evening. preceding alive the One doctor tes- Thursday tified that the victim died noon between on Saturday. on noon Another doctor testified that her death p.m. p.m. Saturday, occurred and 10 between 6 and that death occurred after within few hours the victim had eaten a meal. missing daughter
The victim’s automobile when body. neighbor discovered the The victim’s heard a woman Friday night. p.m. scream at about 10 o’clock At about 11 night neighbor the same the same saw the victim’s automo- being away. driven bile Another testified witness that she driving defendant the victim’s saw automobile 10:30 about Friday evening. o’clock Defendant was seen nu- driving merous witnesses victim’s automobile on Satur- day Sunday. accompanied of these Some witnesses de- fendant on his excursions in the victim’s automobile around During gave time, area. Seattle these *4 explanations acquired various as to he witnesses how had generally ownership the He claimed automobile. of it. Sunday upon
Defendant abandoned the automobile on hearing body radio that the victim’s the had been discov- days apprehended by police later he ered. Several the high following speed injuries chase. He sustained minor capture. to avoid in his effort Friday
During period night Sunday, the from to defend- 654 clothing belonging wearing son. A the victim’s to
ant was found admitted was suit of clothes spots found on of blood were home. Minute the victim’s fingerprints were home. Defendant’s the clothes left the particularly con- on a suitcase home, found in the victim’s key taining papers. to this suitcase was the victim’s The son testified The victim’s in the automobile. found victim’s defendant and that clothes to that loaned his never anyone. to The his clothes had never loaned his mother daughter that the victim would also testified son and except anyone members never loan her automobile family. the he had visited He admitted
Defendant testified. evening. Friday stated that the He further home victim’s him, clothes to and the her automobile had loaned victim neighbor boy young Aher. killed he had not and that pick up mail her from victim he had seen testified that postman Saturday; however, the her house on in front of Saturday had not been delivered mail testified her mail box. removed appeal defendant’s raised issue first admitting certain into evidence erred in court
whether during autopsy. (slides) He photographs taken colored slides to show the reason that the contends injuries sight so as cruel inflame the accused with to associate reason overwhelm that accu atrocity evidence. Pictures sufficient without thing or condition of rately represent state the true they probative upon value if have depicted admissible are charged. Hawkins, State v. 70 crime element some They (1967). have been held to 697, 425 P.2d Wn.2d used illustrate or probative value where experts testimony as doctors. State v. such explain (1961); Nyland, 516, 358 P.2d Little, 57 Wn.2d (1955); Smith, State v. P.2d 240, 287 47 Wn.2d 83P.2d Wash. photographs are taken at a location other fact (e.g., morgue) crime does not scene
than the
655
(photo-
supra
Little,
admissibility.
v.
State
affect their
at
(photographs
supra
Nyland,
autopsy);
graphs
v.
State
corpse
itas
depict the
Photographs
morgue).
do not
if
may
admissible
immediately
be
crime
after
looked
supra (photo-
Little,
v.
they
probative
State
value.
concerning
death,
of
testimony
cause
amplified
graphs
of
supra (photographs
body);
Smith,
v.
condition of
State
concerning
testimony
explained
body 4 months after burial
aspects
unpleasant
of
death).
fact that
cause of
autopsy rather
part
photographs
of
the result
are
not neces-
does
death
caused
than
criminal act which
v.
sarily
photographs.
State
preclude
See
the use of the
(1947) (photograph
P.2d 634
Hardamon,
182, 186
29 Wn.2d
witness);
complaining
Smith,
bandaged
v.
State
head of
of
burial).
body
supra (photograph
4
after
months
of
merely
Photographs
because
are
inadmissible
gruesome.
721,
The fact that always completely force is not determinative of its ad- missibility. logical There are cases where the relevance unquestionably an exhibit will be such overwhelmed inherently prejudicial qualities impair its which will impartial right a fair and trial. When
the defendant’s relevancy entirely undoubtedly by peg of the minute will dirty hung upon quantity fair it, linen obscured play the exclusion of the exhibit. directs relevancy probative balancing value
This
against
upon
photographic
its harmful effect
evidence
*6
King,
primarily
v.
the trial court. State
accused rests
with
(1967).
does not
But this rule
Wn.2d
nessed establishing relevant and mate- crucial autopsy is often expert case, testified in the instant doctors stages theAs facts. rial photograph autopsies often various performing photographs quite help- are examinations, and such their laymen necessary to understand for ful autopsy surgeon’s testimony. testimony, doctor’s impor- conjunction shown, was the slides were with which (1) establishing the exact facts: certain material tant (2) wounds; and location death; cause of the nature (3) similarity and the hammer in evidence between (4) type wounds; and inflicted the of instrument which apparently did the victim attacked from behind attempt opportunity defend herself. have the explana- the doctor’s The slides used to illustrate were type opinion death, cause of of instru- tion of his as to the eyes black ment used and to that the victim’s were show of the head and not to the the result of a to the back blow eyes directly. testimony probative This has value to sub- theory victim struck from stantiate state’s the rear as she fled from her assailant. vigorously opposed
Defense counsel the admission of argued these slides. that the had not He witness testified necessary understanding that the slides to an of his proposed testimony. question by Therefore, in answer to a *7 jury, “I court, stated, sans the witness would consider it helpful [to slides].” most use the
Although appear it does not from the record that judge previewed say slides, trial these we cannot that he upon because, failed to exercise discretion a motion for mistrial, he stated: going deny your Well, counsel, I am motion. Violent thing observe,
death is never a nice
but this is what
doing
today.
attempting
we are
here
We are
to find out
was,
what the cause
death
it was a
death,
violent
anything
death,
I
see
who caused the
and don’t
in these
testimony by
going
illustrations of
prejudice
to make the death less
the Doctor that is
way
going
one
or the other.
is
It
not
possibly
violent,
I
see,
can’t
you
theory
why
of the case which
here,
under the
prejudicial in
sense of
this should be
the word.
guilty
plea
puts
a
In
criminal case
not
all ele
prove
crime in issue and the state must
ments of the
them
beyond
Davis,
a reasonable doubt. State
ingly, corpus proof delicti relative to by properly essential, in its case in it was used the state argument chief. the fact of death was Defendant’s by clear and a criminal act and that such death caused agency proved deprive the was otherwise state will obligation proof its means of these elements the best probative it. had clear available to The slides and relevant ruling by value. court was not an abuse of its discretion. imposition penalty temptation, of the death creates a justification,
but not for this court to find error reversible not do in criminal where would so cases which lesser penalty imposed. reversing But the case at on the bar assignment basis of the first of error be to substitute judgment discretionary our ruling for that of the trial court unduly hampering could result the use of important evidentiary method in criminal future cases. though might This decline to do we even have ruled we photographs. as to several of the otherwise assigns Defendant also error to the admission into body photographs evidence of the victim’s which show police during the interior her home as discovered investigation. any argu their Defendant failed to direct assignment ments in his brief toward this of error and it should be considered Seattle v. Schaffer, waived. 71 Wn.2d (1967); 600, Bell, P.2d State v. 59 Wn.2d P.2d However, have considered the conten overlapping assignment tion as there is first photographs probative error. These had clear value and They were admissible under the rules stated above. prove used to relevant and material facts such as the scene *8 physical poten the crime facts of the case. The prejudicial photographs appear tial effect these does not great outweigh probative and does not to be their value. admitting court did not abuse its discretion in them into evidence. assigns
Defendant next error to the court’s refusal witnesses, exclude all some 50 in number, from the court- testifying. actually Defendant they except were room when exclude wit- requirement court that no admits there is reason for no sound there contends was nesses, but request made. He doing capital case when so in a death sentence argues a conviction that when further denying his motion to assume ensue, it is reasonable prejudicial and indicates an abuse exclude witnesses by the trial court. discretion jurisdiction that in this rule
It is a
established
well
the discre
is within
the exclusion of the state’s witnesses
decision
not be
will
of the trial court and the court’s
tion
he has
can
defendant
show
overturned unless the
prejudiced by
Weaver,
of discretion. State
an abuse
been
(1962);
Dalton,
After his reasons for the motion to you judge witnesses, clude the trial stated: “Unless good gainsay deny I here, me some reason to will your willing I motion, but am to listen.” Defense counsel merely feelings just opposite stated that his give expressed those and failed to the court court any specific justification applying reason or for the exclu- Although sion rule. a motion to exclude witnesses should usually granted, cannot hold that cir- under these there cumstances abuse of discretion. next
Defendant contends that he was denied a fair and impartial improper, inflammatory trial reason of the prejudicial during prosecutor remarks of the summation. closing argument, prosecutor charged the defendant being a liar some 32 times with and characterized him as a dangerous and a killer of the most Thus, murderer kind. prosecutor expressed personal contends, the *9 660 veracity opinion the and both as to the
belief guilt. his as as to well object remarks, did to such but contends
Defendant
not
appeal
so is not fatal
his
since the
that his failure to do
flagrant
prejudicial
prosecutor’s
so
conduct was
not have cured the situation.
instruction could
constitutionally guaranteed
that the
It is established
attorney representing
requires a trial in
fair trial
which
public
prestige
office and
of his
the state does not throw the
opinion
guilt
expression
into the scales
of his own
impress upon
against
any attempt to
Thus,
the accused.
attorney’s
personal
prosecuting
in
de
belief
guilt
prejudicial.
See State
fendant’s
is unethical
(1956), and cases cited
Case,
66,
defendant as liar on number specific portion referred to a each time did so he testimony, including evidence, defendant’s own clearly defendant had lied. The demonstrated that in fact argued (1) prosecutor, essence, evidence shows rea- has lied before there little that defendant when good (3) (2) lie; has reason to so; son to do defendant now you may interest in the case evaluat- consider witness’ credibility; (4) ing it is therefore reasona- the witness’ telling ble to believe that defendant is truth now. express given reasonable latitude to Counsel is draw including in- evidence, and deductions from the inferences credibility Hinkley, as State v. ferences to the witnesses. (1958); Brown, State v. 325 P.2d Wn.2d 379, 213P.2d Wn.2d closing argument might
Although prosecutor’s using phrased “liar”, been better word we be- argument comes within the rule lieve that his which allows express reasonable counsel to draw and inferences produced at trial. evidence as a
Similarly, prosecution’s to defendant reference dangerous evi- based killer of the kind was most argument part for the as the state’s and was made dence quotations penalty. from the imposition of the death point: following appropriate on particularly cases seem may [“murderer” terms be in a case where these that, It and “red-handed inappropriate to murderer”] *10 charge against case where there defendant, in a the was plied attorney ap- justification use, no for their and epithets, court mere them the defendant as beyond saying the of the in he went be warranted argument prejudice legitimate to the bounds charge is not such a case. was defendant. But this part of the tended murder. The evidence state strongly guilty very the jury appellant that the was to show charge. evidence, also, from There was which the upon of his victim
could well find that the blood clothing person of his at the time arrest. appellant conclusion a “murderer” and a legitimately “red-handed murderer” was one could be from the evidence. It an instance drawn is not where the attorney beyond the and made went evidence statements opinions, unsupported of his beliefs and unwarranted by evidence. It is this latter sort of statements that the usually condemn, courts not those which the evidence reasonably supports. (1927). 17, Evans, 4, v. 145 P. 845
State Wash. 258 may, example, highly prejudicial speak It for of a upon murderer,” as “a defendant red-handed one set merely taste, on facts, bad another. It is because the question language complained as to or not whether primarily prejudicial depends upon the evidence in compelled, preparing opin- case that we have been in long ,and ion, make a tedious recital of the evidence. general may principles However, certain be deduced from decisions considered as whole. indicates
If the evidence that the defendant is a mur- prejudicial designate it is not killer, derer to so him. Buttry, Wash, (1939). 228, 199 P.2d determining “The best for rule whether remarks made objectionable counsel in criminal cases are so as to is, of the case Do the cause reversal remarks call to the jurors attention of the matters would not be justified were determining considering in their verdict, they, particular under circumstances probably case, influenced remarks.” these supra, Buttry, quoting State v. Sullivan State, 47 Ariz. 224, P.2d designating prosecutor’s language
While the as dangerous may killer have been in taste and not to be bad holdings quoted favored, nevertheless under the above the prejudicial statement did constitute and reversible error. rights
Defendant next, contends that his constitutional interrogated violated that after his arrest by police the absence of officers his counsel who knew defendant had counsel. Admissions of defendant dur- made ing interrogations against such were used him. Because important assign- questions constitutional raised in this ment error, we must relate in some detail much of the preceded circumstances which the trial. *11 apprehended by
On June defendant was two police given description officers had who been a of defend- driving. ant, clothes, his the and vehicle he was He at- tempted by fleeing motorcycle. to arrest on a avoid As a injuries result of minor received in a crash at the conclu- Hospital chase, sion of a he was taken to Harborview in he It was there determined that was in of Seattle. not need hospital defendant Aspirin given care. was medication to during prior to hours his removal hospital. 9:42
At a.m. on June defendant 19th, was taken into police custody hospital, fully at the at time he which was rights. thereupon advised all his constitutional He was transferred to Mountlake Terrace. given rights,
Defendant was then a written statement of by filling completed he in blanks, which certain aloud, read signed acknowledged presence police and of two signing rights, officers. Prior the statement of to defendant represented attorney indicated that he was an with already request he been in He contact. did whom not to po- attorney signing the statement. contact this before attorney No threats lice contact the themselves. did not sign promises the docu- made induce defendant to were to police departmental instructions The chief issued ment. family him. De- could visit that members of defendant’s slip possession keep a in his fendant advised to was attorney’s telephone containing paper num- name and his telephone use it that he could and advised ber, was shown upon request.
Shortly day, p.m. taken same defendant was before municipal Judge courtroom Kershner before police Terrace, three officers and Mountlake at time deputy prosecutor present. then informed The court against again charges him and advised defendant rights. again he had an him his Defendant stated that attorney getting one. The ad- another court but would be provide him state vised defendant with would attorney expense. he Defendant indicated that at the state’s questions. no Defendant did understood and that he had present attorney appear- request court that his attorney hearing. ance. The not notified of the was police first Defendant returned to the station interrogation began p.m. at 9:03 Defendant first asked recognized pair jeans, if he a belt and a shirt all found police response at the home of victim. In to this say. question, replied he rather questions concerning then Defendant asked his visits past, relationship the victim’s home in the recent his her her son, interest a 1957 Chevrolet belonging freely the victim. He answered each of these questions. police garage then taken asked
Defendant was belonging recognized a 1964 Pontiac whether *12 say. replied he rather Defendant would victim. wearing asked the clothes he was Defendant whether was belonged replied his to him and he at the time of arrest say. asked that he rather not Defendant then would was concerning questions employment his and educational background, questions freely defendant which answered. interrogation ceased and defendant was returned to his p.m.,
cell interrogation at 9:35 32 minutes after the begun. questions The three which defendant had declined again by police during answer were not asked this interrogation request session. Defendant did not that the interrogation request presence cease. He did not of his attorney. attorney police. His was contacted No promises threats or were made to induce defendant to an- questions during interrogation. of the swer this On Judge June 20th, defendant was taken before French again the Everett court at which time he was advised of rights, including right appointed his his counsel. Defend- repeated already attorney. ant that he had an He did not request attorney present that his appear- at this court attorney ance and his was not contacted the authorities. The court then setting continued the matter for the preliminary hearing to June 22d, and defendant was re- turned to his cell. again
On 22d, June a.m., at 11:20 defendant interro- gated by police questions two officers. Defendant asked concerning previous ownership automobiles, his work beginning at a restaurant, and his activities from his last day up on June 9th work to the late afternoon of June visiting 10th time defendant was his sister at a beauty parlor in the area of the victim’s home. He an- questions freely. swered each of these He was then asked beauty parlor. he where went when he left the Defendant responded that he rather not answer until he had attorney. interrogation consulted with his then ended. interrogation The total time was some 50 minutes. Defend- request present during ant did not that his counsel be interrogation and the did authorites not contact his attor- ney. promises No or threats were made to induce questions put to him. answer interrogated 24th,
At 11:40 a.m. on June defendant was by police period for a third time officer for a of 23 min- questions concerning utes. He asked his activities be- day tween his last at work on June 9th and the time beauty appeared parlor at the on the afternoon of June
665 freely. questions Defendant was 10th. He these answered beauty leaving parlor. upon he then asked went where say. Defendant was rather He answered that concerning questions the victim. his visits with then asked interrogation freely. questions were answered These promises made to induce were then ceased. No threats any questions. did Defendant defendant answer during attorney present request inter- his be that attorney by police. rogation not contacted and the attorney by requests his or his fam- defendant to see No interroga- ily the second and third denied. Between 24th, defendant received and June visits tions, June 22d family psychiatrist. attorney, and After the from his interrogation, he was transferred to the Snohomish third County jail. testimony police
Prior to the introduction of the by relating officers the statements made defendant at these interrogations, hearing by as conducted the court by provided CrR 101.20W.The trial court found the state- voluntary admissible, ments of defendant but introducing any ordered to refrain from state state- concerning ments of the defendant his refusal to answer any question.
Relying
v.
2d
Arizona,
436,
on Miranda
384
16 L. Ed.
U.S.
(1966);
694,
v. Illinois,
478,
(1964); citing York, 401, Malinski v. New 89 U.S. (1945), 1029, L. Ed. 65 Ct. 781 S. and Glosser United (1941), States, U.S. L. Ed. Ct. 457 S. defendant contends the above facts related establish grounds holding two for the defendant’s statements inad (1) repre missible: because knew defendant was by police obligation counsel, the had to contact sented attorney prior taking judge to their defendant before a interrogating on two occasions and him occasions; on three (2) once defendant indicated he did not wish to question particular ques- one answer in a series of asked duty immediately police stop tions, the the inter- rogation question and not defendant future time. We do not believe, however, are that defendant’s contentions supported either the facts of case or the decisions on which he relies. cited reaffirm cases certain consti rights person including
tutional
of a
of crime,
accused
*14
right
right
represented by
to remain silent and
to
the
stages.
counsel at all critical
However,
these decisions
permit
rights.
also
the accused to waive these
The defend
proceeding may
represented
ant
a criminal
choose to be
stages
proceeding,
stages,
at all critical
of the
at
some
during
proceeding. Similarly,
or at no time
the
the defend
may
questions
ant
choose not to answer
or
in
otherwise
questions,
criminate
to
himself,
some
not all
answer
but
or
questions
to
all
answer
and make a full confession. Courts
generally recognize
provided
will
the defendant’s choice
knowingly, intelligently
voluntarily.
made
is
supra,
In
Supreme
Massiah
States,
v. United
the
Court
protection
held
that
defendant
the
was denied
of the
guarantee
right
Sixth Amendment
of the
to counsel when
incriminating
evidence
was admitted
statements elicited
from him after indictment and in
The
absence
counsel.
quoted
approval
People
court,
at
from
v. Water
(1961):
man,
561,565,
9 N.Y.2d
Although case this no indictment or information was interrogations place, on file at the time took Supreme recognized contends that the Court has now right “It would exalt form over substance to make the to depend counsel . . . on whether at the time of the interrogation, the authorities had secured formal indict- supra, Following Illinois, ment.” Escobedo v. at 486. argument logical conclusion, to its defendant would have us investigatory to process shifts once conclude that interrog- lawyer, then no accusatory, has a accused presence of place counsel.1 in the unless ation could take Escobedo Supreme Miranda and The Court decisions has an accused require that, once conclusion not do present right have counsel to he cannot counsel, waive interrogation. Massiah, was unaware the defendant interrogated; being therefore, he could he was right knowingly intelligently to coun- have waived presented issue of thus not there sel. The waiver was holding facts in Escobedo restricted court. 490: that case. court held at investiga- here, hold, where, as therefore, We general longer inquiry is no into an unsolved
tion crime but has begun particular suspect, the to focus on a custody, suspect police police into has been taken carry process interrogations that out a lends itself eliciting incriminating suspect re- statements, has quested his him of his opportunity and been denied consult with lawyer, police effectively and the warned right silent, absolute constitutional remain *15 the accused has been denied “the Assistance of Counsel” Amendment in violation of the . . Sixth . request present
Here
counsel
defendant did
during
interrogations, although
he was informed
this
right upon
jurisdictions
several occasions. Courts of other
pre-Miranda
have held in
an
decisions that
accused without
may
right
counsel
under Escobedo
waive his
counsel
failing
request
during interrogation.
counsel before or
e.g., Dayton
(9th
1968);
Gladden,
v.
4
See
394 F.2d
Cir.
(1967);
Fox,
464,
State v.
251 La.
205
2d 42
So.
Greenwald
(1967).
State,
146,
v.
35
150
507
Wis. 2d
N.W.2d
also
See
departmental
our
decision
v. Huston,
own
State
71 Wn.2d
may
People
Vella,
1New York
now iollow such a rule. See
v.
21
People
249,
369,
(1967);
Donovan,
N.Y.2d
287 N.Y.S.2d
tional to remain silent at the outset of the inter- rogation, and we drew attention to that fact at several points in the . . decision . This was no isolated ingredient factor, but essential in our decision. . . . phase signifi- A different of the Escobedo decision during cant in its attention to the absence of counsel questioning. today, sought There, as in the cases protective dispel compelling atmosphere device to interrogation. police Escobedo, however, the did they not relieve the defendant of the anxieties interrogation created rooms. Rather, denied request his for the assistance of counsel . . . This heightened dilemma, and made his later statements product compulsion. [Citation of this omitted.] The *16 request attorney denial of the defendant’s for his thus ability privilege undermined his to exercise the re-—to speak main silent if he chose or to without intimida- tion, blatant or subtle.
(Footnote omitted.) emphasized importance
The court also of Escobedo in stressing “the terms, Amendment more traditional Sixth 466.) (Miranda, at It rights protection 384 U.S. at trial.” right in apparent counsel while an to that accused’s is thus right to custody only guarantees Amendment his not Sixth rights of protects Amendment Fifth counsel, also but against privilege These process self-incrimination. due any attempt separate protections to so interwoven that are right Amend- a Fifth to counsel and Amendment Sixth assign right standards counsel, different and to ment meaningless exercise. and futile be a each, waiver right recognizes Miranda, The that decision in intelligently may voluntarily waived, is to counsel prior limited the court’s decisions Massiah and not recognized impliedly Escobedo. This in Florida deci- right present sion which held that to have counsel at interrogation could be waived indictment. Colebrook after (Fla. 1968). State, a case similar that So.2d already us, counsel, before the accused had now where right present Tenth that the counsel Circuit held to have at interrogation States, could Dillon United be waived. (10th 1968). F.2d 433 Cir. The court stated at 436: It is further contended Dillon after counsel agent him been retained for F.B.I. interviewed him being present procedure without his counsel and this agree. tainted the admissions. do The fact that We present at Dillon’s counsel the time the admis- ipso sions were confirmed does not factor render them presence [Citation omitted.] counsel inadmissible. Certainly, as demanded. an can be well as if waived right right accused can to counsel when that waive right omitted], [citations can first attaches waive present subsequent appoint- to counsel’s to have counsel ment or retainment.
The concern each instance is intelligently made. the waiver be Supreme recognizes Court’s decision Miranda thus counsel and has been ade- accused who has who right may pres-
quately warned have counsel waive interrogation; prosecution however, must estab- ent any purported in accordance lish waiver with the standards set forth at 475:
670 heavy government
[A] rests on burden to demon- knowingly intelligently strate that waived his right the defendant privilege against self-incrimination and his appointed or retained . counsel. . . express willing An statement that the individual is attorney make a and does an statement not want fol- closely by a lowed statement could constitute a waiver. presumed simply But a valid waiver will not be from the warnings given simply silence of the accused after are eventually a the fact that confession was in fact obtained. dissenting Miranda,
Justice
this
Harlan,
assumes that
requires
by
“express” or
an
affirmative waiver
the accused
a
However,
before waiver
be effective.
a number
will
post-Miranda
courts in
waiver
recent
cases
held that a
right
right
may
to remain silent and the
to counsel
by
be effective
ac
without
affirmative statement
(8th
States,
cused. See Alexander v. United
380
33
F.2d
1967);
Hayes,
(4th
Cir.
United States v.
Thus, we cannot that be- cause he did make a not statement —written or oral—that fully voluntarily rights understood his waived admittedly receiving warnings, appropriate after his subsequent missible. Of automatically inad- answers rendered clearly course, facts attendant must show convincingly relinquish that he did his constitutional rights knowingly, intelligently voluntarily, but statement the defendant to effect is not an essen- proof. link in tial the chain expressly Defendant did state that he wished to rights. Although increasing his there waive is sentiment People Vella, expressed adopt the rule court to (1967), we N.E.2d 249, 287 N.Y.S.2d N.Y.2d express finding statement of an here conclude rights is his or more of one to waive accused he wishes necessary waiver can be an effective there before during present rights counsel remain and to have silent interrogation. statement under which The circumstances clearly made show that was made, course, must *18 knowingly, intelligently voluntarily, full aware- and with rights. by of accused his ness express required Supreme state- an Court has by has waiver, but rather
ment accused for an effective intelligent presumption waiver was that an forbidden the eventually simply was made from the fact that a statement from he was warned his extricated the accused after showing required rights. inher- additional Some interrogation ently atmosphere of has coercive custodial making free from and not disabled the accused rational choice. repeatedly rights. of his He
Here, defendant was warned given warnings required a written statement of all the including right present Miranda to have counsel during interrogation, he read aloud to and was asked to interrogation insure that he it. The ses- would understand trickery cajol- showing sions no or were short. There is ery. telephone. all He had free access at times to a He family, attorney, with of his visited his members and his interrogation request doctor He made no between sessions. interrogation attorney present during his ses- Finally, sions. He under and most im- was not medication. portantly, throughout all at least five occasions three interrogation sessions, answer certain defendant declined to questions, selectively exercising right thus his to remain right silent. Defendant’s exercise his constitutional questioning throughout remain silent as to certain areas interrogation persuasive sessions is evidence of his con- ability tinuing choice, make free rational and lends strong support rights to the conclusion that other he during interrogation
declined to exercise sessions were knowingly intelligently waived. In a somewhat similar Hayes, supra, situation in United States v. the court stated at 378: immediately sought When he thereafter leave tele-
phone granted. someone, leave As indi- soon as he questioning cated a wish that the be terminated and that attorney, agents be allowed to an consult the F.B.I. complied request. presence his That he had the liberty phone mind and the to make a call and to demand attorney shortly receiving requisite after warn- ings strongly supports Hayes the inference that under- warnings voluntarily relinquished stood the rights. fully light duty We have examined the record of our to ascertain the voluntariness of the admission elicited from (State Davis, Wn.2d 438 P.2d (1968)). fully areWe satisfied that defendant was properly rights, including advised all his constitutional right attorney present interrogations. to have his He fully rights. prevented, understood these He promises, cajoling, exercising threats, means, other *19 rights. freely many questions, these He answered refrained answering suggested selectively from others, and he desired present interroga- whereupon his counsel some, to as to tion on such matters terminated. Under these circum- right stances, the defendant has waived his to have counsel present during interrogation right to his remain silent. second
Defendant’s contention is that once he declined any particular question during interrogation answer the police question- session, the should ceased all further ing any support proposi- at that or future time. this quotes following tion, he the Miranda, 473: U.S., at any any If the individual in manner, indicates time prior during questioning, to or that he wishes to remain interrogation silent, the [Footnote omitted.] must cease. point, At his Fifth Amendment he this has shown that he intends to exercise privilege; any statement taken after person privilege invokes his cannot be other than the product compulsion, or subtle- otherwise. Without right questioning, setting in-custody off to cut interrogation operates free to overcome the individual privilege producing has in after choice a statement he states that wants invoked. If individual been once interrogation attorney, an attor- cease must until ney present.2 is language controlling As
This in situation. is not defendant’s Jennings 391 F.2d States, United stated the court in (5th sought 1968), to inter- “[W]hat Court Cir. person has dict in Miranda were those situations which right of constitutional indicated his desire to exercise his police ‘no’ for silence refuse an answer.” but the to take police pressure are bound not to browbeat otherwise get attempt relinquish claim of an accused in an him privilege. police nothing of that sort here. Defend- did interrogation ant never indicated that he wished response particular questions stopped; rather, sessions interrogators say.” he advised his that he “rather not particular In all received, cases when answer was questioning immediately dropped by police. line of instance, In one that he indicated would rather attorney. Upon receiving not answer until he consulted police questioning this answer, the ceased all he until attorney. days questioning consulted his Two later the re- along again line, sumed the same but when defendant indi- say cated would rather not was no there men- further subject. tion foreseen, These circumstances right police questioning of to continue under these circumstances affirmed the court in Miranda, atU.S. 445: may ques-
The mere fact that he
have answered some
tions or volunteered some
on his
statements
does
own
contained,
interpretation
People
language
2A recent
of this
Fioritto,
Rptr. 817,
(1968),
68 Cal. 2d
68 Cal.
further until he consulted with questioned. to he consents thereafter (Italics ours.) police “no”
This case refused to take is not a where attempted pressure into or to the accused answer, for an privilege. police relinquishing Rather, his claim of by scrupulously respected privilege claims this case all the accused. this circumstances of hold, therefore under the
We specific questions case, an accused declines answer where interrogation indicating cease and that all without desire subjects, police upon questioning ad different continue by merely subjects upon are not invalidated missions these specific questions on other the earlier refusal to answer matters. assignment court’s of error is the
Defendant’s final grant con verdict. He failure for directed motion required tends failed establish the the state’s evidence alleged crimi the death and the causal connection between corpus delicti in a homicide nal defendant. The conduct of (2) (1) a causal connection death and case consists of Lung, agency. 70 a criminal State v. between death and (1967). may estab P.2d These factors Wn.2d by evidence. State or circumstantial lished either direct (1941). corpus The Anderson, 10 Wn.2d 116 P.2d upon having established, is incumbent delicti been Meyer, identify State v. state to accused therewith. P.2d 759,226 Wn.2d criminality cause of death is clear. fact corpus beyond equally delicti has been is doubt. Thus
death proved beyond This issue doubt. leaves the reasonable jury which a there is evidence of whether sufficient beyond doubt, find, reasonable that defendant entitled to again perpetrator criminal act. We need not of the was the carry state recite the facts established jury. gravity have, question due to the We extensively already set the evidence. We now case, forth
675 jury support the to are sufficient that such facts add denying the motion. verdict. The court did not err in Supreme appeal Court decided heard, the After the Witherspoon 776, 88 S. 510, 20 L. Ed. 2d Illinois, 391 U.S. (1968). rehear- decision, held a In of that Ct. 1770 ing view jurors prospective be- on issue of the exclusion of capital punishment. cause their views juror challenge prospective authority for cause to against capital punishment of his or her beliefs because depends part upon 10.49.050, which reads: RCW preclude person finding any opinions him are as to No whose such guilty punish-
from able defendant of an offense compelled to serve as with death shall be or allowed juror any on the or information for trial of indictment such an offense. (Laws adopted present
This form in 1891 statute was in its 67). § of 1891, 28, time, ch. At that in the first murder degree punishable by only. legisla- 1909, death imprisonment punishment ture added the alternative of life and left the decision as to which sentence to be im- posed (Laws § 1909, 249, discretion of the ch. court 140). legislature penalty In 1913, the abolished death degree (Laws 167). for 1913, first ch. In 1919, murder legislature again penalty degree added the death for first adopted present having murder, and method of (Laws capital punishment make the decision on 1919, ch. 112).
Defendant’s initial contention on this issue is that RCW impliedly repealed by placing 10.49.050was the 1909 act impose capital punishment the decision to court, with the by abolishing capital punishment the 1913 act for first degree murder.
Repeals by implication are not favored. A later act operate repeal will not an earlier act unless the later act subject legislation, covers the entire matter earlier complete patently supersede itself, and is intended to prior legislation subject, on the or unless the acts two are clearly so inconsistent cannot be reconciled
676
given
by
construction.
and reasonable
fair
both
effect
Against
Directors,
v. Board
Bd.
Discrimination
Olympia
Defendant’s
second
holding
10.49.050has been rendered unconstitutional
Witherspoon
supra.
fully
Illinois,
v.
This contention was
Witherspoon proce- supra, Illinois, held that Illinois an jurors capital prospective in a case in which all who dure capital punishment of harbored about wisdom doubts during proceedings for cause voir dire vio- were excused right impartial guaranteed jury an lated defendant’s to Const, amend. 6 amend. 14. The court made it U.S. and does not clear, however, that decision limited juries of all from which constitute a blanket indictment pen- veniremen have been excluded for views on the death Witherspoon succinctly alty. scope appears to be set page forth on n.21: today say repeat, nothing We bears however, that upon power defendant sen- a State to execute a from, by jury veniremen those
tenced to death who were in fact excluded for cause who were unmistakably they (1) made clear automati- would cally against imposition capital punishment vote regard any might developed without evidence that (2) them, trial of the case their before penalty prevent attitude from toward death them making impartial decision as to the defendant’s guilt. validity case Nor does decision in this affect any finally, Nor, other than of death. sentence one does today’s holding opposed conviction, as render invalid the sentence, this or other case. holding RCW as 10.49.050 not transcend the thus de- does lineated. question
This for leaves consideration the of whether the prospective jurors exclusion for cause of in this case be- opposition capital punishment cause their violates the Witherspoon. dictates
Thirty-three dire veniremen examined on voir be- were impaneled. fore these, Of excused be- opposition penalty. cause indicated death Ten of *23 response questions those excused in to from the court clearly they pen- indicated that death could inflict the alty proper in a case. This to a amounts statement that automatically against regard- penalty would vote the death less the evidence introduced at trial. The exclusion of jurors Witherspoon. these did not violate testimony remaining pro
The voir dire three spective jurors who were excused for cause because of opposition penalty requires their indicated to death complete more these, consideration. The first of Baca, Mrs. originally penalty, indicated some doubts about the death penalty but concluded she could vote for the death “if guilty.” questioned Later, was after the court had other prospective jurors, changed apparently Mrs. Baca her mind just boy and stated, I I “that don’t feel could condemn this feeling to death.” She indicated that the reason for this age of the defendant. She then excused for cause. clearly supports proposition The record Baca Mrs. penalty for death in decided that she could not vote Although might this case. in be “automatic” such vote evidently cases, all it in this case would have been constant regardless presented of the evidence Under these at trial. prospective juror to circumstances the cannot be said be respect penalty properly “neutral” with excused. following portion of the voir dire examination prospective juror, Mrs. Osborn: questions I Court: You have heard the jurors, you questions
asked the other have heard anything Is that comes counsel have asked. there your any you you disqualifies mind feel wise now that capital pun- I in this case? Mrs. Osborn: don’t believe good disqualifica- pretty Court: That is a ishment. The right, I All tion. think so. The Court: Mrs. Osborn: you Ma’am, are excused. exchange two of is almost identical to that of at least This supra. prospective jurors Mrs. Osborn Aiken, in State v. juror prospective and had heard 10 examined was the 24th being given questions their after about these excused capital punishment the Wither- which satisfied views spoon requirements. specifically referred her The court asking previous questions her if she felt that when these disqualified. she should be there was reason following supra, made the comments Aiken, upon a similar situation: concerning capital questions dire
Each had heard the voir punishment repeated regularity almost monotonous with responses noting opportunity and each had the rulings respect In this context would be thereto. wholly did each not under- to assume that unrealistic respect part to the their convictions with stand what play possible penalty selection as their death presume equally jurors, that unreasonable and it would *24 misinterpreted judge their re- trial learned depth sponses their convictions of when or the Though questioning . them. . . and he before him testimony may dire the voir be conceded it standpoint could, . from the of . . veniremen of these complete and defini- appellate more review, have been testimony of dire voir from the tive, are convinced judge did not violate panel trial that the as whole [Witherspoon Witherspoon Illinois, spirit of (1968)] in Ct. Ed. 2d 88 S. 510, 20 L. U.S. excusing his of statements their them on the basis of evaluation them. respect is with
The same conclusion warranted questioning Her remarks when voir dire of Mrs. Osborn. conjunction of the voir dire total record read in with merely proceedings negate any har- that she conclusion punishment. capital bored doubts about wisdom prospective juror, interrogation Mrs. The voir dire question. Chapman, Her examina- raises the most difficult proceeded as tion, relevant, insofar as follows: you any Chapman, consci- Well, Mrs. The Court: pen- scruples against infliction of the death entious alty Chapman: proper IWell, in a case? Mrs. have been fighting myself if I all I don’t know could weekend. hang anybody, Well, I’m honest. The Court: to be asking you asking you any hanging. are to do We you con- circumstances could whether scientiously laws not under the for of a man under the vote the execution Washington, assuming the situation the State Chapman: merited it? Mrs. I don’t know. Court: Well, I more an- think we have to have a little definite appreciate real that, swer than Ma’am. I that this is a question anyone certainly for I difficult to answer and am your you matter, not critical of indecision in if but abiding going very have some make belief that it you perhaps for I so, difficult excuse do then think we should you. you Chapman: I What do think? Mrs. think you probably right, All should excuse me. Court: you have it. You are excused . . . phrasing There can be no doubt that the court’s second question Witherspoon is an incorrect statement of the question test. The is not whether the veniremen would find “very impose penalty, difficult” to the death but whether impossible regardless it would be for her to do so evidence admitted at trial. again Chapman, prospective
Mrs. one of the last *25 680 responses
jurors to Her the court indicate that examined. properly could, test to she understood the be whether she penalty. circumstances, vote for the death How- under say impossible is to from the record she ever, it whether finally question, more this or whether the court’s resolved ready phrasing question escape her offered lenient struggle her her conscience. with question latter, then the is whether If assume the potential juror requires a rever- incorrect exclusion of one though even the record indicates sal of sentence prospective jurors examination of all the other the voir dire regard question approach of to the a correct followed capital punishment. do it does. We not believe presented question Bell v. Patter in
A similar (10th 1968), the court 394, Cir. where son, 402 F.2d 399 held: prospective of It cannot exclusion two be said testimony pre-trial
jurors mitment com- not indicate a did whose irrevocably against penalty death to vote evolving jury “the resulted in a standards ing that failed reflect decency progress of a mark the matur- of jurors society.” all excluded did This is because other regard, unwaivering acknowledge in and attitude an jurors prospective who did indicate further, there were scruples but whom the court refused conscientious viewing jury proc- Hence, selection excuse for cause. responses entirety by weighing of ex- ess its jurors, prospective it cannot be cluded non-excluded neutrality” of crossed the line “the State said that impartial jury proscribed domain entered the Fourteenth Amendments. the Sixth (Footnotes omitted.) Mathis, question N.J. also raised
This (1968), and the court reached the 245 A.2d conclusion: same correctly understood the con- the trial court
But where trolling principle, does not follow that the erroneous juror any specific single of a number exclusion question jurors for a reversal. Rather is call must totality trial court’s treatment of the whether oppor- deprive subject operated the defendant quality. representative tunity for a of a Rptr. 21, 714, 73 Cal. 69 Cal. Anderson, But see re 2d P.2d representing jurors prospective question whether thought systemat- community segment are substantial ically indiscriminately for See State excluded cause. supra. systematic of veniremen no exclusion Aiken, findWe rephrasing question one the court’s mistaken *26 during proper prospective juror present the been who had prior Rather, of numerous veniremen. examination proceedings, our total voir dire review the record the any partiality proceedings we conclude that avoided deny jury representative which defendant a within would Witherspoon. spirit Affirmed. C. J., JJ., and concur.
Hunter, Finley, Hale, McGovern, (dissenting) my opinion, J. has this court Rosellini, —In presented at last been a case in which the defendant has been to able that the trial show court abused its discretion admitting inflammatory photographs, trial new should be ordered. majority
The that, seems to feel because have never we photographs found that the introduction of constituted prejudicial philosophy are error, we committed to the that the trial court’s exercise of discretion on is such matters subject every to is, fear, review. trouble I time impression refuse to in a case, reverse doubtful prosecutor go created is free to a little further next that, time. I also fear if this trend is to continue, allowed pictorial appeals jury may to emotions of the become accepted proof an substitute for that the defendant commit- ted the crime. photographs having be tendency rule should passions jury
to inflame the of the should be admissible they actually probative if are on some element of the if unnecessarily crime, have not been distorted. appears an exam- to me this case what We unnecessary totally I do distortion. ple of deliberate jury unnecessary, autopsy or that an not mean that was autopsy. I do results of the to know the not entitled was unnecessary inflammatory photographs were mean that the investigators’ photog- prosecutor’s because the raphers and/or photographs scene and secured which on the were extensively accurately portrayed condition of body and the nature scene of the crime it left at the as was adequately portrayed in These matters wounds. the de- photographs the trial and which introduced at objection. no fendant offers readily acknowledge prosecutor if entitled, that the was
I prove required, death in detail how the resulted by showing pic- not done from the But this wounds. testimony. fact, done medical It tures. was eyes picture created the the black of the victim with which prosecutor ambiguity apparent felt it neces- testimony sary medical that blows have resolved cause condition. from the rear simple medical testi- If could not understand analyze opened mony it to skull with this, how was *27 spilling scalp is and the out? The fact the laid back brains regarding no in this case the cause of that there was issue it, or victim, of instrument inflicted the death the the which course, it Of it was the manner in which was wielded. things, prove upon prosecutor to these but incumbent the proof other extensive and uncontradicted made this identity question concerned serious the evidence. photographs threw not one flicker of of the killer. These subject. light on interesting majority refrains,
It is that the care- whether unconsciously speculate, fully giving I need not description photographs. description of the Some is opinion any meaning necessary is if the of the court to have place, In the first it must be noted that for the reader. all of photographs slides, were color which the showed the vic- body color, in vivid as de- tim’s mutilated hereinafter scribed. eight pictures depicting some victim, the
There were
cleaning away
showing
dried blood
her head before the
surgeon
showing
autopsy
had
and
her head
some
after
(state’s
away
114, 115 and
exhibits, 113,
blood
cleaned
116).
skullcap after
of the
it
Exhibit 111 is of the interior
shape
and
of a frac-
had been
size
removed
shows
particularly pleasant
view,
While none
these are
ture.
Pennsylvania
phrase
from the
court
are, to borrow
It is which, these last three inflammatory any relevancy they may so have had was totally tendency obscured their arouse emotions expedite thinking processes. rather than to its
While that, it is as once, true we have stated more than picture simply is not rendered inadmissible because it is gruesome, picture it is also true that a have some should tendency light jury; valid throw issues before light and if the amount can is so which minimal throw apparent object that its is to inflame than rather to en- lighten, picture we should hold the admission of such a judicial abuse discretion. jurisdictions, ques-
Courts in other
faced with similar
majority
tions, have
As
observes,
so held.
the test of
admissibility
probative
pictures
is whether the
value of the
outweighs
probable prejudicial
Photographs
their
effect.
body
autopsy
show the
the deceased
after
*28
frequently
upon
ground (see
held
been
inadmissible
this
(1958)
239
State,
103,
v.
Ind.
It is true that the this presenting helpful” the “most his testi- slides would be they necessary mony, not state that were but did testimony. helpful” “most and difference between inflammatory “necessary” one, real na- is a when photograph obvious, where, here, of a as ture by body mutilated, of a victim the defendant shows surgeon’s by knife, alone a sound exercise of discre- but tion incline the court to exclude it. should my surgeon’s testimony opinion, autopsy
In in this simple enough by any juror. case was to be understood they Graphic if needed; and even illustrations were gruesome presented more were, those were far which were necessary points. The than was to illustrate the doctor’s say they necessary they doctor did not were but “helpful.” drawing A would have done as well appeal passions the concomitant to the of without body jury. photographs depict These did not in the they killer condition which it was left were fortify prosecution’s disputed not needed to case prejudicial outweighed In short, issue fact. their effect they probative value, their if at all. majority opinion,
None the cases cited in the pictures court, have been decided un- involved so necessarily gruesome questionable such relevance as appellant objected those to which the in this case. (1967), alleg- Hawkins, P.2d 390 Wn.2d edly objectionable photographs showed bodies two crime in victims the condition in which were found and were held admissible to show the nature exactly investigating the wounds and what officers alleged found at the scene the homicide. no There distortions..
685 objection made photographs The slides and which (1961), did 120 516, in 358 P.2d Little, State v. 57 Wn.2d during autopsy. body It the victim indeed show the the that the bodies was not of the defendant the contention by autopsy procedure, that wounds but were distorted the immediately appeared the after not there it which were of the the cause altercation the state maintained was which position that the victim’s of the defendant death. It was the hospital injuries after the death was due suffered in the fight. important There the exact cause of the death was an disputed pictures rele- issue and the were held to be bearing upon question. vant Here and admissible as dispute there was no as the cause death.
In State v. Griffith,
721, 727,
52 Wn.2d
show the manner in victim] killed, existence of the marks on the wrists, the existence of part appellant, intent on of physical and to aid the understanding facts relevant to the crime. appearance There no body contention that the gruesome by autopsy. been made more Nyland, (1955), 240, Wn.2d P.2d an- majority, other case cited was also a case in which appearance defendant did not contend that the changed killings. bodies had been pictures, after the morgue, taken at the autopsy showed the wounds and the organs incision, but did not exposed show removed autopsy surgeon’s knife. In case, the trial court had photographs admitted two black and white and ex- apparently finding cluded offered, others them unnecessar- ily inflammatory. We held that his discretion had been properly exercised.
Any
concerning
admissibility
statements
gruesome
photographs
Payne,
contained in State v.
damon,
196 Wash. P.2d body admissibility photograph of the a of exhumed óf the autopsy interment. This after and victim taken 4 months inflammatory photograph probably of of the most was by However, court in cited cases. considered the those particular a there serious it a relevance because was had prosecution dispute the as defense to the between the by type defendant, latter main- the the of wounds inflicted only taining fists, struck the deceased with his that he had by striking his his head on his was caused that death ground. prosecu- something he It the fell to the when theory, used unnec- that the defendant had however, tion’s by repelling essary the force an attack deceased and in beating, during he a which him terrible administered heavy shoes while was on the kicked him with ground. therefore, the case, the nature of wounds that significance. vital The doctors was of the victim received they testifying could said that better these wounds about jury photo- the explain the use these wounds graph. particular here, because of interest case is
That gruesome picture and the did not offered evidence was the immediately, body at the time of or it looked as show the length quotes at some a crime, but the because after § 773, Criminal Evidence passage at 1319- from 2 Wharton’s 1935), approved (11th this court as a cor- ed. 20-21 quotation rect, applicable That rule. reads: of statement locality generally or that the of stated condition “It is objects photographed as those the same must be This crime. commission existed at the time slight however, as a sense, is to be taken in a substantial photo- existing change the time the conditions necessarily exclu- graph call for the taken does not photograph or tend to mislead, if sion of the it will showing Photographs jury. . . mislead, . although person admissible, are wounds of a deceased they purport wounds all to show do not show homi- commission result from the received which cide charged. depend upon
“Admissibility photographs does not objects they portray could be described whether words, ena- useful to rather on it would be but whether describe, and the better ble the witness better to they testimony are understand, otherwise the dice the concerned. Where objection properly admitted, it is not valid preju- admissibility photographs tend to jury. Competent material evidence should may tendency merely because it not be excluded beyond for to cause an influence the strict limits which it is admissible.” supra Smith,
State v. at 543-44. although As I have mentioned, case, evidence gruesome although picture taken at a time changes rather remote the crime and when had taken *31 place appearance victim, in the of the was relevant and material on a vital issue in is, the case—that the nature of the If wounds inflicted. the wounds as the probably prevail maintained, he would have been able to in using he self-defense, contention that acted in no more necessary; prosecu- than was but if were as the force maintained, tion excessive use of force would have been testimony, by established. With the use of medical aided photograph, prosecution prove the the was able to its case jury. of to the satisfaction the particular paid
But attention should be to the fact that prosecution, the defendant did not contend that the photographs body other taken before the was .interred;, illustrating have been which would as useful the waiting wounds, that it acted bad faith in 4 months to body. Furthermore, exhume one of the doctors said the recognizable photograph the in the wounds were still just at as it was that the situation could be demonstrated body the time the buried. was. suggest us, that,
It would be absurd to in the case before body just the of time condition the victim’s as it was at the photographs it found could be illustrated the cap scalp removed, back, head the laid the brain background. As extracted, and the intestines visible in the general quoted passage re- states, Wharton’s object photographed quirement is that the condition of must the same as existed at the time that which killer in case did commission the crime. While the this ugly upon unquestionably caus- victim, inflict wounds ing lay open her her and cause the death, he did not skull spill open As brains not cut her abdomen. out and did says, slight change permissible in conditions is Wharton’s a jury. if or tend not mislead to mislead will photographs my opinion, the relevance of the slight process autopsy showing in this case so great, inflammatory so nature tendencies and the their cause death was so well established the wounds pur- only undisputed evidence, that the conceivable other, offering mis- pose color slides must been these creating impression jury by crime of a even lead the actually one committed. which was than more horrible resting upon evidence, circumstantial case This was beyond proof is not a reasonable doubt case in such guilty assuming the verdict easy. But, even return, men still could there reasonable verdict To question of the death sentence. assume that remains body showing in a pictures the victim’s condition color likely horrifying left the killer it are not than more even jury, is, me, it seems to decision influence knowledge of human nature. a man’s When renounce of man has himself commit- who even that stake, life is *32 court should be meticulous its crime, this heinous ted Placing a fair trial. before the receive concern only legitimate sickening photographs, whose value these been already that which prove could be to further over, times many of a doubt shadow beyond proved a trial. denial such result in the could use are placed upon limitations is time that some It If the text jury. swaying the art photography of rele- minute peg cited —Is the is so frequently linen it?— hung upon dirty obscured vancy totally required the exclusion photographs, ever required of these. exclusion and order a trial.
I reverse new J., J J. Hamilton, Rosellini, concur with Hill, Weaver, and denied. 24, 1969. Petition for rehearing November September 11, En 39656. Banc. 1969.] [No. City Gerry, Lee Respondent, Seattle, James
Appellant.* *Reported P.2d in 458 548.