State v. Hartzog

сhild support with the only Washington The contact has Washington lived in parties issue is that had payments Wash- born As between two were here. and their children lie more substantial contacts ington Oregon, say person no reasonable We cannot Oregon. therefore Huelett, court did. would ruled as the have (1979). 967, 603 P.2d 1258 Wn.2d trial court is affirmed. The C.J., J., McInturff, concur.

Green, 26, 1980.] June 3335-8-III. Division Three. [No. Respondent, Washington, v. Herman State of Hartzog, Appellant. Donald Harbert, In re only Wn.2d presumed to have admissible evidence. considered 719, 729, P.2d (Morrison) attorney was and could Melton's inadmissible The affidavit Mrs. (Morrison) only Mrs. before the court was that not be evidence considered. with her children and worked there. Melton lived Idaho Craig Legal Lieb Institutional Services Wayne Davenport, appellant. for Eggers, Prosecuting Attorney,

Arthur R. respondent. for a conviction —Herman Hartzog appeals J. Munson, 69.50.401(c)1 possession under RCW for of a controlled substance, amphetamine. Hartzog an an inmate Penitentiary Washington State at the time he was found drug with the and at the time of trial. 12, 1977, trial, May prior Hartzog's

On 7 months Court courtroom Superior general Walla Walla issued a security requiring order certain measures be taken with all court. appearing inmates before the I. Appendix See on Hartzog challenges measures, specifically prior the basis those probe searches entry trial, into courtroom shackling during right process impartial denied his to due and a fair and trial. (1) Superior

We hold the courtroom order of the County applied only Court for Walla Walla must be an basis, hearing after a from which the court individualized provides implementation determines reasons (2) order; provision possession each the crime (RCW 69.50.401(d)) a controlled substance does require proof guilty knowledge. of intent or necessary

We deem it to on the supply background security of question courtroom order because the its broad applicability is before this court for the first time.

History Security of the Courtroom Order security penitentiary at Walla Walla is a maximum ordinarily security-risk convicted prison highest where Many repeat prisoners felons are incarcerated. for more serious crimes serving longer offenders sentences of penal than inmates other institutions state. The (c) by legislature inserting 1The amended RCW 69.50.401 a new section (c) (d), change moving but did not the overall definition of the crime what was possession of of a controlled substance. the statute read: (c) any person possess a controlled substance unless It is unlawful to, from, directly pursuant prescription the substance was obtained or a valid acting professional practice, practitioner or while in the course of his a except by chapter. this or as otherwise authorized (d). confusion, section as To avoid we hereafter refer County Superior jurisdiction Walla Walla Court has over which those cases arise from felonies committed within the penitentiary. which

The incidents formed the basis for the Walla Superior Walla Court order Eirerecounted both heEiring May 12, 1977, the record held and the During closing stages order itself. a trisd held prior order, months to the issusmce a bomb made lighter exploded adjacent with a Bic in the room conference severely injuring courtroom, to the correc tional officer. Prison officials later told the court an inmate smuggled witness had made the bomb into the During trial, courthouse. an inmate witness threw juror; water defendants, Gilcrist, face one gesture judge; made an obscene defendEmts, and both Agtuca, during spilled Gilcrist smd the trial milk coffee Emd ripped clothing, apparently on themselves Emd their in an attempt disrupt delay proceedings. See Gilcrist, 603, 614, 91 Wn.2d 590 P.2d 809 The Walla Wsdla has courthouse been the scene where inmates destroyed objects through shackles have books Emdthrown weJIs; where one smother; inmate has tried choke escaping prisoner upon where Em was chased and fired guEirds through public as r£mhe the courthouse Emdonto a street. Superior experi-

As a result of the Walla Wsdla Court's ences, combined with information and recommendations of adopted officials, and law enforcement the court required these measures to be of all inmates who came to court. The basis of the order is found the ordеr itself: Psychiatric reports Court, evaluation received testimony heEirings trials, of inmates at and the conduct of inmates both in Emdout of the courtroom evi- msmy being brought dence that individuals are into the danger pub- courtroom who constitute an extreme jurors, personnel, security

lic, court custodial stEiffand consequences they staff. actions, Heedless of the of their willing people merely are to or murder maim innocent amusement, delays, escape or

their morbid trial mistrials diversions. predictable

While some of these inmates risks obviously special predictability requiring precautions, can experience. prison setting comes from itself past not trigger an individual who has exhib- violent action Therefore, it Court there no ited before. this deems nonvio- way reliably distinguish to the violent from the All potentially dangerous. lent. inmates are trial, to Prior moved to set the courtroom aside order, objecting required body specifically appearance search and to cavity before each courtroom being leg throughout shackled arm and restraints ruling motion. In trial. court denied the his trial on the secu- judge part the routine nature of relied by an order rity measures. He also relied on issued this Snook, 2425-III, 9, 1977, incor- No. court State v. June into porated ruling. reference his oral Snook, discre In court motion for denied State's review, Superior tionary finding no error the Walla Walla applied as in that case. Court's courtroom order primar This court’s denial of the State's motion was based diagnostic which evaluation ily on the record contained a . . . personality aggressive as "'an Snook anti-social trends,"' homicidal as well as the criminal his and suicidal during tory appear his inmate witnesses scheduled motion, not reach this court did denying trial. the State's courtroom regarding broad applicability "the any inmate, security as defendant appears apply it Washington into from the State brought witness court supra.3 Gilcrist, Penitentiary."2 See also State v. Thus, appeal, subsequent 2This matter been reviewed but could have further conviction, appeal. his Snook withdrew Gilcrist, supra, shackling 3In of the defendant inmates Gilcrist rights Agtuca Walla Walla not to violate their fair trial under the held however, order; courtroom court noted that the order was record, Furthermore, challenged earlier nor was as noted defendants. itself, peniten- applied as to all order courtroom this inmates, Hartzog, to is before tiary specifically and first time. court for the Hartzog's to set aside trial court motion

After the denied Hartzog order, informed the court Hartzog's counsel shackling probe not to and would submit his witnesses although his trial during He was therefore absent searches. by the testimony and that of his witnesses was viewed his jury videotape. on Cavity

Body Search provides: courtroom order depar- before prison 1. will be at the Inmates searched County Walla brought will be They ture. Jail where the Walla will skin under they probe be searched needed, they personnel. of the supervision sheriff's As custody will to in joint be the courtroom brought personnel penitentiary custodial staff. sheriff's by Hartzog, to an According undisputed affidavit submitted arraigned leaving he was on October Prior to his 1977. him and he penitentiary, his clothes were taken from put was a He was then shackled and trans jumpsuit. county ported to a room in the approximately 3 miles sheriff, There, a correc presence courthouse. officer, hospital and member of the tional staff, jumpsuit. was off his He then bent he ordered take probed Hart hospital over a radiator staff member back on finger. put jumpsuit rectum with his He his zog's 4 Hartzog's court. affidavit also stated and was escorted to testify court appear personally he would if court to submit own behalf he were ordered justification opinion, for the court's action the record evidenced sufficient Gilcrist, supra that case. State v. at 613. hospital Hartzog's arraignment, who staff member 4After return from his presence other him in of four or five had searched him ridiculed allegation court stated The trial search. The stands unrefuted. inmates about the reprehen find such conduct offended such inexcusable conduct. We also at prison discipline. subject suggest it should have been sible and probe rectal search each required appear time he was the Walla Walla courthouse. 19, 1978, January

On the court Hartzog's denied motion to set aside the courtroom Hartzog order. then sought temporary restraining order federal district court. court temporary That issued a restraining enjoining the Walla Superior Walla Court from conducting body cavity searches any inmate witness who testify trial, would be called to in his criminal "except that such may searches upon conducted an individualized showing probable cause." January 25, 1978,

On prob- the Walla Walla court held a hearing compliance able cause with the federal court's probe requirement. order on the prosecutor search The submitted to the court the criminal and institutional witnesses, Hartzog records of and two Manuel Rosalez Lanny Sargeant. and II. Appendix prosecutor See The also for purposes only introduced "illustrative" a "keister cache," a metal which in device can be inserted the rectum and used both for carrying contraband and as a weapon.5 There was no allegation such a device had been used Hartzog or his witnesses.6 hearing, judge probable

After the the trial held there cause for upon the searches based the nature of the crimes for which and his witnesses had been convicted upon in prison. records the inmates while 5he keister caсhe introduced as an exhibit here is a machine-tooled stainless cylinder approximately long 4 steel inches of an inch in diameter. One 11/16 cylinder revealing remaining end of the can be unscrewed a blade screwed into the portion cylinder. cylinder of the This can then be removed from the inside of the rescrewed, cap into With screwed the other end. the result is a knife a 4-inch 3-inch blade and a handle. requirement probe 6The of the courtroom order that a search be con part lighter exploded in ducted is based at least on the Bic which the court order, hearing preceding adoption house March 1977. In the of the superintendent lighter prison had of the stated that he had been informed brought day finding In been into the courtroom the before a keister cache. probable probe Hartzog, inci there was cause to search the court referred to that dent and the means in which the bomb had been carried into the courthouse.

583 Harris, v. Daughtery exclusively court relied upon denied, (10th Cir.), cert. 872, L. Ed. 414 U.S. F.2d 292 91, 2d 94 S. Ct. whether these inmates

This record does not reflect pre prior arriving were searched at the courthouse. searches, cavity within vailing body rule is that visual and institution, if per of a reasonable penal the confines are nonabu by qualified personnel formed a reasonable and Wolfish, Bell v. 520, L. Ed. 2d sive manner. U.S. Harris, supra. Daughtery (1979); 99 S. Ct. 1861 v. Wolfish, supra, Bell weighed signifi the court prisoners of convicted legitimate cant and interests detainees the institutional considera pretrial against were prison security body tion for and held visual searches noted, reasonable under the Fourth Amendment. The court searches, in determining of such reasonableness intru scope particular must consider the n[c]ourts sion, conducted, justification the manner which it is it, place in which it conducted." initiating and the Wolfish, Bell v. supra Ct. U.S. 99 S. 1884. Although prisoners degree retain at least some of Fourth protection, exigencies prison Amendment inherent require balancing environment between the state's inter prisoner's rights est order and and the privacy and to searches and be free unreasonable met, If search requirements seizures.7 the above within the is therefore reasonable.8 courtroom a second security requires order further County search upon jail prior arrival at the Walla Walla being Obviously, an inmate into court. the second brought York, Ward, (2d 7Hurley v. 1978); v. United States F.2d 584 F.2d 609 Cir. 578 denied, (5th 682, (1978); Cir.), 1005, cert. L. Ed. 99 Ct. 619 1036 439 U.S. 58 2d S. Manson, (5th 1978). Lilly, Bell v. United States v. See also 427 576 F.2d 1240 Cir. Valenzuela, (D. (Colo. People 1976); App. Supp. F. Conn. 589 P.2d 73 1978). Wolfish, supra, recognize that Bell v. while this case was on 8We was decided Supreme appeal did not have the benefit of the therefore the court Court's decision. necessity, security is an measure. The search additional however, not forth in this record. search is set a second prison nоte all the are within a We above-cited cases i.e., search, authority find no for a double We can context. ‍‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌‌‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​​‍trans- probe prison, an inmate a search at the subjecting courthouse, requiring to the the inmate there porting entry into the courtroom.9 probe another search before his security penitentiary a occur between the breach Should or inmate at courthouse and the arrival escorted the thereafter, likeli- a should to determine the hearing be held resulting in security prisoner's hood of a breach the obtaining weapon, drugs a or other contraband.10 duty protect per-

Undeniably, the trial court has the v. Basford, App. the Wn. sons courtroom. disclose, however, not P.2d 352 This record does prior at the prison whether a search was conducted ground nor a reasonable Hartzog's departure, whether at which a second search the courthouse existed made necessary. court- find the requirement

We the of a second search at house, record, hearing A upon this is unreasonable. based is taken be held and a record made where evidence must exists, order a the justifying presently second search. As to the properly declined to submit is too broad. probe not search at 9The dissent assumes the order does authorize pen order, penitentiary. required: the one at the As we read the two searches itentiary provides specifically for a the courthouse. one at courthouse; type penitentiary, probe as to of search at the search penitentiary cannot assume order is silent. Probe searches at are common. We required interpreted. If would be so search at search, prison probe are reasonable search is not a it should be. Such searches Constitution as indicated under the fourth amendment United States authority probe opinion. within No is cited for search at the courthouse our prisoner in continued to minutes search and while the has been after a showing custody. require probe To without a a second search at courthouse justification has unreasonable. to believe a breach of occurred is reason pen any question thoroughness of the search at 10If there is reason to prison during itentiary, might present search suggest at the we the sheriff charge transporting inmate to thereafter trial. take 585 appli search; justified. trial was his absence at second in person appear him to right of order his cation denied 1, 22 him. Const. art. charges against § and defend 10). (amendment During Physical Trial a Defendant Restraints of "(2) states: portion of the

The next leg restraints." Inmates will remain arm and in State v. Wil century ago, quarters Over three of a liams, 47, 51, (1897), court noted: P. 18 Wash. 50 580 that, "In 22, constitution, 1, our declares

Section art. right have the criminal the accused shall prosecutions here declared is right defend in appear person." only mental but his of not appear the use unfettered, impelling to unless some physical faculties necessity prisoner of a secure demands the restraint custody, binding safety of others and his own constitutional prisoner plain is a violation irons guar anty.[11] v. Olli are: State subject on this commenting Other cases denied, 874, son, cert. 65, 419, 411 U.S. Wn.2d P.2d 385 68 Sawyer, State v. 101, (1966); L. 60 17 Ed. 2d 87 S. Ct. 149 denied, 919, cert. 83, (1962), 9 Wn.2d P.2d 372 U.S. 371 932 Maryott, v. State 724, Wn. (1963); L. 6 Ed. 2d 83 S. Ct. 733 (1971). 96, P.2d App. 492 239 at trial are of defendant

Historically, physical restraints to those only necessáry prevent injury when permissible trial, courtroom, disorderly conduct at prevent is an physical restraints prevent escape. an The use resort. only as a last which should be used extreme measure 353, Allen, Ct. v. 337, L. 2d 90 S. Illinois U.S. 25 Ed. 397 (6th Cir. Cardwell, (1970); Kennedy v. F.2d 101 487 1057 310, denied, S. Ct. 1973), cert. 959, L. Ed. 2d 94 416 U.S. 40 (9th States, v. Loux United (1974). 389 F.2d 911 Cf. law; recognized long right at common been 11The to be free restraints has Williams, 49-50, authority: supra "2 Pleas Hale's v. cites as State (4th Case, Commentaries, 322; Layer's Crown, 219; ed. Trials 6 State 4 Blackstone Law, Case, 230, 231, 244, 245; by Hargrave), in Crown 1 Leach's Cases Waite's (1871); Kring, 36"; Harrington, Mo. 591 People v. 42 Cal. 165 denied, cert. Cir.), L. 393 U.S. Ed. 2d Ct. 89 S. Krauskopf, Physical See Restraint (1968); Courtroom, in the 15 St. U.L.J. Louis Defendant (1971); ABA Relating by Jury, Standards to Trial Stand 4.1(c) 1968) Draft, ard (Approved and comments thereto. Physical restraints are viewed disfavor for the fol- with (1) lowing physical prejudice reasons: restraints create a against being dangerous untrustworthy defendants as (2) officers; еven under the surveillance of law enforcement physical impede restraints a defendant's mental faculties materially abridge and thus his as well as right defense (3) behalf; his privilege testifying physical his own materially restraints to consult with right interfere (4) trial; during physical counsel restraints detract Ken- from the dignity judicial process. and decorum Cardwell, v. nedy supra.12 concerning shackling The rule applies equally prison who a criminal defendant is a inmate, many as 11. denoted of the cases footnote judge

The trial must exercise discretion deter mining necessary the extent to which measures are prevent injury. maintain order and That discretion must A upon be founded forth in the factual basis set record. general policy broad of imposing physical upon restraints prison they may charged inmates with new because offenses be "potentially dangerous" is a failure to exercise discre Duran, v. People 282, 1322, tion. 16 Cal. 3d 545 P.2d 127 618, (1976), 1 Rptr. overruling Cal. 90 A.L.R.3d three Cali See fornia appellate general policy. cases based such a Cardwell, (6th also v. 1970), Woodards 430 F.2d Cir. 978 denied, cert. 911, 809, 401 27 L. Ed. 2d Ct. 874 U.S. 91 S. Theriault, (5th 1976); 12See also United v. United States Cir. 531 F.2d 281 Samuel, Cardwell, (4th 1970); States v. Woodards v. F.2d F.2d 431 610 Cir. 430 denied, (6th 1970), 911, 809, cert. 978 Cir. 401 U.S. 27 L. Ed. 2d 91 S. Ct. 874 Duran, People (1971); 282, 1322, 618, Rptr. v. Cal. 3d P.2d 127 Cal. 90 16 545 Brown, (1976); People 24, (1977); v. App. 1 45 Ill. 3d N.E.2d A.L.R.3d 358 1362 Borman, Staley, 528, re App. (1976); State v. 40 Ill. 3d N.E.2d 529 S.W.2d 352 3 (Mo. Tolley, 349, (1976); App. 1975); State v. State 192 N.C. S.E.2d 290 226 353 Roberts, State, 159, (1965); v. Willocks v. Super. N.J. S.W.2d 86 206 A.2d 200 546 (Tenn. 1976). App. Crim. 819

587 159, 200 Roberts, A.2d v. 206 Super. N.J. (1971); 86 (Tex. App. State, Crim. v. (1965); Moore S.W.2d 357 or not 1976). persons, unrelated of other The activities a basis accused, may not be used as to an imputable State, v. Willocks criminal defendant. shackling a 1976). (Tenn. 819, App. Crim. S.W.2d policy incorpo Here, judge trial addition order, the fact upon relied in the rated were his witnesses to learn was bound jury if all Thus, inmates court reasoned inmates. in physical court into and remained brought were restraints, prejudiced affected or jury would v. States rejected. United argument has been thereby. That denied, (4th Samuel, cert. 1970), 610, Cir. F.2d 615-16 (1971); People 229, Ct. 964 L. Ed. 2d 91 S. 401 U.S. Duran, P.2d At the supra 1329. at 16 Cal. 3d restraint, there was physical pretrial hearing on the issue propensities particular of these inmates' no evidence of dis A exercise meaningful or to create disorder.13 escape use the decision to make requires judge cretion v. People case-by-case on basis. physical restraints 515, cert. Condley, 999, Rptr. 138 Cal. App. 69 Cal. 3d (1977); denied, 988, 483, L. 2d 98 S. Ct. 619 U.S. 54 Ed. 434 Roberts, supra State v. 204. at some reason stated the trial court have

The rule record, prisoner, applies on the conduct of the based penal court from brought into also to shackled witnesses Coursolle, 384, State v. 97 N.W.2d 255 Minn. institutions. (1959). right A 472, A.L.R.2d defendant has 75 755 there is of shackles unless appear his witnesses free have in the courtroom. escape persons or danger injury of an Williams, Cardwell, v. n.5; Kennedy supra at 105 witnesses to have his Right accused Annot., supra; free like, 75 manacles, shackles, or the handcuffs, from hearing subsequent on Appеndix II was introduced at 13The record found it deter body at the time was not before the court searches and thus the issue shackling mined the issue. 588 (1961). shackling

A.L.R.2d 762 have a a witness can comparable prejudicial shackling effect to that of a defend Brown, Commonwealth v. ant. 364 Mass. 305 N.E.2d (1973); Esquer, see also United States v. F.2d (7th 1972), denied, cert. L. Ed. 2d Cir. U.S. being 243, 94 Ct. 366 Inasmuch as this matter is S. trial, for a new court remanded foreclosed reconsidering this issue. We realize that while this case has appeal disruptive several been on incidents have occurred penitentiary. at the Whether the defendant and his wit involved those not known to nesses were incidents is court. (1976), Tolley, 349, 368, N.C.

State v. 226 S.E.2d 353 may consider, forth factors which court sets several the trial determining physical alia, in inter whether use restraints inmate an inmate defendant witnesses: present charge against of the [T]he seriousness temperament defendant; age or character; and his defendant's past past escapes physical attributes; record; and escapes, present plan attempted evidence of a escape; self-destructive attempted revenge disturbance; others or to harm cause a threats tendencies; the risk of mob violence or of possibility others; the of rescue large; other offenders still size and mood physical security audience; nature of the court- adequacy availability room; of alternative remedies. recognize appropriate circumstances additional

We provide safety be taken for the measures must upon public in attendance courts of and those including physical measures, this state. Such power restraints, inherent and discretion of are within the necessity judge. for those the trial measures must be hearing case-by-case after with a record made on a basis evidencing action taken. for the The standard the reasons appellate whether the trial court has review will Watson, v. 1, 114 Ariz. State 559 abused its discretion. Cf.

589 denied, L. Ed. 2d U.S. 986, cert. 430 (1976), P.2d L. 2d (1977) 924, Ed. U.S. and 440 382, Ct. 1687 97 S. (1979). of protection 478, weighing Ct. 1254 the 99 S. defendant, of a rights in the courtroom and persons possible of variety "a wide must choose from judge trial of discre permissible judicial within the areas choices all 1044, 1050, v. P.2d Basford, 1 Wn. App. tion." witness stand For relocation example, the are security personnel reasonable use of additional and the Further, if found neces restraints proper precautions. may time sary, persons place at the those shackled until jury into the courtroom and remain so brought leaves, physical will make less jury so restraints may The court also consider the use metal impact. may and other The court take detectors devices. such on an individualized basis without measures general security of a order. necessity Separation Legal From Counsel 3 of Paragraph states: Security will not Defendаnts sit at the counsel table. sufficiently will officers control remain defendants close. their actions. Confidential matters will be dis- hallway cussed counsel either the courthouse Jail, County con- depending the duration ference. separation during from his counsel

occurred as a refusal to submit to the search result his Thus, shackling itself. and was not based on the order separation we decline to comment on of a defendant may the court wish to reex- except suggest counsel previous provision light amine this comments to a opinion, provision's effect as relates particularly States, See Geders United denial of effective counsel. (1976), 47 L. Ct. 425 U.S. Ed. 2d 96 S. cases cited therein.

Possession Because following may retrial, issue arise on we question: address the Is intent or guilty knowledge an ele- ment of possession the crime of of a controlled substance? See footnote 1. sequence of events out of which charge pos-

session of a controlled substance basically arose is as fol- 3, 1977, lows: On October within prison, correctional officers Hartford and Baladez found Hartzog and two other off inmates a room the Confederated Indian Tribes clubroom. On a television set in room the officers saw two spoons containing milky substance, couple paper packets tape white and a sheath device. As Officer Hartzog, Hartford was searching a syringe fell out of the testimony front of pants. Expert established the residue spoons was an syringe amphetamine. thought testified trial he the white substance Valium, time of which at the its discovery was not a controlled substance.

The trial to give court refused following proposed instruction: To convict of the the defendant crime of pos- unlawful substance,

session of a controlled prove must you beyond ‍‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌‌‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​​‍a doubt the reasonable following: day the 3rd

One. That on or of October, 1977, about possessed unlawfully the defendant a controlled sub- stance; and

Two. That the act occurred Walla Walla County, Washington. intended to possess

Three. That the defendant controlled substance. knew the substance was a

Four. That the defendant controlled substance.

If that each of you find from evidence these ele- a reasonable beyond doubt, ments has proved been then verdict of guilty. it will your duty be to return weighing all hand, if, On the evidence, the other after any one of you ments, guilty. as have a reasonable doubt these ele- duty to return a it will verdict your then be of not ours.) giving assigns error (Italics Hartzog also No. 3: instruction Unlawful crime of defendant convict To Substance, must the State Controlled of a

Possession following: doubt the you beyond a reasonable prove October, day of the 3rd 1. That on or about substance; a controlled unlawfully possessed defendant and County, Walla Walla 2. the act occurred That Washington. ele- each these evidence that you If find from the doubt, then beyond a reasonable proved been

ments has guilty. verdict of your duty to return a will evidence, if, hand, all the weighing after On the other any one of these ele- doubt as to you have a reasonable a verdict of ments, your duty will to return then it guilty. it did not No. 3 because

Hartzog excepted to instruction intent. He also knowledge and include the elements unwit- defense of should include the argued the instruction proposed. no instruction was possession, although such ting 69.50.401(c), RCW and tried under charged (d), "It is unlawful for pertinent part: now which stated Neither possess a controlled substance". any person 1959, 27, 69.33.230, statute, ch. Laws of present prior nor § Historically, courts 207, of intent. p. language contained knowledge guilty intent and Washington have held of narco- possession of the crime of mere are not elements Boggs, v. State 57 Wn.2d tics or of controlled substances. Henker, Wn.2d 809, State v. 484, (1961); 124 50 P.2d 358 Sainz, 532, v. 596 State (1957); App. 23 Wn. P.2d 314 645 327, 511 Singleton, v. State (1979); App. Wn. 9 P.2d 1090 Dodd, 269, P.2d State v. (1973); App. Wn. 505 8 P.2d 1396 Edwards, 852, P.2d v. 490 State (1973); App. 5 Wn. 830 (1971). 1337 in the above-cited enunciated principle

We adhere adopt the rationale decline respectfully cases (1979). Fol- Weaver, v. 83, P.2d 598 State App. 24 Wn. Boyer, v. Wn.2d State employed lowing the standard 342, 344, (1979), 588 P.2d 1151 we believe that "absent express legislative language contrary," and within statute, "the history context of this its language," nei- guilty knowledge ther intent nor is intrinsic to the defini- Sainz, tion of the crime itself. State v. supra. Weaver, v. supra,

Stаte State reasoning by analogy Boyer, Smith, v. supra; State 231, 17 Wn. App. 562 P.2d denied, review (1977), and (1978); 89 Wn.2d 1022 v. Hennings, 483, App. (1970), 3 Wn. P.2d held the legislature did not intend to general intent, eliminate a usually guilty denoted as "willful knowledge," as a neces- sary element of of possession the crime of a controlled sub- Hennings, stance. State v. supra at Traditionally 489. require distinction between crimes that guilty knowledge analyzed and those that do not are as crimes mala se and prohibita.14 A mala crime which is malum se is defined as an act which [itself], is "immoral or wrong or natu- evil, rally murder, arson, such rape, as burglary larceny, 22 C.J.S. Criminal Law 8, (1961). ..." at 19-20 This § class of generally crime involves A turpitude." "moral crime which prohibitum is malum prohibited by one statute others, because it "on infringes rights although no turpitude may attach, moral or dereliction ..." 22 C.J.S. Criminal Law at 20 Generally, crimes mala § prohibita do not involve moral turpitude.

In State v. Hennings, supra the court noted: doubt, "Without by contemporary community standards and narcotics, possession law, by sale unless authorized is a by very crime which its nature involves 'moral turpi- (Italics ours.) Hennings involved possession tude.'" sale, i.e., trafficking. Boyer Smith delivery. involved 14We are aware of the criticism that the distinction or classification of crimes nonscientific," prohibita "manifestly as mala in se or mala is bears little relation Anderson, ship logic reality, may change Whar or with social mores. 1 R. distinction, however, ton's Criminal Law and Procedure 26 Since the § cases, significancе analyses past drug looms in in find for we it useful our purposes.

593 Weaver, supra, v. State case and present The legislative scheme Significantly, only possession. involve possession trafficking and mere distinguishes between statute. sections of the separate crimes two placing any person to 69.50.401(a) for it unlawful makes RCW deliver, with the intent manu possess manufacture, or 69.50.401(d) RCW substance. facture or deliver controlled possess anyone merely a controlled for makes unlawful community contemporary authorized. unless substance Hennings, standard, is reflected acknowledged actively who statute. Persons legislative distinctions manufacture, drugs or delivery sale participate socially engaging as more community perceived merely possess. Crimes conduct than those who harmful se, delivery of a sub mala such as controlled which are stance, knowledge which has been defined as require guilty identity being of the understanding product "an v. Boyer, supra State possession at 344. Mere delivered." guilty or prohibitum require malum and does not intent knowledge. States, v.

Hennings relied on Morissette United U.S. 342 250, (1952), 246, 288, propo- L. 72 Ct. 240 96 Ed. S. proof guilty knowledge, without of willfulness or sition that innocent, unintentional "guilt for an could be assessed Hennings, See supra act." State v. inadvertent at 490. Smith, v. supra Morissette involved a charge at 234. did government property of criminal conversion in a length requirement indeed discuss at intent court, howеver, criminal noted two earlier nar- statute. Behrman, 280, 288, United v. cases, States U.S. cotics 258 v. 619, and United States (1922); L. Ed. 42 S. Ct. Balint, (1922), 250-52, 604, L. 42 S. U.S. Ed. Ct. 301 rule at general and the trend toward modification of the knowledge where requiring guilty common law scienter or it. Morissette statutory definition did not include States, 247. The supra United Ct. at 342 U.S. S. Ct. 248: court stated at 342 U.S. S.

594 nor, aware,

Neither this Court so as any far we are other has precise undertaken delineate line set comprehensive forth for criteria distinguishing between crimes require that mental element and that do crimes definition, not. We subject no attempt closed for the law nor neither settled static. Morissette acknowledged it is responsibility of Con- crimes, gress to define not nor judiciary, should the judiciary enlarge the reach those enacted definitions. Morissette noted at 263, S. 342 U.S. 72 Ct. 250:

And Congress where borrows terms art which are accumulated the legal meaning tradition and of centuries practice, it presumably adopts knows and the cluster of ideas that were attached each borrowed word body from learning which was taken the mean- convey its will ing judicial use mind other- unless case, wise instructed. In such of contrary absence may direction be taken as widely satisfaction with definitions, accepted departure not as a from them. In statute, viewing language context and of the we find there no legislative intent require guilty knowl edge an possession. as element of predecessor mere aсt, statute drug drafted the uniform narcotic Laws of 1959, 27, 63.33.230, 207, ch. p. provided: the statute "It § . any shall be unlawful for . . . . person possess, any . narcotic drug, except as chapter." authorized present statute "It any person is unlawful states: possess a ..." controlled substance Two banc en decisions interpreting preceding statute held posses that mere Larkins, sion for conviction. State v. was sufficient 79 Walcott, v. 392, State (1971); Wn.2d 486 P.2d 95 denied, 959, 994, 890, cert. Wn.2d 435 P.2d 393 U.S. L. (1968). Ed. S. This recently 2d 89 Ct. division has possession requir noted the distinction between mere not Sainz, supra, ing guilty knowledge delivery McKeown, State v. requiring guilty Wn. knowledge, App. P.2d 1100 above-quoted

Applying from Morissette material only posses- significant statutes, we believe it delivery separate statute, sion and two sections legislature supply did not the term but also that the "knowingly” possession the section. The omission of to guilty knowledge signifies from an intent to eliminate term possession, supply judicially. to This and we decline position Supreme interpretation of with our Court's accords prior specific or did not find intent narcotics statutes which guilty knowledge possession. v. an of mere State element supra; supra. Boggs, Henker, v. State Hartzog's denying find trial We no error court's proposed required would State instruction which have prove possess knowledge both intent that possessed an substance was a controlled substance. Such The which instruction is erroneous. court's instruction required prove possession con- the State unlawful of a propose did not an trolled substance was sufficient. unwitting possession instruction or lawful defense amphetamine. of the

Judgment reversed and for a new trial. remanded Roe, J., concurs.

Appendix I Security Order Re Courtroom supplied experiences together The of this Court with information major that and recommendations made to it lead the conclusion changes in courtroom and courthouse must be made forthwith Penitentiary. emanating Washington State measures cases from the court, testimony Psychiatric reports evaluation received trials, in and hearings both inmates at and the conduct inmates brought many being are out of the courtroom evidence that individuals danger public, who an into courtroom constitute extreme jurors, personnel, of the court staff and staff. Heedless custodial actions, consequences they willing inno- to murder or maim of their amusement, merely delays, people for mistrials cent their morbid escape diversions. 5th, through April penitentiary

In the last trial March 29th Gilcrist, day Agtuca morning recess of the second Gilcrist at the "accidentally" spilled clothing coffee on his and refused to come to the being change for a courtroom without his taken back to the clothing. guards produce him in ordered to court immedi- were recess, ately. p.m. both At the noon the Court was informed at 1:25 "accidentally" during spilled clothing lunch defendants had milk on their clothing. They change court were and refused to come to without a trial, delay. produced point in court without At one in the Gil- ordered delay "accidentally" ripped pants and there was a until another crist pair brought penitentiary. point in down from At another presence jury following ruling trial out of the Gilcrist an adverse salute). (the gave finger" Rockefeller At the the court the court "the following Gilcrist next recess of the court this incident the defendant conduct, part apology which made a wrote the Court a note of for his record, request Aspirin Digel. for of this and included a provided by requested the Court. medication was stepped down the witness stand The first witness for the defense prosecutor cup of water. Provided with a small and asked the amount, juror proceeded to throw it in the face of the number he way juror looking him. been because he didn't like the had testified, gave specific to the Court instructions Before the defendants security charge the defendants were not the correction officer in of that pens any persons. pencils, on their The to take the stand with articles to Agtuca and when asked to stand exhibit defendant took the stand appeared jury, to be a Court observed a comb and what scar to the the (later confirmed) pocket. pen protruding right from his rear blue presumably Although skin and all witnesses and defendants were penitentiary, probe leaving the Court has been searched before the prison of witnesses made a administration that one the informed the day lighter person testified. with Bic it on his the he bomb and had it, passed Finding opportunity it to one of the defendants no to use he (last day day) brought of the trial and who it to the courthouse the next prisoners dur- room where are held left it on the floor of the conference lawyers. conducting ing While a search to confer with their recesses contraband, the penitentiary officer found room for correctional the floor, attempted light the loss of three lighter to it and suffered on the explosion. right resulting fingers in the of his hand Agtuca-Gilcrist other in trial as well as A of the witnesses the number daily they engage in penitentiary Court have testified trials heard this improve keep physically fit to practice and the of the martial arts weapons. deadly without force with or their skills the use of obviously requiring predictable risks some of these inmates are While experience. past The predictability special precautions, comes the who has trigger in an individual prison setting violent action itself can way Therefore, no there is this Court deems before. exhibited reliably nonviolent. All inmates distinguish from the the violent potentially dangerous. juror's chair. inches from the number seven stand is 52 witness jurors taking pass front row within 18 inches all

Witnesses departing stand. the witness way adequately my opinion, secure our is no considered there taking following for existing the measures courtroom facilities without requiring presence penitentiary the inmates: trials departure. They will the before 1. Inmates will be searched at they brought County will be skin and the Jail where to Walla Walla be personnel. As probe supervision of sheriffs searched under the the custody needed, brought joint they in the will be to the courtroom personnel penitentiary custodial staff. sheriffs leg 2. Inmates will remain arm and restraints. Security will will not sit the counsel table. officers

3. Defendants sufficiently their Confi- close to defendants to control actions. remain will with counsel the courthouse dential matters be discussed either Jail, hallway County depending the or the duration the conference. will end of the counsel 4. The witness stand be located near the left enclosing the rail the clerk and court table and between that table and jury reporter. approximately 20 feet from It will box and will be face Security personnel it. will located so as maintain control of be departs. until he witness from the time he enters the courtroom No will without the 5. witness be allowed to leave witness stand permission. court's impanelling jury,

6. The court before unless defense counsel to, requests jurors the court not will advise all that measures product penitentiary joint taken trials are the routinely administration, Court; they and the that are utilized sheriff taken that no is to drawn from measures inference be any procedures particular risk that inmate is a since same apply regardless to all of their conduct records the institution. inmates community jurors penal in a where a The Court believes that who live fairly likely will be more to determine issues institution is located they impartially if the courtroom secure. can observe themselves jurors during will be made aware the course community surprise jurors It will no witnesses are inmates. Thus, be no these taken. there should routine measures are prejudice to defendants. College. Judges' ‍‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌‌‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​​‍This Judge attending Mitchell the National Trial only. time, Department I applies, of this court

Order therefore at this provisions requirements foregoing of Order shall immediately. effective

598 open day May,

Done this 12th of court 1977.

John

_/s/ Tuttle

Judge Appendix II These institutional records were submitted to the trial court at the hearing probable required by cause federal district court relation probe reports search. The records include correctional officers' by penitentiary prepared summaries officials.

Hartzog—Criminal Record Escape reformatory camp. honor 7/19/69 Burglary degree. in the second 4/12/72 robbery, years; 2 of counts armed maximum 20 manda- 6/1/72 1/2 tory deadly weapon; for armed with a and maximum with life mandatory deadly weapon. for with armed See 1/2 Barr, Boast, App. (1973); Wn. 515 P.2d 840 State v. 87 Wn.2d P.2d 1322 punish- His record indicates numerous violations which many given, i.e., of tags," ment was which counsel his referred as "cell cells, multi-occupant weapons contraband found cell occupants. attributed all Penitentiary of Record Infractions: - (11 rounds); par- of .22 Possession ammo caliber narcotics 7/29/73 (cell aphernalia, including sugar; carving tag). knife (on pills person); guilty. pleaded of Possession 12/9/74 tools, i.e., contraband, Possession two of Mun- sets 5/14/75 pleaded pipe; guilty. chake sticks a hash (chako (4 sticks), weapon gallons), pruno Possession of 6/8/75 1/2 (cell pipes tag?); guilty; three hash found administrative appeal—disposition not shown. (not substance), pruno; drugs Possession controlled found

8/6/75 guilty; appeal—disposition defendant said he'd not shown. (cell pruno tag); guilty; Possession found defendant stated 10/12/75 appeal—no disposition. he would (determined Intoxicated; powder sub- white controlled 10/26/75 stance); guilty. found balloons, bowl, pipe Possession of dia- three small one wooden 6/24/76 gram handgun; guilty. pleaded possession one of a Denied cigar drug paraphernalia, slingshot can one wooden rocks, bag bag containing milksugar, gallons of tobacco (cell pruno tag). segregation Placed in as threat to institution security—review days. Reviewed—action indefinite.

599 guilty to sugar vio- pound from kitchen. Pleaded of one Theft 10/4/76 Segre- Administrative lating his contract recommended gation Committee. guilty. pruno, gallon—pleаded one Possession 11/19/76 yard big in the with encountering resident the above "After

4/6/77 myself B Hagen went to 8 6 and pruno on his breath Off. pruno hospital with residue from the 2 hot water bottles found Finnegan's with 216855 One hot water bottle Res. in them. pruno "Resident stated he it also with residue it." name on Sampson any Mr. of the stuff. Stated that not know about did hospital gave him for his hack." of the bottles to one days seg. "Guilty: 10 & Dismiss & 555. On 658. feels resident contract be reinstated. Committee Recommend however, contract, drinking in violation res- in fact was any possession pruno in his nor did he did not steal ident have the bottle." report numbers to in this officer's are subsections referred 275-88-030, WAC which is Infractions. entitled Serious I wing When Adm. with a card board box. asked "Res. entered

8/4/77 personal. him to me in it he said it was After show what was informing refusing him he if he did show shakedown saying what was he walked on down D-Tier he me the box it to would show me later." there beads necklaces for CIT "Res. states were indian ready they getting He states did

Pow Wow were to have. he say him a officer would show box to at later that he time, up cage were all and he did as resident's [sic] everything ground. dump on the Also these were not want to personel all items." [sic] Wing "Guilty: duty Sgt. hours Ramos." extra case.) (Two being charged in this months after 12/12/77 gallons pruno. shakedown "On a routine Possession 1/2 Adm., gallon I container of 14 C found a two and one half light Hartzog's to heat it. It was pruno under bed with a on it (the bowl) pipe with perking. I of a mari- Also found one half cap hole and two chicken juana residue it. Also a out, they as like were used roach drilled which smells bones clips." got got plastic jug for but a little coffee he "Stated making chicken neck-

depressed. used the bones Stated he pipe garbage got can." He out of lesses stated he [sic]. days "Guilty: and rec- to be served on week-ends isolation program." ommend he remain SAM Rosalez, Manuel David—Criminal Record Witness Taking permission, Spokane; a motor vehicle without maxi- 6/22/72 years. mum 10 firearm,

Robbery deadly weapon, King while armed with County; years mandatory. 7 1/2 Attempting escape felony dressing under sentence of while 10/10/75 female, County. as Walla Walla See 8/3/75 infra. Reformatory Washington State receipt. anything Possession of not authorized for retention or

4/12/74 plastic bag Defendant handed to inmate outside of shower. member; obey any Refusing to commis- a lawful order staff any general sion of infraction as enumerated WAC 275-88- security orderly operation to 025 to create a risk harassed.) (Defendant Guilty to three Institution. felt all charges. Appeal/disposition not record. order; Refusing obey interfering with staff member to lawful

6/3/74 duties; any performance general commission of of Guilty infraction in WAC 275-88-025. on all as enumerated (Defendant harassed.) charges. three felt kit, pipe; paraphernalia of narcotic one homemade Possession 8/9/74 guilty. adjust can't to roll of twinе. Pleaded Defendant stated institution—asks for transfer. Penitentiary

Washington State escape Big masquerading "Attempted as a woman from Yard 8/3/75 accomplices," during Indian Tribes Confederated with outside Big at WSP. Pow-wow held Yard knife). (homemade spot Discovered Possession of shank 11/19/75 guilty. risk. skin search. Pleaded Considered check bathroom, visit; into skin searched Skin searched after went 1/22/76 waistband; guilty. pleaded marijuana plastic bag in again; in a report, but indicates: No officer exhibit "Abus, bodily staff, duty, lang Threat to Interfer. w/staff 7/25/77 ' harm." staff, w/lock, lang duty, threat, tamp abus "Interf w/staff 10/12/77 order."

refus [sic] Lanny Lee—Criminal Record Sargeant, Witness years. degree; sentenced 10 Assault second 12/21/72 Penitentiary Washington State contraband, got pill mg., line of Valium Possession

10/5/73 weeks before. some eyedropper; plastic pruno; gallon one one Cell search—one

1/30/75 jugs lightbulb; empty that smelled tubing; three one 300-watt pruno; guilty. found like search; guilty. found to submit to Refused

3/26/75 trousers; myself got "Off. Edwards and pair of Hit officer 5/29/76. of again, him me the elbow." Smell and he bit a hold days Guilty—30 segregation. pruno on his breath. one Sargeant incarcerated for Interdepartment relates memo

8/1/76 assault, murder, while committed one count both count of drinking, Sargeant threat becomes serious intoxicated. When Sargeant sometimes becomes residents. admits to other (nature up drinking. drawn when Contract assaultive drawn). not if ever contract shown only mentioning murder The trial conviction. This is the document considering verify mea- before extreme should convictions court charge trial, second-degree against Sargeant murder At testified sures. dropped. him had been hearing. gets segregation violent Resident Administrative

8/12/76 staff, orderly under Threat when influence. prob- alcohol operation of Resident denies has the institution. to the next submit a contract lem. Recommended resident committee, days. No review file. be reviewed gallons pruno. guilty. will Said Possession three Pleaded 10/18/76 appeal. disposition. No Possession intoxicants. 10/22/76 perform. Failure 1/14/77 Sinequan, a hot medication used Possession two 1/22/77 shakedown, Guilty. Sargeant. Sargeant At time of Resident teeth, telling in the would belt him admitted officer "he (Sargeant just Holbrook, anyone tags him." accused but who my he'd guard "hitting him in nuts and me beat told Spit again.") if I did officer. on head narcotic, Threatening, endangering. possession of 2/2/77 catalog with a Sears some "I found this house [cell] 8/23/77 box pages with a small cardboard hollowed out and fitted marijuana resi- pipe Pipe smelled of a within the box. a small Sargeant was house when we searched this Resident due. Also Bundy wake him. "Officers passed bunk." Couldn't out myself him to no end." tried to wake sleeper probably in a heavy was states he is a "Resident sleep. pipe no res. deep was his and other states Res. guilty. guilty." Found paraphernalia. Possession narcotic

8/30/77 hearing. guilty. Didn't show Found Possеssion narcotics. 9/28/77 Green, C.J. view, (dissenting)—In my the trial court did not abuse its discretion applying general order to Mr. Hartzog and his Therefore, witnesses. I dis- sent.

First, I disagree with majority's interpretation requires probe two They searches. reverse and order a solely new trial because the second search is an requirement. unreasonable Neither the order nor the record supports that conclusion.

The order states:

Inmates will be searched prison at the before depar- They ture. will be brought County the Walla Walla jail they where will be skin probe searched under supervision of the personnel. sheriff's . . .

The only probe required by search plain language of this jail. order is at the The record corroborates this inter- pretation. only There was probe one search of Mr. Hartzog and that search occurred at the jail.15 Neither Mr. Hartzog nor his counsel complain of more than one search—the one the jail.16 view, Consequently, my majority's affidavit, Hartzog, transportation myself 15Mr. in his states: "The from the Washington Penitentiary County State to the Walla Walla Courthouse probe place skin and searches took as follows: "A) Washington Penitentiary At my State I was made to take off clothes and put jump on a suit. ”B) placed my my Next a chain belt is around waist with the chains to ankles my and chains to wrist. "C) room, I was then taken downtown to a small which I believe is in the county courthouse. "D) sheriff, presence For each I search was in the of one one correctional offi- Washington Penitentiary cer from hospital State and one member of the staff Washington Penitentiary. from the ”E) my jump The sheriff doing then ordered me to off take suit. After I radiator, exposing my was made to bend over a rectum to be searched. The hos- pital manually probed my staff finger. member then rectum with his I then put jump allowed to suit back on and was escorted into court." majority, footnote, probe 16The in a assumes that a search occurred at the prison probe prison nothing because searches at the are common. There is support probe record to that statement. Mr. does not claim he was being brought jail. searched at the before As the order indi cates, prior presumed probe case the court that a search occurred before a ground reversal on the that a second required ‍‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌‌‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​​‍search is is incorrect. search,

To extent majority probe the that the holds one preferably prison, proper at the would be a exercise dis- cretion, I agree and according the record that is what occurred here.

A cursory reading cited majority cases the widespread body demonstrates the use of their prisoners for hiding Daughtery cavities contraband. v. Har ris, (10th 1973), F.2d n.1 Cir. chief correc supervisor tional federal in penitentiary Leavenworth, Kansas, indicatеd that following items had been found during probe prisoners: searches of

Weapons any sawblades, narcotics, intoxicants, type, [sic], barbituates money, pornography, single edge blades, any razor item which might be used to effect an . . . escape

Here, one of the giving incidents rise to the order involved an earlier a defendant whose witness made a bomb with cigarette a Bic lighter. Carrying it on person day testified, his he he found no opportu- nity to it passed use to another defendant. He brought it to day the courthouse the next it on and left floor of the conference room where the were prisoners lawyers. allowed to confer with searching their While contraband, room for penitentiary correctional officer it, lighter, attempted found the fin- light and lost three gers right hand the resulting explosion. sup- erintendent of penitentiary who testified support incident, alluded and said:

I would clearly like the record to show I am support really of this reasons addition [order] specific. the ones stated the order. Let me more prisoner penitentiary, yet, lighter left the Bic one of the witnesses carried a person day presumption, on his he cor- testified. Based on that fingers exploded. extremely lighter rectional officer lost Bic It three when the dangerous engage presumption type of fact of this and this court should not do so. bombing place which crimi- incidеnt took at the last County in the case of nal trial here Walla Walla Agtuca Gilcrist, I have now avail- information actually that bomb went was able is the which off stash, brought courtroom in a so-called Keister into this day [cache] the it before, and was able be used brought right person in the was here restraints

because until the very he came in to the and then time courtroom out, it was institution. so taken back the was as The reason for the manufacture bomb a escape prisoners attempt. or realized diversion as an only they that without that when the time are restraints is they courtroom. This bomb was the made exactly booby trap as for the that it and left came a reason great bodily go off, for off and harm so it to cause who then courtroom that the defendants were the would able while the without restraints guard be officers by plight being were diverted the of their fellow run for tradition for could make a it. There was a officer already by escape of from courtroom cited that mode the where he did bolt the attorney. prosecuting . . ... It Mr. Barrett . was from room and down the stairs being by door shot officers and out here. front while at (Italics mine.) introduced as an exhibit The Keister cache sharp-bladed a knife and illustrates this case contains by type superintendent. of container referred to object inserted Uncomfortable such an must when as body cavity, possibility of its cannоt be into the use judge ignored protecting of his a trial courtroom.

During probable hearing cause held the direction prison Court, the records of United District States Hartzog Mr. and his two witnesses were considered necessity determining probe judge in for search. a serving Hartzog that Mr. was a records disclosed These mandatory minimum of of life with a maximum sentence robbery years burglary with 7 deadly weapons. Shortly and two counts of 1/2 1972, a rou- after incarceration ammunition, 11 rounds of a cell disclosed tine check his (cannery knife), drug paraphernalia. Since and some shank prison time, one or more infractions he has incurred dealt year These infractions every rules incarceration. However, drug primarily drugs paraphernalia. possessed diagram he a discovered that June was escape one from a refor- His record also shows handgun. for which he is matory camp prior honor to the convictions charge currently While the instant was under sentence. gallons pending, Mr. was found have 1/2 "pruno" under his bed. brewing taking in 1972 for

Witness Manuel Rosalez sentenced robbery and for while permission a motor vehicle without 1/2-year armed with a firearm. His sentence carries a mandatory attempted escape minimum. he masquerading while as woman. Later same him in a year, spot homemade was discovered on knife drug-related check too a number of skin search. He has infractions. Lanny for sec- Sargeant serving

Witness was a sentence drug-related record ond-degree prison assault. His reflects prison guards. Although belligerency infractions and toward com- ambiguous point, intra-prison the record is an this serving second-degree indicates time for munication he murder. information, prob- this the trial ruled that judge

Given requiring a general able cause to invoke the existed Mr. his After probe Hartzog search of two witnesses. Mr. two recounting backgrounds of witnesses, the court said: Washington State

This court is of fact that aware security contain- Penitentiary institution is a maximum inmates, that there are ing many dangerous know[n] contraband penitentiary in of concealed incidents this in inmates, some which being prison carried a cavity. wounding had We have rectal year last courthouse within the right officer here this this court- being carried into as a result of contraband cavity. in the rectal house probable cause

I factors constitute find that all these regard instance probe for searches this persons three this who have been identified as witnesses including case, the defendant. probably And I we have further what consider be important thing; power the most we have the inherent of of provide court to for

this the its and the persons required present who are the court. jury, personnel, That includes court members of attorneys, both the state and defendant, for for personnel. duty supporting It all upon my cоurt is this that is provide security, shoulders, to that that I for important the most is feel factor. (Italics mine.) upholding general policy requiring probe searches of Leavenworth, at court in

inmates the federal Daughtery supra, perceptively pages Harris, observed, 294-95: Leavenworth is a maximum institution con- any taining many dangerous inmates and consideration penitentiary's security regulations must be realis- many con- tic. There are known incidents concealed by prison being traband carried inmates the rectal Oavity. episodes, including wounding Several serious ability officer, of a court were attributable to the smuggle weapons prison. inmates to out of Given these coupled increasing circumstances with an need to assure safety officials, of our law enforcement and court policy allowing rectal searches must be considered rea- showing sonable unless contradicted of wanton comparable conduct. ... To hold known that cause required private must that precede a search warrant life completely It such a search would be unrealistic. usually totally unexpected disrupts prison security.

(Citation omitted.) There is no rational distinction between approval probe prison security general searches for and a security. probe court's order of a search for courtroom judge's Thus, I would trial exercise of discretion affirm thе applying Hartzog requiring in to Mr. that he the order probe-searched prior appearance in court- be to his room. light holding, Hartzog's I Mr. this must consider requirement

challenge to he his tes- that witnesses they tify probe in shackles. Because refused submit a Hartzog appear search, Mr. in the and his witnesses did testimony Instead, courtroom for the trial. their was taken tape police on video at Walla Walla station and later jury. jury shown The before trial cautioned presented: the evidence had after been security You are instructed that the measures taken joint product peniten- trials are tiary they administration, Court; the sheriff and the that routinely; utilized are drawn from the and that no inference be is to security guilt measures as to or taken any particular innocence of the defendant that inmate security procedures apply ais risk since the same to all regardless inmates of their conduct insti- records tution. tape

This court has viewed the video and noted that the shackling hardly of Mr. and his witnesses evi- Considering light dent the viewer. circumstance cautionary I instructions, court's two find no error. disagree majority's holding Second, I with the that applied case-by-case order must a fol- basis lowing probable hearing. a cause None of the cases cited majority are concerned with the kind of circumstances presented They relatively here. are routine cases stable my exigent view, environment. In circumstances exist require departure this case and rule the traditional shackling only should be ordered on an individual following probable hearing.17 basis cause exigent I to which circumstances refer as follows: Washington Penitentiary, a maximum prison, County population is located Walla Walla with a attorney prosecuting 45,000. As about noted prison policy authorizing general 17It should be noted that orders visual or probe upheld purposes requir searches of without inmates have been Wolfish, ing showing cause. Bell v. probable an individualized 441 U.S. Harris, (1979); Daughtery supra. 2d L. Ed. 99 Ct. 1861 S. presentation judge, trial the of the number criminal arising penitentiary security prob- cases out the and the in lems involved trial of cases have dra- the those increased matically. judicially recognize This court must that penitentiary in has a and been state serious ferment continuously upheaval during past At almost the decade. security signed, prison popula- time the the the order was attorney. lock-up according prosecuting tion in to the Hunger strikes, in have riots and violence constantly reported in media. been the local and statewide It has of serious and fearful concern residents been being opinion written, of Walla Walla. Even as this rights proceeding prison civil inmates are involved a against prison charging officials, and federal court the State punishment. сruel and inhuman This tension and turmoil irrespective cause, institution, mani- within the its has increasing disrespect disrup- court, for the fested itself during finally, endangering and, trial of human tive acts cigarette lighter through life the use of the bomb. continuing It events is in the context these that probable a court determined there was cause to enter every security governing prison general order defendant prison defendant, witness, or the whether for State and probe leg requiring for search arm and restraints a security question is whether courtroom. exigent justify gen- sufficiently these circumstances are probable dispensing cause individualized eral order hearings. they I and the should remain think are order it is shown that the tensions at effect until in the courtroom have subsided.18 security Judge entered, Tuttle order was

At time following applied them and then made observations County Snook, No. v. Walla cause 68330: Walla general requirement principle type from the 18This not differ in does Almeida visiting adjoining border search. all countries submit that citizens States, 266, 37 L. Ed. 2d S. Ct. 2535 Sanchez United 413 U.S. particular point just at this I like to comment would people just going all of been over these where we have high If were the Snook trial. we who risks among provide pick shackles choose inmates and others, it would be or restraints for some and jury perfectly we had selected so- obvious to the that being high risk. That's the reason and-so as peniten- why tiary these to mе we have to treat it seems being poten- who as all witnesses are inmates cases way it all alike. That tial risks and treat them bring prejudice we to doesn't one nobody sitting would were result man in four unshackled and shackles and the next stage him so on. As far as the close to jury, setting who the is concerned for the each man takes going it under the same witness stand is to have take you I think make of circumstances or otherwise could set a But don't see how prejudice simply state prejudice resulting logical argument in it. that is there you argument I there is can make the resulting they way if all in the are treated as same by being of inmates in the reason their status penitentiary. say today's All I I of can think that the realities sit- which I have uation mandate the kind of an order ought entered, and it to be constitutional. my opinion, clothing ... In of and the the matter guards restraining posting of matter of and the matter dealing and all the rest abstraction than it is is more an realistically problem prejudice, just I with the of security try don't if we these as routine mea- believe all way jury done sures and inform the that this is the it's realistically penitentiary any prejudice results. cases that jury my opinion, I if it to the think is made obvious proper security for their that have been taken measures everybody protection courtroom, in we as well as else likely up if to wind with a fair trial than we are are more way. we do it some other judges, Superior Furthermore, Court the Walla Walla county long-time of and familiar who are all residents community and atti- with and can sense the concerns expressed potential jurors, jurors have tudes of assert that by they prejudiced not to them the fact that security enforcement of the court's order. judges The state expressed security that have of jurors feeling when restrained, defendants and witnesses are and this allows by them to listen to the evidence undistracted their fears. juror expressions of prejudice the lack the use judges' courtroom restraints is confirmed observa- many tion that defendants restraint under the order are guilty.19 found not This is understandable because the 19Judge entering security Tuttle's reasons order were reaffirmed Judge applied Hartzog. reserving Mitchell when he order to Mr. After ruling upon table, Mr. whether he would allow be seated the counsel he said: adopted by provides order that has been this court a number courtroom, safeguards regard appearance to the in the such as instruc- case, jury, prior prior tions to the both trial and submission any measures are routine and are not to be considered as evidence any any dangerous particular or of either of tendencies of individual hand, regard defendant the case at nor to be considered at all with guilt determination of or innocence in the case at hand. By proceeding in which the nature of а a resident is a defendant, way jury going there is no that a is not to know that the defendant is a convicted felon. The cases that I am sure counsel for the defendant is to, cases, referring Supreme concerning appearances in United States Court court, forth, type clothing applicable worn I and so do feel are situation. prejudice jury, I Insofar as the claim of the minds of the am satisfied experience contrary, here that that is not the On the I have case. had jurors following imposed, talk to me trials in which these measures have been but, they prejudice and have indicated to me that there was no on the con- minds, trary, they feeling feeling in there was a of their a that were being more able to listen to all of the evidence and to consider without dis- fears, by imaginary, tracted other influences or whether real or in their minds. Penitentiary Washington I am satisfied that we have had State inmates here safeguards in in trial as defendants under the that are contained our order, they just you guilty, and have found not and I don't think that can been say type they going thing prejudice in which are all to be that creates a guilty. found witnesses, parties, spectators, obligation jurors, This court has an to security; personnel, provide going to out unless court to and it's be carried by appeal. on this is either set aside the Federal Court set aside court, Simmons, Appeals presently pending In in State v. Court of a case this 3859-9-III, aggravated first-degree Judge refers to two murder cause No. Reser defendant, witnesses, prison in which and the witnesses for the State cases the jury brought placed leg in in verdicts of were all arm and restraints and the case, only acquittal. In witness was the defendant who was a third the inmate they prison in prison county is their are aware Further, the coverage. turmoil news because extensive jurors any not to are twice cautioned draw inferences the restraints. noticed,

Considering judicially the entire record and facts I do not find an in applying abuse discretion I Hartzog. order to Mr. do find an abuse of discre- Neither tion in all defendants applying to prison witnesses so as long pris- the tensions between authority oners and the at persist administrative In prison. in unique presented the context of the situation case, it is possible not for this court or the court to predict when violent act will or will not occur. It is unrealistic, situation, predic- the current require such tion the trial court at of jeopardy the risk to those attending a tried. The trial a heavy obligation court has protect all persons attendance at It a trial. is the best position to recognize the measures that must be taken to that end while preserving a defendant's fair trial. right court, An appellate situation, removed from real should second-guess the trial court unless there is a clear view, my abuse discretion. no there was abuse of dis- cretion this case.20 Further, hung jury. Judge shackled the trial resulted in a Reser refers to the George recent trial of Simmons in Seattle where at outset restraints were not trial, required. During according accounts, grabbed to news Mr. Simmons a knife from the exhibits and started A toward a witness. shot an officer off ricocheted granite apprehended. floor and walls before the defendant was The record restrained, second-degree shows he was then and later convicted of murder which

Judge George Reser was not stated "remarkable view of the fact that Simmons had made numerous confessions to the murder." Simmons, Judge n.3, supra 20I note that Reser that indicates modesty leg have shields been installed his courtroom to conceal restraints permitted and that the defendant would free Simmons to have one hand making take notes. This seems to that court effort indicate is an to conceal the practicable. practice suggest restraints as as I much This be commended. give types might that court also consideration to other restraints any leg reduce that could noise be made from the chains or arm and restraints courtroom, compatible necessary security e.g., weighted with the boot feet, one of the etc. Therefore, I would affirm. August 4, 1980.

Reconsideration denied granted by Supreme Court November 1980. Review 30, 1980.] 3888-II. Division Two. June

[No. Respondent, v. Michael Washington, ‍‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌‌‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​​‍The State Appellant. Nelson, Ren

Case Details

Case Name: State v. Hartzog

Court Name: Court of Appeals of Washington

Date Published: Jun 26, 1980

Citation: 615 P.2d 480

Docket Number: 3335-8-III

Court Abbreviation: Wash. Ct. App.