THE STATE OF WASHINGTON, Rеspondent, v. VERNON JAMES LOUIE, Appellant
No. 36999
En Banc
April 7, 1966
304 Wash. 2d 304 | 413 P.2d 7
Judgment is vacated and the case is remanded for entry of findings of fact and conclusions of law with proper judgment and sentence.
John G. McCutcheon and Edwin J. Wheeler, for respondent.
HAMILTON, J.—The defendant (appellant) was charged, tried and convicted of the crime of second-degree burglary. He appeals. We affirm the conviction.
A pane in the window in the lubrication room had been broken, and glass was on the floor of the station. The window frame was bent in such a way as to permit a grown man to crawl through. Two new tires in paper wrappings, including the one which Officer Babcock had observed rolling in front of his automobile, were outside the station. One appeared to be bloodstained. Inside the station all was in disarray; coin operated machines had been broken into; and trails of blood appeared, inside and outside the station. There were trails of solvent in the service station which had a distinctive odor. This odor was later detected upon defendant‘s shoes at the hospital.
Officer Babcock testified that defendant‘s hand was crudely bandaged and had been dripping blood when he was apprehended. He otherwise substantiated Officer
The defendant testified that he had spilled some solvent on his pants and right shoe on Friday, August 3, while working in an automotive body shop where he was employed. He further testified that when he got off work that afternoon he began a “drinking spree.” He stated that Saturday afternoon, about 13 hours before he was arrested, he met two women he had known in his home town of Wapato and took them with him to the Friendly Tavern, where he stayed for about 8 hours. Defendant further testified that after he left the Friendly Tavern, sometime between 10 and 10:30 p.m., his hand was cut during a fight and bled through a loose bandage. He said that after the fight he entered the Milwaukee Tаvern and could remember nothing from that time until he struck Officer Babcock at approximately 3:30 a.m. He did not know whether the two women had left the Friendly Tavern with him or had accompanied him at any time thereafter.
The defendant, on appeal, first contends that the trial court erred in denying a timely motion to dismiss the charges. By this motion, defendant alleged that he had been denied due process through refusal to grant him the assistance of counsel during the 2-mоnth period he was under treatment in the hospitals as a result of the gun shot wound.
The testimony of defendant upon this issue shows that he requested an attorney (no one by name) while at St. Joseph‘s Hospital and was told by attendants that he was under arrest and could not see an attorney; that after he had been transferred to Mountain View Hospital police officers asked him to sign a statement concerning the alleged burglary which he refused to do. At this time, he stаted he again requested that he be allowed to see an
After defendant‘s return to the city jail on October 4, 1962, he was permitted to see and retain an attorney. Bail was set on October 5, 1962. Defendant appeared before the court on October 17, 1962, and, at his request, counsel was appointed to represent him. On October 26, 1962, defendant was arraigned and pleaded not guilty. Through the efforts of court-appointed cоunsel bail was reduced from $2,500 to $1,000, which was posted by friends of defendant on January 31, 1963. Trial commenced on February 5, 1963.
Allegations in the record that defendant had requested and had been denied assistance of counsel during his stay in the respective hospitals are uncontroverted. Refusal of such requests, whether they were for appointed or retained counsel, however, would not ipso facto constitute an infringement upon rights guaranteed by the tеnth amendment to our state constitution or by the sixth amendment to the federal constitution, made obligatory upon the states by the fourteenth amendment to the federal constitution in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 Sup. Ct. 792 (1963). Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 Sup. Ct. 1758 (1964).
To violate these constitutional provisions, the refusal must have occurred at a “critical stage” in the pretrial proceedings. Hamilton v. Alabama, 368 U.S. 52, 7 L. Ed. 2d 114, 82 Sup. Ct. 157 (1961); White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193, 83 Sup. Ct. 1050 (1963); Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 Sup. Ct. 1199 (1964); Escobedo v. Illinois, supra; In re Pettit v. Rhay, 62 Wn.2d 515, 383 P.2d 889 (1963); State v. Jackson, 66 Wn.2d 24, 400 P.2d 774 (1965). And, it must appear
In the instant case, no confessions, admissions, or incriminating statements were elicited from defendant during the period of his hospitalization. The defendant contends, however, as disclosed to the trial court at a pretrial hearing, that refusal of his requests for counsel denied him the opportunity to effectively prepare his defense at a time when certain witnesses were available.
The only witnesses designated by defendant were the two women, whom he testified accompanied him to the Friendly Tavern the evening before the alleged burglary. In this respect, it appears to be defendant‘s contention that he was so intoxicated on the night of August 5 that he had no recollection of what happened from the time he entered the Milwaukee Tavern until the altercation with Officer Babcock; that he was therefore incapable of forming the intent to commit burglary, an element essential to constitute the commission of the crime; that the women were migratory workers and would be in the area but a short time; that he knew them only by their first names and did not, at the time of trial, know their residence or employment; and, had counsel been available to him immediately after his hospitаlization, the women might have been found. The defendant did not, however, purport to know whether their testimony would be favorable or unfavorable to him.
Under the foregoing, it is purely speculative (1) as to whether these potential witnesses could have been located by defendant‘s counsel, during the period of defendant‘s hospitalization had such counsel been available, and (2) as to whether their testimony would have assisted in his defense. Upon thesе facts and circumstances, we cannot say that refusal of the requests for counsel during defend-
The defendant further argues that the denial of counsel was in violation of
We hold, therefore, that the trial court did not err in denying defendant‘s motion to dismiss.
The defendant next assigns error to the trial court‘s refusal to grant his motion for an arrest of judgment. The defendant contends that the evidence is purely circumstantial and insufficient to support a verdict against him of burglary in the second degree.
We disagree. The evidence we have heretofore detailed substantially supports the jury‘s verdict. Furthermore, the evidence and the reasonable inferences therefrom are consistent with the defendant‘s guilt and inconsistent with any reasonable theory of innocence. State v. Mickens, 61 Wn.2d 83, 377 P.2d 240 (1962).
Defendant next assigns error to the giving of instruction No. 13, which reads:
If you find from the evidence beyond a reasonable doubt аll of the following alleged facts, to-wit:
1. That the defendant, VERNON JAMES LOUIE, did break and enter a building known as Roy‘s Enco Service, 2901 So. 38th Street, with intent to commit some crime therein, and
2. That such act was committed on or about the 5th day of August, 1962, in the County of Pierce, State of Washington;
Then you must find the defendant, VERNON JAMES LOUIE, guilty of Burglary in the Second Degree charged in the information.
If the State, however, fails to prove each and all of the foregoing elements, it will be your duty to return a verdict of not guilty.
Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.
It is defendant‘s contention that instruction No. 13 is erroneous because it omits an essential ingredient of the statutory offense of burglary in the second degree when it fails to qualify the allegation “a building known as Roy‘s Enco Service, 2901 So. 38th Street,” by the phrase “wherein property is kept for use, sale or deposit.” This omission, defendant argues, (a) relieved the state of proving and the jury of finding one of the statutory elements of the crime chаrged; (b) constituted a judicial comment on the evidence in violation of
We find no prejudicial or reversible error flowing from instruction No. 13 for several reasons.
First, defendant did not at the time of trial either object to the instruction in the form given or propose any alternative instruction.
The importance of these rules of practice, which we have held to be mandatory and not directory, is apparent. Their purpose is to give to the trial court the benefit of
the study and research of counsel, and to advise the trial court of the contentions of the respective parties as to the law or the facts, at a time when the court can, if it so desire, correct аny error which it may feel it has made in its instructions.
We have, with almost monotonous continuity, recognized this procedural requirement and adhered to the proposition that, absent obvious and manifest injustice, we will not review assignments of error based upon the giving or refusal of instructions to which no timely exceptions were taken.1 We are satisfied that the requirements of this procedural rule are constitutional, and we do not conceive that requiring reasonable adherence to the rule violates due process concepts, especially where it does not appear that an accused is thereby deprived of a fair trial. Cf. Rhay v. Browder, 342 F.2d 345 (9th Cir. 1965).
Second, the defendant did not stand mute at the
In the light of the foregoing circumstances, it cannot be effectively argued that the state ignored or sought to relieve itself of the burden of establishing the character of the building involved in the alleged crime. Neither can it be convincingly asserted that the omission in instruction No. 13 prejudicially relieved the state of its burden and/or prejudicially deprived defendant of the benefit of having the jury pass upon a significant, crucial, and disputed issue. Prejudice to the defendant is imperceptible, if not invisible.
Third, omitting reference in instruction No. 13 to the undisputed peripheral issue involved simply did not amount to an unconstitutional judicial comment on the evidence.
To fall within the ban of
Furthermore, we have held that adverting to or assumption of an admitted or undisputed peripheral fact does not constitute constitutionally inhibitеd comment. State v. Wingard, 92 Wash. 219, 158 Pac. 725 (1916); Case v. Peterson, 17 Wn.2d 523, 136 P.2d 192 (1943); James v. Ellis, 44 Wn.2d 599, 269 P.2d 573 (1954); State v. Browder, supra.
Fourth, the cases relied upon by defendant to elevate his challenge to instruction No. 13 into the constitutional realm and thereby relieve him of the obligation of excepting to the instruction in the trial court, as required by
Finally, our review of the statement of facts and the instructions of the trial court convinces us that the defendant received a full and fundamentally fair trial. He was ably represented by cоmpetent counsel. All vital and significant issues raised by his plea of not guilty and the evidence presented were submitted to and passed upon by the jury. While we cannot applaud the draftsmanship of instruction No. 13 or the challenged omission, we are unwilling in the context of this case to characterize it as a violation of due process.
Defendant further assigns error to the fact that he was transferred from the Pierce County jail to the reformatory fоllowing imposition of sentence and before the filing of his notice of appeal. He was belatedly returned to the county jail, and is presently free on bail pending disposition of his appeal. His complaint is that his detention in the reformatory, following his notice of appeal, deprives him of the credit he would have received under
HILL, DONWORTH, FINLEY, WEAVER, and OTT, JJ., and LANGENBACH, J. Pro Tem., concur.
HUNTER, J. (dissenting)—I dissent. The key instruction to the jury, No. 13, defining the crime with which the defendant was charged, omitted one of the essential elements of the crime of burglary in the second degree.
Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years. (Italics mine.)
Instruction No. 13 did not include the element requiring that the breaking and entering into a building, room or structure must be “wherein any property is kept for use, sale or deposit.” The instruction was prefaced with the statement:
If you find from the evidence beyond a reasonable doubt all of the following alleged facts, . . . .
It then listed all the elements of the crime of burglary in the sеcond degree as provided in
Then you must find the defendant, VERNON JAMES LOUIE, guilty of Burglary in the Second Degree as charged in the information.
The instruction was equivalent to directing the jury that it was not necessary for the state to prove an essential element of the crime of burglary in the second degree to find the defendant guilty of such a crime.
In State v. Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845
“Where the trial court attempts to definе the offense, for the commission of which an accused is being tried, it is the duty of the court to instruct the jury as to each and every essential element of the offense charged and a charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused. It is equivalent to directing the jury that it is not necessary for the state to prove any elements of the offense except those included in the definition by the court.” (Italics mine.)
Also, see State v. Hilsinger, 167 Wash. 427, 9 P.2d 357 (1932); See v. Willett, 61 Wn.2d 681, 379 P.2d 915 (1963); Sage v. Northern Pac. Ry., 62 Wn.2d 6, 380 P.2d 856 (1963).
The elimination of the above-stated element of the crime in instruction No. 13, supra, being equivalent to a directed verdict, amounted to a comment on the evidence by the court in violation of
Moreover, the defendant was denied the right to a trial by jury in violation of
The majority opinion states that no exception was taken to instruction No. 13 at the trial, as required by
The rule is clear in this state that this court will consider an assignment of error, irrespective of exceptions taken to the ruling of the trial court, where a constitutional right of an accused is invaded. We expressly so stated in State v. Warwick, 105 Wash. 634, 637, 178 Pac. 977 (1919):
The instructions were a comment on the evidence within the constitutional provision above referred to,
and were not justified by the testimony of the appellant. The respondent claims that the error in the instructions is not now open to the appellant because no exceptions were taken thereto which were called to the attention of the trial court, relying upon the general rule in such cases. Where, however, the instructions invade a constitutional right of the accused, it is not necessary, in order to have such error reviewed, that an exception be taken and called to the attention of the trial court. State v. Crotts, 22 Wash. 245, 60 Pac. 403; State v. Jackson, 83 Wash. 514, 145 Pac. 470; Eckhart v. Peterson, 94 Wash. 379, 162 Pac. 551. (Italics mine.)
Also, see State v. Marsh, 126 Wash. 142, 217 Pac. 705 (1923).
The remaining statements of the majority in justification of the jury verdict disclose no waiver by the defendant of the invasion of his constitutional rights, and I find none in the record.
The defendant should be granted a new trial.
ROSELLINI, C. J., concurs with HUNTER, J.