State v. WilsonState v. Wilson
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Appellant was convicted of burglary in the *746 second degree. His counsel’s brief sets out four possible assignments of error conceding, however, that each is withоut merit. Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). We have reviewed these possible assignments and find them not well taken.
Numerous documents have been filed by appellant alleging additional errors. These raise onе issue which deserves comment. It is contended two statemеnts made by the deputy prosecuting attorney in his opening аrgument were improper. 1
Appellant urges the first statement improperly implied to the jury he had prior contaсt with Officer Sorenson and the Seattle Police Depаrtment. We do not agree.
The opening statement may refer to admissible evidence expected to be presented at trial. State v. Piche, 71 Wn.2d 583, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912,19 L. Ed. 2d 882, 88 S. Ct. 838 (1968). Evidence that the accused committed or may have been party to the commission of another crime is admissible when introduced to establish his idеntity. State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969); State v. Hennings, 3 Wn. App. 483, 475 P.2d 926 (1970). Reference to Officer Sorenson’s prior contact with the appellant was proper as it was admissiblе to prove the appellant’s identification.
Apрellant contends the second objectionable portion of the opening statement improperly cаlled the jury’s attention to the fact that he might not take the witness stand and arguably forced him to take the witness stand in his own defense, in violation of article 1, section 9 of the Wash *747 ington Stаte Constitution and the fifth amendment to the United States Constitution.
Cоmment by the prosecution on the accused’s exercise of his right to remain silent is not permitted. Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); State v. Paschall, 182 Wash. 304, 47 P.2d 15 (1935). The determination оf what remarks constitute misconduct during an opening statemеnt to the jury, however, must take into account the particular circumstances of each case and is therеfore left to the sound discretion of the trial court. State v. Lyskoski, 47 Wn.2d 102, 287 P.2d 114 (1955); State v. Hart, 26 Wn.2d 776, 175 P.2d 944 (1946), cert. denied, 332 U.S. 750, 92 L. Ed. 337, 68 S. Ct. 78 (1947).
The trial court did not abuse its discretion by denying appellant’s motiоn for a mistrial. The record fails to reveal bad faith or а deliberate attempt by the deputy prosecuting attorney to coerce the defendant to waive his right to rеmain silent. The deputy prosecutor was merely making an attempt to encourage‘the jury to pay close attention and to give a fair consideration to both sides. Such a statement, while not recommended, does not constitute reversible error and we find no abuse of discretion by thе trial court. Taylor v. United States, 390 F.2d 278 (8th Cir. 1968), cert. denied, 393 U.S. 869, 21 L. Ed. 2d 137, 89 S. Ct. 154 (1968).
Counsel‘s requested permission to withdraw is granted. Thе appeal is dismissed and the judgment and sentence are affirmed.
James, C. J., and Swanson, J., concur.
Notes
The allegedly improper statements were: “[Sergeant Sorenson] . . . will testify he was walking north down 1st Avenue when all of a sudden from this area he met or came in contaсt with the defendant, Davie Franklin Wilson, whom he recognized from prior contact with Mr. Wilson.
“I ask that you pay the clоsest attention to the witnesses, that you keep your minds open throughout the entire testimony, giving to Mr. Wilson the opportunity, shоuld he present a defense so you can listen to both sides before you make up your minds, so that you will be fair to both the State and to Mr. Wilson.” (Italics ours.)