State v. Adams

• Decision Date: 15 November 1972
• Docket Number: No. 42179,42179
• Parties: STATE of Washington, Respondent, v. Larry Eugene ADAMS, Petitioner.
• Court: Washington Supreme Court

Page 468

81 Wn.2d 468

503 P.2d 111

STATE of Washington, Respondent, v. Larry Eugene ADAMS, Petitioner.

No. 42179.

Supreme Court of Washington, En Banc.

Nov. 15, 1972.

Masland & Hanan, Robert G. Maslan, Seattle, for petitioner.

Christopher T. Bayley, Pros. Atty., Fred P. Barnhart, III, Deputy Pros. Atty., Seattle, for respondent.

HALE, Associate Justice.

A jury found defendant guilty of assault in the second degree, done with intent to commit rape. The sole claim of error before the Court of Appeals and now this court is directed to the instruction on alibi. The Court of Appeals affirmed. 5 Wash.App. 366, 487 P.2d 218 (1971). We granted review (80 Wash.2d 1002 (1971)), and affirm.

Was it reversible error to give the instruction on alibi, or to instruct on the subject at all? To put the claim of error in appropriate context, we think it necessary to state the salient facts as shown by the record.

About March 14, 1970, P.H., a married woman, was the victim of an assault with intent to commit rape in her home in Northwest Seattle. She identified the defendant, Larry Eugene Adams, an acquiantance of her youngest son, to the police as her attacker. At the time she was alone in the house, her two older children, ages 26 and 23, no longer living with her and her youngest son, age 17, spending the night at a friend's house. Mrs. H's husband was overseas on a construction job at the time of the crime, a fact which the jury could infer that defendant knew because of his acquaintance with the victim's youngest son.

Mrs. H testified that she had known the defendant for about 4 years; that he was a friend of her youngest son, Jeffrey, and that he had been in their home on several occasions. At times, she said, the defendant came to their house with her son, and he in turn occasionally went to defendant's house. She said that she had told her son that she did not want Larry Adams to be left alone in their house, and once had told her son not to go to the Adams's house because Larry's younger brother had been in trouble. On cross-examination, in discussing her attitude toward the defendant, but at the same time indicating that she had no doubt whatever as to his identity, she testified:

Well, I tolerated him. I mean I--I--there's--there's a lot of his friends that come to the house. Well, they're kids, you know. They were there. You know they don't bother me. Q. You tolerated him? A. Yes. Q. Would you say that you disliked him? A. Well, I--I--I don't dislike any of his friends. But Larry the day before this happened I was working, and he--he was in the house with Jeff. And I went to work that morning. And when I came home, well, I--I had put steaks out to thaw. And when I came home, they were gone. And I says--I said to Jeff, you know, I said, well, 'Where's the steaks?' I thought about them all day. He said, well, 'Mom, they're there.' So, he goes out to help me find them, and he said, well, 'They're gone.' I said, 'Who was in the house?' He said, 'Larry was in the house.' I said, 'Well, now, you just ask him if he took those steaks.' And this is the idea. Larry's been in the house, and there has been things missing. Q. This happened more than once, hasn't it? A. Well, actually this is the first time that actually Larry's been there that I know for sure that something was gone. Q. Haven't you in the past suspected that Larry was stealing things out of your house? A. Well, I--I knew they were gone. But I didn't--I couldn't really pin it on Larry.

She testified that she worked at the post office in the same building but on a different shift and a different floor from the defendant's. The defendant worked the shift from 2:30 in the afternoon until 11 p.m., whereas she worked the day shift, from 7:45 a.m., until 4:15 p.m. On occasions at work, she observed the defendant on the east loading dock of the post office building.

Friday, the night of the attack upon her, she had come home very tired from her work at the post office and went to bed early. She was alone in the house. It was early morning when she was awakened by a noise, as she described it, 'like a click or something.' Thinking her son Jeffrey had returned home, she called his name. She then saw the defendant. She testified:

Q. What did you do? Did you stay in bed, or did you get up? A. No, I, I got up. And I, I thought, well, maybe Jeff had come home, you know. So, I called, you know, 'Jeff,' you know. And I called, and I get down to the corner, you know the hallway. And I said, 'Jeff.' And I see, I see--I see Larry down. He is crouched by the window.

She asked the defendant what he was doing there and he told her that Jeff would be coming home soon. The defendant took off his jacket and put it on the davenport in the living room. He walked into the kitchen, opened the refrigerator door, and asked if she had any beer. She told him they had no beer but that she would make him a cup of coffee. While the coffee was perking, she washed some disches and the defendant sat there talking about his work at the post office. Shortly after she had poured the coffee, and while they were seated in the kitchen, she looked at the clock and said, 'Jeff isn't going to be home. . . . You had better leave. I have got to go to work.' Up to that time, she was not apprehensive about him.

Her testimony described the following events: She walked to the door to open it for him. Adams got up and followed her and, as she walked toward the door, he grabbed her from behind, put his hand over her mouth, and wrestled her to the floor, holding her nose with his fingertips to that she could not breathe. She struggled with him, and in the course of this scratched his right arm with her fingernails. When she was about to pass out, she said, he told her that if she wouldn't call the police or tell her son he would let her up.

She said that when he released his grip, her face felt numb, and that it took her a few minutes to start breathing normally again. She tried to run from the house and got the front door open but he intercepted her and shut it. She then realized that her face was bleeding. She ran to the bathroom, saw that her nose and cheek were bleeding, and that her nose and the whole side of her mouth were swollen. The defendant followed her into the bathroom and while she was applying a cold towel to her face, asked her to sit on his lap. He told her she wasn't hurt much, but added, "Look at me.' He says, 'I have got a place where you scratched me, too." She saw the scratch and later identified the scratch from a police photograph of defendant as the one she said he showed her. She was shaking badly while in the bathroom, she said, and she described how the defendant forced her from it into the bedroom and ordered her to take off her clothes; she described how he disrobed and attempted against her will to have sexual intercourse with her but failed because of his impotence. He left the house, admonishing her, "You--be sure that you don't tell Jeff anything about this." He left then and she locked the door and heard him drive away at about 7 a.m., in a car that 'sounded like my car did once when I didn't have a muffler.'

There was substantial corroborating evidence presented to the jury showing defendant's prior acquaintance with Mrs. H's younger son Jeffrey, and with the H family, his employment and working hours at the same post-office facility; there was corroboration as to Mrs. H's physical appearance and emotional demeanor after the assault, and the appearance of a scratch on defendant's arm as described by the victim.

Defendant's evidence consisted chiefly of alibi testimony and a flat denial of guilt. One witness said that the defendant was with him at various places including a restaurant and bowling alley until about 3:15 a.m. Defendant's father testified that he thought it was about 3:30 when he heard the defendant come home; that he got up and talked hunting and fishing with defendant for about 45 minutes while defendant fixed and ate a sandwich and drank a glass of milk.

Defendant's father said that when he left his son to go back to bed, he looked at his watch and it was 20 minutes after 4. He said he remained awake in bed for 20 to 30 minutes thereafter and did not hear the defendant leave the house during that interval.

On cross-examination, he said that the following day when the police came to the house to arrest the defendant, they told him exactly why they were there. 'They told me he was charged with breaking and entering and rape.' He acknowledged that he said nothing to the police from which an alibi would be inferred, and did not, he said, at any time tell them that defendant had been home or make any comment to the police whatever to that effect.

As earlier noted, the sole issue on appeal is whether it was reversible error to give instruction No. 11, as follows:

A defense interposed by the defendant in this case is an alibi; that is, that the defendant was at another place at the identical time the crime was committed, if committed at all.

When the state makes out such a case as would sustain a verdict of guilty and the defendant offers evidence, the burden is upon such defendant to make out his defense as to an alibi, but it is not incumbent upon him to prove an alibi beyond a reasonable doubt. When the proof is all in, both that given by the state and for the defendant, then the primary question is, the whole of the evidence being considered, whether such defendant is guilty beyond a reasonable doubt. The law is that if you have a reasonable doubt of the guilt of the accused, after having considered all the evidence, you should acquit; but if, after considering all the evidence, you do not have a reasonable doubt of the guilt of the accused, you should convict.

To ascertain whether this instruction or any instruction pertaining to alibi constitutes reversible error, we should relate it to the presumption of innocence, proof beyond a...