State v. Alexander, No. 2171--I
| Court | Court of Appeals of Washington |
| Writing for the Court | FARRIS |
| Citation | 521 P.2d 57,10 Wn.App. 942 |
| Parties | STATE of Washington, Respondent, v. Gary Joseph ALEXANDER, Appellant. |
| Decision Date | 15 April 1974 |
| Docket Number | No. 2171--I |
Page 942
v.
Gary Joseph ALEXANDER, Appellant.
Frank L. Sullivan, Court Appointed, Seattle, for appellant.
Christopher T. Bayley, King County, Pros. Atty., John E. Oswald, Deputy Pros. Atty., Seattle, for respondent.
Page 943
FARRIS, Judge.
Gary Joseph Alexander appeals from the trial court's declaration that he is an habitual[521 P.2d 58] criminal as defined by RCW 9.92.090. The statute provides:
Every person convicted in this state . . . of any felony, who shall previously have been convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, . . . shall be adjudged to be an habitual criminal and shall be punished by imprisonment in the state penitentiary for not less than ten years.
Every person convicted in this state . . . of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, . . . shall be punished by imprisonment in the state penitentiary for life.
The appeal questions the findings of the trial court that Alexander had six prior felony convictions.
Alexander first argues that the trial court improperly considered two convictions which were on appeal to the Washington State Court of Appeals at the time of the habitual criminal proceedings.
That on or about the 18th day of May, 1972, the defendant was convicted in the Superior Court of the State of Washington of the crime of grand larceny; this case was on appeal at the time of the habitual criminal hearing.
Finding of fact No. 5.
That on or about the 15th day of May, 1972, the defendant was convicted in the Superior Court of the state of Washington of the crime of violation of the Uniform Controlled Substances Act, Counts I through V; this case was on appeal at the time of the habitual criminal hearing.
Finding of fact No. 6.
Where an appeal has been taken, the defendant cannot, pending the determination of the appeal proceedings, be considered as having been convicted within the meaning of the habitual criminal statute. State v. Zounick, 133 Wash. 638, 640, 234 P. 659 (1925); Annot., 5 A.L.R.2d
Page 944
1080, 1092 (1949). It was improper to consider convictions which were then on appeal.Alexander next argues that the trial court erred in admitting into evidence his stipulation to a prior conviction, and his testimony to prior convictions upon cross-examination, both given at the grand larceny trial which preceded this habitual criminal prosecution.
In general, testimony given by a defendant is a previous judicial proceeding without invoking his privilege against self incrimination may be used against him in a subsequent prosecution. Annot., 5 A.L.R.2d 1404 (1949). In an habitual criminal proceeding, State v. Bailey, 71 Wash.2d 191, 426 P.2d 988 (1967), the trial court permitted a court reporter to read from his notes the defendant's testimony at a previous robbery trial in which the defendant had admitted prior convictions. The Supreme Court held:
Clearly appellant waived his right against self incrimination by voluntarily testifying at the robbery trial. Appellant was not forced to testify at the habitual criminal trial. Testimony by another at the later trial concerning appellant's admissions while a witness is admissible. They are as reliable, indeed more reliable, than most admissions because given in a judicial proceeding where all constitutional safeguards may be asserted.
State v....
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State v. Haliski
...Jones v. State, 711 S.W.2d 634 (Tex.Crim.App.1986); White v. Commonwealth, 79 Va. 611 (1884); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 We do not find convincing defendant's argument that the legislative inaction or silence following Mangrella justifies the conclusion that the Legis......
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Neely v. State, No. 77-499-CR
...216, 234 S.E.2d 431, 433 (1977); State v. Slone, 45 Ohio App.2d 24, 340 N.E.2d 413, 415 (1975); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57, 58-59 (1974); 8 Wigmore, supra, sec. 2276(5), 11 United States v. Beechum, 582 F.2d 898, 909 (5th Cir. 1978) (en banc); United States v. Hearst,......
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State v. Starrish, No. 43505
...the proceeding may result in increased incarceration. In fact, the Court of Appeals in State v. Alexander, 10 Wash.App. 942, 944, 521 P.2d 57 (1974), referred to this proceeding as an 'habitual criminal State v. Pringle, supra, is distinguishable. Therein the defendant entered a plea of gui......
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State v. Johnston, Nos. 2046--I
...convictions he may, in the proper exercise of his discretion, elect not to file such charges. Cf. State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974). On the other hand, should he choose to file them the defendant must be arraigned on a supplemental information and is entitled to a jur......
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State v. Haliski
...Jones v. State, 711 S.W.2d 634 (Tex.Crim.App.1986); White v. Commonwealth, 79 Va. 611 (1884); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 We do not find convincing defendant's argument that the legislative inaction or silence following Mangrella justifies the conclusion that the Legis......
-
Neely v. State, No. 77-499-CR
...216, 234 S.E.2d 431, 433 (1977); State v. Slone, 45 Ohio App.2d 24, 340 N.E.2d 413, 415 (1975); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57, 58-59 (1974); 8 Wigmore, supra, sec. 2276(5), 11 United States v. Beechum, 582 F.2d 898, 909 (5th Cir. 1978) (en banc); United States v. Hearst,......
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State v. Starrish, No. 43505
...the proceeding may result in increased incarceration. In fact, the Court of Appeals in State v. Alexander, 10 Wash.App. 942, 944, 521 P.2d 57 (1974), referred to this proceeding as an 'habitual criminal State v. Pringle, supra, is distinguishable. Therein the defendant entered a plea of gui......
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State v. Johnston, Nos. 2046--I
...convictions he may, in the proper exercise of his discretion, elect not to file such charges. Cf. State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974). On the other hand, should he choose to file them the defendant must be arraigned on a supplemental information and is entitled to a jur......