State v. Badda, 36449

Citation385 P.2d 859,63 Wn.2d 176
Decision Date24 October 1963
Docket NumberNo. 36449,36449
PartiesThe STATE of Washington, Respondent, v. Edward BADDA, Appellant.
CourtUnited States State Supreme Court of Washington

Nicolas A. Maffeo, Renton, for appellant.

Charles O. Carroll, Pros. Atty., William F. West, Deputy Pros. Atty., Seattle, for respondent.

HALE, Judge.

This is a case of robbery at the Kenmore Lanes Bowling Alley near Bothell in King County.

In the early morning hours of darkness, February 8, 1961, four men, their faces hooded with nylon stockings, entered the bowling alley and menaced the two lone occupants with drawn pistols. Two of the criminal quartet had weapons in hand; one carried a crowbar and the others, pieces of rope. They forced the janitor and the night manager--the other occupant--to lie face down on the rest room floor, and, while their victims were prone, took from the janitor his wallet. They tied the hands of the two captives behind their backs and secured the men to the rest room stalls. While the two employees of the bowling alley were thus held captive, the criminals rifled the cash register and fled, thereby completing two distinct acts of robbery.

Three men, the appellant, Edward Badda, and Dolan McCollum and Edgar Covert, were charged in the same indictment with two counts of robbery. A fourth man, Vernon Milton Hedrick, Jr., 17 years of age at the time of the robbery, joined the Army and was on active duty when apprehended. The plaintiff separately charged young Hedrick with the lesser offense of grand larceny. He entered a plea of guilty, was placed on probation under a deferment of sentence, remained in the Army, and returned to testify against the others. Other than the evidence given by Hedrick, an admitted participant, the record discloses no evidence that appellant Badda engaged in the robbery.

One day prior to trial of the three codefendants, the court, for reasons not here pertinent, granted the defendant Edgar Covert a separate trial. Thus, of the four men accused, two of them, Edward Badda, appellant, and Dolan McCollum, were brought on for trial. Both defendants being indigent, the court appointed separate counsel for them. In separate verdict forms, each defendant was found guilty of both counts of robbery, and the jury, likewise on separate verdict forms, returned a special verdict that Edward Badda, at the time of the commission of the offense charged, was not armed with a deadly weapon and, conversely, that Dolan McCollum was so armed. Four different verdict forms were thus separately returned--a circumstance made material in connection with the subsequent poll of the jury.

Appellant Badda appeals his conviction, urging, through different counsel appointed by the court to bring this appeal, a number of errors. We will discuss some of them.

The first assignment of error to be considered by us is directed to the testimony of Ronald Bright, a state parole officer, who related to the court and jury the details of an oral confession made by Dolan McCollum to him. Appellant's objection to this evidence of McCollum's culpability came to the court's attention in the following colloquy in support of a motion for a separate trial:

'[Appellant's counsel]: In behalf of Defendant Badda, at this time I would like to move the court again that we be granted a separate trial. The admission of this particular confession would be prejudicial.

'THE COURT: You may presume in your argument that if I admit this, I will not admit any part of the confession naming the confederates.

'[Appellant's counsel]: However, the fact that the crime was admitted by one of the co-defendants will prejudice, it is liable to prejudice the jury towards my client, and as such, I feel that he ought to be entitled, Your Honor, to a separate trial on this particular crime, rather than be faced with a possible prejudice of the jury as a result of a definite confession by one of his co-defendants.

'THE COURT: Well, I am not a great believer in having the jury instructed that the confession is only binding upon one person and to disregard it as to the other. I am inclined to grant separate trials rather than do that, because you're again calling the jury's attention to that which you tell them to forget, and that is a hard thing to do.'

Pursuant to the court's admonition, all references to appellant Badda and any other participants in the offense were deleted by the witness in his testimony and appellant's name was not mentioned, but there was no admonition that the confession had no application to appellant. Appellant neither requested nor supplied an instruction containing such an admonition. The motion for a separate trial was denied.

Although the granting or denying of a separate trial rests in the sound discretion of the trial court (RCW 10.46.100), and will be reversed on appeal only for abuse of discretion (State v. Taylor, 47 Wash.2d 213, 287 P.2d 298; State v. Dickey, 181 Wash. 249, 42 P.2d 790; State v. Clark, 156 Wash. 47, 286 P. 69, 89 A.L.R. 502), our confirming the court's denial of a separate trial to appellant does not completely dispose of the assignment. We believe that it was error to fail to give a precautionary instruction making it clear to the jury that McCollum's confession could have no application to or be considered as evidence against appellant Badda. As we said in State v. Taylor, supra:

'Confessions of one defendant, jointly tried with another, may be introduced in evidence; but in such cases, the defendant or defendants who did not make the confession and were not present when it was made should be protected by proper statements to the jury that the confession should not be considered as against him or them. * * *'

Our attention next turns to the assignment of error directed to remarks of the prosecuting attorney during voir dire examination of the jury. After all prospective jurors had been sworn for voir dire examination and twelve of their number had been seated in the jury box for examination seriatim, the deputy prosecuting attorney put this question to juror No. 1:

'Q. [Juror No. 1], do you realize that the State has little or no choice in the cases which it brings to trial, so long as we believe that a felony has been committed and we know the persons who prepetrated the felony. Do you understand that, sir' [COUNSEL]: I will object to that question, Your Honor. It is highly prejudicial. I ask for a mistrial, and I ask the jury be excused. THE COURT: The motion for mistrial will be denied. The objection to the question, sustained. [COUNSEL]: May I address the court in the absence of the jury, Your Honor? THE COURT: Not at this time. I might hear you later sometime.'

The objection as stated and the motion for mistrial were made by the codefendant's counsel; there was no motion made for instructions that the jury disregard the statement.

That the trial judge promptly recognized the prejudicial nature of the remarks is indicated in his ruling on the objection. But we must assume that sustaining the objection, without more, did not expunge the prejudice created by them. We find them to be more objectionable and more damaging to the defendant than were the expressions of personal belief in the guilt of the accused by the prosecuting attorney in State v. Susan, 152 Wash. 365, 278 P. 149. The remarks made by the prosecuting attorney in the instant case go beyond expressions of belief in the guilt or innocence of the party on trial, statements uniformly held by the courts to be improper. The prosecuting attorney's assertion implies that there...

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91 cases
  • State v. Davis
    • United States
    • United States State Supreme Court of Washington
    • September 20, 2012
    ...reversal even where each error standing alone would not. State v. Coe, 101 Wn.2d772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963). Here, few errors occurred, and those that did were not so egregious or unduly prejudicial that they denied Davis a fair tria......
  • State v. Fisher, 79801-0.
    • United States
    • United States State Supreme Court of Washington
    • March 12, 2009
    ...141 Wash.2d 910, 929, 10 P.3d 390, 399-400 (2000) (citing State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wash.2d 176, 183, 385 P.2d 859 (1963) (three instructional errors and the prosecutor's remarks during voir dire required reversal); State v. Alexander, 64 Wa......
  • State v. Mak
    • United States
    • United States State Supreme Court of Washington
    • April 24, 1986
    ...instruction did not affect the final outcome of the case, thus was no more than harmless error in any event. 105 State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963), cited by the defendant, does not hold contrary to Mickens; indeed, it cites and quotes Mickens with approval. Badda simply ho......
  • State v. Davis
    • United States
    • United States State Supreme Court of Washington
    • September 20, 2012
    ...reversal even where each error standing alone would not. State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wash.2d 176, 183, 385 P.2d 859 (1963). Here, few errors occurred, and those that did were not so egregious or unduly prejudicial that they denied Davis a fair......
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