State v. Badda

• Decision Date: 24 February 1966
• Docket Number: No. 37709,37709
• Citation: 68 Wn.2d 50,411 P.2d 411
• Parties: STATE of Washington, Respondent, v. Edward Charles BADDA, Appellant,
• Court: Washington Supreme Court

Page 50

68 Wn.2d 50

411 P.2d 411

STATE of Washington, Respondent, v. Edward Charles BADDA, Appellant,

No. 37709.

Supreme Court of Washington, Department 2.

Feb. 24, 1966.

As Modified on Denial of Rehearing April 21, 1966.

Nicholas A. Maffeo, Renton, for appellant.

Charles O. Carroll, Pros. Atty., John S. Ludwigson, Deputy Pros. Atty., Seattle, for respondent.

HILL, Judge.

This is an appeal by Edward Badda from his second conviction of participation in the robbery of the Kenmore Lanes Bowling Alley by four men in the early morning of February 8, 1961.

On Badda's appeal from his first conviction, he was granted a new trial because of an accumulation of trial errors. The details of the crime and the identity of the confessed and alleged participants appear in the opinion on the first appeal (State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963)).

As that opinion shows, Badda and Dolan McCollum had been tried together and convicted. At that trial, the only testimony connecting Badda with the robbery was that of one of the participants, Vernon Milton Hedrick, Jr., who was 17 years of age at the time of the robbery. At the second trial, Hedrick again testified, and McCollum (who had not appealed his conviction) was brought from the reformatory as a witness and also testified to Badda's participation in the robbery.

While there are two assignments of error that raise the issue as to whether the state met its burden of proof, there can be no question but that the fact of the robbery was established by evidence independent of that given by the two accomplices; and the testimony of Hedrick and McCollum, who were participants in the robbery, was sufficient, if believed by the jury, to establish the participation of Badda therein. The jury was given the customary accomplice instruction: that they should act upon the testimony of an accomplice with great care and caution and subject it to careful examination. These assignments of error are clearly without merit.

Badda urges that his constitutional right to have compulsory process to compel the attendance of witnesses in his behalf was violated by the refusal of the presiding judge of the superior court to issue a certificate summoning an out-of-state witness.

The desired witness was Edgar Covert, who had been named with Badda and McCollum in the original information but who had been granted a separate trial. Covert testified at his trial for the same robbery with which Badda was charged that he (Covert) did not know where Badda was on the night and early morning of the robbery. On the separate trial of Covert, the jury disagreed, and the state dismissed the charges against him.

On February 11, 1964, six weeks before the date of trial (March 24), Badda's counsel asked the presiding judge of the King County Superior Court to sign a certificate to the Michigan authorities, recommending that Edgar Covert, then in Detroit, be taken into immediate custody and delivered to an officer of the state of Washington. The presiding judge at that time wrote on the proposed certificate:

(R)efused on the ground that no showing has been made that the witness will not respond to a subpoena. There has been no showing that it is necessary to take the witness into custody and to send an officer after him.

The refusal was specifically 'without prejudice to making a new request for a certificate upon a proper showing of necessity.' The request was never renewed until the time of trial.

A stipulation was then prepared and, after the appellant and his counsel had each said that it was 'agreeable' to them, the trial judge said to the jury:

The parties, ladies and gentlemen, have been confronted in this case at this particular time with a problem of having the presence of a witness desired to be called by the defendant. To avoid unnecessary delay and expense, the parties have stipulated, as follows, and I will read this stipulation to you:

'That Edgar Covert's testimony at the time that he was on trial for the crime alleged in the information in this case was to the effect that Edgar Covert did not know where the Defendant Edward Badda was on the night of February 7 and the morning of February 8, 1961 (the time of the robbery).'

That is the stipulation of the parties. You will take it to be evidence in the case to be considered along with and as you consider other evidence in the case.

There was no showing of any kind that Covert could have testified to anything more than that had he been present.

There was no denial of any timely request for compulsory process, nor was there any showing that Covert's absence was prejudicial to Badda's defense.

Error is assigned to allowing the witness McCollum to testify. McCollum, who had been convicted with Badda on the first trial and was serving his sentence at the Washington State Reformatory, was produced as a witness by the state. Error is claimed because his name had not been included on the list of witnesses furnished to the defendant by the state.

The state urges that inasmuch as Badda was being retried on the information charging both McCollum and himself with robbery, it was not necessary to endorse McCollum's name on the information as a witness, or to include it on the list furnished the defendant. For authority, the state relied on State v. Cooper, 26 Wash.2d 405, 417, 174 P.2d 545 (1946). In that case, the fact that two defendants were jointly charged was said to be notice to each that the other might be a witness. However, the parties were there being tried together and the holding was proper. In this case, only one of the persons charged was on trial; the named codefendant had been convicted of the offense charged and was not subject to further trial for the offense; he was in no sense a codefendant. Under such circumstances, there was no notice to the defendant that his former codefendant was going to be a witness against him.

Our most recent extensive discussion of the statute ¹ relating to notice as to witnesses is in State v. Thompson, 59 Wash.2d 837, 843, 370 P.2d 964, 967 (1962), ² where we considered the effect of a failure to comply. We there said a consideration of the cases indicates that

compliance with the statute is not mandatory, and that, in order to constitute grounds for reversal, such a failure to comply must result in either an abuse of discretion by the trial judge or some substantial injury to the defendant.

In the instant case, when McCollum was produced as a witness, defense counsel asked for a recess to enable him to interview the witness. This he was given and, after talking with McCollum, no objection to his becoming a witness was interposed. Counsel now complains bitterly that had he known McCollum was going to testify he might have shown that McCollum was insane and not competent to testify.

This suggestion of McCollum's insanity is sheer fantasy--based on his testimony on cross-examination that his father had attempted to get him sent to a mental institution to avoid his having to go to the reformatory. Counsel has ballooned this into a charge that his client is being railroaded to the penitentiary on the testimony of an insane person.

Counsel points to nothing to indicate that there ever was a hearing as to McCollum's competency, much less an adjudication of incompetency or insanity. The very case cited in defendant's brief (State v. Moorison, 43 Wash.2d 23, 259 P.2d 1105 (1953)), affirms a conviction based on the testimony of a person adjudicated to be insane with no showing of an adjudication of restoration to sanity, it being apparent that the witness understood the nature of an oath and was capable of giving a correct account of what he had seem and heard. The law, as set forth in that opinion, is a complete answer to the contentions of counsel here.

There is nothing in the testimony of McCollum to indicate that he was not competent to be a witness; nor was there ever any suggestion to the trial court that he was incompetent.

There is, in this case, no showing of either an abuse of discretion by the trial court, or of any substantial injury done to the defendant by the failure to list McCollum as a witness.

The defendant complains of the trial court's failure to give an instruction to the effect that if the

confessions of the co-defendants, accomplices and witnesses, McCollum and Hedrick, were obtained by inducement or threat, that the said confessions would be inadmissible against the defendant, Badda.

The short answer is that there were no confessions by either McCollum or Hedrick either offered or admitted into evidence. They both testified. Any inducements to their testimony was a matter as to which the defendant had the opportunity to inquire and did.

The defendant assigns error on the refusal of the trial court to give three requested instructions, Nos. 45, 46, and 47. These proposed instructions do not appear in the briefs, as required by Rule on Appeal 43, ³ and, hence, cannot be considered. State v. Rutherford, 66 Wash.Dec.2d 837, 843 405 P.2d 719 (1965); State v. Green, 38 Wash.2d 240, 242--243, 229 P.2d 318, 23 A.L.R.2d 1397 (1951); State v. Meyer, 37 Wash.2d 759, 764--765, 226 P.2d 204 (1951); State v. Snyder, 199 Wash. 298, 303, 91 P.2d 570 (1939); State v. Knabb, 199 Wash. 53, 66, 90 P.2d 250 (1939); State v. Hussey, 188 Wash. 454, 461, 62 P.2d 1350, 1352 (1936). The state makes no point of this rule violation, but, as we said in the case last cited, 'we must do so for our own protection and to enforce compliance with the rules of court.'

Error is assigned to claimed improper conduct by the deputy prosecutor in the cross-examination of Badda. The incident, claimed to constitute 'glaring' and 'highly prejudicial misconduct' by the prosecutor, would seem to border on the trivial and certainly was not prejudicial.

On direct examination, Badda had testified that he had been convicted of grand larceny and robbery. On cross-examination he was asked, referring to his...