State v. Baker

Decision Date10 September 1970
Docket NumberNo. 40480,40480
Citation78 Wn.2d 327,474 P.2d 254
PartiesThe STATE of Washington, Respondent, v. Gary J. BAKER, Appellant.
CourtWashington Supreme Court

Barokas, Beitz & Schaefer, Larry L. Barokas and David H. Beitz, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., C. N. Marshall, Stuart A. Cohen, Deputy Pros. Attys., Seattle, for respondent.

FINLEY, Associate Justice.

The defendant, Gary Baker, was charged with two counts of murder in the first degree. Initially he was charged by complaint in Seattle District Justice Court; subsequently an information to the same effect was filed in the superior court for King County, Washington. The defendant pleaded not guilty to each count of the information and initially also entered a special plea of insanity. The plea of insanity was withdrawn at the time of trial. After a prolonged trial, the jury returned a verdict of guilty of murder in the first degree on one count and guilty of murder in the second degree on the other count. The death penalty was not imposed. This appeal followed.

There is little dispute over the essential facts. There had been some marital difficulty between appellant Baker and his wife, the deceased Linda Baker. She had moved to the home of her mother, Mrs. Gelinda Capelli, who is the other decedent. On April 27, 1968, neighbors noticed the young son of the Bakers playing alone in the yard. Upon investigation they discovered the body of Mrs. Linda Baker, covered with blood, on the living room floor. Officers of the King County Sheriff's Office were summoned. Upon arrival they discovered the body of Mrs. Capelli. Both women had been killed by rifle bullets.

About ten days later, Baker was driving through New Mexico and was stopped by Officer Gonzales of the Gallup, New Mexico, Police Department and asked for a driver's license and registration certificate. Baker had a driver's license but was unable to produce a registration certificate, although he did in fact own the car involved. Baker was then taken to the police station at Gallup, New Mexico. In view of the out-of-state license and the lack of registration The next day Baker was returned to Seattle by a detective of the King County Sheriff's Office. He repeated the confession in greater detail to the detective. Upon arriving in Seattle, Baker helped in a search for the murder rifle. The rifle was later found by a police officer in the vicinity of the searched area.

Baker was apparently suspected of transporting a stolen vehicle across state lines, a federal crime. Consequently, upon his arrival at the police station, he was questioned by Special Agent Walton of the Federal Bureau of Investigation. There is no question but that he was fully advised of his rights prior to the questioning. The questions were about the car; Baker's answers concerned the Seattle homicide, and he admitted shooting his wife and mother-in-law with a rifle. He told the agent that he then fled the area, driving north from Seattle, and threw the murder weapon out of the car into the brush alongside Interstate 5.

Baker was convicted of first degree murder for the death of his wife and second degree murder in the death of his mother-in-law.

There are several assignments of error in this appeal. Briefly stated, these involve (1) questionable tactics used by the prosecutor's office in obtaining a psychiatric report; (2) failure to grant a continuance; (3) failure to allow waiver of trial by jury; (4) the admission of incriminating statements; (5) improper cross-examination of character witnesses by the prosecutor; and (6) failure to give the jury an instruction on manslaughter. The assignments of error will be discussed in the sequence indicated.


Shortly after the charges were filed in Justice Court, the appointed defense counsel presented ex parte motions to Judge Dore for a psychiatrist to be appointed and admitted to the jail to examine Baker. The motions were granted. The appointed psychiatrist, Dr. Johnson, examined the defendant and reported his findings to counsel for the accused. There was nothing in the order directing the psychiatrist to report to the court or to the prosecutor. At this The question involved and now before this court is solely concerned with the Procedure by which the deputy prosecutor (who did not argue this case on appeal) obtained the report. We specifically do not address the further question of whether the report should have been available if the motion in this respect actually had been pursued in superior court. In any event, it is relatively easy to resolve the question of whether the procedure used by the deputy prosecutor is defensible. If the order in question was validly issued, it is because of the authority granted by JCrR 8.03 which reads as follows:

point the charges were filed in the King County Superior Court and the case pre-assigned to Judge Agnew. After the accused entered a special plea of insanity, the state sought and obtained an order appointing another psychiatrist to examine Baker. On advice of counsel, Baker refused to talk to the second psychiatrist. Thereupon the state filed a motion in the superior court to require the first psychiatrist to report the results of his examination to the court and to the prosecutor. A hearing was set for this motion. Upon arrival in court to argue the motion, counsel for the accused discovered that the deputy prosecutor had already obtained possession of the report of the first-appointed psychiatrist. The report had been obtained by presenting an ex parte order to Judge Dore of Seattle District Justice Court, purporting to change the original order Nunc pro tunc to direct Dr. Johnson to report to each party and to the court. The deputy prosecutor, armed with this order, then went to Dr. Johnson and obtained a copy of the report. Defense counsel came to the superior court hearing ready to argue the question of whether the prosecutor should have a copy of the report, but thereupon discovered that the legal processes for the resolution of this question had been short-circuited.


Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court may order. If an appeal has been taken, such mistakes may be so corrected until the record has been filed in the appellate court, and thereafter while The intent of the rule was clearly to provide a simple means of correcting clerical or administrative errors. It does not provide a means of changing 'a judgment in substance as by correcting an error of law contained therein. * * *' Trautman, Vacation and Correction of Judgments, 35 Wash.L.Rev. 505, 506 (1960). The rule also implies that even clerical errors can be corrected only while the justice court retains jurisdiction over the case unless the other court involved gives leave to make such correction. Once the charges were filed in Superior Court, the justice court had no authority to issue such an order. Even without a hearing pending in superior court on the same question, the order was in error. Furthermore, surreptitious action by the deputy prosecutor ex parte and without notice to defense counsel raises serious questions of professional misconduct which might well merit attention of the Board of Governors of the Washington State Bar Association. However, in any event, the question with which we are confronted is the extent to which the actions of the deputy prosecutor and the alleged error in this regard may have prejudiced the rights of the defendant to a fair trial.

the appeal is pending may be so corrected with the leave of the appellate court.

An error, considered in a vacuum, does not give rise to an automatic reversal of a judicial determination. There must be some nexus with a right of the defendant substantially abridged by the error. It is difficult to perceive that nexus in the instant case. The plea of insanity was withdrawn before trial; the question of insanity was not in any way an issue at the trial. The report by the psychiatrist is a part of the record and clearly was not usable to establish a defense of insanity. So, even in the absence of the action by the deputy prosecutor, there is not the slightest indication that Baker could have presented a successful insanity defense.

As a means of restraining or regulating so-called 'police' or 'prosecutional' misconduct, there is an inherent inadequacy or weakness in the 'exclusionary' rule originally (j)udicial contempt citations for offensive law enforcement conduct and/or legislative imposition of penal sanctions for overzealous investigative activities, or provisions for recoupment of damages from the government for invasions of citizens' homes without warrant or probable cause * * *.

enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913), and since reiterated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 6 L.Ed.2d 1081, (1961), and in countless other cases. See Finley, Who is on Trial--The Police? The Courts? or the Criminally Accused? 57 J.Crim.L., C. & P.S. 379 (1966). Careful evaluation of the exclusionary rule suggests it is ineffective and of no practical utility in effecting a higher standard for police conduct in the specific criminal case. In other words, in a particular criminal case the exclusionary rule is like closing the barn door after the horse is out and gone. Furthermore, it is extremely dubious whether the exclusionary rule provides any effective continuing restraint or discouragement regarding tendencies toward misconduct by law enforcement people. Lastly, the rule goes too far in excluding crucial evidence--actually losing criminal cases for the state without any appreciable improvement in the standards for criminal law...

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