State v. Beard

• Decision Date: 22 August 1968
• Docket Number: Nos. 39385,39434 and 39386,s. 39385
• Citation: State v. Beard, 74 Wn.2d 335, 444 P.2d 651 (Wash. 1968)
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Eugene BEARD, L. J. Black and Myles L. Madison, Appellants.

Page 335

74 Wn.2d 335

444 P.2d 651

The STATE of Washington, Respondent, v.Eugene BEARD, L. J. Black and Myles L. Madison, Appellants.

Nos. 39385, 39434 and 39386.

Supreme Court of Washington, Department 2.

Aug. 22, 1968.

Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, for appellants.

Charles O. Carroll, Pros.Atty., Herbert L. Onstad, Deputy Pros.Atty., Seattle, for respondent.

NEILL, Judge.

Defendants were jointly charged with robbery and found guilty by a jury.Judgment and sentences were imposed from which defendants now appeal.¹

The state's evidence which the jury was entitled to accept established that on Sunday, September 11, 1966, near midday, the complaining witness, Wright, and a friend, Fleenor, were walking along First Avenue South in the Skid Road area of Seattle.As the two men passed by the doorway to a cafe, Wright was pulled into the doorway, knocked to the ground, kicked and searched.His change, cigarettes, and a partially consumed bottle of wine were taken from him.Two policemen testified that at the time of the robbery they were in the second story of a hotel across the street and on the corner of the next block from the cafe; that through a window they observed Mr. Wright walking down the street; that they observed the three defendants standing in front of the cafe; that they saw Beard grab Wright, knock him down and take a bottle of wine; that, although neither Black nor Madison touched Wright, they did participate in drinking the wine; and that both Madison and Black attempted to shield Beard's actions.The policemen immediately left the hotel and apprehended all three defendants.

Prior to trial, Beard moved for the production by the state of copies of statements of witnesses.Defendants contend that the court's refusal to grant the motion was reversible error.Defendants concede that the state is not obligated to submit its evidence to an accused or his counsel (State v. Clark, 21 Wash.2d 774, 153 P.2d 297(1944);State v. Payne, 25 Wash.2d 407, 171 P.2d 227, 175 P.2d 494(1946);State v. Petersen, 47 Wash.2d 836, 289 P.2d 1013(1955); and that the granting of any discovery in criminal cases is a matter peculiarly within the discretion of the trial court(State v. Thompson, 54 Wash.2d 100, 338 P.2d 319(1959);State v. Mesaros, 62 Wash.2d 579, 384 P.2d 372(1963);State v. Gilman, 63 Wash.2d 7, 385 P.2d 369(1963);State v. Peele, 67 Wash.2d 893, 410 P.2d 599(1966)).

Defendants quote from page 620 of State v. Boehme, 71 Wash.Dec.2d 609, 430 P.2d 527(1967):

At this point, we momentarily pause to observe that the rules of discovery are designed to enhance the search for truth in both civil and criminal litigation.And, except where the exchange of information is not otherwise clearly impeded by constitutional limitations or statutory inhibitions, the route of discovery should ordinarily be considered somewhat in the nature of a two-way street, with the trial court regulating traffic over the rough areas in a manner which will insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.

But they fail to note that in that same opinion we reaffirmed the rule of discretion as set forth in State v. Mesaros, supra.The only statements held by the state were the police officers' report and Mr. Wright's statement.Defendants' counsel were permitted to interview Mr. Wright.The discrepancies in statements given by these witnesses were fully explored in cross-examination and the jury could believe or disbelieve as it saw fit.We cannot find that defendants were prejudiced by the court's ruling, much less that there has been a manifest abuse of discretion in refusing the motion to produce.

Defendants contend that the prosecutor committed reversible error by questioning defendant Madison concerning prior criminal convictions without producing proof thereof.The portion of the testimony relevant to this contention is set forth in full as it is short and constitutes the entire record relative to the alleged misconduct.During cross-examination of defendant Madison, the following occurred:

Q.Have you ever been convicted of a crime?A.Yes.Q.When was the first time?MR. SCHNEIDERMAN: Object.THE COURT: Overruled.Q.Have you been convicted of a crime?You said, yes.I asked when the first time was.A.October 27, 1951.Q.And what was that for?A.Manslaughter, misdemeanor accident of an automobile.Q.

Convicted of manslaughter in 1951, is that correct?When was the next time?A.There was no next time.Q.Were you convicted, Mr. Madison on August 4th, 1956 in Los Angeles or Sacramento, California, $250 fine, five days?A.Beg your pardon?Q.In Los Angeles and Sacramento?MR. MORRISSEY: Object to this line of questioning.He did indicate he was convicted of a crime.I think it is immaterial now for him to go into his history as to which crimes and serves no impeachment, just prejudicial.THE COURT: The objection is overruled.Q. Weren't you convicted in Sacramento, California, in '56 of a traffic violation and given a $250 fine?A.No. Q.All right.An aggravated assault in Tucson, Arizona?You weren't convicted of that?A.No. Q.Were you convicted in California and given sixty-three days for driving while drunk?A.No. Q. You know you were convicted?A.Yes, I did.Q.And if your answer is 'No,' and you were convicted, you understand that you could be charged?A.The charges that you mention, no. Q.The charge that I have mentioned?A.That is right.MR. MORRISSEY: Your Honor, excuse me, I would like to see this rapsheet, or at least have it marked as an exhibit.MR. ONSTAD: I would be very happy to have it marked as an exhibit if counsel wants to have it identified.MR. MORRISSEY: Go ahead with your question.

No attempt was made by the state to prove the convictions denied by defendant Madison.

The prosecutor was entitled to question Madison on cross-examination concerning his prior convictions, the kinds of crimes involved and the sentences imposed.However, charges, arrests or time spent in custody without convictions are not admissible to affect credibility.State v. Sayward, 66 Wash.2d 698, 404 P.2d 783(1965);Lundberg v. Baumgartner, 5 Wash.2d 619, 106 P.2d 566(1940).Had Madison admitted the alleged convictions or had the state proved them, the prosecutor's cross-examination would have been entirely proper.

The examination of a witness by the state with regard to prior convictions, when the prosecutor is either unwilling or unable to prove the alleged convictions upon the witness's denial has been condemned in prior cases.Warren v. Hynes, 4 Wash.2d 128, 102 P.2d 691(1940);State v. Stevick23 Wash.2d 420, 161 P.2d 181(1945);State v. Lindsey, 27 Wash.2d 186, 177 P.2d 387, 181 P.2d 830(1947);State v. Goodwin, 29 Wash.2d 276, 186 P.2d 935(1947).In Stevick, supra, we said at 425 of 23 Wash.2d, 161 P.2d at 183:

(R)eference to specific acts of misconduct cannot be made to expose the witness to ridicule or to discredit him in the minds of the jury.* * * The state did not attempt to prove former convictions indicated by the questions.In this day in which criminal records are quite complete and available to all prosecuting officials, there is no excuse for asking questions concerning former convictions at random.

In Lindsey, supra, we said at 192 of 27 Wash.2d, 177 P.2d at 390:

In the case at bar, the deputy prosecuting attorney had a right to ask the defendant concerning his conviction and the term of his sentence.The state did not have proof of any other conviction.There could be only one result of the questions concerning other crimes.That was to hold the defendant up to ridicule and to discredit him in the minds of the jury.

The prosecutor's questions and his inability or unwillingness to produce proof of the alleged convictions following Madison's denial thereof did constitute error.

We have not overlooked State v. Maloney, 135 Wash. 309, 237 P. 726(1925), but in that casethe state showed good faith in attempting to prove the conviction, but failed on the matter of identification.We held no damage was done to the defendant.

However, not every error is reversible error.A defendant must make use of the trial motions available to him to correct errors at trial.It is the general rule that timely objections must be made in order to preserve an alleged error relating to misconduct of counsel when such misconduct can be removed from the jury's consideration by an appropriate instruction.City of Seattle v. Harclaon, 56 Wash.2d 596, 354 P.2d 928(1960).See, State v. Jacobsen, 74 Wash.Dec.2d 35, 442 P.2d 629(1968).Moreover, when the alleged misconduct is such that its prejudicial effect may not be corrected by an appropriate admonition to the jury, the proper remedy is to call the matter to the trial court's attention, claim a mistrial and ask that the jury be discharged.Workman v. Marshall, 68 Wash.2d 578, 414 P.2d 625(1966);Jones v. Hogan, 56 Wash.2d 23, 351 P.2d 153(1960);Sun Life Assur. Co. of Canada v. Cushman, 22 Wash.2d 930, 158 P.2d 101(1945).As we stated in Jones, supra, at 27 of 56 Wash.2d, 351 P.2d at 156:

If misconduct occurs, the trial court must be promptly asked to correct it.Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on a motion for new trial or an appeal.

See also, State v. Huson, 73 Wash.Dec.2d 664, 440 P.2d 192(1968);State v. Johnson, 69 Wash.2d 264, 418 P.2d 238(1966);State v. Miller, 66 Wash.2d 535, 403 P.2d 884(1966).Cf., State v. Noyes, 69 Wash.2d 441, 418 P.2d 471(1966);State v. Louie, 68 Wash.2d 304, 413 P.2d 7(1966).

We have on occasion, however, recognized an exception to the general rule requiring that proper objections and motions must be made at trial.In State v. Morris, 70 Wash.Dec.2d 26, 31, 422 P.2d 27(1966), we...