State v. Bell

• Decision Date: 15 April 1974
• Docket Number: No. 2448--I,2448--I
• Citation: 521 P.2d 70,10 Wn.App. 957
• Parties: STATE of Washington, Respondent, v. Billy James BELL, Appellant.
• Court: Washington Court of Appeals

Page 957

10 Wn.App. 957

521 P.2d 70

STATE of Washington, Respondent, v. Billy James BELL, Appellant.

No. 2448--I.

Court of Appeals of Washington, Division 1.

April 15, 1974.

Rehearing Denied June 19, 1974.

Stephen J. Crane, Seattle, Court appointed, for appellant.

Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Judge.

Defendant, after jury trial, appeals a judgment of conviction for second degree murder. The information in substance charged that defendant had beaten one Estelle Cook, and that she died as a result of the beating.

The facts of the case as the jury could have found them are these. Defendant, Billy James Bell, and his wife Cynthia were married on July 7, 1971. At that time the wife had an infant daughter, Estelle Cook, born November 15, 1969. Following marriage, marital difficulties arose and the parties separated about October 1972. Shortly before separation, Estelle's custody was relinquished to the Office of Children's Protective Services, Washington State Department of Social and Health Services (OPS), because of evidence the child had been physically abused. While defendant was separated from his wife, the OPS returned the child to the mother's care with the request that should defendant return the office was to be notified. In March 1973, defendant returned to his wife, but the latter did not give notice of that fact to the OPS.

On April 25, 1973 the wife left her daughter with defendant at their home between 12:30 and 1 o'clock in the afternoon to go shopping with her mother-in-law, the child's grandmother. The child wished to go with them, but the mother decided not to take her because the child had a bruise on her left foot. The wife returned home at approximately 4:30 p.m. that afternoon and found defendant and her daughter at home. The daughter then had a bruise on her forehead, the lower lip was 'busted,' and there were scratches on her face. The child was on the bed. On inquiry by the mother as to how she felt, the child said she 'felt fine.' The wife again left her daughter alone with defendant at approximately 6 p.m. to accompany a friend on an errand. By that time, her daughter had gone to her room to get into her crib.

At approximately 6:30 p.m., in response to a telephone call from defendant and before his wife returned to the house, the Seattle Fire Department aid car arrived at the home to provide medical aid to the child. The efforts of the aid car people were not too successful. The aid car brought the child to a hospital at approximately 6:53 p.m. The child was declared dead at 7:17 p.m.

Meanwhile, defendant had explained to his wife and to the Fire Department aid who had arrived at the residence that the child had injured herself when falling from the crib; that when, in response to hearing her fall defendant went upstairs to see what had happened, he found the child's limbs tangled up in an overturned tricycle. He continued in this explanation both in a written statement given to the police not long after the child's death, and in his testimony at trial. The nature of the child's injuries, ascertained both from an inspection of her body and as a result of an autopsy, showed that the child had sustained serious injuries. There were a number of bruises about the head and face, testified to in detail by Dr. Wilson, the acting King County Medical Examiner. The state also introduced opinion testimony by Dr. Kenneth R. Peirce, a neurosurgeon, and Dr. J. Bruce Beckwith, a physician and pathologist. The medical testimony was generally to the effect that the nature and severity of the injuries sustained by the child could not be explained by the fall from the crib as testified to by defendant. That, on the contrary, the injuries could only be explained as the result of a beating. The jury found the defendant guilty of the crime charged and defendant appeals.

Defendant contends the court erred in denying his motion in limine to exclude the testimony of two caseworkers concerning the discovery of injuries sustained by the child on October 4, 1972 when they visited the child at her babysitter's home. Defendant further contends the court erred in denying his motion for mistrial by reason of the testimony given by the caseworkers. The evidence is that the two caseworkers responded to a telephone call from the child's babysitter while defendant and his wife were away at work. Upon arriving, the caseworkers found evidence which showed that the child had sustained injuries suggesting that the child had been beaten. The caseworkers later interviewed defendant, his wife, and the child's grandmother in an effort to find an explanation for the child's condition. However, the caseworkers never asked the father directly how the injuries occurred. They considered that such a question would alienate him and would be inadvisable. The OPS finally determined the safety and best interests of the child required its custody be taken from the parents and relinquished to the OPS. They explained to the parents that they had the option of 'going to a fact-finding hearing in Juvenile Court, . . . as to who had done it . . .' The parents decided they did not want to do this. The wife then signed temporary custody papers relinquishing custody.

After the child was taken to a hospital for examination and treatment, she was placed in a foster home. Thereafter, the caseworkers continued to remain in contact and observe the child. They noted that she was ordinarily responsive and outgoing. However, when the defendant's name was mentioned to her, she appeared nervous and fearful of defendant. On several occasions, she stated defendant had hurt her, and on one occasion that defendant did not like her. When asked if she would like to return to him, she said no.

The state contends the evidence summarized was relevant and admissible to prove that defendant's conduct as charged in the information was intentional and not the result of accident. We agree with the state.

The general rule is that evidence of prior criminal misconduct ordinarily is irrelevant and therefore inadmissible to prove the crime charged. Nevertheless, evidence of such prior misconduct may be relevant and hence admissible to show motive, intent, absence of accident or mistake, a common scheme or plan, identity. State v. Goebel, 40 Wash.2d 18, 240 P.2d 251 (1952), after noting this list of exceptions to the general rule, states:

This list of exceptions is not necessarily exclusive, the true test being whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged.

40 Wash.2d at 21, 240 P.2d at 253. Accord, State v. Hames, 74 Wash.2d 721, 446 P.2d 344 (1968); State v. Americk, 42 Wash.2d 504, 256 P.2d 278 (1953); State v. Messinger, 8 Wash.App. 829, 509 P.2d 382 (1973). If the evidence has slight relevancy, it may be excluded

when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, . . . where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests in the sound discretion of the trial court, . . .

State v. Goebel, 36 Wash.2d 367, 379, 218 P.2d 300, 306 (1950). Accord, State v. Messinger, Supra; State v. Portrey, 6 Wash.App. 380, 492 P.2d 1050 (1972). We find no abuse of discretion here.

Defendant next contends the court erred in giving instruction No. 12A. That instruction reads:

You are instructed that in considering your verdict you may consider testimony concerning other incidents in...