State v. Bogner, 35971

• Decision Date: 29 May 1963
• Docket Number: No. 35971,35971
• Citation: 382 P.2d 254,62 Wn.2d 247
• Parties: STATE of Washington, Respondent. v. Freddie Charles BOGNER, Appellant.
• Court: Washington Supreme Court

Page 247

62 Wn.2d 247

382 P.2d 254

STATE of Washington, Respondent. v. Freddie Charles BOGNER, Appellant.

No. 35971.

Supreme Court of Washington, En Banc.

May 29, 1963.

Hugh R. McGough, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Murray A. McLeod, Deputy, Frank L. Sullivan, Deputy, Seattle, for respondent.

DONWORTH, Judge.

This is an appeal from a judgment and sentence based upon a conviction of robbery in violation of RCW 9.75.010.

Evidence adduced at the trial indicated that:

About 3:00 p. m., November 1, 1960, a man entered the office of the High Point Housing project. He had a handkerchief over his face and carried a gun. He pointed the gun at the cashier, said 'Give me the money,' and tossed a paper sack to the cashier. The cashier placed the money (about $1400) in the sack, along with a petty cash slip indicating payment of $1.75 for cleaning of some overalls. Appellant's car was seen driving away from the area. A short time later, he was picked up, and the sack containing the money and the petty cash slip, along with the gun, was found in the car he had been driving. (Appellant's explanation--subsequently given during his own testimony--was that he had been parked outside the housing project office when someone ran by and threw the sack and the gun into his car, which caused him to panic and drive off.)

By his assignments of error, appellant has raised several contentions on this appeal. We shall first consider his contention that the trial court made a 'comment on the evidence.'

The following colloquy between the court and counsel for the defense took place at the trial during the state's examination of a policeman:

'Q. Upon arriving at the office of the Project what did you find? A. Well, on our arrival we discovered Detective Panton had already arrived and that the person that had performed the stick-up had left. Mr. Haley: I will object to the conclusion of the officer here. Mr. Sullivan : He can state this. Perhaps he was still there then. The Court: Are you denying that there was a robbery at the housing project at that time on that date? Mr. Haley: I don't know, you Honor. I think that is what we are here to determine. The Court: We are here to determine, as I understand it, who did it, if anyone. Mr. Haley: Of course, we have a twofold purpose. We are trying to determine whether or not there was a robbery and the second point is, who committed the robbery. The Court: Don't you think we are getting a little ridiculous, or aren't we?'

The Washington State Constitution, Art. 4, § 16, provides that:

'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'

The purpose of this constitutional prohibition was well expressed in State v. Crotts, 22 Wash. 245, 250, 60 P. 403 (1900), in an opinion written by Judge Dunbar, who participated as a delegate in the state constitutional convention:

'There are different ways by which a judge may comment upon the testimony, within the meaning of the constitution referred to above. The object of the constitutional provision, doubtless, is to prevent the jury from being influenced by knowledge conveyed to it by the court of what the court's opinion is on the testimony submitted. The constitution has made the jury the sole judge of the weight of the testimony and of the credibility of the witnesses, and it is a fact well and universally known by courts and practitioners that the ordinary juror is always anxious to obtain the opinion of the court on matters which are submitted to his discretion, and that such opinion, if known to the juror, has a great influence upon the final determination of the issues. * * *' The conduct of the trial judge, which falls within the category of a prohibited comment, must be coextensive with the purpose of the constitutional provision. Thus, this court has consistently held that if the trial judge conveys to the jury his personal opinion regarding the truth or falsity of any evidence introduced at the trial he has violated the constitutional mandate. State v. Reed, 56 Wash.2d 668, 354 P.2d 935 (1960); State v. Myers, 53 Wash.2d 446, 334 P.2d 536 (1959); State v. Clayton, 32 Wash.2d 571, 202 P.2d 922 (1949).

In this case, the burden was upon the prosecution to prove beyond a reasonable doubt, inter alia, the corpus delicti. There is no doubt that, although not so intended, the remarks of the trial judge could only have had the effect of indicating to the jury that the judge believed that at this point in the trial it could not be denied that a robbery had taken place, and that this essential element of the prosecution's case had been so well established that to suggest otherwise was 'getting a little ridiculous.'

In the past, judgments of conviction have been reversed because of 'comments upon the evidence' which were far less obvious to the jury than this one; e. g. State v. Vaughn, 168 Wash. 420, 9 P.2d 355 (1932); State v. Hude, 20 Wash. 234, 55 P. 49 (1898); State v. Walters, 7 Wash. 246, 34 P. 938 (1893).

The state, in its brief, argues in support of its three contentions to the effect that the court's comment did not constitute reversible error.

The first contention is that:

'Appellant has cited many cases as authority for his proposition. However, most of these may be distinguished on their face, by the fact that the alleged error was committed either in the court's instructions to the jury, or by the court interrupting counsel and interrogating witnesses. * * *'

This distinction is not controlling. In State v. Surry, 23 Wash. 655, 63 P. 557 (1900), this court put some emphasis on the fact that 'the remarks were directed solely to counsel for appellant, and were not intended to influence the jury or to be considered by them.' The fact was emphasized because the court felt that remarks addressed directly to the jury are far more likely to influence the jurors than remarks addressed primarily to counsel. That position is tenuous, at best. It is possible that jurors would give as much weight to an 'overheard' remark of the judge as to a remark addressed to them. The principle is the same in any case, and respondent does not dispute it.

Second, respondent contends that unless the remarks of the trial judge, in giving his reasons for a ruling, can be shown to be 'prejudicial' to appellant, it is not reversible error. If, by 'prejudicial,' respondent means 'indicating to the jury his opinion of the evidence, in violation of the constitutional mandate,' we would agree.

Respondent cites several cases in support of its contention. Upon reading them, it is apparent that in none of them did the statement of the trial court have the effect of conveying to the jury the judge's personal opinion as to the truth or falsity of any evidence. See, e. g., State v. Adamo, 128 Wash. 418, 223 P. 9 (1924); State v. Meyers, 121 Wash. 579, 210 P. 4 (1922); and State v. Storrs, 112 Wash. 675, 192 P. 984, 197 P. 17 (1920).

A case which respondent says is 'similar' to the case at bar is State v. Brown, 19 Wash.2d 195, 142 P.2d 257 (1943), in which the defendant was charged with an assault on a young girl. During the course of that trial, a discussion arose between the trial judge and defense counsel over an objection to the admission of an exhibit. The judge asked, "Are you disputing the assault?" and "This evidence here, are you denying it? I mean with the admissions, confessions and all that?" This court held that the statements complained of 'did not indicate the judge's opinion as to the truth or falsity of any evidence in the case.'

Whether or not the above quoted remarks were correctly held not to indicate the trial court's opinion as to the truth of the evidence, it is certain that the remarks of the trial court in the instant case constituted a comment upon the evidence, because they indicated to the jury that the corpus delicti had been established beyond cavil. Had the trial court, in State v. Brown, supra, gone on the state that it was 'ridiculous' to dispute the fact that the assault had taken place, the facts would have been much closer to the case at bar.

In our opinion, the remarks of the trial court clearly violated the constitutional mandate. The situation described previously might reasonably have appeared ridiculous to the court, but to communicate its feeling to the jury is forbidden by the constitution, whether reasonable or not.

Respondent's third contention is that:

'While it may have been error for the trial court to make the remark found in the record, it was not so prejudicial to the appellant's cause [as] to be a comment on the evidence in violation of the State Constitution so as to prevent him from having a fair trial. The argument of appellant that the remark of the trial court swayed the jury's deliberations to the extent that the appellant is entitled to a new trial, is of doubtful validity in light of all the evidence which has been previously adduced through testimony of the various witnesses who were at the project office when the incident occured. The facts are, that there was overwhelming evidence that a robbery had been perpetrated. The jury could not have concluded otherwise even without the court's remark.'

If this is what respondent meant in saying that a remark must be 'prejudicial' in order to constitute reversible error, we disagree.

Even if the evidence commented upon is undisputed, or 'overwhelming,' a comment by the trial court, in violation of the constitutional injunction, is reversible error unless it is apparent that the remark could not have influenced the jury.

'* * * It is not the quantum of any particular comment, but all comment whatever, that is inhibited by the constitution; and therefore courts should be extremely careful to confine their instructions solely to declaring the law. All remarks and observations as to the facts before the jury are positively prohibited, and if any such are...