State v. Brakes

• Decision Date: 24 February 1970
• Docket Number: Nos. 154--40482--,225--40790--I,225--40788--,s. 154--40482--
• Citation: 465 P.2d 683,1 Wn.App. 987
• Parties: STATE of Washington, Respondent, v. John T. BRAKES, Jr., Michael Jay Parker, and Ronald Lee Lewis, Appellants, Arthur Lee Sinclair, Defendant.
• Court: Washington Court of Appeals

Page 987

1 Wn.App. 987

465 P.2d 683

STATE of Washington, Respondent, v. John T. BRAKES, Jr., Michael Jay Parker, and Ronald Lee Lewis, Appellants Arthur Lee Sinclair, Defendant.

Nos. 154--40482--I, 225--40788--I, 225--40790--I.

Court of Appeals of Washington, Division 1, Panel One.

Feb. 24, 1970.

Rehearing Denied April 13, 1970.

Frank L. Sullivan, Seattle, for John T. Brakes.

John W. Rusden, Seattle, for Ronald Lee Lewis.

Talbot, Smith & Stone, Edwin S. Stone, Seattle, for Michael Jay Parker.

Charles O. Carroll, King County Pros. Atty., Gerald M. Lorentson and John E. Nelson, Seattle, for respondent.

SWANSON, Judge.

Michael Jay Parker, John T. Brakes, Ronald Lee Lewis, and Arthur Lee Sinclair were each charged with six counts of assault in the second degree. One of the six counts was dismissed. After a jury trial, Sinclair was found not guilty, but a verdict of guilty on five counts of second degree assault was rendered as to each of the remaining defendants. They appeal.

In the early morning of July 3, 1968, Seattle's central area erupted in a series of disturbances and riots. Against a lively backdrop of yelling and cursing, a gathering mob at 23rd Avenue and East Union Street launched rocks, bricks, pieces of concrete and other missiles at the Seattle Police Department's special patrol squad. After dispersing this crowd, police officers moved east on East Union Street to 24th Avenue where another crowd was forming. Near the intersection of 24th Avenue and East Union, the special riot squad, consisting primarily of the five victims named in the five counts of the information, was the target of rocks, bricks assorted missiles and incendiary devices called 'Molotov cocktails,' or firebombs, which consisted of soft drink bottles filled was gasoline or other inflammable liquid and lighted with a wick. Each of the three defendants was identified by one or more police officers as having been observed throwing a firebomb at or near the five advancing policemen. No single officer could identify each individual defendant; however, they were identified as having run from the scene along with other members of the crowd into a nearby apartment building where they were arrested.

All three defendants make one joint assignment of error, Viz., that the court failed to instruct the jury:

You are instructed that in order to convict a defendant of a crime of assault in the second degree as alleged in any specific count of the information herein, you must find that said defendant did assault the person named in said count of the information by an attempt, with unlawful force, to inflict bodily injury upon him. However, such attempt must create in the mind of the person named and described as the person assaulted in said count of the information genuine apprehension before you can find such defendant guilty of the crime of second degree assault under that count of the information.

The defendants claim the state failed to prove apprehension on the part of the alleged victims. This assignment is without merit. State v. Stewart, 73 Wash.2d 701, 440 P.2d 815 (1968), establishes beyond peradventure that apprehension of the one assaulted is not a necessary element of second degree assault.

Only Parker and Lewis assign error to certain remarks made in the prosecutor's closing argument. The prosecutor said:

(T)here will always be some hoodlums who will try to get in on a situation of social unrest for their own advantage, whether it be looting or whether it be attacking police officers.

The record shows his statement was made by way of a general remark and did not purport to refer specifically to the defendants. While we do not approve of the language used by the prosecutor, this statement was not objected to and did not prejudice the rights of Parker and Lewis to a fair trial. Nor, does it appear, did the other remarks of the prosecutor to which they objected:

An interesting thing about these witnesses, the court has told you that a person's convictions are only to be used in determining his credibility as a witness. This is the law. So Brakes, we know, is a burglar, and some other minor stuff; petit larceny, petit meaning small. He also committed assault.

What do we know about Parker? Well, he's a robber.

What do we know about Lewis? Convicted of grand larceny.

What do you call a person that's convicted of grand larceny? Probably a thief.

During their cross-examinations, Parker admitted a conviction of robbery, and Lewis admitted a conviction of grand larceny. Timely objection was not made to these remarks. When the objection was made, the court instructed the jury to disregard any statement not borne out by the evidence. Nor do we find these statements so flagrant that no instruction could cure them. State v. Basford, 76 Wash.Dec.2d 681, 457 P.2d 1010 (1969). The fact of defendants' prior convictions is admissible and relevant to the question of their present credibility. The prosecutor was arguing to the jury about credibility. The argument would serve only to refresh the jury's mind about this issue.

Defendants Parker and Lewis contend that the evidence against them was not sufficient to support the verdict on several counts of the information. The essence of this argument is that the state did not prove an individual act of assault by each defendant toward each police officer named in the five counts of the information. In other words, the claim is that each defendant must be shown to have thrown a firebomb at each police officer to sustain the conviction.

This argument is without merit. The evidence shows that the five police officers...