State v. Bresolin

• Decision Date: 05 May 1975
• Docket Number: No. 2403--I,2403--I
• Parties: STATE of Washington, Respondent, v. Bradley Lave BRESOLIN, Appellant, Lloyd Dennis Taber and David Lewis Archie, Defendants.
• Court: Washington Court of Appeals

Page 386

13 Wn.App. 386

534 P.2d 1394

STATE of Washington, Respondent, v. Bradley Lave BRESOLIN, Appellant, Lloyd Dennis Taber and David Lewis Archie, Defendants.

No. 2403--I.

Court of Appeals of Washington, Division 1.

May 5, 1975.

[534 P.2d 1396] James R. Short, Federal Way (court-appointed), for appellant.

Christopher T. Bayley, King County Pros. Atty., Brian D. Gain, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Bradley Bresolin, Lloyd Taber, and David Archie were charged with two counts of robbery ¹ while armed with a dangerous weapon, and one count of second-degree assault. ² The state introduced evidence to show that on December 26, 1972, Lloyd Taber arrived at the home of Mark Medearis and his father and asked Mark Medearis for some 'dope.' Taber then left the residence but returned several hours later. He was subsequently asked to leave by Medearis' father, and as he was doing so two men armed with weapons and wearing ski masks, later identified as Bresolin and Archie, entered yelling 'Federal agents, this is a bust.' Mark Medearis was beaten and assaulted with a gun, hit on the head several times, threatened with a knife Two other persons arrived at the Medearis residence during the course of the robbery. They were met at the door by the man identified as Bresolin, who made them lie down and who bound them. One of these persons later identified both Bresolin and Archie, while the other later identified Archie only.

thrown to the floor, handcuffed and repeatedly kicked. Medearis' father was also handcuffed and told to lie on the floor. Both of the armed men asked for drugs and money. Mark Medearis later made a positive identification of all three defendants.

There was testimony that the defendants took some change from the bedroom of Mark Medearis, a wallet from the elder Medearis, and several weapons from the home. All three defendants were convicted of two counts of robbery and one count of assault. The defendants Archie and Taber were sentenced to 20 years on each count of robbery and 10 years for assault, the sentences to run concurrently; while Bresolin was sentenced to 20 years on each count of robbery and 10 years on the assault, each sentence to run consecutively. This appeal is brought by Bresolin only.

The defendant Bresolin contends that it was error

(1) to admit testimony by Mark Medearis that during the robbery he was assaulted with a knife;

(2) to allow a police officer to testify about certain statements made by the defendant following his arrest:

(3) to permit the conviction and to sentence for two counts of robbery and one count of assault, this being claimed to violate the double jeopardy clauses of the Washington and United States Constitutions;

(4) to impose a sentence claimed to deprive the defendant of the equal protection of the laws and claimed to be cruel and unusual punishment;

(5) to admit certain evidence claimed to have been the product of an illegal search and seizure. ³

TESTIMONY AS TO TRANSACTION

The defendant's first argument is that it was error to permit Mark Medearis to testify over objection that during the robbery the defendants placed a knife to Medearis' groin and threatened him if he did not tell them where money and 'dope' were located. The defendant contends that (1) this testimony was evidence of other crimes since the information charged that the defendant committed the offenses by the use of a firearm, and (2) the testimony was introduced solely for its prejudicial effect. The trial court did not err, however, as the testimony was relevant to prove that the defendant committed the crime as charged in the information

by force and violence to the person of Mark A. Medearis and by putting the said Mark A. Medearis in fear of injury to his person and against his will, . . .

This evidence was admissible as

so much a part of the same transaction that it was direct evidence of the crime charged. The . . . evidence could have been used to show a separate and distinct crime but its use was not so limited. It was sufficiently related to the offense on trial as to form a part of the same transaction.

State v. Granville, 1 Wash.App. 976, 978, 465 P.2d 693, 695 (1970). See also State v. Niblack, 74 Wash.2d 200, 443 P.2d 809 (1968); State v. Hatch, 4 Wash.App. 691, 483 P.2d 864 (1971).

HEARSAY

The defendant's second contention is that the court erred in allowing a police officer to testify that following the defendant's arrest, as the officer was about to inventory the contents of the automobile in which the defendant and Archie were arrested, he made a statement to the effect

that 'anything we found in the car we would not be able to tie to him.' At the hearing held pursuant to CrR 101.20W, the trial court initially had determined that the statement was inadmissible because the defendant was not properly advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as further enunciated in State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969). Subsequently, the defendant Archie called this officer as his witness and the officer testified to Bresolin's statement. The defendant initially argues that the statement is hearsay. We observe that the statement is not hearsay since it was not offered to prove the truth of the statement itself, but only to prove that the defendant said it. The credibility of the defendant, whose statement it is purported to be, is not in issue. Whether the statement is reliable depends upon the credibility of the testifying police officer, who is subject to cross-examination, and the question is not whether the defendant's statement is true, but whether the defendant said it. The statement was admissible from the standpoint of the hearsay objection. State v. Mott, 74 Wash.2d 804, 447 P.2d 85 (1968); Moen v. Chestnut, 9 Wash.2d 93, 113 P.2d 1030 (1941); R. Meisenholder, 5 Wash.Prac. § 381 (1965, Supp.1974).

SPONTANEOUS STATEMENTS

The defendant also contends that, since the statement had been previously held to be inadmissible at the CrR 101.20W hearing, its admission violated the defendant's Fifth Amendment privilege against self-incrimination. The testimony of the officer reveals that the defendant's statement, although made while in custody, was not the result of interrogation, but was spontaneous and volunteered. In State v. Eldred, 76 Wash.2d 443, 448, 457 P.2d 540, 543 (1969), it was stated:

The conversation was in no way prompted by any action of the officers. No questions had been asked of appellant to bring about her statement. There was no custodial interrogation since the officer merely overheard the appellant and her husband make certain statements during a voluntary conversation.

The admission of such voluntary, non-interrogational statements are not prohibited by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and subsequent holdings in this regard.

See also State v. Fullen, 7 Wash.App. 369, 499 P.2d 893 (1972), cert. denied, 411 U.S. 985, 93 S.Ct. 2282, 36 L.Ed.2d 962 (1973).

DOUBLE JEOPARDY--SAME EVIDENCE TEST

The third contention of the defendant is that his conviction and sentence for two counts of robbery and one count of assault violated the double jeopardy clauses of the Washington and United States Constitutions in two respects: (1) all three counts arose out of the 'same transaction,' and (2) count 3 charging second-degree assault is necessarily included within count 2 charging robbery.

The defendant cannot prevail on his claim that double jeopardy exists because the counts arose from the same transaction. State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973), held that for purposes of the double jeopardy clauses of article 1, section 9 of the Washington Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, the test for determining whether multiple charges are for the 'same offense' is to consider whether the charges are 'identical both in fact and in law.' In the Roybal case, the court rejected the so-called 'same transaction' test relied upon by the defendant and applied the 'same evidence' test quoting fom State v. Barton, 5 Wash.2d 234, 237--38, 105 P.2d 63, 66 (1940), as follows:

A person is not put in second jeopardy by successive trials unless they involve not only the Same act, but also the Same offense. There must be substantial identity of the offenses charged in the prior and in the subsequent prosecutions both in fact and in law. . . .

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The rule is, however, subject to the qualification that the offenses involved in the former and in the latter trials need not be identical as entities and by legal name. It is sufficient to constitute second jeopardy if one is necessarily included within the other, and in the See also State v. Eckman, 9 Wash.App. 905, 515 P.2d 837 (1973). Thus, a defendant is not placed in double jeopardy if the requisite evidence necessary to sustain either charge, standing alone, would not sustain a conviction of the other charge. State v. La Porte, 58 Wash.2d 816, 365 P.2d 24 (1961); State v. Jefferson, 11 Wash.App. 745, 524 P.2d 924 (1974).

prosecution for the greater offense, the defendant could have been convicted of the lesser offense.

These precepts answer the defendant's claim that he could not be charged, convicted and sentenced on both counts of robbery. Count 1 of the information charged the defendant with robbing the senior Medearis, while count 2 charged him with robbing Mark Medearis. ⁴ Under the 'same evidence' test, the two charges are not identical in both law and fact. To sustain the first count, the requisite evidence would have to prove that the defendant robbed one victim, while to sustain the other count the evidence would have to show that the defendant robbed the other victim. When a defendant robs two or more persons at the same time, he is not placed in double jeopardy by being charged with robbery as to each victim...