State v. Brown

• Decision Date: 23 June 1966
• Docket Number: No. 38011,38011
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. James BROWN, Appellant.

Page 852

68 Wn.2d 852

416 P.2d 344

STATE of Washington, Respondent, v. James BROWN, Appellant.

No. 38011.

Supreme Court of Washington, Department 1.

June 23, 1966.

Dale R. Martin, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Seattle, Edwin S. Stone, Deputy Pros. Atty., for respondent.

HUNTER, Judge.

The defendant (appellant) James Brown was charged with committing the crime of second-degree assault upon one Samuel Waller resulting from a shot fired from a rifle. The defendant entered a plea of not guilty. He admitted the shooting but asserted it was in self-defense.

At the conclusion of a jury trial, a verdict was returned finding the defendant guilty of the crime of second-degree assault as charged. Judgment was thereupon entered, from which the defendant appeals.

The facts surrounding and preceding the shooting incident are in direct dispute. On May 18, 1964, the day of the shooting, the defendant and the prosecuting witness Waller lived in separate houses on the north side of South Norman Street in Seattle, separated by a house occupied by a Mrs. Elizabeth Martin. South Norman Street is unpaved and without sidewalks in an impoverished area, and the three houses were in close proximity. A few months prior to May 18th, Waller had lived with the defendant for about 2 weeks. Thereafter, he moved to 1618 Norman Street, the second house to the west. Waller testified he was requested to move from defendant's house because the defendant had concluded that Waller was responsible for Mrs. Martin having spurned the defendant's amorous advances, and he believed Mrs. Martin was in love with Waller and was having sexual relations with him.

Mrs. Martin testified that the defendant had professed to be in love with her, but she had refused his advances; that he left notes in her mailbox, attached to her dog's collar, and at the Cosmopolitan Tavern. An examination of the notes disclosed that he had evidenced his love, and one note acknowledged he had been requested by her to stay away from her house. She further testified that the defendant was jealous of Waller and believed she was sleeping with him.

Waller testified that on the evening of May 18th, about 10 p.m., he was returning to the Cosmopolitan Tavern after feeding his dog. As he passed a trailer in front of the defendant's house he heard a 'click,' and saw the defendant with a long black object, heard the report of a rifle, and fell to the ground as a result of a 7.62 millimeter bullet striking his right leg; that he dragged himself into Mrs. Martin's house. A Mr. Mann, who was in the house, testified he heard the defendant yell 'Come out, come out, I am going to kill ya.' The police arrived shortly thereafter and Waller was taken by ambulance to the Harborview Hospital. The evidence shows that the bullet entered the inside of Waller's right thigh and emerged on the outside of the thigh.

According to the defendant's version Waller moved into defendant's place of residence in February, 1964, after Waller was released from a sentence he was serving for a felony conviction; that they did not get along, and at the end of about 2 weeks the defendant asked him to move out; that thereafter there was constant bickering over a television set and certain other items of furniture in defendant's residence which Waller claimed belonged to him. The defendant testified that he had purchased the furniture and television from a former occupant and had paid an extra amount to have the television repaired; that he refused to give it to Waller unless he paid him the purchase price and the amount of the repair bill.

On the afternoon of May 18th, the squabble was renewed. The defendant again refused to surrender the television unless Waller paid the defendant the price he had paid for the television and the amount of the repair bill, or if his landlady or the police told him to turn it over to Waller. Late that evening the dispute was resumed without resolution. Shortly thereafter, the defendant walked by Waller's residence on his way home to feed his dog, and Waller came out and again renewed the argument. The defendant walked on past to his house, and Waller went back into his house. After feeding his dog in the front yard, the defendant saw Waller leave his house and come up toward the defendant's yard. Waller had put on an overcoat, and observing his demeanor, the defendant removed his loaded rifle from its place inside the front door of the house and leaned it against the porch. Waller entered the yard, his right hand thrust into his overcoat pocket, shaking his left hand at the defendant. They argued and Waller told the defendant he had come to get the television. The defendant refused to surrender it. Waller threatened him, saying that he would whip him 'like he did Shorty.' The defendant testified that he knew Shorty had been pistol whipped; that he (defendant) was still tender from a hernia operation; and that he visualized a pistol in Waller's pocket where his hand remained. The defendant picked up his rifle, neither advancing nor retreating from his position at the foot of the steps of his house. Waller continued toward the defendant, indicating he was not afraid that the defendant would shoot. The defendant warned him 'Don't come up on me.' Waller continued to advance; the defendant pulled the trigger, aiming it at Waller's feet, but the gun jumped and the bullet struck him in the thigh. Waller fell into the street and then dragged himself over to the Martin house. The defendant testified that he returned to his house, placed the gun on the bed, and left for the purpose of surrendering to the police, which he did within two hours.

The defendant assigns error to the ruling of the trial court limiting his cross-examination of the witness Elizabeth Martin on her immoral course of conduct.

The defendant first contends that he was entitled to pursue such an examination of the witness for the purpose of impeaching her credibility, relying on State v. Coella, 3 Wash. 99, 28 P. 28 (1891), as affirmed in State v. Cooper, 26 Wash.2d 405, 174 P.2d 545 (1946) and Lankford v. Tombari, 35 Wash.2d 412, 213 P.2d 627, 19 A.L.R.2d 462 (1950).

In State v. Wolf, 40 Wash.2d 648, 245 P.2d 1009 (1952), the philosophy of the Coella rule was exhaustively considered, in a review of the cases in which it had been previously applied. We there stated in discussing the Coella rule that evidence relative to the immoral conduct of witnesses falls into two classes: '(1) (c)ross-examination or independent evidence tending to show specific acts of misconduct; and (2) evidence tending to show general reputation for chastity.' We noted that precedent for the admission of evidence falling into either category, whether considered as a matter of right or as a matter of judicial discretion, goes back to the early case of State v. Coella, supra. We said:

Our immediate concern is with regard to the second of the two categories of evidence referred to above. It will therefore not be useful to recount in detail the development of the rule relative to the admissibility of evidence as to specific acts of misconduct. It may be noted, however, that the rule permitting the parties to introduce such evidence as a matter of right, as distinguished from judicial discretion, has been applied only in cases involving seduction, State v. Jones, 80 Wash. 588, 142 P. 35, statutory rape, State v. Godwin, 131 Wash. 591, 230 P. 831, and gambling, State v. Smith, 145 Wash. 250, 259 P. 711. The latter case was overruled in effect, in State v. Gaffney, 151 Wash. 599, 276 P. 873, 65 A.L.R. 405, and the rule permitting such evidence as a matter of right was completely abandoned as to all types of cases in State v. Linton, 36 Wash.2d 67, 216 P.2d 761. In that decision, involving a charge of statutory rape, it was held that the admission of evidence as to specific acts of misconduct, to affect credibility, rested within the sound discretion of the trial court.

State v. Linton left the door open to receive evidence as to specific acts of immoral conduct if the trial court, in its discretion, found it acceptable. * * *

It appears clear that the Coella rule, as to showing specific acts of immoral conduct to affect the credibility of a witness, has been restricted from a matter of right for the introduction of such evidence, to that of the exercise of discretion by the trial court in determining its admissibility. The question then posed is whether the trial court abused its discretion in failing to permit the defendant to cross-examine the witness Mrs. Martin on specific acts of misconduct in order to impeach her credibility. We do not find that the trial court abused its discretion insofar as its ruling restricted the cross-examination for purposes of impeachment of credibility.

However, the defendant contends that the purpose of his offer of proof was also to destroy the motive built up by the state on direct examination and in the opening argument.

It is evident from the record that the basic theory of the state's case to support the testimony of Waller that he was ambushed by the defendant was to establish a motive of the defendant's jealousy of Waller. The state called Mrs. Martin as its witness for this specific purpose. This witness testified that the defendant had professed his love for her, which she had rejected, and that he had indicated his jealousy by reason of his suspicion of Waller's affection for this witness. The...