State v. Cadena

• Decision Date: 18 July 1968
• Docket Number: No. 39664,39664
• Citation: 443 P.2d 826,74 Wn.2d 185
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Amado Guerra CADENA, Appellant.

Page 185

74 Wn.2d 185

443 P.2d 826

STATE of Washington, Respondent, v. Amado Guerra CADENA, Appellant.

No. 39664.

Supreme Court of Washington, Department 2.

July 18, 1968.

[443 P.2d 827] Robert S. Egger, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Donald D. Skinner, Deputy Pros. Atty., Seattle, for respondent.

DONWORTH, Judge. ^*

March 1, 1967 one Robert Ronald Perra was shot to death in a Seattle Tavern. An autopsy revealed that Perra had been shot four times. Shortly after the shooting appellant was arrested near the tavern and at that time he was advised of his constitutional rights. The pistol that fired the shots was never found.

March 3, 1967 appellant was arraigned at a preliminary hearing where he was represented by his present counsel. March 5, 1967, the sister-in-law of the deceased visited appellant in jail. At a hearing held pursuant to CrR. 101.20W, the siter-in-law testified that appellant told her 'that he was sorry that he killed Bobby.' The trial court, ruling this statement admissible, entered the following findings of fact:

FINDINGS AS TO UNDISPUTED FACTS

I.

The defendant is of Mexican descent, 42 years old, and finished his formal education in Texas at the fifth grade. He completed his high school education at the Walla Walla penitentiary.

II.

On March 5, 1967, Mrs. Perra telephoned Detective Wilson, Seattle Police Department, and inquired as to

permission to speak to the person charged with the murder of her brother-in-law.

III.

Detective Wilson indicated that the request was unusual, and would find out if it was permissible. Detective Wilson returned the phone call and told Mrs. Perra that permission to see the defendant had been granted by Officers at the King County Jail.

IV.

The defendant was being held in the King County Jail, and Mrs. Perra visited him there.

V.

The defendant was called from his cell and told that someone was there to see him. He was directed to the front gate. This was customary procedure.

VI.

The conversation in the jail between the defendant and Mrs. Perra was conducted out of the hearing of the officials of the jail.

VII.

Mrs. Perra sought to elicit information and knowledge about the death of her brother-in-law.

VIII.

The conversation between the defendant and Mrs. Perra occurred after the defendant had been arraigned on the present charge, and after he had retained counsel. Mrs. Perra had been informed that the defendant had retained counsel.

IX.

The arrangements for this conversation were made by Sgt. Wilson of the Seattle Police Department, Homicide and Robbery Division, with King County Jail officials without consulting the defendant's attorney.

X.

Det. Sgt. Wilson was one of the members of the Seattle Police Department assigned to investigate the Perra homicide.

XI.

The defendant made no request that his attorney be present prior to or during the conversation with Mrs. Perra.

DISPUTED FACTS

There is a conflict between the testimony of Mrs. Perra and the defendant as to the substance of what was said at the King County Jail on March 5, 1967.

FINDINGS AS TO DISPUTED FACTS

The court makes no findings as to the substance of what was actually said, that not being determinative of the admissibility of the conversation.

SPECIAL FINDING

The appearance of Mrs. Perra at the King County Jail and her conversation with the defendant were not a calculated effort on the part of the police to gain information from the defendant.

At the jury trial this statement allegedly made by appellant was testified to by the sister-in-law, Mrs. Perra.

In his first assignment of error, appellant asks this court to anticipate what decision the Supreme Court of the United States may make in the future and hold that the due process clause of the fourteenth amendment of the United States Constitution makes applicable to the states that portion of the Fifth Amendment requiring a person charged with an infamous crime to be indicted by a grand jury. For the reasons enunciated in State v. Kanistanaux, 68 Wash.2d 652, 414 P.2d 784 (1966), we hold this assignment of error to be without merit.

Appellant also assigns error to the trial court's denial of his motions ¹ for a continuance. The trial date was set 55 days after the date of arrest in an apparent effort to accommodate the state, whose eyewitness, a seaman, was available only on that date and would not again be available for several months. Appellant contends that due process and the right to counsel include the right to be represented effectively, and that this means that counsel must be given sufficient time to prepare a defense.

A motion for a continuance is addressed to the sound discretion of the trial court and appellant must show abuse of that discretion. State v. Bailey, 71 Wash.Dec.2d 185, 426 P.2d 988 (1967); State v. Schaffer, 70 Wash.2d 124, 422 P.2d 285 (1966); In re McNear v. Rhay, 65 Wash.2d 530, 541, 398 P.2d 732 (1965). See 2 Orland, Wash.Prac., § 183 (2d ed. 1965); 17 Am.Jur.2d Continuance §§ 27--28 (1964). In a criminal case it is true that, as appellant contends, constitutional issues are raised where it can be said that the denial of a continuance deprived the defendant of a fair trial. See Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); State v. Watson, 69 Wash.2d 645, 419 P.2d 789 (1966); Bradley v. State, 227 Ind. 131, 84 N.E.2d 580 (1949); 21 Am.Jur.2d Criminal Law § 320 (1965). These principles are well stated in Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964), where it is stated that:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process * * *. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.

As the court went on to state in Ungar, there are no mechanical tests for deciding when a denial of a continuance is violative of due process, and the answer must be found in the circumstances present in the particular case. Id.

In the instant case appellant's present counsel represented him from the outset. When the trial court was considering appellant's renewed motion for a continuance on the day of the trial the following exchange occurred:

THE COURT: Are there any witnesses who are key witnesses in this matter that you have not had an opportunity to talk to, Mr. Egger? MR. EGGER: No, Your Honor, there are not. They have all been made available to me to talk to if I wanted. I have not talked to Mrs. Perra, I believe her name is, for reasons of my own; certainly not for reasons of unavailability. THE COURT: All right. If during the course of the trial it develops there are any matters which by virtue of the shortness of the period of time between the plea and the trial date which leads you to believe you have not had an opportunity to fully discuss the witness's testimony, the Court will grant you sufficient time to confer with that witness.

In addition with this offer of time to confer with witnesses, the trial court, when hearing appellant's motion for a new trial, inquired of appellant's counsel whether during the course of the trial 'anything * * * developed wherein you can point to the fact that there was not sufficient time.' Appellant's counsel answered no, and after some explanation he said 'I can't say this would have changed the effect of the trial, * * * and I can't honestly say that the Court's denial of my request for a continuance actually prejudiced the defendant.' Under these circumstances we cannot say that the trial court abused its discretion or that as the result of the denial of the motion for a continuance appellant was denied due process.

Appellant next assigns error to the admission of the testimony of Mrs. Perra regarding the statements ² made by appellant during her visit with him in the jail. The visit by Mrs. Perra was subsequent to the admonition to appellant of his constitutional rights and was also subsequent to his retention of the services of an attorney. And, as noted above, the trial court, in holding the statements to be voluntary, found that Mrs. Perra was not acting as an instrumentality of the police but that she had sought the conversation with appellant for purposes of her own. Of course these findings do not obviate the necessity for further inquiry by this court into the circumstances surrounding the waiver by appellant of his constitutional rights. State v. Davis, 73 Wash.Dec.2d 281, 292, 438 P.2d 185 (1968); State v. Kramer, 72 Wash.Dec.2d 892, 899, 435 P.2d 970 (1968); State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964).

We have reviewed the record and are satisfied that the statements were voluntary. Indeed, appellant's testimony establishes that he was at all times free to discontinue the conversation and that same testimony indicates that appellant apparently disregarded his attorney's advice by talking to Mrs. Perra. Furthermore, the testimony of the police officers indicate that although the visit was not made during regular visiting hours, still there was nothing unusual about it. Finally, there is nothing in the record to indicate that there was any complicity between Mrs. Perra and the police officers. Hence appellant's contention that he was denied his rights under the fifth amendment of the federal constitution is without merit. See Hoffa v. United States, 385 U.S. 293, 300--304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Appellant further contends, however, that his rights under the fourth and sixth amendments to the federal constitution were abridged. As to the Fourth Amendment contentions, we also find no merit. Hoffa v. United States, supra, involved an informer who, for the purposes of that decision, was considered to have been in the employ of the government. The informer, Partin, apparently at Hoffa's invitation, accompanied Hoffa during a...