State v. Cerny

• Decision Date: 28 January 1971
• Docket Number: No. 40911,40911
• Citation: 480 P.2d 199,78 Wn.2d 845
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Joseph CERNY, III, Appellant.

Page 845

78 Wn.2d 845

480 P.2d 199

The STATE of Washington, Respondent, v. Joseph CERNY, III, Appellant.

No. 40911.

Supreme Court of Washington, En Banc.

Jan. 28, 1971.

George W. Dixon, Tacoma, for appellant.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty. and Eugene G. Olson, Chief Crim. Deputy Pros. Atty., with him on the brief) for the State.

FINLEY, Associate Justice.

On the evening of November 16, 1968, two men, masked with strips of adhesive or similar tape and armed with guns, entered and robbed the Lake City Shoprite. During the commission of the crime, one of the robbers shot, and fatally wounded, one George Washington Howard, a customer who attempted to thwart the robbery. Following the shooting, the robbers left the store and escaped by automobile. A witness pursuing the robbers in his automobile was fired upon twice. Although his attempts at capture were unsuccessful, the witness was able to obtain a description of the getaway vehicle and its license number.

Sometime after the robbery and on the same evening, one Michael Morris reported to the Tumwater Police Department that his automobile had been stolen from the parking lot of a Tumwater motel (located approximately 25 miles from the scene of the robbery). Morris' vehicle was found by police the following morning in the back of the parking lot of the Tumwater motel. The vehicle matched the pursuing witness' description of the getaway car; and, but for one letter, its license number coincided with the license of the robbers' vehicle as remembered by the witness.

Morris, his wife and appellant arrived upon the scene as the police were examining Morris' vehicle. Morris and the appellant were taken into custody and were later transported to the Pierce County jail. Shortly thereafter, following the appointment of counsel, they were subjected to a lineup attended by several customers and employees present in the store at the time of the robbery-murder. Appellant was positively identified by two witnesses in attendance at the lineup as being one of the two robbers.

Appellant was charged by amended information with the unlawful aiding and abetting of another person in the commission of a felony--I.e., a robbery--during which robbery mortal wounds were inflicted upon one George Washington Howard by the said other person. The state does not contend that the appellant fired the fatal shot. The jury found the appellant guilty and imposed the death penalty. He appeals this conviction and sentence of death entered upon the jury's verdict.

Appellant, through argument and briefs of counsel and personally through supplemental briefs, assigns seven errors to the trial court's determination. These assignments will be examined in order.

Appellant first assigns error to the admission, over appellant's repeated objections, of certain testimony concerning Michael Morris. Appellant contends that, since Morris was not charged with any crime arising from the robbery-murder, the introduction of such testimony denied appellant a fair trial because (1) it required appellant to defend Morris as well as himself; and (2) the evidence so admitted was unrelated to the criminal acts charged and thus failed to meet the test for admissibility of circumstantial evidence set forth in State v. James, 58 Wash.2d 383, 363 P.2d 116 (1961).

Upon careful examination and review of the questioned testimony, we find no merit in appellant's contention. Appellant does not question the general rule that evidence of acts of a principal may be admitted in evidence against the person charged with aiding and abetting the commission of a crime. This is true even where the principal is not being tried, is not under arrest and is not present as a witness. See 2 Wharton's Criminal Evidence § 418 (12th ed. 1955).

Certain testimony admitted at trial, over appellant's objection, was elicited to establish the capacity of Morris' automobile to attain great rates of speed. Since other testimony clearly established the fact, if believed by the jury, that the appellant and Morris were together prior to, during and following the time of the commission of the robbery-murder, the speed capacity of Morris' vehicle was relevant to establish the ability of Morris and appellant to travel from Olympia to the Lake City Shoprite and back to Tumwater within a short period of time. The evidence, in short, if believed by the jury, was relevant to placing appellant at the location of the crime when committed.

Appellant further objects to testimony elicited to prove that Morris had registered at various motels in the Olympia area under his own name and under the name of Mike Katz. If believed by the jury, this evidence was relevant to establishing the planning of an escape route following the planned robbery. The record contains no evidence that the appellant in fact used any of these motels following the time of the robbery-murder. Contrawise, appellant's testimony in explanation of these various motel registrations would establish, if believed by the jury, an innocent explanation. Thus, the appellant argues that this evidence violates the test established in State v. James 58 Wash.2d 383, 387, 363 P.2d 116, 119 (1961), wherein this court, quoting from State v. Guillingham, 33 Wash.2d 847, 854, 207 P.2d 737 (1949), stated:

'* * * in order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence.'

The James test was not violated in the instant case, however, for

it has also been held with equal unanimity that the question of whether or not the circumstantial evidence tending to link a defendant with the crime excludes beyond a reasonable doubt every reasonable hypothesis other than the defendant's guilt, is a question for the trier of fact. * * * See State v. Walters, 1960, (56 Wash.2d 79,) 351 P.2d 147; State v. Lewis, 1960, 55 Wash.2d 665, 349 P.2d 438; State v. Grenz, 1946, 26 Wash.2d 764, 175 P.2d 633, appeal dismissed 332 U.S. 748, 68 S.Ct. 54, 92 L.Ed. 336; and State v. Dockers, 1939, 200 Wash. 45, 93 P.2d 355.

State v. James, Supra, 58 Wash.2d at 387, 363 P.2d 116 at 119.

The relevancy of this evidence concerning the activities of Morris and the appellant was a question for the determination of the trial court. Upon analogous facts, we have stated:

The defendant next contends that it was error for the trial court to admit over objection testimony concerning the unidentified man who accompanied the defendant on the day of the alleged crimes. He argues that this tended to confuse the jury about the defendant's identity. We disagree. Several witnesses made positive identifications of the defendant in court, so there was no real doubt as to his identity. Moreover, the relevancy of testimony concerning the 'other man' was a matter within the discretion of the trial court, Chase v. Beard, 55 Wash.2d 58, 346 P.2d 315 (1959), and in this case, it is obvious that such testimony helped to explain the circumstances under which the alleged criminal acts took place. We find no abuse of discretion by the trial court in admitting the testimony.

State v. Schrager, 74 Wash.2d 75, 79--80, 442 P.2d 1004, 1007 (1968). The jury was adequately instructed upon the nature and weight to be afforded circumstantial evidence. Instruction No. 17 provided in part:

The facts and circumstances relied upon should be consistent with each other, and with the guilt of the defendant. They should be inconsistent with any reasonable theory of innocence. They should be of such character as to exclude every reasonable hypothesis other than that of guilt. Circumstantial evidence meeting these requirements is entitled to the same weight as direct evidence. * * *

We must presume, absent any contrary showing, that the jury followed the court's instruction. State v. Willis, 67 Wash.2d 681, 409 P.2d 669 (1966).

Lastly, appellant objects to the state's attempt to place before the jury the allegedly poor financial condition of Morris. The record does not support the appellant's contention. His objections to two immediately successive questions by the state on this matter were sustained and the witness made no response to them.

Appellant next assigns error to what he characterizes as inflammatory and highly prejudicial remarks by the prosecuting attorney calling for imposition of the death penalty in the prosecutor's rebuttal argument. The appellant lays great stress upon his strategy to remain silent on the question of the death penalty. Thus, he contends, the prosecutor's reference to the death penalty unfairly inserted the issue into the case. We cannot agree with this contention. The question of the death penalty is inevitably before the jury in capital cases Regardless of defense strategy. In the instant case, the jurors were extensively questioned upon voir dire regarding their beliefs as to imposition of the death penalty. Further, the jury was instructed in Instruction No. 22, as required by RCW 9.48.030, as follows:

If, from all the evidence in this case, you should find the defendant guilty of murder in the first degree, the law then imposes the further duty upon you to find a special verdict as to whether or not the death penalty shall be inflicted.

The form of such special verdict is therefore submitted to you in the form of this question, to be answered only in case you find the defendant guilty of Murder in the First Degree:

'Shall the death penalty be imposed?'

This you will answer yes, or no, according to your determination.

Thus, our inquiry must be directed toward ascertaining whether the prosecutor's references to the death penalty influenced the jury and tainted its verdict, and not whether these references...