State v. Chisholm

• Decision Date: 10 July 1972
• Docket Number: No. 1259--I,1259--I
• Citation: 7 Wn.App. 279,499 P.2d 81
• Parties: STATE of Washington, Respondent, v. O'Neil CHISHOLM, Appellant.
• Court: Washington Court of Appeals

Page 279

7 Wn.App. 279

499 P.2d 81

STATE of Washington, Respondent, v.O'Neil CHISHOLM, Appellant.

No. 1259--I.

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

July 10, 1972.

Steinberg & Steinberg, Quentin Steinberg, Seattle, for appellant.

Christopher T. Bayley, King County Pros.Atty., Paul J., Bernstein, Deputy Pros.Atty., Seattle, for respondent.

FARRIS, Acting Chief Judge.

On April 14, 1971, Andrew Brozovich was robbed of approximately $480.A jury found that Mr. Chisholm committed the robbery while armed with a deadly weapon.His appeal raises five questions.

(1) The validity of a search warrant, both as to its issuance and execution;

(2) Whether the in-court identification of an alleged accomplice in the crime was so prejudicial as to require the granting of a mistrial;

(3) Whether the approximately $40 in dimes and quarters wrapped in money rolls and discovered in the search of a Seattle rooming house in which Mr. Chisholm formerly lived was properly and sufficiently connected with the approximately $480 taken in the robbery to be admissible into evidence;

(4) Whether the failure of the trial court to permit Mr. Chisholm to inquire into the street address of the chief witness for the prosecution denied Mr. Chisholm his constitutional right to confront the witness against him; and

(5) Whether it was error to submit the question of whether Mr. Chisholm was armed with a deadly weapon to the jury.

Mr. Chisholm contends that the search warrant did not meet the constitutional requirements of probable cause.SeeAguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964).The record does not support this contention.The affidavit upon which the magistrate relied in issuing the search warrant included information from one Tyrone Fike who owned and drove the car used to escape from the location of the robbery.

That Mr. Fike told your affiant that in the morning of April 14th he and one Odell Chisholm were driving around in Mr. Fike's car, a 1962 Chevrolet, Washington license OFY 275 looking for places to rob; that he waited in the car while Chisholm did in fact rob Andrew Brozovich and returned to the car with a large cardboard box containing bags of coins, one vending machine dollar bill money changer and the victim's wallet; that Chisholm performed the robbery with a silver colored .25 caliber automatic; that they then went to the second house south of the intersection with Union Street on the east side of 15th Avenue in Seattle, green in color, multi-story and placed the coins into coin rolls, left the vending machine at that address as well as the .25 caliber automatic which had been borrowed from the occupant of the house; that the victim's wallet was also left at the premises when Mr. Fike left in the afternoon hours of April 14th; . . .

The information given by Fike from his personal knowledge was corroborated independently by a Seattle police detective.The detective had determined independently:

That in the morning hours of April 14, 1971, one Andrew Brozovich, an employee of Servomation Corp., which operates a fleet of vending machine service trucks was robbed by one Negro male at 2001 21st Avenue South in Seattle, who displayed a small caliber silver pistol and escaped with in excess of $900 in U.S. coins, one vending machine dollar bill money changer, and the wallet of Andrew Brozovich which contained his identification and assorted credit cards; that this Negro male entered a parked vehicle occupied by another Negro male, and they exited the scene, that this vehicle was a 1962 Chevrolet, Washington license OFY 275, which your affiant found to be registered to one Tyrone Fike; . . .

The requirements of Aguilar were met (T)he magistrate (was) informed of some of the underlying circumstances from which the informant concluded that the (stolen money and articles) were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity (was established), . . . was 'credible' or his information 'reliable.'

(Footnote omitted.)Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514.

Mr. Chisholm also contends that the search warrant lacked specificity in describing the precise location of the premises to be searched, as is required by the fourth amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment.SeeKer v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726(1963).The warrant issued by a Seattle magistrate on April 15 authorized the search of 'the second house south of the intersection with Union Street on the east side of 15th Ave., Seattle, green in color, multi-story.'It is Chisholm's contention that the warrant failed to describe the particular sub-unit of this rooming house to which the search should be confined and is therefore constitutionally defective.He cites as authority People v. Avery, 478 P.2d 310(Colo.1970).In Avery, the trial court made a specific finding that the police officers knew or should have known when they obtained the warrant that the building involved was a rooming house.This finding is absent in the instant case and the record does not support an argument that the police knew or should have known that the house to be searched was a rooming house.People v. Lucero, 483 P.2d 968(Colo.1971), decided after Avery, is more similar to the facts before the court.There, a search warrant failed to specify which individual apartment of what appeared to be a single family dwelling was to be searched.The trial court found that the police officers did not know that the dwelling contained individual apartments until they had entered and that the police had every reason to believe that the house was a single family dwelling.Here, the record does not support an allegation that the police knew or should have known the residence contained individual living units.It appeared to be a single family dwelling.SeeOwens v. Scafati, 273 F.Supp. 428(D.Mass.1967), cert. denied391 U.S. 969, 88 S.Ct. 2043, 20 L.Ed.2d 883(1968).

It is also argued that the search warrant was invalid because it did not specify the street location of the premises which were to be searched.The question then is whether the warrant was as definite as it could and should have been under the circumstances.The question of invalidity due to indefiniteness turns upon whether the magistrate abused his discretion in deciding that the warrant should issue.The reason for the failure to specifically ascertain the correct street address was included in the affidavit for the warrant.

That Mr. Fike took your affiant within one half block of the above mentioned premises, which is in the location previously described but that your affiant cannot drive by said residence to ascertain the street address because the occupants are, according to Mr. Fike, on the close lookout for the police and will dispose of the above mentioned property if police cars are seen in the vicinity; . . .

We find that the warrant is sufficiently clear to enable an officer to identify the place to be searched with reasonable certainty without aid of any information not contained in the warrant....