State v. Collins

• Decision Date: 22 August 1957
• Docket Number: No. 33483,33483
• Citation: 314 P.2d 660,50 Wn.2d 740
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Harvey John COLLINS, Appellant.

Page 740

50 Wn.2d 740

314 P.2d 660

The STATE of Washington, Respondent, v. Harvey John COLLINS, Appellant.

No. 33483.

Supreme Court of Washington, En Banc.

Aug. 22, 1957.

J. Houston Vanzant, Jr., Tacoma, for appellant.

John J. O'Connell, John A. Petrich, Elvin J. Vandeberg, Tacoma, for respondent.

HILL, Chief Justice.

Harvey John Collins killed Andrew K. Stolen with a samurai sword. The jury found him guilty of murder in the first degree and determined that the death penalty should be imposed. From the judgment and sentence entered on the jury's verdict, the defendant has appealed. His sixteen assignments of error will be considered seriatim.

1. Re change of venue: The motion for a change of venue was based upon alleged local passion and prejudice. In State v. Welty, 1911, 65 Wash. 244, 249, 118 P. 9, 12, we said:

'It must appear, before we would be justified in reviewing [reversing] the trial court's ruling, that the community has been so warped by the passion and prejudice of the newspaper articles complained of that there is danger of the trial jury being so influenced by such publication as to give heed to them rather than to the evidence in reaching a verdict. [Cases cited.]'

We are convinced from our examination of the record that the jurors selected could and did give the defendant a fair trial and that the trial court did not abuse its discretion in denying the motion for a change of venue. See, also, State v. Brown, 1948, 31 Wash.2d 475, 483, 197 P.2d 590, 202 P.2d 461, and cases cited therein; State v. Whitfield, 1924, 129 Wash. 134, 137, 224 P. 559.

2. Re continuance: Nor is there merit in the contention that the trial court erred in denying the defendant's motion for a continuance. The homicide occurred March 21, 1955, and the defendant was arrested the same day. Counsel who represented him were appointed March 28th. The arraignment was April 11th, and at that time the case was set for trial June 27, 1955. The trial began on that date and continued until July 12th. There was no undue haste and no claim that the defendant did not have adequate time for the preparation of his defense. The principal reason urged for delay from June until sometime in the fall was that public passion and prejudice in the community might be allayed; however, we have found no indication of such passion or prejudice. The granting of the requested continuance was a discretionary matter with the trial court, and we find no abuse of dicretion.

3 and 4. Re examination of jurors on voir dire: We shall not go into detail concerning the defendant's objections to the questions asked by the prosecutor on the voir dire examination. While the examination of prospective jurors might well have been more strictly limited, the state and the defense were equally at fault in their frequent forays beyond the field of legitimate inquiry. The error, if any, was not prejudicial. It is to be noted that the defendant accepted the jury while having available four peremptory challenges; nor did he challenge the panel. It would seem that he did not believe that the jury was prejudiced by the voir dire examination until it found him guilty. See State v. Farley, 1955, 48 Wash.2d 11, 15, 290 P.2d 987; State v. Tharp, 1953, 42 Wash.2d 494, 498-499, 256 P.2d 482.

5. Re misconduct of the prosecuting attorney in his closing argument, in the expression of his and his assistant's personal opinions about the degree of punishment: The prosecutor, in his closing argument, said:

'Mr. Petrich and I both feel--and the way I feel, of course, is not important--that this is a case indeed in which the punishment inflicted should be capital. * * *'

An expression of personal belief by a prosecuting attorney as to the guilt of a defendant is objectionable for the reasons indicated in State v. Case, Wash.1956, 298 P.2d 500. Guilt is a fact to be determined from the evidence. On the other hand, whether the death penalty should be imposed in a particular case is in itself always a matter of opinion, not a fact that can be established by the evidence. The vice of an expression by the prosecutor of his opinion on the issue of capital punishment is that, unless his statement is carefully 'hedged' to make it clear that what he says on that issue is predicated upon the jury's having first found the defendant guilty, his belief in the guilty of the defendant inheres in his opinion that the death penalty should be inflicted. In the instant case, the commission of a homicide by the defendant was not an issue. The prosecuting attorney stated the evidence which not only established the guilt of the defendant but also formed the basis of his opinion that the death penalty was proper. Taken in its entirety, it was proper argument.

Further, both of the trial counsel for the defendant had, in their argument to the jury, expressed their opinions on whether the death penalty should be employed. By so doing they invited the rejoinder by the prosecuting attorney in his closing argument. See State v. Brown, 1949, 35 Wash.2d 379, 213 P.2d 305; State v. Buttry, 1939, 199 Wash. 228, 90 P.2d 1026; State v. Evans, 1927, 145 Wash. 4, 258 P. 845; State v. Peeples, 1912, 71 Wash. 451, 129 P. 108.

6 and 7. Re misconduct of the prosecuting attorney in asking that the courtroom be locked during his closing argument, and error of the trial court in complying with his request: The contention is that the appellant was deprived of his constitutional right to a public trial, guaranteed to him by Art. I, § 10 and the tenth amendment to the state constitution, when the court directed that the courtroom door be locked during the closing argument of the prosecuting attorney and the bailiff complied with the order. No prejudice is claimed to have resulted therefrom; the appellant stands squarely on our holding that, if a right to a public trial is invaded, prejudice will be presumed. State v. Gaines, 1927, 144 Wash. 446, 463, 258 P. 508. See, also, Tanksley v. United States, 9 Cir., 1944, 145 F.2d 58, 59, 156 A.L.R. 257; Davis v. United States, 10 Cir., 1917, 247 F. 394, 398-399; State v. Osborne, 1909, 54 Or. 289, 291, 103 P. 62, and cases cited therein.

The prosecuting attorney made the request 'so that the jury won't be disturbed by constant opening and closing of the door.' The trial court, directing the locking of the door, said: 'Let the record show that the direction is given to the Bailiff so that Counsel may be free from interruptions and for no other purpose.' Those in the courtroom when the prosecuting attorney began his closing argument were permitted to remain. (It would seem that under the court's order they became a captive audience.)

We do not commend or approve what was done. The language of the trial court was unfortunate, inasmuch as it is not the convenience of counsel that furnishes a reason for locking a courtroom door but, rather, the reason given by the prosecuting attorney: '* * * so that the jury won't be disturbed by constant opening and closing of the door.'

There can be no question of the right of a trial judge to direct that the courtroom doors be locked to prevent overcrowding, or to have ejected or excluded from the courtroom persons whose object and intention is to create a disturbance, or to take such action as may be necessary to prevent any interference with orderly procedure.

The locking of the courtroom door during the giving of instructions was held not to deprive the defendant of a public trial in People v. Buck, 1941, 46 Cal.App.2d 558, 562, 116 P.2d 160, 162. In that case it was said:

'It is apparent that the order was made for the convenience of the court and all others present, including the appellant. It was made to facilitate the instructing of the jury and to obviate the disturbance and distraction which is made by spectators entering or leaving while the court is giving its instructions. This seemingly was the view taken at the time by the appellant and his counsel for no complaint was made during the trial. The court did not order anyone to leave the courtroom. It merely attempted to keep the spectators from moving in or out during the period of instruction. In this particular instance it is to be observed that the court instructed the jury before the argument of counsel and that the doors of the courtroom were opened during the argument. The term 'public trial' is used in a relative sense and its meaning depends largely upon the circumstances of each particular case. Here we cannot say that the order in question prejudiced that defendant's rights or that he was thereby deprived of a fair, public trial.'

In Bishop v. State, 1923, 19 Ala.App. 326, 97 So. 169, 170, the trial judge had ordered the courtroom door locked about midway of the trial. Some two hundred people were then in the courtroom but it was not uncomfortably filled and seats were still available. Answering the contention that the locking of the door was an invasion of the defendant's constitutional right to a public trial, the Alabama court of appeals said (19 Ala.App. at page 328, 97 So. at page 170):

'It is evident that the court was annoyed by the noise of people passing in and out of the courtroom during the progress of the trial, and that this brought about the order to the sheriff to 'lock the outside door.' * * *

'The trial court may in its discretion regulate the attendance to such numbers of people as may conveniently and confortably get into the courtroom without interfering with the proceedings of the court. [Case cited.]

'In the instant case there were sufficient attendants or spectators present to render the trial a public one within the requirement of section 6 of the Constitution.'

In 156 A.L.R. 265-297, there is an interesting and valuable annotation covering the subject of what constitutes a public trial under constitutional provisions such as ours. As indicated in the California case of People v. Buck, quoted supra, the term 'public' is a...