State v. East
| Decision Date | 27 July 1970 |
| Docket Number | No. 257--I,257--I |
| Citation | 474 P.2d 582,3 Wn.App. 128 |
| Parties | STATE of Washington, Respondent, v. Kenneth O. EAST, Appellant. |
| Court | Washington Court of Appeals |
Mark T. Patterson (Court appointed), Everett, for appellant.
Robert E. Schillberg, Snohomish County Pros. Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for respondent.
Kenneth East was charged with the commission of two crimes arising out of a single rash adventure. In count 1 of the information the charge was kidnapping in the first degree. RCW 9.52.010(1). In count 2 the charge was assault in the second degree with intent to commit rape. RCW 9.11.020(6). The jury was instructed that abduction is a lesser included offense in a charge of kidnapping in the first degree. The jury found East guilty of the assault charge and guilty of abduction.
East assigns error to the denial of his challenges to the legal sufficiency of the evidence to support the assault charge. Specifically, he asserts that there was not substantial evidence to support the jury's finding that his intent was to commit rape rather than some other sex offense.
The state's principal witness was the 14-year-old girl whom East allegedly kidnapped and assaulted. East's defense was an alibi.
The girl testified that as she was walking along a street near her home in Seattle at about 5 o'clock on the afternoon of May 15, 1968, she was accosted by a man who pulled up beside her with his car on the wrong side of the road. He offered her a ride, which she refused. He then got out of his car, grabbed her by the arm, and pulled her into the car. She testified that she slid across the front seat expecting to escape, only to find that the inside handles had been removed from the door on the passenger's side. At trial she identified East as her abductor.
The abductor drove to a secluded location on a dead-end road in south Snohomish County. There he made advances toward the girl. Her testimony detailed a frightening ordeal which fortunately terminated when her abductor finally ceased his aggressions and drove her back to the vicinity of her home at about 8 p.m.
A necessary element of the crime of assault as charged is proof of intent to commit rape. East's argument is that all of the evidence concerning intent was circumstantial and that as such it was insufficient because reasonable theories other than that he intended to commit rape might be inferred from the circumstances. He argues that the evidence of the abductor's intent was consistent with intentions other than rape. In his brief East puts the question, '(D)id (the abductor) assault (the girl) with intent to commit rape--not sodomy, not indecent liberty, not indecent exposure, not carnal knowledge--but rape.'
The trial judge properly instructed that if the only evidence concerning an element of the crime charged was circumstantial, the evidence must be consistent with guilt and inconsistent with any reasonable theory of innocence. State v. Dugger, 75 Wash.Dec.2d 702, 453 P.2d 655 (1969).
An appellate court does not weigh evidence. East's claimed error requires an examination of the record only to determine whether there was substantial evidence to permit the jury reasonably to find that he intended to commit rape. State v. Dugger, Supra; see also State v. Carlson, 2 Wash.App. 104, 466 P.2d 539 (1970); State v. Palmer, 1 Wash.App. 152, 459 P.2d 812 (1969).
The girl testified that her assailant tried to kiss her, tried forcibly to remove her pants, told her he could rape her if he wanted to, and told her it would be easier on her if she would cooperate. In State v. Marselle, 43 Wash. 273, 276, 86 P. 586, 587 (1906), the implications of similar conduct were considered:
There was some testimony, however, to the effect that appellant at one time took hold of the complaining witness and pushed her upon a lounge, accompanied with remarks about improper relations, and which she resisted. We think this evidence was such that the court should not have said that the jury were not entitled to pass upon it for the purpose of determining if the lesser crime of attempting to commit rape had been committed.
As was stated in State v. LaVine, 68 Wash.2d 83, 86, 411 P.2d 436, 439 (1966),
It is not necessary that the assailant express his intent verbally. A jury can infer from his conduct and from the surrounding circumstances that he intended to achieve his purpose by force and violence and against his victim's consent.
We hold that there was substantial evidence to support the jury's finding that East intended to commit rape.
East did not testify in his own defense. He assigns error to the giving of instruction 20:
You are instructed that under the laws of this state, a defendant is a competent witness in his own behalf, but he may or may not take the witness stand as a witness at his option. No inference of guilt or innocence is to be drawn by you from the fact that the defendant fails or refuses to take the witness stand as a witness in the case.
The instruction was requested by the state, and East's trial counsel (not counsel on appeal) did not except. The state contends that because East failed to call the trial judge's attention to the claimed error, his assignment should not be considered on appeal. Any other policy, the state says, would permit counsel to let the case go to the jury with a built-in error in the event of a guilty verdict.
But the law does not support the state. If an instruction invades a constitutional right of an accused, appellate review is available even if the instruction was not excepted to at trial. State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968).
It is East's contention that such an instruction, unless requested by an accused, violates his constitutional right to elect not to testify in his own behalf. 1
In State v. Goldstein, 65 Wash.2d 901, 400 P.2d 368 (1965), cert. denied, 382 U.S. 895, 86 S.Ct. 189, 15 L.Ed.2d 152 (1965), reh. denied, 382 U.S. 1003, 86 S.Ct. 569, 15 L.Ed.2d 493 (1966), the Washington Supreme Court held that giving over a defendant's exception, an instruction identical to the one given in this case was not prejudicial error. However, 2 months after the decision in Goldstein, the important case of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) was decided by the United States Supreme Court. 2 The ruling in Griffin is that 'the Fifth Amendment, * * * forbids either comment by the prosecution on the accused's silence or instructions by the court that silence is evidence of guilty.' (Footnote omitted.) Griffin v. California, Supra, 380 U.S. at 615, 85 S.Ct. at 1233. East argues that even though instruction 20 properly instructs that guilt is Not to be inferred from his silence, it nevertheless highlights his silence, and thereby indirectly enables the prosecutor to point out that he did not testify by using words from the court's mouth. 3
The post-Griffin cases are not in agreement about whether the Fifth Amendment is violated by instructing, without a defendant's request, that no inference of guilt is to be drawn from the accused's failure to testify. See Annot., 18 A.L.R.3d 1335 (1968), which purports to cite 'all relevant cases which were decided late enough to be subject to the Griffin rule, even if the court's opinion contains no express reference to the Griffin decision.' (Footnote omitted.) Annot., 18 A.L.R.3d 1335 (1968). While we agree with the rationale of those cases which express the opinion that the instruction should not be given unless specifically requested by a defendant, we are satisfied that the giving of the instruction was not prejudicial error in this case. The instruction, though not worded as impartially as it might be, 4 accurately expresses the constitutional protection afforded an accused. We presume that the jury did not disregard the judge's admonition. For as Judge Friendly stated in United States v. Garguilo, 310 F.2d 249, 252 (2d Cir. 1962),
It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant's failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best. And '' Bruno v. United States, supra, 308 U.S. (287) at 294, 60 S.Ct. (198) at 200, 84 L.Ed.2d 257.
We are able to say upon reading the entire record that, the error, if there was one, was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, (1967); State v. Johnson, 1 Wash.App. 553, 463 P.2d 205 (1969); State v. Prater, 1 Wash.App. 342, 461 P.2d 357 (1969). Thirty-six years ago Judge Learned Hand observed that
It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.
Becher v. United States, 5 F.2d 45, 49 (2d Cir. 1924).
East assigns error to the overruling of his objection that the cross-examination of his wife went beyond the scope of the direct examination. East's wife testified that on the day in question he returned home from his employment at about 3 p.m. She said that he was driving their 1959 Ford. According to her testimony, East was with her the rest of the day except for a few minutes when he used a public...
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