State v. Edwards

• Decision Date: 31 March 1966
• Docket Number: No. 37436,37436
• Citation: 412 P.2d 747,68 Wn.2d 246
• Parties: The STATE of Washington, Respondent, v. Johnny Frank EDWARDS, Appellant.
• Court: Washington Supreme Court

Page 246

68 Wn.2d 246

412 P.2d 747

The STATE of Washington, Respondent, v. Johnny Frank EDWARDS, Appellant.

No. 37436.

Supreme Court of Washington, En Banc.

March 31, 1966.

Jack Steinberg, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Richard M. Ishikawa, Deputy Pros. Atty., Seattle, for respondent.

HALE, Judge.

There was a shooting affray at the Black & Tan night club in Seattle. Three eyewitnesses said that, during the early morning hours of Saturday, May 25, 1963, Johnny Frank Edwards fired several shots through the glass section of the main door at Charlie King, the doorman. One round put a hole through Mr. King's hat; he was wearing it at the time. Mr. King got a gun and fired back. They exchanged several more shots, but no one was hit.

A jury found defendant Edwards guilty of assault in the second degree and he appeals the sentence of ten years' imprisonment, execution of which was suspended on condition of one year's confinement in the county jail.

From two versions of the event, the jury accepted that of the state's. The state's evidence, derived largely from the testimony of Alex Palmer, owner of the Black & Tan Charlie King, the doorman, and Barbara McDonald, a waitress, showed defendant to be the man who fired the shots. It appeared that Edwards entered the Black & Tan about midnight with a group of people, and 2 hours later he and two other men ran out of the main entrance, up the entrance stairway, and out through a second door leading to 12th Avenue. Palmer and King followed them to see what was up, but got to the top of the stairs only in time to observe three cars moving south on 12th Avenue, the first of which went straight ahead while the second and third turned west at the next intersection. No one could identify the occupants or establish that Edwards was in any one of the three cars.

A few minutes later, according to the state's evidence, Edwards drove up in what Palmer supposed was the first car he earlier had noticed leaving the parking lot. Palmer, seeing Edwards park the car in the lot, walked up the stairs to meet him just outside the night club; the two then walked side by side down the steps to the main door of the club. According to waitress Barbara McDonald and doorman Charlie King, Edwards carried a gun in his hand as he descended the steps alongside Palmer. At the foot of the stairs outside the main doorway, as the two men approached the doorway guarded by Charlie King, the defendant made a vague remark about killing a woman. King, seeing the gun in Edwards' hand, refused to open the door to either Palmer or Edwards. Edwards, the others said, then pushed Palmer aside and fired through the glass section of the main door toward King. Palmer, turning quickly, ran back up the steps and over to his own car in the parking lot from where, he says, he saw Edwards sprint out of the club to his own car in the same parking lot and drive away at a high rate of speed.

Two police officers, observing Edwards speed away, gave immediate chase to arrest him for speeding and overtook and apprehended him before he could get out of their sight. When Palmer drove up, they heard him accuse Edwards of shooting up his club and Edwards deny it. A search of the defendant's person and his automobile failed to show a weapon and, despite the car being in constant view of the officers during the brief pursuit, no weapon was ever found. The foregoing summarizes the events largely as the state's evidence depicted them.

Defendant's case presented a different picture of the shooting. Defendant testified that he went to the Black & Tan that night in the company of Samuel Moore, Annie Ruth White, Odessa Burkes, a Mrs. Jones, a Mrs. Caldwell, and another individual named Foster. He said that a disturbance occurred at the table behind them and they saw two men run out of the room. Defendant said that he and Samuel Moore, out of curiosity, followed the men from the club where they saw them go into the parking lot across the street.

Moore and Edwards then went over to Moore's car and from there saw their friend Annie Ruth White leave the club and walk around the corner of 12th and Jackson. According to Edwards, Moore then left his car and walked towards her to overtake her. Defendant said he started across the street toward the club when he heard shots coming from it so, to avoid trouble, he returned to his car at the parking lot, warmed up the engine, and, seeing a number of people coming from the club, drove rapidly up 12th Avenue only to be stopped shortly by the police. As the police were questioning him, he said, Alex Palmer arrived and accused him of shooting up the Black & Tan, an accusation that defendant vehemently denied.

Nathaniel Peace, a defense witness, gave a third version to the effect that Edwards was inside the Black & Tan when the shooting took place outside. He said that he was with a different group at another table in the night club, and noticed Edwards in the club when, from somewhere outside, he heard the sound of shooting. Right after hearing the shots, he saw Edwards leave the place and he in turn followed Edwards out of the building. His testimony thus places defendant inside at the time the shooting took place outside.

Defendant makes nine assignments of error, one of which involves the right to compulsory process. Because we think that a new trial should be granted on this question, our discussion will be limited to the one assignment of error. The others relate to claimed errors arising out of events and circumstances unlikely to recur at another trial and will not be discussed.

Defendant contends that the court erroneously refused to compel the attendance of three witnesses on his behalf and that the refusal constituted a denial of his constitutional right to compulsory process.

The constitution and statutes of Washington leave little room for construction concerning the right to compulsory process in criminal cases.

Article 1, § 22 (amendment 10), of the Washington State Constitution, states:

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, To have compulsory process to compel the attendance of witnesses in his own behalf * * *. (Italics ours.)

The legislature implemented the constitution by RCW 10.46.050, which reads:

Every person charged with the commission of a crime shall have the right upon the trial of such charge to be heard in person or by counsel, and to produce witnesses and proofs in his favor and to have compulsory process to compel the attendance of all witnesses who may be necessary for his proper defense.

And the United States Constitution in equally forthright language guarantees this identical right through the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; To have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. (Italics ours.)

The issue of compulsory process arose in conjunction and should be considered in pari materia with an application for a short recess or continuance in the trial. It came about in this way: Shortly before 11 a.m., on the last day of trial, the defendant requested the court to order the attendance of Samuel Moore, Mrs. Caldwell and Annie Ruth White, the individuals with whom he had gone and in whose company he says he remained at the Black & Tan until after the disturbance took place. Samuel Moore had been mentioned more than 20 times in the testimony of several earlier witnesses, and both Miss White and Mrs. Caldwell had likewise been referred to several times in the evidence in a way to indicate that the three witnesses had been present and would be expected to have some testimonial knowledge of the circumstances preceding and following the shooting.

Defendant's counsel informed the court that he had first caused a subpoena to be served on witness Moore requiring his attendance at 3:30 the preceding day and that the witness had failed to appear. Then he had served Moore again the preceding night commanding attendance at 9:30 a.m., and also had subpoenas served on witnesses Caldwell and White but that none of the three had appeared at court. Here is a record of proceedings upon which defendant relies in part to show denial of compulsory process:

(Defendant's Counsel) I did want your Honor apprised of this and then I would make the appropriate motion. With reference to the time and so forth, we are prepared to bring at this time one additional witness, Mrs. Edwards, whose testimony will only be a matter of a few minutes. We are prepared at this time and are so making now a motion to the Court to exercise its powers to compel the immediate attendance in this Court of the three witnesses. We would very much like, your Honor, to have this trial go on with the same jury. I recognize the inconvenience to the Court, but we do feel that it would be handled more expeditiously if, perhaps, after the conclusion of this witness' testimony the Court would recess until 1:30 for the purpose of having these other witnesses in attendance.

THE COURT: The motion will be denied. RCW 10.46.080; State vs. Griffith, 52 Wash. (2d), and the recent case of Northern State Construction Company vs. Banchero, decided November 14th.

From the foregoing, it is noted that the defendant sought two things: (1) a recess, after completing the testimony of Mrs. Edwards, until 1:30, and (2) compulsory process.

By the time the court had...