State v. Eldridge

• Decision Date: 04 April 1977
• Docket Number: No. 3089--I,3089--I
• Citation: 17 Wn.App. 270,562 P.2d 276
• Parties: STATE of Washington, Respondent, v. Bolden ELDRIDGE, Appellant. STATE of Washington, Respondent, v. Henry Clay TOLLET, Defendant, and Bolden Eldridge, and each of them, Appellant.
• Court: Washington Court of Appeals

Page 270

17 Wn.App. 270

562 P.2d 276

STATE of Washington, Respondent, v. Bolden ELDRIDGE, Appellant.

STATE of Washington, Respondent, v. Henry Clay TOLLET, Defendant, and Bolden Eldridge, and each

of them, Appellant.

No. 3089--I.

Court of Appeals of Washington, Division 1.

April 4, 1977.

Rehearing Denied Aug. 30, 1977.

Bruce G. Hand (Court appointed), Bellevue, for appellant.

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

JAMES, Judge.

Defendant Bolden Eldridge was first tried to a jury and found guilty of first degree assault, attempted second degree burglary while armed with a firearm, and with being a felon in possession of a firearm. In a second trial, he was tried to the bench and found guilty of violating the Uniform Controlled Substances Act. By stipulation, his appeals were consolidated. We affirm his first trial conviction. Since no written findings of fact and conclusions of law were entered after the second nonjury trial, we remand for the entry of appropriate findings and conclusions.

Eldridge's 12 assignments of error raise the following six issues. Issue No. 1 is whether both trials should have been barred by reason of double jeopardy. Issue No. 2 concerns Eldridge's competency to stand trial on the assault, attempted burglary and firearm charges. Issue No. 3 is whether Eldridge was prejudiced at that trial by the judge's refusal to submit his proposed instruction and proposed special verdict form on mental irresponsibility and by the instruction to the jury to disregard the issue of mental irresponsibility. The fourth issue, again relating to the same trial, concerns whether the trial judge erred when he refused to permit Eldridge to cross-examine the State's psychiatrist respecting the effect of drug addiction on brain damage and on Eldridge's ability to formulate specific intent.

Issues Nos. 5 and 6 relate to Eldridge's conviction for violating the Uniform Controlled Substances Act. The fifth issue concerns what must be done by reason of the trial judge's failure to enter findings of fact and conclusions of law. The sixth and final issue concerns whether evidence was seized as the result of an unlawful search and seizure.

On March 27, 1973, Eldridge was stopped by police for crossing a street against a light. A routine check revealed an outstanding warrant for his arrest in connection with a prior pedestrian violation. The officers testified that, as they were preparing to give Eldridge a pat-down search in connection with his arrest on the outstanding warrant, he dropped a tin foil package to the ground. It contained ritalin tablets. Eldridge was later charged by information with violating the Uniform Controlled Substances Act.

On April 11, 1973, Eldridge was arrested in connection with an attempted burglary and shoot-out with police. He was subsequently charged by information with first degree assault, attempted second degree burglary while armed with a firearm, and being a felon in possession of a firearm.

As to all charges, Eldridge filed a special plea of mental irresponsibility and diminished capacity. A hearing was held on June 21 to determine his capacity to stand trial. The State submitted a report by its chosen psychiatrist who concluded Eldridge was competent to stand trial and that he understood what he was doing at the time of the crimes. Eldridge's chosen psychiatrist had not yet examined him.

On Wednesday, June 27, Eldridge went to trial on all charges before Judge Lloyd Bever. During selection of the jury, one juror indicated that it would be a burden for her to be sequestered because she had children to take care of and a ceramics course to teach on the weekend. She added she would be willing to stay if she had to and that having to stay would not affect her judgment. The jury was finally chosen and sworn by late afternoon of Thursday, June 28. It was excused for a moment. The balance of the jurors not chosen remained in the courtroom. Eldridge then in open court unexpectedly refused to consent to a separation of the jury. ¹ His codefendant (who was involved in the attempted burglary and shoot-out) agreed to separation. A motion to sever the trials of the two defendants was denied. The State then withdrew its consent to separation. A discussion took place in which the trial judge considered whether substitute jurors could be chosen from among those remaining in the courtroom. It was apparent, however, that these potential jurors knew that Eldridge was responsible for the sequestration of the jury. Given the lateness of the hour, another venire could not be obtained until the next morning and probably not until Monday morning--3 full days away. Ultimately, Judge Bever decided against this course of action, and the potential jurors present were excused. The jury was called back into the jury box. The judge informed them that they would have to be sequestered for the duration of the trial. The juror who originally complained, again complained. One other juror also complained, though no reason was expressed respecting how sequestration would work a hardship. Judge Bever then granted Eldridge's codefendant's motion for a mistrial. Eldridge did not join in the motion.

On August 22, 1973, Eldridge was again brought to trial before Judge George Revelle on the same charges except that the controlled substances charge had been severed for trial at a later date. Eldridge moved for dismissal of all charges on the basis of double jeopardy. The motion was denied. Subsequently, Judge Revelle held a brief competency hearing. He considered the earlier report by the State's psychiatrist as well as a report by Eldridge's psychiatrist which concluded he was competent to stand trial and comprehended the nature of the acts committed giving rise to the charges. Trial proceeded.

Following the close of testimony, Eldridge's proposed instruction and proposed special verdict form on mental irresponsibility and insanity were refused and the jury was instructed to disregard those issues. Eldridge was found guilty.

On October 15, 1973, Eldridge went to trial before Judge Frank Howard on the Uniform Controlled Substances Act violation. He was tried to the bench and the judge made an oral finding of guilt, but no findings of fact and conclusions of law were entered.

Eldridge first contends that the double jeopardy clause of the fifth amendment to the United States Constitution barred the State from prosecuting him following Judge Bever's declaration of a mistrial without his consent. We do not agree.

A fundamental ideal guaranteed by the United States Constitution is that no person shall be subject to being twice placed in jeopardy for the same offense. It is applicable to the states under the due process clause of the fourteenth amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The same protection is afforded defendants in criminal cases under our State constitution. Const. art. 1 § 9.

In characterizing the purpose of the double jeopardy clause, the United States Supreme Court stated in Green v. United States, 355 U.S. 184, 187--88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957):

The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The beginning point of any analysis of a double jeopardy claim is to determine whether jeopardy has attached. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); State v. Smith, 15 Wash.App. 725, 551 P.2d 765 (1976). Here, although counsel had not made their opening remarks and no witnesses had been called, jeopardy had nevertheless attached since the jury had been selected and sworn. Downum v. United States,372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Once jeopardy has attached, it is necessary to determine whether a retrial is barred. A trial judge's decision to declare a mistrial without the defendant's consent after jeopardy has attached but before the jury reaches a verdict will not in every instance bar retrial. Illinois v. Somerville, supra; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); State v. Bishop,6 Wash.App. 146, 491 P.2d 1359 (1971).

The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection is United States v. Perez, 9 (22 U.S.) Wheat. 579, 6 L.Ed. 165 (1824).

Illinois v. Somerville, 410 U.S. Supra at 461, 93 S.Ct. at 1069. In writing for a unanimous court in Perez, Mr. Justice Story stated:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, t...