State v. Floyd, 957--II

• Citation: 11 Wn.App. 1,521 P.2d 1187
• Decision Date: 17 April 1974
• Docket Number: No. 957--II,957--II
• Parties: The STATE of Washington, Respondent, v. Thomas Lee FLOYD, Appellant.
• Court: Washington Court of Appeals

Page 1

11 Wn.App. 1

521 P.2d 1187

The STATE of Washington, Respondent, v. Thomas Lee FLOYD, Appellant.

No. 957--II.

Court of Appeals of Washington, Division 2.

April 17, 1974.

David H. Johnson, Conrad & Johnson, Tacoma, for appellant.

Joseph D. Mladinov, Sp. Counsel to the Pros. Atty. for Pierce County, Tacoma, (Ronald L. Hendry, Pros. Atty., with him on the brief), for respondent.

PETRIE, Judge.

Thomas Lee Floyd, the defendant, appeals from a judgment and sentence entered following a jury verdict which found him guilty of robbery. Floyd's counsel on appeal (who was not his trial counsel) brings two assignments of error, supplemented by several made by Floyd, pro se, in a 'supplemental brief.'

Floyd and his counsel, in their respective briefs, agree that because defendant's trial counsel did not call several witnesses requested by the defendant, he was not competently represented and consequently did not receive a fair trial. In particular, defendant alleges that his girl friend, Mary Porter, would have testified that defendant had spent the afternoon of the robbery with her, shopping, and thus he could not have committed the crime complained of.

We think there is no merit in this contention. Our examination of the record in this case indicates to us that defendant's trial counsel was quite aware of the possibility of an alibi defense. After exercising his judgment on the facts as they appeared to him, defendant's trial counsel stated, in this regard:

I interviewed (defendant) and he made me aware these people had knowledge, I discussed it with the probation officer with respect to Mary Porter and followed up every lead in this case, and leads that were blind leads, and it has been useless.

The decision not to call the alibi witness was a legitimate part of counsel's trial strategy; and his judgment on this matter did not deprive defendant of the effective assistance of counsel at trial. State v. Thomas, 71 Wash.2d 470, 429 P.2d 231 (1967). Defendant's trial counsel diligently attempted to track down every witness of whom he was made aware. Failure to locate several witnesses cannot be deemed the fault of counsel. We agree with the following assessment of defendant's counsel's efforts made by the trial court: 'He did his best, he worked hard in this case, I can see that, and it was capably handled.'

Defendant next complains that instruction 13 had the effect of singling out the defendant and informing the jury 'that his veracity could be considered questionable by reason of his prior conviction--but not that of the complaining witness.' Both defendant and the prosecuting witness, Nolan, had been convicted of felonies prior to the trial. Defendant and Nolan were the principal witnesses at the trial, and their testimony was almost wholly in contrast. Instruction 13 advised the jury:

Under the law of this State, the fact that a Defendant has previously been convicted of a crime is not of itself any evidence of his guilt in this case. It is, however, a circumstance which may be weighed and considered by you in the determination of what weight or credibility should be allowed his testimony as a witness in this case.

(Emphasis added.)

It appears to be defendant's position that the instruction would have been acceptable if the word 'defendant' had been replaced with the word 'witness.' From even a cursory reading of the instruction, it is apparent the words may not logically be interchanged. This is so because it was the guilt of the defendant which was at issue, not that of witnesses generally.

No objection to instruction 13 was made at trial. Indeed, the instruction could not successfully have been objected to, since it is a correct statement of the law and is 'generally regarded as helpful to a defendant whose criminal record is before the jury.' State v. Harrison, 72 Wash.2d 737, 741, 435 P.2d 547, 550 (1967). In fact, where the defendant is a witness, and evidence is introduced by either party of prior convictions, then the instruction should be given. State v. Passafero, 79 Wash.2d 495, 487 P.2d 774 (1971). Therefore, in the instant case, the only possible error with regard to instruction 13 is the failure of the trial court to give a companion instruction applying to Nolan, the prosecuting witness.

The failure of the trial court to give an instruction, which had not been requested, does not constitute reversible error unless 'a constitutional right has been violated.' State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073, 1076 (1972). If the no such evil occurred. Instruction 14 informed pertaining to Nolan, had the effect of identifying defendant as being less worthy of belief than Nolan, although both were convicted felons, then there would be merit in defendant's contention; even though no such companion instruction was proposed by the defendant at trial. Having read the instructions as a whole, we are convinced no such evil occurred. Instruction 1j informed the jury:

You are the sole and exclusive judges of the evidence and of the credibility of the several witnesses and of the weight to be attached to the testimony of each. In weighing the testimony of a witness, you have a right to consider his demeanor upon the witness stand, the apparent fairness or lack of fairness, the apparent candor or lack of candor of such witness, the reasonableness or unreasonableness of the story such witness relates, and the interest, if any, you may believe a witness feels in the result of the trial, And any other fact or circumstance arising from the evidence which appeals to your judgment as in any wise affecting the credibility of such witness, and to give to the testimony of the several witnesses just such degree of weight as in your judgment it is entitled to.

You will be slow to believe that any witness has testified falsely in the case, but if you do believe that any witness has wilfully testified falsely to any material matter, then you are at liberty to disregard the testimony of such witness entirely, except in so far as the same may be corroborated by other credible evidence in the case.

(Emphasis added.)

Evidence that both Nolan and defendant were convicted felons was before the jury, and under instruction 14 could properly be considered by the jury in assessing the contrasting testimony of these two witnesses. An instruction directing the jury's attention specifically to Nolan's credibility, in light of his previous conviction, would not have added anything to the instructions given, when considered as a whole. Much less do we believe that the mind of the average juror would have 'found the prosecutor's case...