State v. Gosby

• Decision Date: 28 August 1975
• Docket Number: No. 43499,43499
• Citation: 539 P.2d 680,85 Wn.2d 758
• Parties: STATE of Washington, Respondent, v. Luther Lee GOSBY and Thomas Eugene Robles, and each of them, Petitioners.
• Court: Washington Supreme Court

Page 758

85 Wn.2d 758

539 P.2d 680

STATE of Washington, Respondent, v. Luther Lee GOSBY and Thomas Eugene Robles, and each of them,

Petitioners.

No. 43499.

Supreme Court of Washington, En Banc.

Aug. 28, 1975.

David L. Shorett, Seattle, Philip L. Bleyhl, Oak Harbor, for petitioners.

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

FINLEY, Associate Justice.

Luther Lee Gosby and Thomas Eugene Robles were charged and convicted by jury of robbery while armed with a deadly weapon. On appeal, defendants challenged (1) the admission of certain identification testimony and (2) the framing of a jury instruction regarding circumstantial evidence. The Court of Appeals affirmed the conviction. We granted a petition for review. With significant modifications of the opinion of the Court of Appeals, we adhere to the result reached therein affirming the judgment of conviction and the sentence of the trial court.

The pertinent facts are as follows: On December 26, 1972, the Rainier Beach, Tavern was robbed of $230 plus wine and cigarettes. The only employee on duty was held at knife point by one assailant while the other assailant removed the money from the cash register. No other persons were present at the time of the robbery. Defendants denied that they were the perpetrators of the crime, and the trial accordingly became focused upon the identity of the robbers.

It is undisputed that the defendants had visited the tavern several times on the morning of the robbery, and from the testimony of two women--Ms. Gosby (sister of defendant Gosby) and Ms. Putnam--there is circumstantial-inferential evidence that the defendants were in the tavern at the time of the robbery. Both of these women testified that they entered the tavern early in the morning and, soon thereafter, the defendants also entered. The women later left the tavern, with the defendants still inside. Shortly thereafter, the robbery occurred. However, another woman, Ms. Ballard, testified that defendant Robles left the tavern at her request, from which it could be inferred that Robles was not present at the robbery.

The employee of the tavern testified as to the identity of the robbers. Defendant Robles moved to exclude this testimony on the grounds that it was inherently unreliable because it contained numerous inconsistencies, E.g., (1) a few days after the robbery, the employee stated that she could not identify the robbers, but at trial she could not recall making this statement; (2) at a lineup, the employee identified defendant Robles as one of the robbers, but she mistakenly identified one Donald Grimes as the other participant rather than defendant Gosby who also was in the lineup; (3) at the preliminary hearing, the employee testified that Gosby held the knife to her while Robles took the money from the cash register, but at the trial she reversed the alleged roles of the defendants; (4) at the trial, the employee testified that the robbers had long bushy sideburns, but uncontradicted expert testimony was given to the effect that defendant Robles is physically incapable of growing such sideburns. The motion to exclude was denied, the employee's testimony was admitted, and the defendants were subsequently convicted.

The legal issues to be resolved in this case are essentially twofold: (1) whether the eyewitness testimony of the employee as to the identity of the robbers should have been excluded because it was inherently unreliable? (2) what is the proper jury instruction to be given in criminal cases in which Both direct and circumstantial evidence is presented with respect to an element of the offense charged?

First, with respect to the question of whether the testimony of the employee should have been excluded, the traditional common law rule is that any evidence tending to identify the accused is relevant, competent, and therefore, admissible. Uncertainty or inconsistencies in the testimony affects only the weight of the testimony and not its admissibility. State v. Spadoni, 137 Wash. 684, 243 P. 854 (1956); State v. Gersvold, 66 Wash.2d 900, 406 P.2d 318 (1965). Cf. State v. James, 165 Wash. 120, 4 P.2d 879 (1931).

Defendants urge this court to modify the above rule and to establish a 'base line' of reliability below which evidence must not fall in order to be admitted. However, the cases cited by defendants have been examined and simply do not support such a proposition. Nor do we perceive any sound policy justifications for such a rule. On the contrary, a defendant is adequately protected from the prospect of being convicted on the basis of factual error by the constitutional requirement that guilt must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, an appellate court will readily reverse a jury conviction resting on insufficient evidence. See State v. Gillingham, 33 Wash.2d 847, 207 P.2d 737 (1949). Therefore, at best defendants' proposed rule would be simply duplicative of current protections against error. At worst, it could operate in actual practice to prevent the State as well as defendants from presenting arguably significant evidence to the trier of fact.

Under these circumstances, we are not inclined to engraft a further exception onto the general rule that relevant and competent evidence is admissible. Accordingly, we hold that the testimony of the employee of the tavern was properly admitted.

The second issue for our consideration relates to the proper manner of instructing the jury in criminal cases where Both direct and circumstantial evidence is presented on an element of the crime charged. Defendants assign as error the following instruction given by the trial court to the jury:

I instruct you that evidence may be of two kinds, direct or circumstantial. Direct evidence relates directly to factual questions and is produced by witnesses testifying from their direct personal observation or other direct sensory perceptions. Circumstantial evidence relates to facts and circumstances from which the jury may infer other or connected facts which usually and reasonably follow according to the common experience of mankind. If circumstantial evidence is considered by you, it should be consistent with guilt and it should be inconsistent with innocence.

If upon consideration of the whole case, you are satisfied beyond a reasonable doubt of the guilt of any defendant it does not matter whether such certainty has been produced by direct evidence, or by circumstantial evidence, or by both.

(Italics ours.) Instruction No. 10. Each defendant proposed his own circumstantial evidence instruction ¹ and excepted to the instruction given by the trial court. However, the question was raised by this court at oral argument as to whether the defendants Properly excepted to the trial court's instruction in accordance with the mandates of CrR 6.15(c) which provides in pertinent part:

The party objecting shall state the reasons for his objection, specifying the number, paragraph, and particular part of the instruction to be given or refused.

It is not absolutely clear from the record that counsel for defendants specifically informed the trial court of the reasons for the exceptions taken to instruction No. 10. Nevertheless, for two reasons, we are convinced that the question of the propriety of the trial court's instruction has been properly preserved on appeal. First, the State's brief has not challenged the sufficiency of the defendants' exceptions and, indeed, the State conceded at oral argument that the exceptions were properly taken. Therefore, we need not even consider the question of whether the exceptions satisfied the requirements of Cr.R 6.15(c).

But more importantly, when an exception is taken in such a fashion that the purpose of the rule requiring specificity is satisfied, I.e., so that the trial court is informed of the alleged error, thereby affording it the opportunity to rectify any possible mistakes without the necessity and expense of an appeal, then this court has consistently held the exception to be sufficient. Brunner v. John, 45 Wash.2d 341, 274 P.2d 581 (1954); McGovern v. Greyhound Corp., 53 Wash.2d 773, 337 P.2d 290 (1959); Wood v. Postelthwaite, 82 Wash.2d 387, 510 P.2d 1109 (1973); Kjellman v. Richards, 82 Wash.2d 766, 514 P.2d 134 (1973). In the instant case, two features of the record convincingly demonstrate that the purpose of CrR 6.15(c) has been achieved. First--as in Brunner and Postelthwaite--at least defendant Gosby's proposed instruction was accompanied by citations to Washington cases which helped to direct the trial judge's attention to the precise legal issue involved. Second and more significantly--as in Postelthwaite and McGovern--the trial judge acknowledged in the record that he understood why the exceptions were taken, I.e., he discussed the cases cited by defense counsel, stated that he had read them 'carefully' and then proceeded to distinguish them. In short, the record makes clear that the trial judge was aware of defendants' theory and ruled that it should not be submitted to the jury. Therefore, the exceptions must be deemed to have been properly taken.

As a final procedural matter, the Court of Appeals stated that defendant Robles' proposed instruction was untimely--apparently because the instruction was not served and filed at the time the case was called for trial as required by CrR 6.15(a). However, this same rule allows additional instructions which could not reasonably be anticipated to be served and filed at any time before the court has instructed the jury. Counsel for defendant Robles informed the trial court that the reason his original set of proposed instructions did not contain a circumstantial evidence instruction was because, based upon his investigation of the case, he did not anticipate that circumstantial evidence would play a vital role in the case. This statement was not...