State v. Green, 39066

• Decision Date: 30 March 1967
• Docket Number: No. 39066,39066
• Citation: 425 P.2d 913,70 Wn.2d 955
• Parties: The STATE of Washington, Respondent, v. Richard GREEN, also known as James Youngblood, Appellant.
• Court: Washington Supreme Court

Page 955

70 Wn.2d 955

425 P.2d 913

The STATE of Washington, Respondent, v. Richard GREEN, also known as James Youngblood, Appellant.

No. 39066.

Supreme Court of Washington, Department 1.

March 30, 1967.

William J. Grant, Spokane, for appellant.

George A. Kain, Pros. Atty., Matt Alexander, Deputy Pros. Atty., Spokane, for respondent.

DENNEY, Judge. ^*

Richard Green was convicted by a jury of forgery in the first degree and appeals from a judgment entered pursuant to such verdict. The forgery involved the signing of the name 'James J. Jeffires' to a sales slip at Northtown Crescent Department Store in Spokane on November 13, 1965, after a man presented a 'charg-a-plate' upon which was engraved the name 'James J. Jeffries.' Mr. Jeffries had lost his charg-a-plate the previous evening. He had given no one permission to use it. The purchaser secured a No. 10 Downing Street suit and a raincoat and signed the sales slip in the presence of the clerk who waited upon him. He proceeded to another department of the store where he purchased other clothing and then to the women's department where the charg-a-plate was taken from him because of the size of purchases being made. The forger, a Negro with a goatee and mustache, was accompanied by a woman who was seen to enter an automobile by a clerk who took the license number of the car.

Upon ascertaining that a forgery had been committed the Spokane Police Department was notified. The police secured a detailed description of the forger, of the clothing which had been purchased and which was distinctive and extreme in style, and the license number of the car. Three days later Detective Solinsky of the Spokane Police Department furnished this information to Detective Peck of the department. That night about 11 p.m., the suspect car was observed by Detective Peck parked near a pool hall in Spokane. He entered the pool hall and observed appellant who answered the description and was wearing clothing similar to that previously described to him. Appellant was asked for identification which he could not or did not give. Detective Peck left the pool hall, went to the police station to secure another officer, returned and placed appellant under arrest and took him to the Spokane police station.

Appellant was interviewed by the officers and was informed of his right to counsel and to remain silent. Appellant stated to the officer that he 'had friends on the outside who had funds to retain a lawyer for him.'

Appellant was charged with forgery in the first degree in the justice court at Spokane on November 18, 1965, and was immediately taken before the justice of the peace where he was again informed of his right to counsel and that such would be supplied at public expense if he could not afford an attorney. Appellant did not request appointment of an attorney at that time or at any time until February 7, 1966, almost three months later, when an attorney was appointed by the justice of the peace. A preliminary hearing was demanded which took place on March 30, 1966. Appellant was bound over to the superior court. An information was filed April 4, 1966, and trial was continued until the May term of court at appellant's request.

At trial appellant moved to suppress the clothing seized from him at the time of arrest as evidence on the ground that the arrest was made without probable cause and the articles seized were therefore inadmissible. This was denied and is now assigned as error. We have recently set out the rules which govern an arrest for a felony without a warrant in State v. Massey, 68 Wash.Dec.2d 71, 72, 411 P.2d 422, 423 (1966), as follows:

An officer who effects an arrest without a warrant is governed by general rules stated variously as follows: (1) An officer has cause for an arrest if he has reasonable grounds for suspicion, together with evidence of circumstances to warrant a cautious man is believing the accused to be guilty. State v. Hughlett, 124 Wash. 366, 214 P. 841 (1923). (2) An officer has probable cause to arrest without a warrant if he has knowledge which would convince a cautious but disinterested person that the accused is guilty of a felonious offense. State v. Darst, 65 Wash.2d 808, 399 P.2d 618 (1965); State v. Smith, 56 Wash.2d 368, 353 P.2d 155 (1960); Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). (3) An officer is not required to have knowledge of evidence sufficient to establish the guilt of the accused beyond a reasonable doubt. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Probable cause has also been defined as follows in the case of State v. Nolan, 69 Wash.Dec.2d 965, 968, 421 P.2d 679, 681 (1966):

If a police officer has probable cause, i.e., if he believes and has good reason to believe that a person has committed a felony, he may arrest without a warrant. State v. Baker, supra (Citing State v. Baker, 68 Wash.Dec.2d 509, 413 P.2d 965 (1966)); State v. Biloche, supra (Citing State v. Biloche, 66 Wash.2d 325, 402 P.2d 491 (1965)). The probable cause essential to support a lawful arrest without a warrant is a belief based upon facts within the knowledge of the arresting officer, persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested party guilty. State v. Hoffman, supra (Citing State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964)); State v. Smith, 56 Wash.2d 368, 353 P.2d 155 (1960); State v. Hughlett, 124 Wash. 366, 214 P. 841 (1923).

See also State v. Davis, 69 Wash.Dec.2d 129, 417 P.2d 622 (1966).

The arresting officer had within his knowledge information that a felony had been committed, a full and detailed description of the person who committed it, the fact that appellant answered the description and that appellant was wearing clothing of the color, style and general size secured at the store and the fact that the car outside the pool hall had the same license number as that used by the woman accompanying the person who committed the forgery. This information was sufficient to cause a cautious and disinterested person to believe that a felony had been committed and that appellant was the man who committed it.

Appellant contends that the officer should have left the premises and secured a warrant of arrest. The officer made his observation late at night in a public place. The suspect could have escaped during the time necessary to secure a warrant. We find nothing unreasonable in making the arrest without a warrant.

Evidence is admissible when obtained by means of a search and seizure incident to a lawful arrest. State v. Brooks, 57 Wash.2d 422, 357 P.2d 735 (1960); State v. Greco, 52 Wash.2d 265, 324 P.2d 1086 (1958); State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964). As appellant's arrest was lawful, the evidence was properly admitted.

Appellant next contends that it was error to deny his motion to dismiss upon the ground of denial of counsel during the period from November 18, 1965, to February 7, 1966. Appellant was informed on November 18, 1965, by the justice of the peace of his right to an attorney and that such would be supplied at public expense. Entries in the order by which the justice of the peace bound appellant over to the superior court disclose continuances on December 17, 1965, and January 17, 1966. This, together with the fact that appellant had informed the police officers that he had friends who had funds to retain a lawyer, leaves the clear inference that the delay was due to the appellant's desire to employ his own attorney with the help of his friends. The court must be apprised of the desire of an indigent for the appointment of counsel. There was no denial of counsel under the circumstances disclosed here when appellant made no request to the justice of the peace until February 7, 1966.

The lapse of 90 days impresses us as being overly long in bringing appellant again before the justice of the peace to ascertain if he had secured an attorney, but there is no suggestion of any oppressive action in the meantime, no confessions or admissions were made and no request for a lawyer was made to any police officer. To violate the constitutional provision the refusal must have occurred at a 'critical stage' in the pretrial proceedings. In State v. Louie, 68 Wash.Dec.2d 283, 287, 413 P.2d 7, 9 (1966), we said:

Allegations in the record that defendant had requested and had been denied assistance of counsel during his stay in the respective hospitals are uncontroverted. Refusal of such requests, whether they were for appointed or retained counsel, however, would not ipso facto constitute an infringement upon rights guaranteed by the tenth amendment to our state constitution or by the sixth amendment to the federal constitution, made obligatory upon the states by the fourteenth amendment to the federal constitution in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

To violate these constitutional provisions, the refusal must have occurred at a 'critical stage' in the pretrial proceedings. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, supra; In re Pettit v. Rhay, 62 Wash.2d 515, 383 P.2d 889 (1963); State v. Jackson, 66 Wash.Dec.2d 19 (66 Wash.2d 24), 400 P.2d 744 (774) (1965). And, it must appear that the refusal resulted in some reasonably discernible prejudice to the effectiveness of legal assistance ultimately furnished the accused. DeToro v. Pepersack, 332 F.2d 341 (4th Cir. 1964). In short, the courts must look to substance rather than labels in ascertaining whether constitutional rights to...