State v. Harris

• Decision Date: 04 February 1971
• Docket Number: No. 41563,41563
• Citation: 480 P.2d 484,78 Wn.2d 894
• Parties: The STATE of Washington, Petitioner, v. Arnold Maxwell HARRIS, Respondent, Robert D. McMullen, Judge of the Superior Court for Clark County, Petitioner.
• Court: Washington Supreme Court

Page 894

78 Wn.2d 894

480 P.2d 484

The STATE of Washington, Petitioner, v. Arnold Maxwell HARRIS, Respondent Robert D. McMullen, Judge of the Superior Court for Clark County, Petitioner.

No. 41563.

Supreme Court of Washington, En Banc.

Feb. 4, 1971.

Rehearing Denied March 24, 1971.

R. DeWitt Jones, Pros. Atty., C. Brent Nevin, Deputy Pros. Atty., Vancouver, for petitioners.

Robinson, Landerholm, Memovich, Lansverk, Whitesides & Marsh, Dale V. Whitesides, Duane Lansverk, Vancouver, for respondent.

NEILL, Associate Justice.

Defendant Arnold Maxwell Harris is charged with first degree murder for the killing of Mark Allen Harris, the son of his estranged wife, and assault upon his estranged wife, Laila Violet Harris. In a prior prosecution, a jury found this defendant not guilty of the murder of Ralph Burdick, the paramour of defendant's estranged wife. The three victims named in the prior and present charges were injured, two fatally, by the explosion of a bomb which had been mailed to Mr. Burdick.

The defendant moved to dismiss the present information asserting prior acquittal, double jeopardy and collateral estoppel. The trial court denied the motion.

The court of appeals granted defendant's petition for a writ of prohibition against the current prosecution, basing its action on collateral estoppel. State v. Harris, 2 Wash.App. 272, 469 P.2d 937 (1970). We granted the state's petition for review. The sole issue presented by the petition is whether the facts at bar support the defense of collateral estoppel in the current prosecution.

Recent decisions of the United States Supreme Couret establish that the Fifth Amendment guarantee against double jeopardy includes collateral estoppel and is made applicable to the states through the Fourteenth Amendment. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). By virtue of these decisions, states are prevented, on a constitutional basis, from relitigating a question already decided in favor of the defendant at a prior trial.

Prior to these United States Supreme Court decisions, Washington was among those states which had recognized collateral estoppel as applicable in criminal cases. State v. Dye, 81 Wash. 388, 142 P. 873 (1914); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); State v. Peele, 75 Wash.2d 28, 448 P.2d 923 (1968). In State v. Peele, we said, at page 30, 448 P.2d at page 924.

It has been long established that the doctrines of res judicata and collateral estoppel do apply in criminal cases. See, Modern Status of Doctrine of Res Judicata in Criminal Cases, Annot., 9 A.L.R.3d 203 (1966). These doctrines, as applied to criminal cases, bar relitigation of issues actually determined by a former verdict and judgment. Sealfon v. United States, 332 U.S. 575, 68 Sup.Ct. 237, 92 L.Ed. 180 (1948); United States v. Burch, 294 F.2d 1 (5th Cir. 1961); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940). The application of collateral estoppel in a criminal action is a two-step operation: the first is to determine what issues were raised and resolved by the former judgment, and the second is to determine whether the issues raised and resolved in the former prosecution are identical to those sought to be barred in the subsequent action.

The state points out that the killing of several persons in a single act or affray constitutes multiple crimes. State v. Robinson, 12 Wash. 491, 41 P. 884 (1895). See State v. Taylor, 185 Wash. 198, 52 P.2d 1252 (1936); State v. Labbee, 134 Wash. 55, 234 P. 1049 (1925). We agree with that concept, but observe that its applicability pertains to double jeopardy. See State v. LaPorte, 58 Wash.2d 816, 365 P.2d 24 (1961). Here, our concern is with the separate doctrine of collateral estoppel which is now included in the constitutional guarantee as noted above. In view of the pronouncement by the United States Supreme Court in Ashe v. Swenson, Supra, we must further examine the scope and applicability of collateral estoppel in criminal cases.

The Ashe court observed that 'the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.' We may properly assume from this that, in a particular case, we should examine the entire record to ascertain whether the purpose of the constitutional protection is being thwarted, I.e., is the defendant being harassed by multiple prosecutions or did the jury by the prior acquittal necessarily determine an ultimate fact which must be proved by the state in the current prosecution?

We see no harassment ipso facto in subsequent prosecutions where there are multiple victims of the same act or transaction, therefore, multiple offenses, and the jury in the prior case has acquitted the defendant of the charge of murdering one of the victims. Here, three separate and distinct crimes have been committed. This record is entirely devoid of any evidence or indication that the state deliberately chose to get 'a dry run' by prosecuting its cases in this sequence.

At the trial for the murder of Mr. Burdick, the state sought to introduce into evidence, on the issues of intent and identity of the person who mailed the bomb, a typewritten letter containing threats against the lives of Mr. Burdick and Mrs. Harris. ¹ The 'signature' on this letter was the typewritten name of a third party. Exemplars first used by an expert witness to form an opinion as to the authorship of the letter consisted of letters known to have been typed by defendant and mailed to the wife of defendant. The trial court ruled the exemplars to be privileged communications and would not permit their use by the expert witness. Subsequently, other exemplars were obtained by the state, but the witness, in an offer of proof, testified that, although he formed an opinion based on the later exemplars, he could not entirely disassociate the privileged exemplars from his mind in forming his opinion that the typewritten letter was written by the defendant. The court refused to admit the testimony of the expert.

In Ashe, the state candidly admitted that the first trial was merely a 'dry run' for a second trial. Under such circumstances, the supreme court observed that it is this harassment which the constitution forbids. Here, there is no indication that the state was making a 'trial run' by the first trial or that it acted in bad faith in electing to try the defendant for the killing of Mr. Burdick first and separately. The state made every effort to introduce the threat letter into evidence, but was barred by the court's ruling. Further, it was to the advantage of the defendant, and not the state, to separate the trials. Had defendant faced trial for the offense against each of the three victims at the first trial, the threat letter would have been admissible as to the counts for the death of the child and the assault and battery on Mrs. Harris. The jury could have been instructed to disregard this evidence as to the death of Mr. Burdick, but it must be obvious that the jury could hardly ignore the impact of the letter in its determination as to the identity of the malefactor, irrespective of the identity of the victim. ² Thus, it appears to us that a 'realistic and rational' application of collateral estoppel, coupled with the qualifying language limiting the holding of Ashe to 'the circumstance of this case,' does not support the conclusion that the state is guilty of harassment.

So, in applying Ashe with reason and rationality, we look to the ultimate issue determined by the general verdict of not guilty of the charge that the defendant murdered Mr. Burdick. It appears that the jury must have determined that the defendant was not the person who mailed the bomb or caused it to be mailed, for to believe that the jury could have otherwise acquitted the defendant would stretch reason and credulity. Thus, at first blush, the reasonable conclusion would seem to be that there is an identity of ultimate issues and that collateral estoppel bars this prosecution. However, such a conclusion ignores an element in this case which we believe prevents the operation of collateral estoppel as a bar.

We consider the previously barred evidence--the typewritten letter--to be relevant and material to the issues of identity and intent. It is clearly admissible in the present proceeding involving charges wherein the wife and her son are the victims. RCW 5.60.060(1). Unlike the situation or admonitions in Ashe, supra, this additional evidence was not discovered later, held back by the state at either trial, or buttressed between trials. Is this difference material and a proper basis on which to distinguish Ashe and our prior cases on collateral estoppel? We believe it is.

Without the presence of harassment, constitutional collateral estoppel posits the familiar question of whether an ultimate fact which must be proved in the second case has already been fully litigated in the first trial. ³ There are two elements in this question: (1) identity of issues, and (2) completeness of the prior litigation.

Here, an examination of the instructions and evidence in the first trial render it beyond serious contention that, for all practical purposes,...