State v. Harris
| Decision Date | 07 April 1970 |
| Docket Number | No. 201--II,201--II |
| Citation | 469 P.2d 937,2 Wn.App. 272 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Arnold Maxwell HARRIS, Petitioner, and Robert D. McMullen, Presiding Judge of the Superior Court for Clark County, Respondent. |
Robinson, Landerholm, Memovich, Lansverk, Whitesides & Marsh, Dale V. Whitesides, appointed, Duane Lansverk, appointed, Vancouver, for petitioner.
R. DeWitt Jones, Pros. Atty., Clark County, Vancouver, for respondent.
The petitioner, Arnold Maxwell Harris, has applied to this court for a writ of prohibition, directed to the Superior Court for Clark County, claiming that certain criminal informations filed against him in cause No. 6809 place him in double jeopardy under the United States Constitution and the State of Washington Constitution, and further contending that the doctrine of collateral estoppel bars relitigation of issues litigated in a former jury trial, held also in Clark County under cause No. 6746.
Petitioner also seeks mandamus to compel the trial court to allow bail.
Certified to this court in support of the petitions are the following:
1. A copy of an information filed in Clark County on June 25, 1969, which information provides:
That he, the said Arnold Maxwell Harris did, on the 10th day of June, 1969, wilfully, unlawfully and feloniously and with premeditated design to effect the death of Ralph Burdick did effect the death of Ralph Burdick by means of an explosive bomb, the said Arnold Maxwell Harris having sent the said explosive bomb to the said Ralph Burdick in the County of Clark, State of Washington, wherein Ralph Burdick did reside and that as a result of the same said bomb did explode in the County of Clark, State of Washington, on or about the 10th day of June, 1969, thereby wounding the said Ralph Burdick from which wounds the said Ralph Burdick died instantly on the 10th day of June, 1969 * * *
Portions of the record certified to this court show that petitioner stood trial upon his plea of 'not guilty' before a jury in Superior Court for Clark County in October of 1969. The trial resulted in his acquittal of that charge by the jury on October 28, 1969.
2. He was immediately re-arrested on informations subsequently amended, which provide:
Count I.
That he, the said Arnold Maxwell Harris did, on or about the 10th day of June, 1969, with intent to kill a human being, to-wit: Laila Violet Harris or to commit a felony upon the person of the one assaulted to-wit: Laila Violet Harris did assault the said Laila Violet Harris being then and there in Clark County, State of Washington, with a deadly weapon and by force likely to produce death by placing or causing to be placed in the United States mail a package containing a bomb which was sent to the residence of the person assaulted at 2434 E. 8th Street, Vancouver, Washington, which package was so designed that upon opening it would explode and that the same did explode in the presence of and causing grievous bodily harm to Laila Violet Harris, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Washington.
Count II.
That he, the said Arnold Maxwell Harris did, on or about the 10th day of June, 1969, unlawfully and feloniously, with a premeditated design to effect the death of a human being or human beings, to-wit: Mark Allen Harris or by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, but without a premeditated design to effect the death of any individual, did place or cause to be placed in the United States mail a package which contained a bomb, which was sent to an apartment at 2434 East 8th Street, Vancouver, Washington, which package was so designed that upon opening it would explode, and an explosion did occur in Clark County, State of Washington at the foregoing address, causing wounds and physical injury to an occupant of said room, to-wit: Mark Allen Harris, a minor boy of the age of sixteen (16) months, from which wounds the said Mark Allen Harris died on the 10th day of June, 1969 * * *
To these amended informations petitioner entered a plea of 'not guilty,' a plea of former jeopardy and former acquittal, and a plea of the applicability of the doctrine of collateral estoppel and res judicata, charging in the plea that the present informations were in violation of his constitutional rights under the fifth and fourteenth amendments to the United States Constitution, and also under article 1, section 9 of the Constitution of the State of Washington and the tenth amendment thereof, and also were in violation of RCW 10.43.020, 10.43.040, and 10.43.050. It appears without dispute that petitioner has been in the Clark County jail continuously since June 25, 1969.
The record shows further that petitioner filed motions which were presented to the trial court to dismiss the amended information which had been filed on February 20, and that on February 24, 1970 the trial court entered an order denying the petitioner's motion to dismiss and also striking the defenses raised by petitioner's plea, namely double jeopardy, former jeopardy, former acquittal, res judicata, and collateral estoppel. Petitioner's motion to fix bail was denied and the trial court allowed petitioner's court-appointed attorneys, at the expense of the state, to file a petition for writ of prohibition and/or writ of mandamus, but denied a companion motion for a statement of facts of the testimony produced at the trial of cause No. 6746.
The record before this court consists also of an agreed synopsis of the evidence produced at the first trial and as a part of the agreed synopsis this stipulation was made:
In the course of the deliberations with the court in an attempt to settle the jury instructions, the trial judge made it clear that he would not instruct the jury on any lesser included crime (that first degree murder) because whoever mailed the package containing the bomb must have done so with premeditated intent and, therefore, would be guilty of first degree murder.
The record before us also contains copies of the instructions submitted to the jury, the instructions pertinent to this review of which are instruction No. 3 and No. 4:
In this case, the state has charged the defendant with First Degree Murder. It is necessary that the state prove to you, beyond a reasonable doubt, each of the following elements of the crime charged, to-wit:
1) That the defendant with premeditated design to effect the death of Ralph Burdick did send to the said Ralph Burdick in Clark County, Washington, an explosive type bomb.
2) That the said bomb exploded, wounding Ralph Burdick, from which wounds, he died within one (1) year of June 10, 1969.
3) That the explosion and death occurred in Clark County, Washington, on or about June 10, 1969.
If you find that the foregoing elements have been proven beyond a reasonable doubt, then your verdict should be guilty.
You are instructed that the statutes of the State of Washington provide:
'The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed--
(1) With a premeditated design to effect the death of the person killed or of another * * *.'
The precise issues raised by this petition, aside from the initial jurisdictional issue, are issues of first impression in Washington and in order to properly focus on them, we set them forth as follows:
1. Does this court have jurisdiction to entertain the applications for prohibition and mandamus, or would the remedy by appeal be adequate?
2. If petitioner were placed on trial on the two counts set forth in the amended information, would he be placed in double jeopardy in violation of the federal and state constitutions?
3. If the amended informations do not give rise to the constitutional defense of former jeopardy, does the doctrine of collateral estoppel bar the relitigation of any issue or issues which may have been decided in the former trial, when the petitioner was acquitted of first degree murder in connection with the death of Ralph Burdick?
4. Does this court have jurisdiction to review the collateral estoppel issue on an application for an extraordinary writ of prohibition?
5. In the event the trial proceeds, should the trial court set bail for the amended informations, in light of petitioner's previous acquittal on charges arising from the same alleged act?
The parties have agreed that by and large, with the exception of one additional piece of documentary evidence, the state will depend upon the same evidence that it used in the first trial. That piece of evidence consists of an unsigned, typewritten letter which had been received by petitioner's wife on May 23, 1969. She is the victim of Count 1 of the amended informations. That letter, if properly identified as emanating from the defendant, would tend to buttress the other evidence in the case to show petitioner's motivation for commission of the crimes. The document was excluded from evidence in the first trial on the grounds that it was a privileged communication between husband and wife, and it will be contended by the state on the new trial that said privilege cannot be asserted where the spouse is the victim (Count 1 of the information), and where Mrs. Harris's son by Ralph Burdick is the alleged victim (Count 2 of the information). Conceivably, because of the difference in the identity of the victims, the state may be able to make a stronger case for guilt of the petitioner in the present case than they were able to at the time petitioner was charged with first degree murder in connection with the death of Ralph Burdick. No new evidence, however, will be presented to establish that defendant mailed the package containing the explosives.
At the outset, we must meet the jurisdictional...
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