State v. Haugland

• Decision Date: 02 February 1976
• Docket Number: No. 3473--I,3473--I
• Citation: 14 Wn.App. 853,545 P.2d 1237
• Parties: STATE of Washington, Respondent, v. Leonard Nathan HAUGLAND, Appellant.
• Court: Washington Court of Appeals

Page 853

14 Wn.App. 853

545 P.2d 1237

STATE of Washington, Respondent, v. Leonard Nathan HAUGLAND, Appellant.

No. 3473--I.

Court of Appeals of Washington, Division 1.

Feb. 2, 1976.

[545 P.2d 1238] Gary T. Jones, Mount Vernon, (Court-appointed), for appellant.

Patrick R. McMullen, Skagit County Pros. Atty., Larry E. Moller, Wm. H. Nielsen, Deputy Pros. Atty., Mount Vernon, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

It is uncontroverted that the victim in this case, a 16-year-old young woman, was severely beaten and burned and then left on a back road in Skagit County during the early morning hours of October 1, 1974. We must nevertheless detail some of the facts of the case in order to resolve the legal issues here presented.

Medical testimony and police photographs established that the victim had been extensively beaten on various parts of her body, particularly about the head. These injuries caused her to bleed from and about the eyelids, ears and from the eyeballs themselves. Her eyes were swollen shut and her right eardrum ruptured. She sustained at least seven circular second and their degree burns on her left lower abdomen, left buttock and thigh. The burns were the size and shape of an automobile cigarette lighter element.

When the young woman was initially in the hospital intensive care unit, her condition was such that she was drifting in and out of consciousness. On the first day of hospitalization, her eyes had to be pried open in order for her to see.

She was apparently in no condition to be talked to by officers at any length on October 1. She was, however, able to be interviewed on several occasions on October 2, and at that time described her assailants to the police. Unfortunately the police reports used at the trial with reference to the descriptions she initially gave, as well as the actual Following the photographic identification of them, the defendant and Johnson were charged with assault in the second degree. Johnson pleaded guilty prior to trial. Neither Johnson nor the defendant testified at the trial.

descriptions of Leonard Nathan Haughland (defendant), and the other man who was also arrested as a result of the assault, are not a part of the record before us. It does appear, however, that the victim's initial descriptions were at least generally those of the defendant and the other man arrested, although she was to later reverse her descriptions of them somewhat. After the victim had described the men on October 2, the police later on that same date showed her two photographs, one of the defendant and the other of one Jerry Johnson. She at that time identified the photographs as being of the two men involved. The two photographs she was shown were not included with [545 P.2d 1239] photographs of other non-suspects as the officers testified was normally done in such showings.

The defendant was tried in the latter part of November 1974. At that time the victim acknowledged that her recollection of the events in question was still incomplete in some respects and hazy in others.

At the time the victim testified, she said she remembered as follows.

She left her home in Mount Vernon and walked downtown to the Silver Dollar Tavern looking for her boyfriend. She remembers that she arrived at the tavern about 1:30 a.m., did not find him and then departed alone. Her next recollection is of being in a bluish-green car with the defendant and Johnson. She had not previously known either of them.

She identified the defendant in the courtroom and testified that he was the man who beat her after first accusing her of stealing his wallet. She further testified that he was the one who had inflicted the burns on her body using the automobile's cigarette lighter. She said this was done in the front seat of the car while the defendant's male companion held her down.

The victim concluded her trial testimony by stating that following the assault, she was 'left off on the road,' walked down the road, knocked on someone's door and asked for help.

The man who resided at the Fidalgo Island place where she sought refuge testified that she arrived there at approximately 7 a.m. on October 1, 1974. He said that at that time she related to him that she had walked about 2 1/2 miles to get there.

The defendant's girl friend, with whom he lived in Mount Vernon, testified that the defendant had borrowed her bluishgreen automobile with license number HBG 781 on the evening before the assault. She also testified that he and Jerry Johnson returned her car at approximately 7 o'clock, give or take 15 minutes, on the morning in question.

Various witnesses testified to seeing the defendant and Jerry Johnson drinking together at different places during the evening preceding the assault and in the early morning of October 1 when it occurred.

Several other witnesses saw both the defendant and Johnson with the victim in different locations in Mount Vernon between approximately 1:40 a.m. and 2:10 a.m. on October 1. Some of these witnesses knew them. One witness, a police officer who saw them together, knew both the defendant and the victim. That officer testified that the car they were in at approximately 2:10 a.m. on October 1, when he saw them, had license number HBG 781.

Two of the witnesses who testified at the trial were cocktail waitresses at the Town and Country Motor Inn in Mount Vernon. Their testimony was to the following effect. The victim, the defendant and Johnson came into the cocktail lounge for a drink. Since the cocktail lounge was closing, they were refused service. The defendant appeared to them to have been drinking. When refused service, he became angry and the defendant, Johnson and the victim left together. The defendant returned shortly afterward, accused the waitresses of stealing his wallet and rummaged There was also testimony at the trial that the defendant formerly resided in the area where the victim was let out of the car and was familiar with that area.

through the purse of one of the waitresses. He was belligerent and left only when a telephone was picked up for the announced purpose of calling the police.

Defendant was arrested on October 2, 1974. The officers testified that at the time of his arrest he remarked that the arrest must have something to do with the girl he had picked up hitchhiking.

The jury returned a verdict of guilty of assault in the second degree and the defendant brings this appeal from the judgment and sentence.

ISSUES

There are four issues on this appeal.

ISSUE ONE. Did the court's refusal to change venue from Skagit County constitute error?

ISSUE TWO. Considering the circumstances of the victim's pretrial photographic identification of the defendant, should she still have been permitted to make an in-trial identification of the defendant as her assailant?

ISSUE THREE. Was it error to deny defendant's motion to dismiss made at the conclusion of the State's case?

ISSUE FOUR. Did the trial court err in refusing to give special instructions specifically cautioning the jury about the victim's identification testimony?

DECISION

ISSUE ONE.

CONCLUSION. No error was committed by the refusal to change the venue of the trial.

Due process of law requires that a motion for change of venue be granted where there is a showing of either actual prejudice or probable prejudice. State v. Stiltner, 80 Wash.2d 47, 52, 491 P.2d 1043 (1971); State v. Crudup, 11 Wash.App. 583, 586, 524 P.2d 479 (1974).

We deem it important in cases of this kind to review the entire record and measure it against the following criteria Common criteria or factors generally utilized by courts in determining the propriety of an order granting or denying a motion for change of venue based on alleged prejudicial pretrial publicity are: (1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn. Annot., 33 A.L.R.3d 17, 33 (1970). See also Pretrial Publicity-Fair Trial, Annot., 10 L.Ed.2d 1243 (1964).

State v. Crudup, supra at 587, 524 P.2d at 482.

In the present case, the defendant has failed to establish the existence of any of these criteria adverse to himself other than No. 8 relating to the nature of the charge itself. Since that factor would remain the same wherever the trial was held, it alone constitutes no showing of actual or probable prejudice. The trial court did not err in requiring that the case be tried in Skagit County.

ISSUE TWO.

CONCLUSION. The trial court did not err in refusing to suppress the victim's identification testimony.

Defendant assigns as error 'the trial court's refusal to suppress the complaining witness's identification testimony.' His position is that 'substantial likelihood of irreparable misidentification exists and that impermissible suggestion is inherent in the two-photograph display used by the investigating officer.'

We have previously summarized the rules by which this issue is to be resolved in any given case together with the reason for those rules:

The validity of the identification procedure is a question of fact for the jury's determination and appellate courts may reverse a determination of the identification issue adverse to the defendant only where the facts establish '(t)he photographic identification procedure . . . (is) so impermissibly suggestive as to give rise to a very substantial likelihood of...