State v. Hettrick
| Decision Date | 28 October 1965 |
| Docket Number | No. 37517,37517 |
| Citation | 407 P.2d 150,67 Wn.2d 211 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Lawrence Albyon HETTRICK, Appellant. |
Bill Lanning, Robert S. Egger, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Richard M. Ishikawa, Deputy Pros. Atty., Seattle, for respondent.
*
The appellant was convicted by a jury of the crime of manslaughter, after having been charged with first degree murder.
A factual background is necessary against which to consider the various alleged assignments of error. The original information charged the defendant with the crime of murder in the first degree in the following language:
He, the said LAWRENCE ALBYON HETTRICK, in the County of King, State of Washington, on or about the 29th day of August, 1963, with a premeditated design to effect the death of One Agnes Brueske, a human being, willfully, unlawfully and feloniously then and there did shoot at, toward and into the body of the said Agnes Brueske, with a certain deadly weapon, to-wit: .380 Caliber Beretta Automatic, then and there held by the said LAWRENCE ALBYON HETTRICK, thereby mortally wounding the said AGNES BRUESKE, from which mortal wounds the said Agnes Brueske then and there died; (Italics ours.)
Toward the end of the state's case, the trial court granted respondent's oral motion to strike certain words from the charging portion of the information, treating the same as a motion to amend in accordance with the proof. This amendment struck the words 'one Agnes Brueske' and in place, in the first part of the information, stated 'a human being,' so that the charge then was 'with the premeditated design to effect the death of a human being,' instead of as originally alleged 'the death of one Agnes Brueske.' In all other respects the information as amended was the same as the original information.
Approximately 3 days prior to August 29, 1963, appellant Hettrick was introduced to one Elizabeth Bertha Taylor. The purpose of the introduction was to negotiate the purchase of property by appellant from Taylor. The property in question consisted of a small house, a trailer and a shed. On that date, appellant and Taylor entered into an earnest money agreement for the purchase and sale of the property. This property was located at 8427 South 150th Street, Renton, King County, Washington. Prior to August 29, 1963, Alfred W. Brueske had put some furniture in the shed located on the real estate, and later promised to pay $5 a month rental for the shed to Taylor, the seller. Brueskes, however, never paid that amount, or any sum. The question concerning the furniture stored in the shed which belonged to Brueskes had, however, been discussed between Taylor and Hettrick during negotiations looking to the sale.
About 7 p.m., on August 29, 1963, the Brueskes, the Swensons (Brueskes' daughter and son-in-law) arrived in a truck and prepared to remove the furniture from the shed referred to. Shortly thereafter, the appellant also came on the scene.
Observing the Brueskes were loading their truck with things being taken from the shed, Hettrick asked Mrs. Ora Clark, who was occupying the trailer with her family, He then approached the Brueske group where an argument ensued and thereafter went back to his car nearby and got a Beretta automatic from under the front seat on the driver's side. His friend, Dale Schaeffer, was sitting in the car. Whether the gun was then loaded does not clearly appear. It was loaded and in the car the day before, when he first showed it to Schaeffer. In any event, he put it in his back pocket after, as he testified, he put a clip in it. As he returned toward the Brueske clan, Mrs. Clark saw the butt of the gun protruding from his back pocket. The shot that later killed Mrs. Brueske came from this gun. Shortly thereafter, Mrs. Clark heard a shot and Hettrick say, 'This is just a warning.' After an interval of a few minutes, and several more shots, Kathy Swenson (Mrs. Brueske's daughter) cried out, 'You have killed my mother.' Other witnesses testified substantially to the same facts. Five to seven shots were fired by Hettrick. He testified he fired two shots into the ground to warn them, then two into the air; that someone in the group ridiculed him as having only a cap gun. He then fired one into a refrigerator which was being loaded by the Brueskes on their truck. He did not recall firing again, but undoubtedly did, as the witnesses testified. It was this last shot which apparently killed Mrs. Brueske.
Appellant contended he was acting in self defense as 'they were ganging up on me.' Shortly after Mrs. Brueske was shot, someone called for an ambulance which arrived soon thereafter, along with several officers from the Renton Police Department. Appellant met the first arrivals with a flashlight and directed them about the premises. During their investigation at the scene, at least three witnesses heard statements by Hettrick, such as, 'Yes, I shot her.' 'I guess my bluff got out of hand, and they got after me with a club and a man has a right to protect his property.'
The state called Thomas A. Carter, Administrator of the Professional Division of Department of Licenses, Olympia. He testified that, on the date of the shooting, the appellant did not have a license to carry a gun as required by law. RCW 9.41 et seq.
During the trial and while Alfred Brueske, the surviving spouse of the woman killed in the affray, was testifying, he was asked to draw according to scale a replica indicating the position of the truck onto which the refrigerator was being loaded at the time of the shooting. The following occurred. By Mr. Ishikawa (the deputy prosecutor):
Q. Can you draw two red lines? Is that about the width of the truck? A. Yes. Q. Is that what you are designating as the width of the truck? Actually, isn't it a little wider? * * * MR. LANNING: (appellant's counsel) I object to counsel coaching the witness and leading the witness and move his last question be stricken and the answer stricken and the jury instructed to disregard it. THE COURT: It will be denied. It is quite obvious that the two lines together are not to scale. MR. LANNING: It might be obvious, but I would like a ruling on the motion. THE COURT: I have ruled. MR. LANNING: At this time, I respectfully move for a mistrial. THE COURT: It will be denied. MR. LANNING: May I give the court my reasons after recess? THE COURT: Yes.
After recess, the following transpired.
THE COURT: You wanted to argue a motion for a mistrial? MR. LANNING: I didn't want to argue. I just want to state my reasons. I base the motion on the position that I feel the Court's remarks constituted a comment on the evidence. * * * THE COURT: Let me make a short statement for the record. One witness called attention to the fact that this map or sketch, Exhibit 1, is a bit misleading in that in the upper right hand corner is placed a blown up drawing of what purports to be down in the lower left hand side, and unless a witness is advised pretty fully regarding that, he is going to be led into making an obvious mistake, especially if anyone is attempting to draw anything to scale.
Regarding the particular comment I made, I called attention to the fact that in the upper right hand corner are two parallel lines that run just about one-sixteenth of an inch apart, which he had drawn to indicate the car and which obviously was not according to the scale and I felt his attention should be called to it, and as a result, you can see the larger red rectangle now that more probably marks the place in accordance with the scale. MR. LANNING: Thank you your Honor.
The trial of this case started on the 18th of November, 1963, before the Honorable William J. Wilkins, Judge of the Superior Court of King County, sitting with the jury.
At the time the trial commenced, the following consent was executed by the parties concerned:
Lawrence Albyon Hettrick, Defendant, and Bill Lanning, Attorney for the Defendant, in the above entitled action do hereby consent that the Jury impaneled and trying this cause may separate during this trial and until the conclusion of the arguments in said cause at each adjournment of court.
Done in open court without the hearing or presence of the Jury, this 18 day of Nov. 1963.
(signed) Lawrence A. Hettrick
Defendant
(signed) Bill Lanning
Attorney for Defendant
Approved
(signed) Richard M. Ishikawa
(signed) Richard W. Pierson
Attorneys for State of Wash
During the trial and on Friday, November 22, 1963, John F. Kennedy, the President of the United States, was assassinated in Dallas, Texas. This information reached the court personally while the jury was still listening to the testimony. Out of the presence of the jury, counsel and the court had several conferences as to how the news should be given to them and how the jury should be handled thereafter. When the jury was again in the box and after hearing further testimony, and the parties having rested, the court made the following announcement to the jury:
I have some rather distressing news to tell you. Apparently President Kennedy was shot while in Dallas, Texas and is dead, and also the Governor of Texas.
I would have liked to be able to keep this from you in view of our situation, but I am quite sure you would have learned of it in some way, but I do want to caution you that you should not in any way let this sad news affect your judgment in this case at all, and I do want to caution you on that.
You may now retire to the jury room.
Thereafter, the jury was excused until Tuesday morning, at which time the court made the following statement for the record in the absence of the jury:
I think I should say for the record that in this case it will show that we suspended at twelve noon on...
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