State v. Hill, 40612

• Decision Date: 21 August 1969
• Docket Number: No. 40612,40612
• Citation: 76 Wn.2d 557,458 P.2d 171
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Henry HILL, Appellant.

Page 557

76 Wn.2d 557

458 P.2d 171

The STATE of Washington, Respondent, v. Henry HILL, Appellant.

No. 40612.

Supreme Court of Washington, Department 2.

Aug. 21, 1969.

Hunter & Gates, Gerald R. Gates, Everett, for appellant.

Robert E. Schillberg, Pros. Atty., Donald J. Hale, Deputy Pros. Atty., Everett, for respondent.

DONWORTH, Judge. ^*

By information, appellant Henry Hill was charged with the crime of assault in the first degree. It was alleged therein that with intent to kill a human being or commit a felony upon the person of another, he made an assault with a deadly weapon, a knife, upon James Ellis.

He was represented in the trial court by two court-appointed counsel. To the charges alleged in the information, appellant pleaded not guilty, and he elected not to take the stand on his own behalf or submit any evidence in his defense. ¹

After due deliberation, the jury returned a verdict of guilty of assault in the second degree and answered in the affirmative the question submitted by the trial court as to whether he was armed with a deadly weapon at the time of the assault. Pursuant to the jury's verdict, the trial court sentenced appellant to a state penal institution for a maximum of 10 years.

Setting forth five assignments of error, appellant brings this appeal from the foregoing judgment and sentence entered by the trial court.

The state's evidence regarding the commission of the alleged assault may be summarized as follows:

The victim, James H. Ellis, had moved to the Everett area from Aberdeen about 4 months before this incident occurred and rented a small cabin located on the outskirts of the city. He permitted several unemployed men of his acquaintance to live in the cabin from time to time. For about a week preceding the assault incident, appellant had been staying there.

On the morning of June 19, 1968 Ellis left the cabin and went into the city seeking employment. About 3:30 p.m., accompanied by another roomer, Dale Rudicil, Ellis returned to the cabin and entered it finding appellant and two others sitting in the main room drinking a jug of wine. Since the door had been padlocked, appellant and his companions, who were also staying there, had apparently entered the cabin through a window. Shortly after Ellis' return an argument ensued and appellant pulled a knife and threatened to cut Rudicil's throat. Ellis, attempting to intercede on Rudicil's behalf, had his own throat slashed by the knife being wielded by appellant. The victim rushed to the hospital where doctors managed to save his life despite a deep laceration on the left side of his neck which severed a large muscle and certain arteries and veins.

Officer Jack Kuehn and a fellow patrolman from the Everett Police Department were dispatched to the hospital to investigate the assault. They talked to an unidentified man there who directed them to the location of the cabin. Failing to find appellant there, they proceeded to check the Rescue Mission and the bars at the lower end of the city looking for a man of the description furnished them. About 7:45 p.m., after a fruitless search of the city, the officers returned to the cabin where they apprehended appellant, who had returned and apparently was just leaving. Asked to produce some identification, he produced a work slip with his name and social security number thereon. They advised him that an assault had occurred on the premises that day and asked him to accompany them to the police department. Appellant complied with their request and went with the officers to the police department where he was taken to the office of the detective division.

Detective Henry Collins, in the presence of Detective Enard Enberg, interviewed appellant at this time. Prior to the interrogation, Detective Collins handed a form to appellant on which were stated his constitutional rights and a statement of waiver. Appellant was read these rights aloud, and at the request of the officer, he read them aloud. Appellant told the detectives that he understood his rights and had gone through this same procedure in the past. The detectives asked him to sign a form indicating that he had been advised of his rights which he did. However, he refused to sign the bottom portion of the form which stated that he fully understood his rights, could exercise them at any time during the interrogation, and intended to waive his right to remain silent and right to presence of his attorney. Appellant, according to the detectives, said he would not sign that portion of the form but would answer any questions the detectives had without the presence of his attorney. This was denied by appellant at the pretrial hearing.

Prior to the trial, a CrR 101.20W hearing was conducted to determine the admissibility of certain admissions made by appellant, at the foregoing interrogation, to Detective Collins and Detective Enberg on the evening of June 9th at the police department. At the conclusion of the hearing, the trial court ruled that appellant had been fully advised of his constitutional rights and had made a knowing and intelligent waiver of those rights prior to any questioning by the detectives. The admissions were admitted in evidence pursuant to the trial court's ruling.

Appellant's first assignment of error is directed to the trial court's ruling at the CrR 101.20W hearing in that the court erred in admitting into evidence Detective Collins' testimony regarding certain admissions made to the two detectives on the evening of June 19, 1968.

A review of the evidence produced at the CrR 101.20W hearing indicates clearly that appellant was properly advised of all his constitutional rights; that he was calm and cooperative during the interrogation, and that no promises or threats were made to him. Although it appears that appellant had been drinking intoxicants prior to his arrest, it does not appear that he was under the influence of intoxicants to the point that it could be fairly said that he could not understand his rights. In fact, the evidence shows that he did understand his rights and understandingly made the admissions to the detectives.

In support of his first assignment, appellant relies on State v. Davis, 73 Wash.2d 271, 438 P.2d 185 (1968), in which this court discussed the heavy burden which Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966) places upon the prosecution to show that defendant intelligently waived his rights to counsel. This case is distinguishable from Davis, however, in that unlike the Davis case where there was a missing police witness, both police witnesses to the interrogation testified at the CrR 101.20W hearing in the instant case.

We are satisfied from our examination of the record, containing all of the testimony at the preliminary hearing, that the trial court made proper findings and correctly ruled on the issue of the admissibility of appellant's admissions to the detectives. The detectives' testimony was clear and unequivocal. In view of the testimony of appellant and of the detectives, and the court's findings, we think the first assignment of error is without merit. State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964); State v. Burgess, 71 Wash.2d 617, 430 P.2d 185 (1967); State v. Cadena, 74 Wash.Dec.2d 186, 443 P.2d 826 (1968).

Appellant next contends that the trial court erred in admitting in evidence the knife (exhibit No. 3) which was found by Detective Collins and Detective Enberg when they searched the cabin on June 19, 1968 shortly after the conclusion of their interview with appellant.

Detective Collins testified that they were looking for a bone-handled knife and a pair of blue-gray coveralls. In one room they found the coveralls with a letter therein addressed to appellant. They found the knife in question near the entrance of the kitchen of the cabin lying in a cardboard box which also had some wood in it. The knife, as described by Collins, was about 11 inches long, with a blade of approximately 6 1/2 inches. Appellant objected to the introduction of the knife on the grounds that it had not been sufficiently identified as having anything to do with the case. After lengthy argument by both counsel in the absence of the jury, the trial court ruled that it was admissible. This ruling was on the basis that the state would produce additional evidence tending to connect the knife with the crime alleged.

When the trial resumed, Detective Collins testified about finding the knife in the cardboard box, and he said it was lying between the cardboard and piece of wood inside it. The knife was in a sheath. Detective Enberg was present at that time. A butcher knife was also found by the detectives lying on a counter in the kitchen.

Further testimony by Detective Collins revealed that near the wood box, both inside and outside the kitchen, he saw small drops of a red substance which looked like blood. Thereafter, in the trial, Enberg testified at some length about finding exhibit No. 3, and he noted that there were jelly-like globules on the side of the blade that appeared to be blood. On cross-examination, he stated that this substance was still wet and appeared to be in the process of drying.

In his brief, appellant's counsel state that the admission of exhibit No. 3 as being the actual weapon used in the assault was probably technically unimportant because appellant was convicted of second degree assault and not of first degree assault with which he was originally charged. However, in view of the special verdict of the jury, finding that at the time of the assault appellant was armed with a deadly weapon, he contends that this exhibit should not have been admitted because under the evidence the jury could only speculate as to whether this hunting knife was the weapon used in the commission of the assault.

In RCW 9.95.040, the legislature has defined a deadly weapon and that definition includes 'any...