State v. Jacobsen, No. 40704

• Court: United States State Supreme Court of Washington
• Writing for the Court: NEILL; HUNTER
• Citation: 78 Wn.2d 491,477 P.2d 1
• Parties: The STATE of Washington, Respondent, v. Richard Dewey JACOBSEN, Appellant.
• Decision Date: 12 November 1970
• Docket Number: No. 40704

Page 491

78 Wn.2d 491 477 P.2d 1 The STATE of Washington, Respondent,
v.
Richard Dewey JACOBSEN, Appellant. No. 40704. Supreme Court of Washington, En Banc. Nov. 12, 1970.
Rehearing Denied Dec. 30, 1970.

[477 P.2d 2] Sperline & Ellis,

Page 492

Lowell D. Sperline, David T. Ellis, East Wenatchee, for appellant.

E. R. Whitmore, Jr., Pros. Atty., Wenatchee, for respondent.

NEILL, Associate Justice.

Defendant was charged with negligent homicide by motor vehicle. Following the jury verdict of guilty, the trial court granted defendant's motion for a new trial. The state appealed. We reversed and remanded with instructions to reinstate the verdict. State v. Jacobsen, 74 Wash.2d 36, 442 P.2d 629 (1968). Defendant now appeals from the judgment and sentence.

As set forth in State v. Jacobsen, Supra, the fatal accident giving rise to the charge against defendant occurred at an uncontrolled intersection. Defendant was the favored driver, but was exceeding the speed limit. The driver of the other (disfavored) vehicle, in which the decedent was a passenger, failed to yield the right of way.

[477 P.2d 3] The state moves to dismiss this appeal. The motion is based on ROA I--16, the pertinent portion of which reads:

Without the necessity of taking a cross-appeal, the respondent may present and urge in the supreme court any claimed errors by the trial court in instructions given or refused and other rulings which, if repeated upon a new trial, would constitute error prejudicial to the respondent.

The state argues that the word 'may' in the above portion of the rule yields a mandatory result in that defendant, having failed to exercise his right in the first appeal, is now foreclosed.

Page 493

To the contrary, defendant asserts that the language of ROA I--16 is permissive. He contends that he was not required, as respondent in the first appeal, to raise issues not inherent in the state's assignment of error. He bolsters his argument by reference to ROA I--46(a) and CrR 101.04W(h) which require the trial court, at the time of sentencing, to advise the defendant of his right of appeal, the time limits thereof, and the availability of legal assistance. If the state's interpretation of ROA I--16 is accepted, argues defendant, the purpose of ROA I--46(a) and CrR 101.04W(h) is thereby thwarted.

The issues now raised by defendant could have been raised by him on the state's appeal without cross-appealing. Larson v. Seattle, 25 Wash.2d 291, 171 P.2d 212 (1946); ROA I--16. The question remains whether they Must have been raised. A similar procedural question was presented in State v. Bauers, 25 Wash.2d 825, 172 P.2d 279 (1946). There, we clearly set forth our policy against piecemeal appeals, but did not dismiss the appeal due to the failure of this court to consider issues actually raised on the first appeal and also to our interim overruling of the first Bauers decision. We adhere to our policy which prohibits issues from being presented on a second appeal that were or could have been raised on the first appeal. State v. Bauers, Supra.

However, to read ROA I--16 as suggested by the state would render the trial court's obligation under ROA I--46--(a) and CrR 101.04W(h) meaningless. See In re Jones v. Rhay, 75 Wash.2d 21, 448 P.2d 335 (1968). We hold that ROA I--16 is not mandatory in a criminal case where, as here, the first appeal was from an interlocutory order preceding the final sentencing of the defendant to the extent that the issues raised in the second appeal did not necessarily inhere in the contentions on the prior appeal.

Only one of defendant's assignments of error (a challenge to the sufficiency of the evidence) involves an issue foreclosed by the first appeal. Although this assignment of error could include the issue of whether the evidence supports a finding that defendant's conduct was more than ordinary negligence and constituted operation of a

Page 494

vehicle in a reckless manner or with disregard for the safety of others, no argument thereon is contained in the brief. We do not consider that issue. State v. VanAuken, 77 Wash.Dec.2d 132, 460 P.2d 277 (1969). Rather, the thrust of defendant's argument on this assignment of error is that mathematical calculations place the proximate cause of the victim's death with Miss Connie King, the other driver. That assertion was considered in State v. Jacobsen, Supra, 74 Wash.2d at 37--38, 442 P.2d 629. There we held that this case presents a situation involving, at most, concurrent causes which would not change the character of defendant's conduct as a proximate cause of the collision. That disposition forecloses a second appeal on the issue of proximate cause.

Defendant's other assignments of error were not inherent in the contentions in the first appeal. We proceed to their merits.

Defendant contends that the trial court commented on the evidence in violation of Const. art. 4, § 16. At the time of the alleged comment, a diagram of the accident scene and 11 photographs depicting the accident scene and the damaged automobiles had been admitted into evidence. Two of [477 P.2d 4] the photographs also showed the occupants of the other automobile lying on stretchers under blankets. Shortly thereafter, during argument on defense counsel's objection to certain testimony, the court retired the jury and allowed them to take the photographic exhibits with them. Defendant argues the court thus inadvertently and subtly commented on the evidence.

Permitting the jury to have and examine these particular exhibits, urges defendant, 'quite probably' caused the jury to believe that the court intended these photographs to be considered above all other physical and narrative evidence and that, since this was the state's evidence, the court was telling the jury that the state must be correct in filing the charge against the defendant. According to defendant, it would not occur to the jury that the court was simply trying to move the trial along in an orderly fashion. Indeed, defendant contends that the court's action was so subtle that it is extremely doubtful that the jury even recognized

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the procedure as a comment on the evidence. Therefore, the court's later admonition in its...