State v. Johnson
| Decision Date | 22 December 1969 |
| Docket Number | No. 62--40443--I,62--40443--I |
| Citation | 1 Wn.App. 553,463 P.2d 205 |
| Parties | STATE of Washington, Respondent, v. Walter JOHNSON, Appellant. |
| Court | Washington Court of Appeals |
Trethewey, Brink & Wilson, Daniel Brink, Seattle, for appellant.
Charles O. Carroll, King County Pros. Atty., Patricia Harber, Deputy Counsel, Seattle, for respondent.
A jury found Walter Johnson guilty of driving while under the influence of alcohol. His motions for arrest of judgment or a new trial were denied and he has appealed.
Two questions are raised by the assignments of error. Did the court err by giving instructions to the jury which indicated the defendant could be convicted of driving while under the influence of intoxicating liquor Or drugs when there was no charge or evidence he was under the influence of drugs and was error committed by permitting the prosecuting attorney to inquire about his convictions for a similar misdemeanor.
The only charge against Johnson was that of driving while under the influence of intoxicating liquor. The testimony at the trial was directed solely to the question of establishing him to be under the influence of intoxicating liquor and conversely to negating this. The one reference to drugs during the trial was when the deputy prosecuting attorney inquired:
Q. Based upon your observation of the defendant's driving, any odor of alcohol on the defendant's breath, his balance and coordination and his speech, have you an opinion as to whether the defendant, at the time you stopped him on Highway 516, was under the influence of intoxicating liquor or drugs? A. Yes, I do. Q. What is that opinion? A. I feel as though Mr. Johnson was definitely under the influence of intoxicating liquor or drugs.
No objection to either these questions or answers was made. No motion to strike the testimony was made and no instruction was requested which would have told the jury to disregard the testimony.
The instructions erroneously indicated to the jury the defendant was charged alternatively with being under the influence of intoxicating liquor or drugs, could be convicted if he was under the influence of intoxicating liquor or drugs, or a combination thereof, and that the operation of a vehicle while under the influence of drugs is unlawful.
The instructions were improper. The defendant was not charged with driving a motor vehicle while under the influence of drugs. The evidence was insufficient to consider the information amended to conform to the proof pursuant to CrR 101.04W(b). Inasmuch as the record clearly reflects no one was contending Johnson was under the influence of drugs, it would appear the mention of this in the testimony and instructions was merely a parroting of the statute.
Where the error in instructions is in favor of the party on whose behalf the verdict is returned, the error is presumed to be prejudicial and to furnish grounds for reversal, unless it affirmatively appears it was harmless. A harmless error is an error which is trivial or formal or merely academic and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case. The standard used to determine whether error is harmless or prejudicial is to ascertain whether it presumptively affected the final result of the trial. State v. Nist, 77 Wash.Dec.2d 229, 461 P.2d 322 (1969); State v. Martin, 73 Wash.2d 616, 440 P.2d 429 (1968); State v. Britton, 27 Wash.2d 336, 178 P.2d 341 (1947), and cases cited therein. To determine this it is necessary for the court to examine the entire record.
If the court is unable to say whether the defendant would or would not have been convicted, but for the error committed, then error cannot be deemed to be harmless. State v. Martin, Supra.
In determining whether the defendant would or would not have been convicted, but for the error committed, two distinctly different situations can exist.
The evidence of guilt can be so conclusively proven by competent evidence that no other rational conclusion can be reached except the defendant is guilty as charged. State v. Martin, Supra, 73 Wash.2d at 627, 440 P.2d 429. This standard has recently been clarified in Nist where, citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), it held there must be "overwhelming' untainted evidence to support the conviction.'
Alternately, due to the particular situation in which the claimed error arose, the court may be able to say there is no reasonable possibility the evidence complained of might have contributed to the conviction. State v. Jefferson, 74 Wash.2d 787, 793, 446 P.2d 971 (1968). This case fits within...
To continue reading
Request your trial
-
State v. Martinez
...rights of the party assigning it, and in no way affected the final outcome of the case") (quoting State v. Johnson, 1 Wash.App. 553, 463 P.2d 205, 206 (Wash.Ct.App.1969)). But see Snow v. State, 800 So.2d 472, 477 (Miss.2001) ("Under [heightened scrutiny of capital convictions and sentences......
-
State v. Taplin
...v. Britton, 27 Wash.2d 336, 341, 178 P.2d 341 (1947); State v. Rogers, 5 Wash.App. 347, 352, 486 P.2d 1125 (1971); State v. Johnson, 1 Wash.App. 553, 555, 463 P.2d 205 (1969). See, however, dicta in State v. Nelson, 144 Wash. 370, 372, 258 P. 24 (1927). If the court is unable to say from th......
-
State v. Ruzicka
...v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969); accord, State v. Bergen, 13 Wash.App. 974, 538 P.2d 533 (1975); State v. Johnson, 1 Wash.App. 553, 463 P.2d 205 (1969). Other courts have followed defendant's argument and have interpreted similar statutes as giving the trial discretion to e......
-
State v. Wanrow
...v. Odom, 8 Wash.App. 180, 188, 504 P.2d 1186 (1973); State v. Rogers, 5 Wash.App. 347, 352, 486 P.2d 1125 (1971); State v. Johnson, 1 Wash.App. 553, 463 P.2d 205 (1969). As shown by the discussion above, instruction No. 10 erred in limiting the acts and circumstances which the jury could co......
-
A case for harmless review of Ake errors.
...v. Oklahoma, 84 Mich. L Rev. 1326 (1986). (88) See infra Part V. (89) State v. Michelli, 301 So. 2d 577, 579 (La. 1974); State v. Johnson, 463 P.2d 205, 206 (Wa. (90) Rose v. Clark, 478 U.S. 570, 577 (1986) (holding that harmless error analysis is inappropriate when the error thwarts a defe......