State v. Johnson

• Decision Date: 24 December 1969
• Docket Number: No. 40494,40494
• Citation: 77 Wn.2d 423,462 P.2d 933
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Roger Lee JOHNSON, Appellant.

Page 423

77 Wn.2d 423

462 P.2d 933

The STATE of Washington, Respondent, v. Roger Lee JOHNSON, Appellant.

No. 40494.

Supreme Court of Washington, Department 2.

Dec. 24, 1969.

E. Albert Morrison, Tacoma, for appellant.

Joseph D. Mladinov, Special Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., and Eugene G. Olson, Chief Criminal Deputy Pros. Atty. with him on the brief) for State of Washington.

HALE, Judge.

Whoever shot Colonel Morgan at close range with a shotgun intended to kill him. The blast tore away the lower part of his face and jaw, but he survived to tell about it in court. He described the route he had been traveling just before the attempted murder and mentioned a white car which seemed to have been used by the assailant. The state proved to the satisfaction of the jury that Morgan's son-in-law, Roger Lee Johnson, was the intended executioner. Johnson now appeals a judgment and sentence of not more than 20 years' imprisonment.

The Prosecuting Attorney for Pierce County charged Roger Lee Johnson with the crime of assault in the first degree, alleging that on the 26th day of May, 1968, the accused 'with intent to kill William Morgan, did assault the said William Morgan with a firearm and deadly weapon likely to produce death, to-wit: a shotgun.' The jury returned a verdict of guilty and a separate special verdict that the defendant was armed with a deadly weapon. Appealing the judgment and sentence of not more than 20 years' imprisonment, defendant specifies six assignments of error, including the testimony of an admitted accomplice, one Roy Hamilton Zaabel, and the insufficiency of the whole evidence to support a conviction.

In the third assignment of error, defendant says he did not get a fair trial and makes two contentions: (1) that the court prejudicially required the accused and his counsel to sit at the counsel table farthest from the jury box during selection of the jury, and (2) that the court excluded the substantive testimony of defendant's wife after defendant had declined to include her among sequestered witnesses.

The question as to the seating arrangement arose when defense counsel said that the three attorneys for the state had preempted the counsel table closest to the jury box; that this gave the state a marked advantage and put the accused to a distinct disadvantage during voir dire examination of the jury; and that this proximity would magnify the effect of the prosecution's papers and documents when sorted and handled close to the jury during trial. He objected to the arrangement.

Most errors occurring during voir dire examination of a prospective jury are correctable by admonitions and instructions and are addressed largely to the trial court's sound discretion. 2 Orland, Wash.Prac. § 196 (2d ed. 1965). Physical arrangement of the courtroom, including placement of jurors, counsel and parties, and the location of bench, witness box, court reporter and clerk during all stages of trial likewise falls within the discretion of the trial judge. Since two persons cannot occupy the same exact spot in the courtroom at the same time, and the perfect courtroom apparently has not yet been designed--or, if designed, certainly not made available to the judges of this state--the power to control the location of parties, jurors, counsel, witnesses and attache § is both necessary and important. If, despite objection, it appears that the court has not abused its discretion in allocating seating arrangements and has not positioned either party or counsel to such a disadvantage as to reflect animus, bias or ill will, or unnecessarily deprived counsel or parties of a fair vantage point, or reflected unfairly upon or disparaged a party in the view of the jury, then the discretion has not been abused and the court's ruling will not be disturbed. It would have been awkward and impracticable to have all counsel sit at the table nearest the jury during voir dire. As to the remainder of the trial, the court indicated it would allow an exchange of positions, declaring:

at the time of the trial of the case that during presentation of the evidence by the prosecuting attorney as far as I was concerned he might sit in those seats nearest to the jury, and at the time when the burden of proceeding rested upon the defense counsel those positions may be reversed.

Because the trial court has a duty to conduct the trial fairly, expeditiously and impartially, it has a corresponding power to adopt practices and procedures reasonably designed to secure such ends. 88 C.J.S. Trial § 36 (1955). As to those matters not regulated or covered by statute, formal rule or precedent, the law, to enable the trial court to conduct the trial with dignity, decorum and dispatch and maintain impartiality, necessarily vests in the trial judge a wide discretion. This discretion naturally includes control of seating arrangements for parties, counsel and witnesses. Although the following authorities do not cover the precise point in issue here, they do sustain the idea of a broad discretion in the trial court to govern the seating arrangements in the courtroom: Commonwealth v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967); Shaver v. State, 165 Tex.Cr.R. 276, 306 S.W.2d 128, cert. denied, 355 U.S. 864, 78 S.Ct. 98, 2 L.Ed.2d 70 (1957); and Williams v. State, 155 Tex.Cr.R. 370, 235 S.W.2d 166 (1950). We find nothing in the record to support a conclusion that the trial court abused its discretion as to the seating arrangements during the trial.

Defendant assigns error to the ruling that the defendant's wife, having remained in the courtroom during trial when all other witnesses had been excluded, was ineligible to give substantive testimony of alibi. At the beginning of trial, the prosecuting attorney, stating that he had not yet received a list of the defendant's witnesses, moved for the exclusion of all witnesses. Defendant said that he had not yet determined whether he would call his wife to the stand, but insisted that he had a right to have her present during trial and to testify if he did decide to call her. He urged that the order of sequestration of witnesses should not apply to the wife of one on trial for a serious crime.

In the colloquy, defendant indicated his wife's testimony would corroborate his alibi. The court then announced that it would apply the exclusionary rule to defendant's wife if her evidence would be other than evidence as to character and reputation, ruling:

Well, I think the rule applies to all witnesses. If she is only going to testify to character or something like that, that's one thing, but if she'll testify as to any facts pertinent or relevant to defense of her husband by way of corroboration, it seems to me she comes within the rule.

and,

She may remain, but if she's called as a witness I will prevent her from testifying under the prosecution's motion.

The court then ordered all witnesses excluded from the courtroom, and the defendant elected to have his wife remain. After the state had concluded its case in chief, the victim's wife testified on behalf of the defendant. Then the defendant took the stand, giving a detailed account of his activities before, during, and right after the established time of the shooting. Denying both his guilt and any guilty knowledge of the crime, the defendant called his wife to the witness stand. Ruling that the defendant had made an election in having his wife remain in the courtroom, the court sustained the state's objection to her giving substantive testimony.

The defendant thereupon offered to prove that his wife, Joyce Johnson, would testify that she had remained at home on the evening of the 25th with her husband; that they had visitors in their home; that her husband was present in the home with her on the morning of the 26th of May, 1968; that he helped take care of their child that morning; and that they left their home to go skeet shooting at Gig Harbor--as her husband had earlier testified--and that she remained with him at Gig Harbor, watched him shoot skeet there and then returned home with him. In substance, she would testify that her husband never left her presence at the home or enroute to Gig Harbor during all periods relevant to the time of the crime as shown by the state's evidence. The court, adhering to its earlier ruling, excluded this offered evidence.

Neither the defense nor the prosecution has cited authority concerning the exclusion of the wife's alibi testimony. The power to exclude witnesses from the courtroom, we think, falls within the general discretionary powers of the court to be exercised during trial in aid of eliciting the truth, promoting the orderly presentation of evidence, and to assure that all parties, in the exercise of reasonable diligence, are afforded fair opportunity to offer all relevant evidence. State v. Weaver, 60 Wash.2d 87, 371 P.2d 1006 (1962); State v. Lee Doon, 7 Wash. 308, 34 P. 1103 (1893); Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); United States v. Schaefer, 299 F.2d 625, 14 A.L.R.3d 1 (7th Cir. 1962), cert. denied, 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497, and Taylor v. United States, 388 F.2d 786 (9th Cir. 1967).

If, through inadvertence, inattention or mistake an excluded witness remains in the courtroom under circumstances which show the witness and the party who calls him are innocent of intention to violate the court's order, it is generally held an abuse of discretion to deprive a party without fault of substantive evidence. Accordingly, in those cases where the court receives the testimony of a witness who failed to comply with an order of sequestration, the court's ruling will not be disturbed on review unless special circumstances are shown that the witness remained in the courtroom with the consent, or connivance, or knowledge of the party calling him. Holder v. United States, Supra. Thus, the ruling of the trial...