State v. Johnson

• Decision Date: 10 January 1975
• Docket Number: No. 2261--I,2261--I
• Citation: 12 Wn.App. 548,530 P.2d 662
• Parties: STATE of Washington, Respondent, v. Herman JOHNSON, Jr., Appellant.
• Court: Washington Court of Appeals

Page 548

12 Wn.App. 548

530 P.2d 662

STATE of Washington, Respondent, v. Herman JOHNSON, Jr., Appellant.

No. 2261--I.

Court of Appeals of Washington, Division 1.

Jan. 10, 1975.

John A. Strait, Seattle-King County Public Defender, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., James J. Lamont, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Judge.

Defendant appeals a judgment convicting him of second degree murder and second degree assault committed while armed with a deadly weapon and firearm.

On December 13, 1972 defendant and his brother were involved in an altercation in the Bitter End Tavern in Seattle, Washington. While so involved, defendant shot one James Hanlin four times, mortally wounding him. Defendant was subsequently convicted of the latter's second degree murder and second degree assault, in each case while armed with a deadly weapon and firearm. Defendant appeals.

He relies on three categories of claimed errors. These concern (1) the matter of 'slanting the case for the prosecution,' thereby denying defendant 'fundamental fairness . . . and due process of law'; (2) instructions given and refused; and (3) rulings on evidence and order of proof. We find no reversible error and affirm.

Many errors assigned deal with the exercise of the trial court's discretion. Certain legal principles are pertinent. A trial judge, in conducting a trial, is more than a mere umpire. He must oversee and direct the trial to the end that the merits of the case be reached with reasonable dispatch and with fairness to the parties litigant. The discharge of his responsibilities may require the frequent exercise of discretion from the time the case is filed until the court's jurisdiction with reference to the case terminates. Thus, the trial judge during trial may exercise discretion concerning such matters as the order of proof, the use of leading or impeaching questions, the qualifications of a witness to testify, the admissibility of evidence in passing on objections claiming the evidence is irrelevant or remote, the scope of direct, cross, redirect, or subsequent examination of witnesses, the phrasing of instructions, the order in which the instructions are given, and the statement of reasons for rulings made. See generally R. Bowers, The Judicial Discretion of Trial Courts (1931); Talley v. Fournier, 3 Wash.App. 808, 479 P.2d 96 (1970).

The trial court's exercise of discretion is reversible for abuse, I.e., if 'exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable.' Friedlander v. Friedlander, 80 Wash.2d 293, 298, 494 P.2d 208, 211 (1972). Abuse of discretion does not exist merely because others might have exercised the discretion differently.

Even if error exists because discretion has been abused, the error will not be reversible unless 'within reasonable probabilities, had the error not occurred, the result might have been materially more favorable to the one complaining of it.' State v. Rogers, 83 Wash.2d 553, 557, 520 P.2d 159, 161 (1974). See State v. White Eagle, 12 Wash.App. 97, 527 P.2d 1390 (1974). See generally 5A C.J.S. Appeal and Error §§ 1676, 1677 (1958); R. Traynor, The Riddle of Harmless Error (1970).

We consider defendant's assignments of error in light of the legal principles stated.

Defendant contends the trial court unduly favored the state's case, thereby denying defendant fundamental fairness and due proces of law. The state strongly disagrees, contending the trial court was very evenhanded throughout the course of trial. Each party relies on incidents and rulings claimed to support his or its position. It becomes quickly apparent from the record covering the 13-day trial involving the testimony of 30 witnesses that the parties had different and strongly held views concerning the true facts of the case. The state contended defendant was guilty of a needless and cruel assault and murder upon a helpless victim ultimately shot and killed. Defendant contends the killing was accidental and unintentional, and occurred while defendant was defending his brother then threatened with grievous harm at the hands of prejudiced assailants. The court was required to rule on many objections made by counsel for the respective parties to the reception of testimony. It would unduly prolong this opinion to discuss each of the incidents on which the respective parties rely. Our overall examination of the record does not sufficiently support the assignment of error discussed.

Some observations in In re Deming, 192 Wash. 190, 201--202, 73 P.2d 764, 771 (1937), a long accounting case tried to the court, are relevant. Appellant there devoted 86 pages of his brief to argument in an endeavor to show serious bias against him in the conduct of the trial. He asked for a new trial. The Supreme Court, after reviewing the entire record, said:

The hearing, as above stated, was unusually long. Lengthy and complicated accounts were necessarily considered. The trial was participated in by the first guardian, by two of his sureties, by the second guardian, by Robertson and his counsel, and by the guardian Ad litem. Able and energetic counsel were vigorously endeavoring to advance the conflicting interests of their respective clients. Considerable tension developed, and at times the strain upon court and counsel manifested itself by way of tart joinder and rejoinder. However, the record affords no basis for holding that, because of any bias or prejudice on the part of the trial court, appellant did not have a fair trial, and that consequently this court should direct that a new trial be granted and the entire matter heard over again. Appellant's first assignment of error is without merit.

The second category of assignments of error deal with instructions given and refused. We find no error. Instructions No. 1, 7, 10 and 12 were excepted to as redundant or repetitious. Some repetition is often unavoidable in an effort to give a complete and clear set of instructions. The trial court had a right to phrase the instructions as he did for purposes of clarification. See Peacock v. Piper, 81 Wash.2d 731, 504 P.2d 1124 (1973); Jackson v. Department of Labor & Indus., 54 Wash.2d 643, 343 P.2d 1033 (1959); State v. Howard, 12 Wash.App. 158, 529 P.2d 21 (1974). We do not find the claimed repetition excessive.

Defendant claims the court erred in giving instruction No. 5 dealing with inferred intent. CR 51(f) requires 'The objector shall state distinctly the matter to which he objects and the grounds of his objection . . .' The first objection made was the instruction was tantamount to ordering 'a directed verdict almost.' The objection was too general to be reviewable. The second objection was that particular language of the instruction was unnecessary. It is not claimed the language objected to was incorrect or unsupported by substantial evidence. Defendant was not prejudiced. See Riblet v. Ideal Cement Co., 54 Wash.2d 779, 345 P.2d 173 (1959); Jackson v. Department of Labor & Indus., Supra; State v. Howard, Supra.

Defendant complains of the court's instruction No. 13, dealing with whether the assault was justified. He contends the court should have instructed the assault could be justified if committed in lawful defense of one's brother. The matter complained of is sufficiently covered in court's instruction No. 6, which expressly instructs the jury that homicide is justifiable in lawful defense of a slayer and certain others, including his brother. See Kjellman v. Richards, 82 Wash.2d 766, 514 P.2d 134 (1973); Wilson v. Walla Walla, 12 Wash.App. 152, 528 P.2d 1006 (1974).

Defendant contends instruction, no. 17 on flight is not supported by substantial evidence. We do not agree. There is no claim the content of the instruction is erroneous. The jury could have found that, following the mortal wounding of the victim Hanlin by defendant, defendant joined his brother in fleeing from the scene to escape arrest. Defendant contends he left the scene to escape further mishandling by persons in the Bitter End Tavern. It was for the jury to decide whether to accept defendant's rather than the state's version of the facts.

Defendant contends the court erred in refusing his proposed instruction No. 1. The sole exception taken was 'this instruction should be given . . .' because it was 'very appropriate.' The objection was too general to be reviewable. CR 51(f); State v. Chambers, 81 Wash.2d 929, 506 P.2d 311 (1973); State v. Scherer, 77 Wash.2d 345, 462 P.2d 549 (1969); State v. Moore, 77 Wash.2d 54, 459 P.2d 643 (1969).

Defendant contends the court erroneously refused his proposed instruction No. 7 dealing with specific intent. Some type of objection appears to have been made to the proposed instruction during an unreported colloquy between court and counsel. The nature of the objection taken was not stated when exceptions were taken. Without compliance with CR 51(f), we have no basis for reviewing the error claimed. Stuart v. Consolidated Foods Corp., 6 Wash.App. 841, 496 P.2d 527 (1972). In any case, the instructions given, considered as a whole, were reasonably sufficient to enable defendant to argue the matters covered by his refused instruction. The error assigned is not reversible error. Kjellman v. Richards, Supra; State v. Swartos, 65 Wash.2d 335, 396 P.2d 971 (1964).

Defendant contends the court erred in refusing his proposed instructions No. 6, 11 and 14. Proposed instruction No. 6, dealing with weight of evidence and credibility, is sufficiently covered by court's instructions No. 3, 13 1/2, 14 and 15, from which defendant was sufficiently able to argue his theory of the facts of the case. Proposed instruction No. 11, dealing with the matter of proving second-degree assault to have been willfully committed, is sufficiently covered by court's instruction No. 15. Proposed instruction No. 14, dealing with the right of self-defense and the defense...