State v. Jordan

• Decision Date: 29 July 1971
• Docket Number: No. 41925,41925
• Citation: 487 P.2d 617,79 Wn.2d 480
• Parties: The STATE of Washington, Respondent, v. Michael Lee JORDAN, Appellant.
• Court: Washington Supreme Court

Page 480

79 Wn.2d 480

487 P.2d 617

The STATE of Washington, Respondent, v. Michael Lee JORDAN, Appellant.

No. 41925.

Supreme Court of Washington, Department 2.

July 29, 1971.

Bovy, Graham, Cohen & Wampold, Norman W. Cohen, Seattle, for appellant.

Christopher T. Bayley, Pros. Atty., Seattle, for respondent.

SHARP, Associate Justice.

This is an appeal from a conviction under the Uniform Narcotic Drug Act, RCW 69.33, for unlawful possession of the narcotic drug codeine.

The defendant rented a room at a Seattle motel on July 10, 1969. On the following day, at about 9:15 a.m., the maid at the motel checked the defendant's room and saw the defendant lying fully clothed on the bed, apparently sleeping. She returned about 11:30 a.m. and the defendant was in the same position on the bed. When she returned with another person at about 1:30 p.m., the defendant still had not moved. His face appeared grayish and there was no indication of life. After she once again returned about 4:30 p.m. and saw that the defendant was in the same position on the bed, the police were summoned.

Two officers of the Seattle Police Department responded to the call, and found the defendant in the same unconscious condition. Being unable to arouse him and not knowing the nature or cause of his affliction, they immediately summoned an ambulance. The defendant was wearing a T-shirt and they noted needle marks on his arms. Looking for identification, they examined his clothing and a black bag lying on the floor--the only personal possessions in the room. In a pocket of a coat lying on the bed they found a bottle containing about 60 methamphetamine pills in a yellowish fluid. A used hypodermic needle was on the floor between the bed and the door. In the bag was defendant's identification, as well as a number of needles and syringes together with a small container similar to a shell of a cigarette lighter containing approximately one dozen codeine pills. Upon arrival of the ambulance, the drivers were instructed that he was to be held in the hospital for the narcotics detail.

The defendant was subsequently charged with, and found guilty by a jury of, the crime of unlawful possession of codeine.

On this appeal, the defendant first contends that the trial court erred in not granting a mistrial on the ground that handcuffs were placed on the defendant in the presence of at least two jurors.

When the incident occurred during the trial, defendant's counsel advised the court as follows:

Your Honor, as the court recessed for the noon hour as we were about to leave, the jurors went back to the jury room and came out at which time one of the deputy sheriffs, nonmaliciously, quite by accident, but nontheless handcuffered and escorted Mr. Jordan away in front of two jurors.

Thereupon, the trial judge promptly, and properly admonished the jury that the fact that a defendant may be in custody at the time of trial has no bearing whatsoever on the issue of his guilt or innocence since he may or may not make bail depending on his desire and/or ability, and is held in custody if he does not do so. The defendant has failed to make any showing of prejudice resulting from the occurrence. The incident amounted, at most, to a mere misadventure. Under these circumstances, a new trial is unwarranted. State v. Sawyer, 60 Wash.2d 83, 371 P.2d 932 (1962).

The defendant next assigns error to the admission into evidence of certain testimony and exhibits relating to the circumstances in which the defendant was discovered. In describing the appearance of the defendant and of the room where he lay, the police officers made mention of the needle marks and identified the various drug paraphernalia found either on the person or in close proximity to him. The defendant urges that the admission of such testimony and exhibits placed the defendant on trial for offenses not charged in the information under the reasoning of State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950).

We disagree. The evidence simply discloses the circumstances in which the defendant was initially discovered by the police officers. Since the defendant's theory for acquittal was that he was in lawful possession of the codeine pursuant to a prescription, the officers' description of the defendant and his immediate surroundings when he was first discovered was relevant to a crucial issue in this case which the jury was charged to decide: namely, the lawfulness or unlawfulness of the defendant's possession of codeine under the circumstances. Even if this evidence could be interpreted as indicating other criminal activity on the part of defendant, we deem it admissible under the rule reenunciated by this court in State v. Niblack, 74 Wash.2d 200, at page 206, 443 P.2d 809, at page 813 (1968), wherein we stated:

There is another class of cases in which evidence of misconduct of the defendant may be received. That class includes cases which involve other criminal acts which are an inseparable part of the whole deed. State v. Priest, 132 Wash. 580, 232 P. 353 (1925); State v. Conroy, 82 Wash. 417, 144 P. 538 (1914); State v. McDowell, 61 Wash. 398, 112 P. 521 (1911); 1 J. Wigmore, Evidence § 218 (3d ed. 1940); 29 Am.Jur.2d Evidence § 321 (1967).

Such evidence is not open to the objections which justify exclusion of other unrelated crimes. It does not raise the possibility that the jury will condemn the defendant, although he is innocent of the act charged, because it is prejudiced by his former crimes; and the...