State v. Kubicek

• Decision Date: 15 November 1972
• Docket Number: No. 42220,42220
• Citation: 81 Wn.2d 497,502 P.2d 1190
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Theodore KUBICEK, Respondent.

Page 497

81 Wn.2d 497

502 P.2d 1190

The STATE of Washington, Petitioner, v. Theodore KUBICEK, Respondent.

No. 42220.

Supreme Court of Washington, En Banc.

Nov. 15, 1972.

Robert E. Schillberg, Pros. Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for petitioner.

Richard A. Bailey, Arlington, for respondent.

HALE, Associate Justice.

A jury found defendant guilty of burglary in the second degree, returning a special verdict that at the time of the crime he was armed with a deadly weapon. He appealed the judgment and sentence entered on the verdict to the Court of Appeals which reversed on the ground that the instruction on alibi constituted reversible error. 5 Wash.App. 293, 486 P.2d 1098 (1971). We granted review (80 Wash.2d 1002 (1971)), partly on a divergence of views among the divisions of the Court of Appeals, and reverse the Court of Appeals. See State v. Adams, 5 Wash.App. 366, 487 P.2d 218 (1971), affirmed, Wash., 503 P.2d 111 (1972), and State v. Pam, 1 Wash.App. 723, 463 P.2d 200 (1969), review denied, 77 Wash.2d 963 (1970).

About 2:50 a.m., September 17, 1969, Edward A. Mallang a police officer on routine patrol in the town of Snohomish, driving by the U & I Tavern, noticed for the first time a blue 1966 Chrysler and a light brown 1962 Chevrolet parked in a cul-de-sac. He knew that the 1962 Chevrolet belonged to a family residing in a house on the cul-de-sac; the other car--the 1966 Chrysler--he had not seen before. He checked both cars and observed a man sleeping in the Chrysler but did not disturb him. A little later, on resuming his patrol of that area and returning to the cul-de-sac, he saw a third car there, this one a burgundy-colored 1965 Mustang, with license plates AYH 403, in which, as a police officer, he had a particular interest.

He recognized the Mustang automobile from an investigation he had made about 1 month earlier on August 20th, when he had seen it parked in the 1700 block of Rucker Street in Everett. On that occasion, the police were looking for a 1965 burgundy-colored Mustang with that same license number, and he made note of its location. A day or two later, August 21st or 22nd, while still interested in that particular car, he saw it on the street, drove alongside it, and identified its driver as Mr. Kubicek, the defendant in this case. He did not see the car nor the defendant again until the 17th of September when, as noted, he saw the car parked in the cul-de-sac at about 3:15 a.m. in the town of Snohomish.

On seeing the Mustang, Officer Mallang radioed the police station for a registration check on the vehicle and proceeded on foot to inspect the business premises in the 900 and 1000 block of First Street, Snohomish. Staying close to the building, he looked through the front glass of the U & I Tavern and observed that a cover had been removed from one of the two pool tables. His suspicion aroused, he looked more closely and saw a man crouching at the pool table. The man he observed was looking at him. It appeared to the officer as though the man had been trying to open the coin box of a pinball machine.

Officer Mallang said that he was only 8 to 10 feet from the point where the man was kneeling and that the man looked at him for what seemed an extremely long period of time--10 to 15 seconds--and that he recognized him to be Ted Kubicek, the defendant, the same man whom he had seen driving the 1965 burgundy-colored Mustang automobile in August. After looking at the police officer and hesitating, the defendant darted and ran toward the rear of the tavern. The officer said the man was wearing dark brown clothing, a dark khaki trouser of the type worn in a service station, had dark black hair, a little on the long side. He described a number of lights in the tavern which so illuminated the area that he could see the defendant clearly.

The defendant, he said, ran toward the bar, and the officer fired a warning shot over his head. The defendant, he said, crouched at a break in the bar and pointed a pistol at him. The officer fired again, this time more directly at the defendant, and saw him disappear, to reappear at the back of the tavern and then disappear again. When other officers arrived, Officer Mallang led them to a nearby building which he thought Kubicek had entered, and using a loud speaker called out, 'Ted Kubicek, you have been recognized. You are surrounded. Come out into the open with your arms in the air.' There was no response; the defendant, he said, could not be found in the vicinity.

Returning to the 1965 burgundy-colored Mustang, the officer found a pair of pants and a shirt in the front seat. In the jury's absence, he testified that in the pants was a wallet bearing identification in the name of Theodore W. Kubicek or Ted Kubicek and a conditional sale contract for the car showing the buyer to be Theodore W. Kubicek.

Asked by defendant's counsel on cross-examination and in the jury's absence if he had read some of defendant's personal correspondence in the wallet from the Board of Prison Terms and Paroles, he answered, 'Yes,' and that he had taken possession of this correspondence and kept it in the Snohomish Police Department's possession since September 17, 1969. Also, on cross-examination, he was asked:

Q. Officer, based on your personal knowledge did the Board of Prison Terms and Paroles, on the 12th day of December, 1969, hold a revocation hearing involving the defendant, Mr. Kubicek? A. Yes, there was a revocation hearing.

Officer Mallang said that, before returning to the Mustang automobile which he had earlier identified, and at the time when he recognized the defendant crouching by the pinball machine in the tavern, he had no doubt in his mind as to the accused's identity. He testified that, in connection with his work as a police officer, he was that night carrying with him a picture of Ted Kubicek; that, although he had a flashlight with him, the interior of the U & I Tavern was light enough for him to see and identify the defendant without it.

The owner of the U & I Tavern testified that his place had been broken into that night; that the cash change drawer on the till had been moved and his pistol taken; that money trays on the pool tables had been forced open and the money removed. Another police officer said that he had seen the defendant Kubicek on the preceding August 19th driving a burgundy Mustang bearing license No. AYH 403, and that he had stopped the defendant who had shown him his driver's license.

The defendant testified he had gone to a cafe earlier in the evening and then to a tavern. He left the tavern about midnight and he and a causal acquaintance went to Duffy's No. 2 in the town of Monroe, he said, to shoot pool. He was driving a 1965 burgundy-colored Mustang car, he said. They shot pool until the place closed at about 2 a.m., the early morning of September 17th. He said they left Duffy's No. 2 and drove to Snohomish and there left the 1965 burgundy-colored Mustang. They then drove the other man's 1962 Chevrolet into Everett where they went to the London Cafe. He left the London Cafe about 3:45 a.m., he said, and walked to his home about 2 blocks away where he went to bed.

He corroborated his landlady's testimony that next morning when she told him the police were looking for him, he told her, 'Well, call them up and tell them I'm coming up.' He did not, however, go to the police station, he acknowledged. I...