State v. Lampshire

• Decision Date: 21 November 1968
• Docket Number: No. 39644,39644
• Citation: 447 P.2d 727,74 Wn.2d 888
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Martha Kaye LAMPSHIRE, Appellant.

Page 888

74 Wn.2d 888

447 P.2d 727

STATE of Washington, Respondent, v. Martha Kaye LAMPSHIRE, Appellant.

No. 39644.

Supreme Court of Washington, En Banc.

Nov. 21, 1968.

Rehearing Denied Jan. 24, 1969.

Charles T. Morbeck, Kennewick, Eugene G. Schuster, Richland, for appellant.

Herbert H. Davis, Pros. Atty., Carl G. Sonderman, Deputy Pros. Atty., Prosser, for respondent.

HUNTER, Judge.

The defendant (appellant), Martha K. Lampshire, appeals from a judgment and sentence entered on a jury verdict finding her guilty of five counts of the crime of carnal knowledge.

The defendant is a woman in her early twenties. She is the mother of two children and was expecting a third at the time of the trial. In her early teens she ran away from home and as a result was placed in a correctional institution. Thereafter, she was committed to Western State Hospital for a perid of time. In 1962, she married Glen Greger, and secured a divorce from him in 1964. She and her present husband, Jack Lampshire, were married in 1964 after the divorce from Greger. Of this marriage, a son, Steve, was born, who was 2 years old at the time of trial. Jack Lampshire is an enlisted man in the Air Force and was sent to Vietnam in 1966. The defendant and her children moved in with a longtime family friend, Bob Hanneman, who occupied a 2-bedroom house in Richland, Washington. About December 27, 1966, Hanneman moved to another house in West Richland, and the defendant and her children accompanied him. It was at these two residences of Hanneman that the alleged crimes of the defendant took place.

The defendant was first arrested on January 5, 1967, on a charge of carnal knowledge. Subsequently she was charged on five separate counts with violating RCW 9.79.020, which as pertinent to this case reads:

Carnal knowledge--Penalties. Every male person who shall carnally know and abuse any female child under the age of eighteen years, not his wife, and every female person who shall have sexual intercourse with any male child under the age of eighteen years, not her husband, shall be punished as follows:

(3) When such act is committed upon a child of fifteen years of age and under eighteen years of age, by imprisonment in the state penitentiary for not more than fifteen years.

At the trial the prosecution produced three juveniles, 17, 17 and 16 years of age, respectively, who testified that they had had intercourse with the defendant at the Richland and West Richland residences of Hanneman during the months of December, 1966 and January, 1967. Each of the prosecuting witnesses was, at the time of trial, in the custody of juvenile authorities for various offenses. One juvenile testified that he had been committed by the juvenile authorities to the Spruce Canyon Youth Forestry Camp for having intercourse with the defendant. A fourth state's witness, a 16-year-old boy, testified that he had seen the defendant and one of the prosecuting witnesses on the same bed on one occasion, and that, although it was dark, he heard hard breathing and saw body movement.

The defendant has consistently denied that she had intercourse with any of the prosecuting witnesses. Both her brother, who frequented Hanneman's residences, and Hanneman himself testified that she had not, to their knowledge, had intercourse with any of the prosecuting witnesses.

The jury returned a verdict of guilty on all five counts, and judgment and sentences were entered accordingly. The defendant was sentenced to a maximum term of 15 years on each count, the sentences to run concurrently. From this judgment and sentence, the appeal was taken.

It is significant, for the purposes of this appeal, that the prosecution's case turned almost entirely on the evidence of the three prosecuting witnesses and the 16-year-old boy. No physical evidence was introduced. In order to return its verdict the jury had to believe the prosecuting witnesses instead of the defendant and her witnesses. The question before the jury was solely one of the credibility of the witnesses.

The defendant's first contention is that the trial court erred when it refused to permit the defendant to cross-examine one of the prosecuting witnesses as to prior acts of unchastity. The defendant argues that such questions were appropriate in order to show that the veracity of this witness was questionable, and therefore, that the trial court abused its discretion in foreclosing this line of inquiry. Also, it is suggested that we apply a rule in this case different from the one evolved in the many previous cases brought under this statute where the prosecuting witnesses have been female, since there is less reason to protect the reputation of a male prosecuting witness than the reputation of a female prosecuting witness.

We believe that the same rule should apply to all prosecuting witnesses, male or female. It is within the discretion of the trial court as to whether evidence concerning specific acts of sexual misconduct will be received in order to impeach the credibility of such a witness. State v. Brown, 68 Wash.2d 852, 416 P.2d 344 (1966); State v. Wolf, 40 Wash.2d 648, 245 P.2d 1009 (1952). We do not find that the trial court manifestly abused its discretion in foreclosing further inquiry into specific acts of misconduct of the prosecuting witness in this instance.

The defendant next assigns error to a remark made by the trial judge during the direct examination of the defendant. The record shows that, after an objection to the materiality of the testimony by the prosecution, the judge stated, in the presence of the jury:

Counsel's objection is well taken. We have been from bowel obstruction to sister Betsy, and I don't see the materiality, counsel.

The defendant contends this was a comment on the evidence, contrary to Const. art. 4, § 16. We must agree. As we said in Heitfeld v. Benevolent Protective Order of Keglers, 36 Wash.2d 685, 699, 220 P.2d 655, 663, 18 A.L.R.2d 983 (1950), the purpose of Art. 4, § 16 of the Washington constitution, 'is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted.'

The record shows that the trial judge allowed wide latitude in the examination of the defendant. The defendant testified concerning the bowel condition of her 6-year-old daughter, and also about a visit she and her sister Betsy had made to their mother in Colorado.

We are satisfied that the remark of the trial judge was made inadvertently in ruling on the motion. Novertheless, the remark implicitly conveyed to the jury his personal opinion concerning the worth of the defendant's testimony. Consequently, the burden rests on the state to show that no prejudice resulted to the defendant unless it affirmatively appears from the record that no prejudice could have resulted from the court's comment. State v. Bogner, 62 Wash.2d 247, 382 P.2d 254 (1963).

In the instant case the record affirmatively shows that the court's comment was prejudicial, since it undermined the credibility of the defendant's testimony, and there is an absence of any showing to the contrary. Therefore, we hold that prejudicial error has been committed.

The state argues that the trial court was merely giving its reasons for a ruling on the evidence, and that, if the remark was error, the error was cured by the court's subsequent oral instruction to the jury to disregard comments of court and counsel. We disagree. Under the facts here, the damage was done when the remark was made and it was not capable of being cured by a subsequent instruction to disregard. See State v. Jackson, 83 Wash. 514, 145 P. 470 (1915).

The state further argues that error may not be predicated upon the trial court's remark because the defendant failed to object to it at the time it was made, or to request a curative instruction, citing State v. Kelsey,46 Wash.2d 617, 283 P.2d 982 (1955). However, that case held, in accordance with the usual rule, that an error not raised at trial is not subject to review. The opinion did not consider the established exception to that rule, that an error need not be raised at trial in order to secure review if it amounts to an invasion of a constitutional right. State v. Warwick, 105 Wash. 634, 637, 178 P. 977 (1919); State v. Jackson, supra, 83 Wash. at 525, 145 P. 470; State v. Crotts, 22 Wash. 245, 60 P. 403 (1900). Since a comment on the evidence violates a constitutional prohibition, the defendant's failure to object or move for a mistrial does not foreclose her from raising this issue on appeal.

The defendant next contends that the trial court erred in overruling her objection when the prosecutor, on cross-examination, inquired concerning a sizeable phone bill she had incurred. It is argued that this subject was beyond the scope of direct examination, and that the purpose of embarking on it was to attack the character and credibility of the defendant. The prosecutor's question raised the inference that the phone bill totaled $3,000.

It is a recognized rule, for which authorities need not be cited, that cross-examination is limited to the scope of the direct examination, and that the trial court is endowed with discretion in determining the latitude of cross-examination. In this case, the trial court manifestly abused its discretion in permitting the prosecutor to cross-examine the defendant in regard to the phone bill, which was highly prejudicial to the character and credibility of the defendant. The matter of a large phone bill owed by the defendant, which was entirely a collateral question, was not raised on direct examination. Although the defendant did refer on direct examination to a phone bill incurred by one of the prosecuting witnesses, this statement did not open the way for the state to inquire into the defendant's own phone bill. Also, the rule is well established that witnesses may not be impeached by means of evidence of prior acts of...