State v. Louie

• Decision Date: 07 April 1966
• Docket Number: No. 36999,36999
• Citation: 413 P.2d 7,68 Wn.2d 304
• Parties: The STATE of Washington, Respondent, v. Vernon James LOUIE, Appellant.
• Court: Washington Supreme Court

Page 304

68 Wn.2d 304

413 P.2d 7

The STATE of Washington, Respondent, v. Vernon James LOUIE, Appellant.

No. 36999.

Supreme Court of Washington, En Banc.

April 7, 1966.

Ronald L. Hendry and Elvin J. Vandeberg, Tacoma, for appellant.

John G. McCutcheon, Pros. Atty., Edwin J. Wheeler, Deputy Pros. Atty., Tacoma, for respondent.

HAMILTON, Judge.

The defendant (appellant) was charged, tried and convicted of the crime of second-degree burglary. He appeals. We affirm the conviction.

On August 5, 1962, at approximately 3:00 a.m., Officer George E. Babcock of the Tacoma Police Department was driving home when he saw a new tire roll across the street in front of his automobile. It appeared to come from Roy's Enco Service Station located in South Tacoma. He promptly stopped to investigate, whereupon he observed a ladder against the rear of the service-station building and defendant standing in front of the lubrication room. He approached the defendant, inquired as to his identity, and after engaging in a brief conversation placed him under arrest. He directed the defendant to accompany him across the street to a telephone booth for the purpose of calling for assistance. While the officer was dialing the telephone, the defendant struck him and attempted to get his revolver. In the struggle, the defendant was shot in the leg. The defendant was taken by ambulance to St. Joseph's Hospital in Tacoma, and a few days later was transferred to Mountain View Hospital, where he remained for approximately 2 months prior to his return to the city jail on or about October 4, 1962. Officer William W. Luebke of the Tacoma Police Department, who arrived at the scene after defendant was shot and while he was being placed in the ambulance, investigated the service-station premises with Officer Babcock. Officer Luebke testified, in substance, as follows:

A pane in the window in the lubrication room had been broken, and glass was on the floor of the station. The window frame was bent in such a way as to permit a grown man to crawl through. Two new tires in paper wrappings, including the one which Officer Babcock had observed rolling in front of his automobile, were outside the station. One appeared to be bloodstained. Inside the station all was in disarray; coin operated machines had been broken into; and trails of blood appeared, inside and outside the station. There were trails of solvent in the service station which had a distinctive odor. This odor was later detected upon defendant's shoes at the hospital.

Officer Babcock testified that defendant's hand was crudely bandaged and had been dripping blood when he was apprehended. He otherwise substantiated Officer Luebke's observations. The station attendant testified that the station was cleaned and locked the evening before defendant's arrest, that the windows were intact, and that the next morning the station was disarranged and the two new tires were missing. Photographs of the station and its contents were introduced into evidence.

The defendant testified that he had spilled some solvent on his pants and right shoe on Friday, August 3, while working in an automotive body shop where he was employed. He further testified that when he got off work that afternoon he began a 'drinking spree.' He stated that Saturday afternoon, about 13 hours before he was arrested, he met two women he had known in his hometown of Wapato and took them with him to the Friendly Tavern, where he stayed for about 8 hours. Defendant further testified that after he left the Friendly Tavern, sometime between 10 and 10:30 p.m., his hand was cut during a fight and bled through a loose bandage. He said that after the fight he entered the Milwaukee Tavern and could remember nothing from that time until he struck Officer Babcock at approximately 3:30 a.m. He did not know whether the two women had left the Friendly Tavern with him or had accompanied him at any time thereafter.

The defendant, on appeal, first contends that the trial court erred in denying a timely motion to dismiss the charges. By this motion, defendant alleged that he had been denied due process through refusal to grant him the assistance of counsel during the 2-month period he was under treatment in the hospitals as a result of the gun shot wound.

The testimony of defendant upon this issue shows that he requested an attorney (no one by name) while at St. Joseph's Hospital and was told by attendants that he was under arrest and could not see an attorney; that after he had been transferred to Mountain View Hospital police officers asked him to sign a statement concerning the alleged burglary which he refused to do. At this time, he stated he again requested that he be allowed to see an attorney and was again told that he was under arrest and could not see an attorney. One month after his arrest, a social worker telephoned either the county or city jail at defendant's request and stated that he desired to speak with a specific attorney, whose name he had selected from a telephone directory. The record does not show what was done in response to this call. In any event, no attorney came to see defendant.

After defendant's return to the city jail on October 4, 1962, he was permitted to see and retain an attorney. Bail was set on October 5, 1962. Defendant appeared before the court on October 17, 1962, and, at his request, counsel was appointed to represent him. On October 26, 1962, defendant was arraigned and pleaded not guilty. Through the efforts of court-appointed counsel bail was reduced from $2,500 to $1,000, which was posted by friends of defendant on January 31, 1963. Trial commenced on February 5, 1963.

Allegations in the record that defendant had requested and had been denied assistance of counsel during his stay in the respective hospitals are uncontroverted. Refusal of such requests, whether they were for appointed or retained counsel, however, would not ipso facto constitute an infringement upon rights guaranteed by the tenth amendment to our state constitution or by the sixth amendment to the federal constitution, made obligatory upon the states by the fourteenth amendment to the federal constitution in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

To violate these constitutional provisions, the refusal must have occurred at a 'critical stage' in the pretrial proceedings. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. State of Illinois, supra; In re Pettit v. Rhay, 62 Wash.2d 515, 383 P.2d 889 (1963); State v. Jackson, 66 Wash.Dec.2d 19, 400 P.2d 744 (1965). And, it must appear that the refusal resulted in some reasonably discernible prejudice to the effectiveness of legal assistance ultimately furnished the accused. DeToro v. Pepersack, 332 F.2d 341 (4th Cir. 1964). In short, the courts must look to substance rather than labels in ascertaining whether constitutional rights to the assistance of counsel have been violated. State v. Jackson, supra.

In the instant case, no confessions, admissions, or incriminating statements were elicited from defendant during the period of his hospitalization. The defendant contends, however, as disclosed to the trial court at a pretrial hearing, that refusal of his requests for counsel denied him the opportunity to effectively prepare his defense at a time when certain witnesses were available.

The only witnesses designated by defendant were the two women, whom he testified accompanied him to the Friendly Tavern the evening before the alleged burglary. In this respect, it appears to be defendant's contention that he was so intoxicated on the night of August 5 that he had no recollection of what happened from the time he entered the Milwaukee Tavern until the altercation with Officer Babcock; that he was therefore incapable of forming the intent to commit burglary, an element essential to constitute the commission of the crime; that the women were migratory workers and would be in the area but a short time; that he knew them only by their first names and did not, at the time of trial, know their residence or employment; and, had counsel been available to him immediately After his hospitalization, the women might have been found. The defendant did not, however, purport to know whether their testimony would be favorable or unfavorable to him.

Under the foregoing, it is purely speculative (1) as to whether these potential witnesses could have been located by defendant's counsel, during the period of defendant's hospitalization had such counsel been available, and (2) as to whether their testimony would have assisted in his defense. Upon these facts and circumstances, we cannot say that refusal of the requests for counsel during defendant's hospitalization so prejudiced the effectiveness of the legal assistance accorded to him from and after October 5, 1962, as to compel or justify dismissal of the charge.

The defendant further argues that the denial of counsel was in violation of RCW 9.33.020(5). This statute makes it a misdemeanor for a police officer or other person having custody and control of a person under arrest to deny that person's request to communicate with an attorney. It adds nothing to the rights of the defendant which we have not heretofore considered.

We hold, therefore, that the trial court did not err in denying defendant's motion to dismiss.

The defendant next assigns error to the trial court's refusal to grant his motion for an arrest of judgment. The defendant contends that the evidence is purely circumstantial and insufficient to support a verdict against him of burglary in the second degree.

We disagree. The evidence we have heretofore detailed substantially...