State v. Lyskoski
| Decision Date | 04 August 1955 |
| Docket Number | No. 33066,33066 |
| Citation | 287 P.2d 114,47 Wn.2d 102 |
| Parties | The STATE of Washington, Respondent, v. Adam W. LYSKOSKI, Appellant. |
| Court | Washington Supreme Court |
Warner, Pierce & Peden, Seattle, for appellant.
Charles O. Carroll, Pros. Atty., Seattle, James A. Anderson, Jr., Murray B. Guterson, Seattle, for respondent.
Adam W. Lyskoski, defendant below and appellant here, was convicted on four counts of asking and receiving a bribe to influence his official acts in connection with certain criminals. He was acquitted on six counts, with which, of course, we are not concerned on this appeal.
In the early morning of March 7, 1952, Clyde Edwards, a Tacoma policeman, and Jack Pavlich, Otis Alnutt, and Richard Lindsey burglarized the Inglewood Golf and Country Club near Seattle. The appellant, chief of detectives in the King county sheriff's office, was in charge of the investigation of the crime.
On November 24, 1952, the Tacoma chief of police interviewed Richard Lindsey in Portland, when it was learned he was in jail there. Lindsey gave a detailed written statement about the Inglewood burglary, a copy of which was given to appellant on December 3, 1952. A Tacoma police captain gave appellant a copy of an additional statement made by Lindsey the next day. Later, in the evening of December 4, 1952, Edwards gave his confession to appellant and subsequently Pavlich and Alnutt did likewise.
Notwithstanding the fact that Lindsey had 'broken the case,' appellant made considerable effort with the prosecuting attorney's office and other officials to so arrange matters that Edwards' punishment would be a jail sentence instead of going to the penitentiary. He urged that such a course was a proper reward to Edwards for having 'broken the case.' It was the state's theory that the real inducement for appellant's acts in his official capacity, was the bribes paid him by Edwards.
Edwards was released on bail December 24, 1952. Early in January, 1953, he telephoned appellant and arranged an evening meeting at the China Pheasant cafe on highway No. 99, in King county. Edwards testified that, on that occasion, appellant 'wanted money now to first postpone my trial and then make arrangements with everyone, and so forth, that he had to do in order to get me county time in jail without going to the penitentiary for the offense that I was charged with.'
Late in January, Edwards met appellant two or three times and made payments totaling one thousand dollars. On or about April 13, 1953, he received a call from appellant and they met in southern King county. On that occasion, appellant said he would need an additional fifteen hundred dollars. Edwards went to his sister-in-law, Mrs. Audrey Edwards, and obtained one thousand dollars from her, consisting of $430 in cash and a $570 check. He cashed the check at the Lincoln Branch of the Puget Sound Bank, in Tacoma, then met appellant at the Bow Lake Airport, in King county, and paid him the one thousand dollars.
Edwards next met appellant in the lobby of the King county courthouse in mid-May, 1953. They had coffee at the Golden Goose cafe, and appellant told him that he needed more money. Edwards informed appellant he was going to Idaho and Nevada, and would send him two hundred dollars as soon as possible. It was agreed that this money could be sent in the form of United States postal money orders. He later sent appellant two one-hundred-dollar money orders.
On July 31, 1953, Edwards met appellant at the latter's Tacoma home, and appellant said he was in dire need of more money. Edwards went to his employer, Mr. Burt Udeen of the Udeen Construction Company, in Tacoma, and secured a blank note. The following day, at the Bow Lake Airport, he gave appellant eight hundred dollars of his own money, and appellant filled out the blank note for that amount, payable to the Udeen Construction Company upon the sale of appellant's home in Tacoma. The note has never been paid. At the time the money was given to appellant, he told Edwards that, as far as he was concerned, it would certainly help him out on his case.
Appellant's assignment of error to the trial court's refusal to sustain his challenge to the sufficiency of the evidence on the three counts concerning the Edwards' bribes, is without merit.
Alnutt testified he met appellant in January, 1953, on McKinley Hill in Tacoma, and attempted to bribe him, but that appellant told him, 'Toby, you can't do that to me.' Alnutt then related that he attempted, on several occasions, to see appellant, at the latter's Tacoma home, in order 'to get his confidence so I could bribe him, if it was possible.' He found him there on a certain Sunday, and, at that time, appellant said he wanted to buy a stove and hot-water tank for his home prior to putting it up for sale. Alnutt convinced appellant he could save fifty dollars on such a purchase, and appellant agreed to let him go ahead, stating he would repay Alnutt when a certain bank loan materialized. Alnutt then went to the Puget Sound Furniture Company, in Tacoma, and paid cash in excess of two hundred fifty dollars for the items. He told the salesman they were for appellant and had them delivered to appellant's address, where they were received and receipted for by a woman. Alnutt has never been repaid, never sought repayment, and never expected repayment.
In March, 1953, appellant telephoned from Seattle and asked Alnutt for a loan of three hundred dollars, and said, 'Toby, the bank loan didn't go through, but the house is up for sale and I've got everything ready and as soon as it is sold, then I will repay you for everything.' Alnutt met appellant at 38th and East L street in Tacoma, the place agreed upon over the telephone, and gave him three hundred dollars. He asked appellant if there was anything appellant could do for him with regard to his trouble in King county, and appellant replied, 'Well, I won't do you any harm.' The three hundred dollars have never been repaid.
Some thirty to sixty days later, appellant telephoned Alnutt in Tacoma, and asked him 'if I could let him have five hundred, and I told him yes.' No mention of a loan was made. They agreed to meet at the Halfway House where Alnutt gave him five hundred dollars in tens and twenties. Appellant said he had a couple of presents to buy, and repeated that he would not do Alnutt any harm. In August or September, 1953, Alnutt called appellant and they agreed to meet at the Halfway House, where Alnutt paid appellant five hundred dollars and requested him to get a trial postponement for Jack Pavlich. Appellant said that he would try to do so.
This evidence is sufficient to take the Alnutt bribery count to the jury and sustain the trial court's denial of appellant's motion to dismiss it.
Appellant assigns as error the misconduct of the deputy prosecuting attorney in relating, in his opening statement to the jury, evidence that would be inadmissible under the hearsay rule.
Upon objections being made, the trial court admonished the deputy prosecutor upon each occasion when this occurred, and instructed the jury to disregard the statements. The trial court denied appellant's motion for a new trial, because it found the deputy prosecutor was acting in good faith.
We agree with the trial court that the deputy prosecutor acted in good faith. He had a written brief in support of his theory of the admissibility of the hearsay evidence in question. It is true he misconstrued the rule in State v. Wappenstein, 67 Wash. 502, 121 P. 989, but that does not show bad faith.
The trial court has a wide discretion in determining the good faith of a prosecutor in his opening statement to a jury, and did not abuse it in this instance. In State v. Duncan, 148 Wash. 57, 268 P. 139, 140, we said:
Appellant assigns as error the misconduct of the deputy prosecuting attorney in his opening argument to the jury. No objection was made to the argument and error, therefore, cannot be predicated upon it. State v. Whetstone, 30 Wash.2d 301, 191 P.2d 818; State v. Lane, 37 Wash.2d 145, 222 P.2d 394.
Appellant assigns as error what he contends was misconduct on the part of the trial court, in the following incident:
The remarks of the trial court were directed to counsel in ruling upon propositions of law, and were not addressed to the jury. They were not comments on the evidence. See State v. Rio, 38 Wash.2d 446, 230 P.2d 308. Wide disciplinary powers in a trial court are indispensable to a fair and orderly trial. We will not interfere with the trial court's discipline of an attorney unless he is without fault and the disciplinary measures are both prejudicial and unreasonable under the circumstances. The trial court's statement was not...
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State v. Campbell
...1205, 75 L.Ed.2d 446 (1983). The trial court has wide discretion in determining the good faith of the prosecutor. State v. Lyskoski, 47 Wash.2d 102, 107, 287 P.2d 114 (1955). See Annot., 16 A.L.R. 4th 810 § 7(a), (b) (1982). The burden of showing bad faith is upon the defendant. State v. Pa......
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State v. Scott
...words and expressions, but not words and expressions which are of ordinary understanding and self-explanatory.' " State v. Lyskoski, 47 Wash.2d 102, 111, 287 P.2d 114 (1955) (quoting 1 E. Branson, Instructions to Juries § 55, at 169 (3d ed. We recently rejected a similar argument in State v......
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State v. O'Hara
...an "appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a); State v. Lyskoski, 47 Wash.2d 102, 108, 287 P.2d 114 (1955). The underlying policy of the rule is to "encourag[e] the efficient use of judicial resources. The appellate courts w......
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State v. Spica, 50289
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