State v. Madry

• Decision Date: 08 December 1972
• Docket Number: No. 727--II,727--II
• Citation: 8 Wn.App. 61,504 P.2d 1156
• Parties: The STATE of Washington, Respondent, v. Lawrence MADRY, Appellant.
• Court: Washington Court of Appeals

Page 61

8 Wn.App. 61

504 P.2d 1156

The STATE of Washington, Respondent, v. Lawrence MADRY, Appellant.

No. 727--II.

Court of Appeals of Washington, Division 2.

Dec. 8, 1972.

[504 P.2d 1157] Perry J. Robinson, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., Adam Moore, Deputy Pros. Atty., Yakima, for respondent.

ARMSTRONG, Judge.

Defendant, Lawrence Madry, appeals from a judgment and sentence based upon a jury verdict finding him guilty of assault in the first degree. He was sentenced to confinement in a penitentiary for a maximum term of 20 years.

There is a single determinative issue presented. Defendant contends that as a result of the trial court's investigation into the operation of the Montana Hotel in Yakima, Washington, which was leased and managed by defendant, the trial court was biased and prejudiced against defendant and defendant was deprived of a fair trial. In conjunction with this issue defendant asserts that due process requires not only that there be an absence of actual bias but that 'justice must satisfy the appearance of justice.' We agree.

We need not detail the facts to reach the single issue we are considering. Defendant maintains that one John Lowell stole $50 from him. He pointed a gun at Lowell and demanded the return of his money. Defendant claims that Lowell rushed him and the gun was accidentally discharged. Lowell testified that defendant shot him in the chest after the scuffle over the gun terminated. There is substantial evidence to support either theory of the shooting.

Defendant is the lessee and manager of the Montana Hotel. The shooting did not take place in the hotel.

Defendant's trial commenced September 16, 1971 and a jury verdict was rendered on September 22, 1971. A motion for a new trial was filed on September 27, 1971. An order denying defendant's motion for a new trial was entered on On September 27, 1971, the trial judge and the other superior court judges for Yakima County signed a letter directed to Judge George H. Mullins, of the Yakima County District Court, who is a part owner of the Montana Hotel. The letter referred to a superior court judges' investigation which revealed that about 65 percent of the arrests for solicitation for prostitution have been immediately outside the Montana Hotel or within a short distance from it. The letter stated 'There is a strong indication in the evidence that has come before us that much of the solicitation that takes place immediately outside the hotel results in illegal activity within the hotel.'

October 29, 1971, at which time the court entered its findings of fact and conclusions of law on the hearing held pursuant to CrR 101.20W. On November 5, 1971 defendant's retained trial counsel (who is not the counsel representing defendant on appeal) made an oral motion for a presentence investigation. This was denied and the court entered judgment and sentence that day.

It is necessary to set the letter forth in full to accord a complete understanding of the contentions of defendant. We have done so in the margin. ¹ Judge Mullins answered the letter, pointing out that he had inherited his interest in the hotel and had endeavored for 18 years to sell it but had not been able to do so because of the deteriorated condition of the old building. He categorically disputed any illegal conduct on his part, and stated that he had cooperated with the police to the fullest extent, 'even to the point of prior police department clearance Several dates become relevant to our consideration of this case: in February, 1971, one of the superior court judges discussed the reputation of the Montana Hotel with Judge Mullins; the trial commenced September 16, 1971 and a jury verdict was rendered September 22, 1971; the letter signed by the trial judge was written September 27, 1971; an order denying defendant's motion for a new trial was entered October 29, 1971; a presentence investigation was denied and defendant was sentenced November 5, 1971.

of the present tenant.' Judge Mullins' letter further stated, 'I have heard during the past six years more prostitution cases than all of you together. In no instance was there an arrest for such activity within the hotel.'

At the time of denying the defendant's motions for a presentence investigation and for probation, the following statements were made by the trial court:

THE COURT: Now, I have got to indicate to you, too, Sir, that I don't feel you have been truthful to me in respect to this other matter and I agree you may be truthful in saying you rent only to men, but you are not going to tell this Court, from the testimony of witnesses that I have had in this Court time after time after time that men are not paying the tab at the instigation of the girls for prostitution. The price has recently been upped from $10.00 for the girl to $4.00 for the room. This the Court is aware of. Now, for you to stand here and tell this Court that there is no prostitution going on in that hotel is just absolutely ludicrous.

MR. MADRY: I said I didn't rent to prostitutes.

THE COURT: No, you don't rent to prostitutes, but you know what is going on and there was an attempt to mislead the Court on this particular matter, and the Court is not misled. The Court cannot ignore the fact that 65 per cent of all the prostitution arrests in the last year and a half--now, this isn't the reputation that has been gained before, but the last year and a half 65 per cent of all the arrests for prostitution have been in and around that hotel, right in that immediate area; and I can't ignore the fact that there has been a murder committed there while an act of prostitution was taking Defendant contends that the fact that the trial judge had formed an opinion prior to the trial as to the character, veracity and occupation of the defendant did not become evident until the defendant attempted to seek a presentence investigation, which the trial judge summarily denied on the unsubstantiated belief that the defendant was involved in other criminal activities in the Montana Hotel prior to the incident for which he was charged. Defendant asserts it was only at the time of sentencing that he learned that during the week of the defendant's trial the trial judge was in communication with other superior court judges concerning rumors about the defendant's place of business. By this time it was too late to file an affidavit of prejudice, pursuant to RCW 4.12.050.

                place.  This was the Green girl.  2  I can't ignore the fact that we have a grand larceny coming up shortly where it is claimed that money was stolen while there was supposed to be an act of prostitution going on
                

The court based its refusal of a presentence investigation and refusal to grant probation on the nature of the crime and the background of the defendant. None of that background had been presented in the course of the trial. If the defendant was lawfully convicted of the crime charged, it would have been unusual for the court to grant probation. We note that the power to grant probation remained in the trial court even though RCW 9.41.025 requires a mandatory sentence where the defendant is convicted of a felony while armed with a firearm. However, the trial court was not bound by the provisions of RCW 9.41.025 because the information did not inform Madry that, if convicted of the crime charged, he was subject to the mandatory sentence. State v. Frazier, Wash., 503 P.2d 1073 (1972).

We are, therefore, in the position of finding no evidence of bias or prejudice against defendant other than the inferences that can be drawn from a careful analysis of the The superior court judges' investigation did not follow the format of a 'special inquiry judge' procedure such as is provided for in RCW 10.27.050. ³ It had the same practical effect as would such 'special inquiry judge' procedure. It could be inferred that the judges in their investigations interviewed people and discussed the matter among themselves as well as with law enforcement officers or other individuals. This investigation and the action taken by the judges was intended to remedy a situation which the superior court judges believed was casting discredit upon the entire local judiciary.

letter and the statements that the trial court made on the day of sentencing. It can reasonably be inferred from the court's remarks that an investigation was made by the superior court judges which led the trial court to believe that 'in the last year and a half 65 per cent of the arrests for prostitution have been in and around that hotel, right in that immediate area.' The letter cosigned by the trial judge stated that one of the judges advised Judge Mullins in February, 1971 that the Montana Hotel was publicly regarded as a house of prostitution. One can conclude only that the superior court judges of Yakima County were conducting an investigation into the activities of the defendant substantially before the trial and during portions of the trial in which the trial court retained discretionary control of the case. The letter was written a month before the motion for a new trial was denied.

The motives of the superior court judges in investigating the activities of the Montana Hotel, leased and managed by the defendant, were commendable. Their investigation, however, created in them a direct interest in eliminating the criminal activity they believed to exist. The trial judge necessarily acquired an interest in the case of the defendant himself, because the defendant was the one who conducted the business which was condemned in the letter of September 27th.

Since the investigation had the same practical effect as a 'one man grand jury', the case is brought within the rationale of In re Murchison,349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). In that case a state judge sitting as a 'one man grand jury' under the authority of a Michigan statute, charged two witnesses with contempt after one witness...