State v. Mays

• Citation: 65 Wn.2d 58,395 P.2d 758
• Decision Date: 08 October 1964
• Docket Number: No. 37130,37130
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Respondent v. Michael C. MAYS, Appellant.

Page 58

65 Wn.2d 58

395 P.2d 758

The STATE of Washington, Respondent v. Michael C. MAYS, Appellant.

No. 37130.

Supreme Court of Washington, En Banc.

Oct. 8, 1964.

Rehearing Denied Jan. 5, 1965.

Gavin, Robinson, Kendrick & Redman, Yakima, for appellant.

Lincoln E. Shropshire, Wiley G. Hurst, Walter B. Dauber, Yakima, for respondent.

HALE, Judge.

In the early hours of a wintry morning in downtown Yakima, Michael C. Mays fired three shots from a .38 caliber revolver into his former wife, Denise A. Mays, inflicting four wounds. She died from these wounds nearly four hours later, at about 5 a. m., February 2, 1963, in the hospital. Several years of marital discord followed by a divorce, months of bitter recrimination over the care and custody of Debbie, their minor daughter, and surveillance by the defendant of his former wife's comings and goings, all preceded the shooting. A few moments before the fatal fusillade, the defendant, Michael C. Mays, had accosted his wife and her escort as they were about to walk to a parked automobile. A minute or so after a brief but animated conversation, and as he stood only a few feet from her, defendant drew the revolver from his pocket and fired the deadly rounds.

No element of mystery cloaks the doing of the acts from which Denise Mays died; no doubt exists that Michael C. Mays held the gun that killed Denise Mays or that he fled from the scene of the killing in an automobile at high speed to his home where he made a telephone call just before the police arrived there; no one denied that the revolver was found under his bed. Testimony of a close-by eyewitness, coupled with the victim's dying declaration, added to a wealth of demonstrative evidence and the defendant's admission, establish beyond any doubt that the defendant committed the acts wherefrom Denise Mays died.

To the information charging murder in the first degree, appellant entered two pleas: Not guilty and not guilty by reason of mental irresponsibility, each of which was fully covered in the court's charge to the jury. From a judgment and sentence of life imprisonment entered on a verdict of murder in the second degree, and following denial of his motions for arrest of judgment or in the alternative for a new trial, appellant brings this appeal on five separate assignments of error:

'1. The Court erred in refusing appellant permission to recall Dr. Hood as a rebuttal witness.

'2. The court erred in permitting the prosecutor to call Phyllis C. Barnhart as a rebuttal witness.

'3. Misconduct of prosecuting attorney in his final argument which could not be cured at the time.

'4. The court erred by improperly commenting on the evidence.

'5. The court erred in instructing the jury upon the following presumptions: of second degree murder; that the defendant intended natural and probable consequences of his acts; and the presumption of mental responsibility.'

Appellant describes his first assignment of error as a refusal to allow him to recall Dr. Hood, a psychiatrist, in rebuttal. We would not denominate the court's action as a refusal to hear the witness; rather, we note from the record that the trial court declined to grant a continuance or allow a substantial interruption in the trial while appellant searched for and returned Dr. Hood to the stand. The witness a specialist in psychiatry, when earlier called by the appellant, testified at length as to appellant's personality, described appellant's responses to psychological testing, and explained his observations derived from psychiatric examinations. He related appellant's personal history and gave his opinion as to appellant's emotional and mental condition.

In rebuttal, the state called Dr. Berg, likewise a psychiatrist, who based his opinion neither on a personal examination nor on testing of the appellant, but relied exclusively upon his observations of the appellant's demeanor, conduct and testimony during the trial, and the testimony given by Dr. Hood--including a detailed hypothetical question put to Dr. Hood by Mr. Gavin, appellant's counsel. Dr. Berg told the jury that, in his opinion, appellant had no disease of the mind nor was he laboring under such a defect of reasoning as to not know the nature of the act he was doing; and that appellant did know the difference between right and wrong. In his opinion, appellant had no symptom of brain damage. Dr. Berg completed this rebuttal testimony on direct examination shortly before court recessed for the day, Wednesday, May 22, 1963. Early in the afternoon of the next day, Thursday, May 23rd, appellant requested the court to grant a postponement to enable him to recall Dr. Hood. He offered to prove that Dr. Hood would give an opinion that Dr. Berg could not conclusively rule out brain damage or mental disease in appellant merely from observing appellant in the courtroom, hearing the questions and listening to the testimony.

We see many reasons why the trial court properly refused the recess or postponement to allow time to locate Dr. Hood. First, the granting or denial of a continuance, a recess, or a postponement rests in the sound discretion of the trial court, and error cannot be predicated thereon unless the trial court clearly abuses its discretion. Second, appellant had ample time to arrange for Dr. Hood's return to the witness stand between the Wednesday afternoon adjournment when Dr. Berg had completed his direct examination and appellant's offer of proof made the following afternoon. Third, the offer of proof promised no substantive evidence in reply to Dr. Berg's opinion, but rather evidence of an impeaching nature--evidence tending to impeach Dr. Berg's ability to form sound medical conclusions. Fourth, appellant was not limited to Dr. Hood for his purpose. Any qualified expert in the field of psychiatry could have been called by appellant for this purpose on surrebuttal. We find no error in the trial court's refusal to postpone or interrupt the trial to allow further time for appellant to find and return Dr. Hood to the courtroom. Denying or admitting evidence in rebuttal--or, as in this case, surrebuttal--rests largely within the discretion of the trial court. Roche Fruit Co. v. Northern Pac. R. Co., 184 Wash. 695, 52 P.2d 325; Kelly v. Department of Labor & Industries, 172 Wash. 525, 20 P.2d 1105. This same discretion lies with the trial court when it comes to granting or denying a recess, postponement or continuance. In either instance, abuse of discretion must necessarily be shown as a prelude to disturbing the trial court's order. State v. Williford, 64 Wash.Dec.2d 802, 394 P.2d 371; State v. Thompson, 59 Wash.2d 837, 370 P.2d 964; State v. Smith, 56 Wash.2d 368, 353 P.2d 155; State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564; State v. Comer, 176 Wash. 257, 28 P.2d 1027.

Appellant directs his second assignment of error to other rebuttal evidence offered by the state. On direct examination, appellant testified that he had never threatened to kill Denise Mays. Appellant also submitted extensive evidence as to his mental and emotional condition covering a period of years before the shooting. As a part of its case in rebuttal, the state called Phylis C. Barnhart, who describing a conversation with appellant, testified, over strenuous objection, that in either July or August, 1961, 'He said that he would never let another man have Denise, and before he would ever let another man be a father to Debbie he would drive them, all three, over a cliff.'

We agree with appellant that, if this testimony were offered solely to impeach appellant's statement that he had never threatened his former wife, the objection was well taken that no proper foundation for such impeachment had been laid. Timehonored rules of evidence would have required the state to ask--as a proper predicate to impeachment--whether he had ever made such statements to Mrs. Barnhart and to fix the time, place and circumstances thereof as nearly as possible. Only in case of a denial would exclusively impeaching testimony be allowed. But here the impeachment seems merely incidental to the main purpose--incidental to proof of the appellant's mental condition during a relevant period before the acts charged and made relevant by the comprehensive evidence submitted by appellant concerning his life history.

Insanity and mental irresponsibility are in essence affirmative defenses which, when interposed as pleas to a criminal charge, place the burden of proof by a preponderance of the evidence upon the defendant. He has wide latitude in proving mental irresponsibility and may show his conduct, acts, and condition before and for a relevant period after the event charged. But the rule which allows this latitude to the accused grants similar latitude to the state in reply, for if the acts described do not indicate insanity, they may well show sanity. 2 Wigmore on Evidence (3d ed.) § 228; State v. Collins, 50 Wash.2d 740, 314 P.2d 660; State v. Odell, 38 Wash.2d 4, 227 P.2d 710. The trial court properly allowed evidence of threats against the deceased on rebuttal in answer to appellant's proof of mental irresponsbility; that this evidence also tended to impeach the appellant's earlier testimony does not supply grounds for its exclusion. The second assignment of error, we conclude, points to no error in the trial.

As to the third assignment of error, we find ample evidence in the record to support respondent's argument to the jury concerning the interval between the shots and the position of Denise Mays' body when one or more of the shots took effect. One may make reasonable inferences and deductions from the facts in giving his summation of the evidence to the jury. The remarks of the prosecuting attorney, based as they were upon the evidence, were within the realm of fair comment and, hence, not error. State v. Griffith, 52 Wash.2d 721, 328 P.2d 897; State v. Stratton 170 Wash. 666, 17 P.2d 621; State v. Stone, 169 Wash. 233,...