State v. McIntyre, 404--I

• Decision Date: 14 December 1970
• Docket Number: No. 404--I,404--I
• Citation: 3 Wn.App. 799,478 P.2d 265
• Parties: STATE of Washington, Respondent, v. Bernard E. McINTYRE, Appellant.
• Court: Washington Court of Appeals

Page 799

3 Wn.App. 799

478 P.2d 265

STATE of Washington, Respondent, v. Bernard E. McINTYRE, Appellant.

No. 404--I.

Court of Appeals of Washington, Division 1, Panel Two.

Dec. 14, 1970.

Barokas, Martin, Richey & Schaefer, Dale R. Martin, Jack A. Richey, Seattle, Court-appointed, for appellant.

Charles O. Carroll, King County Pros. Atty., John R. Cunningham, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Acting Chief Judge.

Defendant, Bernard E. McIntyre, and his brother, codefendant Franklin Delano McIntyre, after a joint trial, were each found guilty of grand larceny by possession of a television set. Both appeared by the same court appointed counsel below. This appeal, however, concerns only appellant who appears by new court appointed counsel.

On November 3, 1969, defendant Bernard McIntyre was driving east on Highway 10 with his wife, and his brother Franklin McIntyre in the front seat beside him. The car was traveling erratically and Officer Tew, of the Mercer Island Police Department, pulled the car over and began administering roadside sobriety tests to defendant. Defendant was intoxicated and had no driver's license. Officer Koenig arrived on the scene and began questioning Franklin McIntyre who remained in the car. Both officers observed a television set in the trunk of the car and because the trunk lid was ajar were able to ascertain that it was a Dumont color set. Sergeant Nolan, who arrived on the scene somewhat later than Officer Koenig, observed that the manufacturer and repair stickers had been removed from the back of the set. In addition, the television set was placed in the trunk in such a manner so as to damage it in transit.

Franklin McIntyre had stated to Officer Koenig that the set was his and was a black and white Motorola; and the appellant had stated that the set was his but that he did not know the make. After ascertaining that none of the occupants of the car had a driver's license, a two truck was summoned and the car was towed to the station. On the way to the station, appellant was in one car and Franklin McIntyre was in another. Appellant then explained that the set was a black and white model which he and his brother had purchased from a private party 1 1/2 years ago.

Upon arrival at the police station Officer Koenig and the tow truck driver removed the set from the trunk. It was then taken inside the police station. The car, along with end tables and lamps in the back seat which were not removed, was taken to the impound yard. Inside the station Franklin stated tht he knew nothing of the set except that his brother bought it in Spokane 6 months ago. However, appellant stated that he and his brother had purchased it 1 1/2 years ago. Thereafter, the set was marked and placed in the evidence room. Both Franklin and appellant's wife arranged transportation home and appellant was held on traffic charges. The next day the officers discovered that the set was stolen as they had suspected. The day after this appellant was questioned again about the set and he claimed that he purchased it from a man named Marshall at the Pee Wee Tavern on November 2, 1969.

Defendant first contends that the trial court should have granted a motion to suppress evidence of the television set because it had nothing to do with the traffic charges on which he was arrested and therefore could not be seized without a warrant. See State v. Wilson, 70 Wash.2d 638, 424 P.2d 650 (1967); People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967). The parties stipulated that the motion to suppress should be heard at the time of trial rather than prior thereto. At the time the court ruled, the court had before it the evidence above summarized.

The state contends that the set was not seized incident to the traffic charge arrest. It contends rather that the set was in plain view of the seizing officer who had a right to be in the position to have that view and who, at the time of the seizure, had probable cause to believe that the television set was stolen. No search was involved and no search warrant was necessary. There is direct and inferential case support for this view. Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651 (1968); State v. Helms, 77 Wash.Dec.2d 86, 459 P.2d 392 (1969); See Harris v. United States, 390 U.S. 324, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); People v. Marshall, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665 (1968); See also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In the instant case, probable cause consisted of conflicting stories concerning the ownership of the television set, the unfamiliarity of the defendant and his brother with the nature of the set, the apparent removal of identification marks from the set and the careless way in which the set was being transported in the defendant's car. We are not called upon to determine the scope of possible limitations of the doctrine of seizure of articles in plain view; nor need we decide whether the seizure here was also proper as being the course of an administrative inventory of a car lawfully in the officer's custody or possession. See Harris v. United States, Supra.

Appellant further contends that the trial court erred in not granting a mistrial sua sponte when Officer Nolan testified concerning a statement of codefendant Franklin to the effect that appellant had brought the television set from Spokane some 6 months before. There was also testimony from the officer, given in the presence of the jury, to the effect that the codefendant Franklin stated that the set belonged to him and was a black and white Motorola model. Appellant claims that the testimony concerning Spokane incriminated the appellant by placing the initial possession of the television set in the appellant and, because appellant's counsel also represented the codefendant who later testified, appellant's counsel could not cross-examine the codefendant on the accuracy of the statement. He relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) which is applicable to a state prosecution. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). Bruton is clearly distinguishable. See, e.g., State v. Todd, 78 Wash.Dec.2d 361, 474 P.2d 542 (1970); State v. Gardner, 54 N.J. 37, 41, 252 A.2d 726, 730 (1969). In Bruton the codefendant's oral confession, identifying and incriminating the defendant, was admitted into evidence. It was clear that the defendant was prejudiced thereby. The court held that a conviction on a federal charge of armed postal robbery following a joint trial with his codefendant, the codefendant not testifying, should be set aside because the defendant was deprived of his constitutional right to cross-examine on the codefendant's statement. A jury instruction, directing the jury to consider the confession only on the question of the codefendant's guilty was held not to be an adequate substitution for the defendant's right to cross-examine. It...