State v. Mellis, 159--40803--I
| Decision Date | 15 June 1970 |
| Docket Number | No. 159--40803--I,159--40803--I |
| Citation | 470 P.2d 558,2 Wn.App. 859 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Raymond Lee MELLIS, Appellant. |
Asmundson, Rhea & Atwood, David E. Rhea, Bellingham, (court appointed), for appellant.
James P. Thompson, Whatcom County Pros. Atty., Bellingham, for respondent.
On a warm August evening in 1968, two young women left their rooms in the Bellingham YWCA to go for a walk. After proceeding a few blocks on one of Bellingham's main thoroughfares, they encountered two men, one tall, the other short. The men forced the girls at gunpoint to enter their car. The girls' assailants drove them to a secluded gravel pit area where, the prosecuting witness testified, she was repeatedly ravished by the appellant Raymond Mellis. The girls were then returned to town. Subsequently Mellis was identified by both girls and charged with rape. Judgment and sentence were entered pursuant to a jury verdict of guilty. Mellis appeals.
The appellant first assigns error to the conduct of the deputy prosecuting attorney in repeatedly identifying the appellant, in his opening statement, as the one who had raped the prosecuting witness. This assignment of error is neither meritorious nor accurate. The record reveals only this identifying reference to appellant Mellis in the prosecutor's opening statement:
One of them went one way and the other went the other way on the sidewalk to walk around them, and when they got just kind of parallel to them, to these two fellows, the bigger one, Which is this fellow, reached around with his left arm, I believe it was, and grabbed this (name omitted) around the neck, * * * (Emphasis added.)
Twice while making his opening statement the deputy prosecutor told the jury his statements were not evidence. Proof of appellant's conduct in grabbing one of the girls was admissible evidence, and it was proper to refer to it in the opening statement. Our Supreme Court, in State v. Piche, 71 Wash.2d 583, 585, 430 P.2d 522, 524 (1967), said:
Either party may, in the opening statement, refer to admissible evidence expected to be presented at the trial. State v. Gellerman, 42 Wash.2d 742, 259 P.2d 371 (1953).
Pointing to appellant Mellis as the bigger one of the two men, and the one who grabbed the prosecuting witness's companion, was only a statement describing what the testimony would prove. Such identifying reference to appellant Mellis added nothing to the identification which had previously been made by the court in introducing the parties. 1
Further, no prejudice resulted because he was identified during the trial by, not only the prosecuting witness and her companion but also, two police witnesses, Sergeants Geleynse and Harvey. See State v. Swanson, 73 Wash.2d 698, 440 P.2d 492 (1968).
Appellant's second assignment of error is directed to the trial court's refusal to give the following instruction:
Upon a charge of rape, if consent appears, however reluctantly it may have been given, there can be no conviction, and consent may sometimes be inferred if there has been no outcry and no serious resistance.
This requested instruction was revised by the trial judge and added to the court's instruction 10. The revised language read as follows:
However, if voluntary consent appears, however reluctantly it may have been given, there can be no conviction.
No error was assigned to the modified instruction, but appellant nevertheless excepted to the failure of the trial court to give his requested instruction in full. To instruct the jury that consent may be inferred from lack of outcry was unnecessary. Lack of outcry bears upon the credibility of the victim's testimony. Such evidence may be considered by the jury along with the futility of resistance or outcry if prevented by fear of immediate and great bodily harm. State v. Baker, 30 Wash.2d 601, 192 P.2d 839 (1948). Accord State v. Bridges, 61 Wash.2d 625, 379 P.2d 715 (1963); State v. Pitmon, 61 Wash.2d 675, 379 P.2d 922 (1963). The effect of a lack of outcry, or a...
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State v. Smoot
...273 (1972); State v. Feddersen, 230 N.W.2d 510 (Iowa 1975); State v. Wilder, 4 Wash.App. 850, 486 P.2d 319 (1971); State v. Mellis, 2 Wash.App. 859, 470 P.2d 558 (1970). The California Supreme Court in the recent case of People v. Rincon-Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 24......
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State v. Reinhold
...State v. Wilder, 4 Wash.App. 850, 486 P.2d 319 (1971); State v. Wampler, 3 Wash.App. 378, 475 P.2d 316 (1970); State v. Mellis, 2 Wash.App. 859, 470 P.2d 558 (1970). State v. Bradley, Supra, is hereby overruled to the extent that it deviates from this The refusal to give Defendant's Request......
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State v. Stephens
...Risley v. Moberg, 69 Wash.2d 560, 419 P.2d 151 (1966); Jankelson v. Cisel, 3 Wash.App. 139, 473 P.2d 202 (1970); State v. Mellis, 2 Wash.App. 859, 470 P.2d 558 (1970). A comment violative of Const. art. 4, § 16 is presumed to be prejudicial and prima facie operates to deprive the defendant ......
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State v. Coburne
...did not constitute an unlawful comment on the evidence. State v. Lane, 4 Wash.App. 745, 484 P.2d 432 (1971); State v. Mellis, 2 Wash.App. 859, 470 P.2d 558 (1970). In conclusion, the defendants received an unusually fair trial, which was presided over by a meticulously impartial trial Judgm......