State v. Miles
| Decision Date | 29 January 1970 |
| Docket Number | No. 40459,40459 |
| Citation | 464 P.2d 723,77 Wn.2d 593 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Aquilla MILES, Appellant. |
Horrigan, Sullivan & McKinlay, Edward H. McKinlay, Pasco, for appellant.
C. J. Rabideau, Pros. Atty., Pasco, for respondent.
The defendant, Aquilla Miles, was charged in the Superior Court for Franklin County, Washington, with two counts of rape and two counts of assault in the second degree. He pled not guilty as to each count, waived jury trial, and was tried before the court. At the conclusion of the evidence, the trial court found him guilty as to one count of rape and two counts of assault in the second degree. He was sentenced to not more than 10 years imprisonment on each of the assault counts and to not less than 5 nor more than 20 years on the rape count, the sentences to run consecutively. He has appealed.
Summarized, the background circumstances are these:
In the early part of January, 1968, appellant, a casual laborer, rented and moved into a room in the residence of one Sam Miller, a barber in East Pasco, Washington. Appellant testified that shortly after moving in some of his personal belongings were pilfered by a friend of his landlord, Clara Smith, a young woman married to but separated from an alleged panderer. On the evening of January 16th, appellant discussed the purported pilferage with Clara and her male companion at a nearby tavern. The outcome of this discussion is unclear.
About 8:00 p.m., on January 17th, Clara called at the Miller residence. She testified she went there to borrow money from Mr. Miller, was met at the door by appellant, told that Mr. Miller was absent, pulled into the house, struck and threatened with a pistol, taken to appellant's room, and raped. Shortly thereafter she and her boy friend reported the occurrence to the police, who, in turn, went to the Miller residence and questioned but did not then arrest appellant.
Appellant's version of this incident is to the effect that Clara arrived at the Miller residence with her boy friend in his automobile, appeared at the front door, asked for Mr. Miller and, upon being advised Miller was not there, promptly departed. He stated that the police later called at the residence but were seeking Mr. Miller and did not question him.
The police officers involved testified that Clara and her boy friend appeared at the police station shortly after 8:00 p.m., registered a complaint embracing her version of the incident, described appellant's physical appearance, and identified him by nickname. At that time, an officer said Clara displayed a swollen upper lip. Following this report, the officers stated they went to the Miller residence to question appellant. When appellant, in the presence of a third person then on the premises, denied any such occurrence, the officers sought Clara to obtain further identification and verification but were advised by her boy friend that she had gone to work and would not be available until the next morning. They took no further action that evening.
In the meantime, and between 10:30 and 11:00 p.m., of the same evening, Mr. Miller and a second roomer in the Miller residence, returned to the Miller home. After watching television for a short time with appellant, the two tenants retired to their respective rooms and Mr. Miller commenced preparations for sleeping on a daveno in the living room. At this time, a Mrs. Cornelia Smith, who had spent the preceding evening hours at the nearby tavern, appeared at the front door seeking to borrow money from Mr. Miller. Mr. Miller advised her he had no money to lend but invited her in for a sandwich. As he was obtaining the ingredients in the kitchen, Mr. Miller stated that appellant came from his room, gave Cornelia Smith 'a lick,' and ordered her into his room, whereupon Mr. Miller ran from the house to seek assistance after unsuccessfully attempting to arouse the other roomer. The other roomer stated he was awakened by yelling and screaming; that he recognized appellant's voice as well as the voice of Cornelia Smith, who he had previously met; that the tenor and tone of appellant's voice was threatening and the wiping up of blood was mentioned; that the yelling and screaming lasted for several minutes, moved from the kitchen to the living room and culminated with a door slamming and some mumbling; and that he did not interfere because he thought appellant and Cornelia may have been married.
Cornelia Smith, in essence, testified that between 10:30 and 11:00 p.m. she left the nearby tavern and went to Mr. Miller's residence for the purpose of borrowing money from him; that when he could not lend her any money she requested food and they both went to the kitchen to make a sandwich; that appellant then appeared, upbraided her, struck and beat her about the face and head with a pistol, forced her to mop up the blood on the floor which had flowed from her wounds, pushed her into his bedroom, made her undress, raped her and imprisoned her in his bedroom until about 7:30 a.m. January 18, 1968; that upon her arrival at home, her husband, upon being told of the occurrence, notified the police and on the evening of January 18th she went to the police station and registered her complaint.
Appellant denied forcing intercourse upon Cornelia Smith. Instead, appellant said he had been approached by her earlier in the evening at the tavern with the suggestion that she would rendezvous with him in his bedroom for a stipulated price. He stated he accepted her offer and that the transaction was consummated when she later appeared and remained in his quarters overnight. He denied ever striking her, saying that she was bruised and bleeding when he first saw her at the tavern and remained so throughout her visit with him. Furthermore, he denied owning a pistol of any kind.
The police officers testified that following Cornelia Smith's complaint and identification of appellant they went to the Miller house, advised appellant of the complaints against him and of his constitutional rights, placed him under arrest in the living room of the residence, and searched his bedroom. The search uncovered only a plastic toy pistol, which neither Clara nor Cornelia Smith could identify as the weapon they were threatened or struck with.
Other witnesses and evidence presented by the state and the defense tended to corroborate or dispute in varying degrees the testimony of the various participants.
The trial court by its findings of fact and conclusions of law determined that as to Clara Smith appellant was not guilty of rape but guilty of assault in the second degree, and as to Cornelia Smith appellant was guilty of both rape and assault in the second degree.
On appeal, appellant makes seven assignments of error.
By his first assignment of error, appellant challenges the trial court's denial of his motion for continuance made on the morning trial commenced. The basis upon which appellant predicated his motion was that he wanted additional time within which to employ his own counsel.
A review of the record indicates that appellant was charged with the crimes alleged on January 22, 1968. Counsel was appointed to represent him on January 26th because of his indigency, but he preferred to seek private counsel and attempted to do so without success until February 9th, at which time the court reappointed counsel for him and he was arraigned. On February 16th, his bail was reduced following which he secured a bail bond and was released. Trial was set for March 25, 1968. Defendant continued to seek private counsel and, at his request, trial of his cause was continued until May 6th. On May 6th, the state appeared with its witnesses, one of whom was a serviceman from out of state and his future availability along with the future availability of other witnesses was questionable. Appellant had yet to retain his own attorney, and tendered his motion for continuance through his court appointed counsel who had continued to represent him since arraignment. At the conclusion of the state's case, appellant was granted two continuances to permit him to locate additional witnesses.
The granting or denying of a motion for continuance of the trial of a case, whether criminal or civil, rests within the sound discretion of the trial court, and this court will not disturb the trial court's ruling absent a showing that the trial court in ruling upon the motion either failed to exercise its discretion or manifestly abused its discretion. State v. Bailey, 71 Wash.2d 191, 426 P.2d 988 (1967); State v. Moe, 56 Wash.2d 111, 351 P.2d 120 (1960); State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564 (1950).
We find no abuse or failure of discretion on the part of the trial court under the circumstances of the instant case. Neither do we find any prejudice flowing to appellant by virtue of the fact that he was required to go to trial with court appointed counsel. The attorney appointed by the court was of recognized competence and experienced in the defense of criminal cases. The record indicates he represented appellant skillfully throughout all stages of the proceedings.
By his second assignment of error, appellant complains of the trial court's action in sustaining the prosecuting attorney's objections to defense counsel's efforts to ascertain the extent of Clara Smith's knowledge of her husband's purported pandering activities. Assuming without deciding that the evidence sought by defense counsel was admissible for impeachment purposes, we find no merit in this assignment.
In the first place the cause was tried to the court sitting without a jury, and a considerable latitude was permitted in cross-examination of both Clara and Cornelia Smith concerning their moral attitudes and activities. Furthermore, defense counsel was permitted to elicit an admission from Clara Smith that she knew the nature of her husband's...
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