State v. Nelson, 37408
| Decision Date | 05 November 1964 |
| Docket Number | No. 37408,37408 |
| Citation | 65 Wn.2d 189,396 P.2d 540 |
| Parties | STATE of Washington, Respondent, v. Reinhart Henry NELSON, Appellant. |
| Court | Washington Supreme Court |
Schumacher & Charette, Robert L. Charette, Aberdeen, for appellant.
L. Edward Brown, Pros. Atty., Paul B. Fournier, Orville E. Peebles, Deputy Pros. Attys., Aberdeen, for respondent.
Reinhart Henry Nelson, John Thomas Patrick, Jr., and Alberta Russell Burns were jointly charged with murder in the first degree in that they,
'* * * while engaged in the commission of or in withdrawing from the scene of the crimes of Attempted Burglary in the First Degree, or Attempted Robbery, did * * * shoot * * * into the body of * * * Dan Damitio, * * * than and there mortally wounding the said Dan Damitio * * *.'
Patrick entered a plea of guilty to the reduced charge of murder in the second degree, and received a penitentiary sentence. Mrs. Burns entered a plea to the reduced charge of burglary in the second degree, and received a probationary sentence. Nelson, the only one of the trio who went to trial, was found guilty of murder in the first degree. From the judgment and life sentence entered on the verdict of the jury, Nelson appeals.
No question is raised as to the sufficiency of the evidence to sustain the verdict; but for trial errors hereinafter discussed, a new trial must be granted.
The state's theory was that the three named had driven on a dark and rainy night to the home of Daniel E. Damitio to take his money. Mrs. Burns stayed in the car with the motor running; Patrick and Nelson, the former armed with a rifle, left the car. After unsuccessful attempts to gain admission to the Damitio home, Nelson threw a piece of wood through a window to get Damitio to come to the door and thus enable Patrick to hit him. Damitio came out shooting, seriously wounding Nelson and creasing the knuckles of Patrick's left hand; the latter shot and killed Damitio.
The trial court permitted the details of a confession--made by Patrick out of the presence of Nelson--to be given to the jury. Patrick claimed the protection of the Fifth Amendment except as to his name and the fact that he had entered a plea of guilty to murder in the second degree; and this confession was the only intelligible account presented by the state of what happened on the evening of the shooting and of Nelson's participation therein. (Mrs Burns testified for the state; but she had remained in the car and, because of the darkness and the rain, saw nothing that happened outside of the car.)
This confession was clearly hearsay, insofar as Nelson was concerned; and he was deprived of the opportunity to confront and cross examine the individual who made the confession. Its admission was prejudicial error and requires a reversal. State v. McCullum (1897), 18 Wash. 394, 51 P. 1044; State v. Nist (1917), 66 Wash. 55, 118 P. 920.
Had Patrick been on trial with Nelson, the confession would have been admissible against Patrick, but not against Nelson; and the court would have been required to give the jury a limiting instruction stating that it could not be considered as any evidence of the guilt of Nelson. State v. Badda (1963), 63 Wash.2d 176, 385 P.2d 859; State v. Goodwin (1947), 29 Wash.2d 276, 186 P.2d 935.
The trial court did give such an instruction, but since Patrick was not on trial we see no justification for the admission of the confession.
The theory on which the trial court admitted the testimony relative to the Patrick confession and gave the instruction to which we have referred, was that since Patrick pulled the trigger of the gun which killed Damitio, he was the principal and Nelson was only an 'aider and abettor'; and, hence, evidence which would be admissible against the principal, if tried alone, would be admissible on the trial of the aider and abettor in order to prove that the principal crime was actually committed. In support of this argument and this rule, the state relies on the Mann, 1 Lyda, 2 Bixby, 3 and Barry 4 cases.
We have analyzed these cases at some length in the footnotes. They support the rule asserted for aider-and-abettor cases, but not its application to the present case. In each of the cited cases, except Bixby, the defendant was an aider and abettor who did not participate in the principal crime, and he was specifically charged as an aider and abettor. Bixby was charged with subornation of perjury.
Nelson was never charged as an aider and abettor, but was properly charged jointly with Patrick and Mrs. Burns as an active participant in an attempted robbery or burglary which culminated in a murder. The evidence as to what occurred at the time and place of the killing would prove the guilt of all. Nelson was not an accessory before the fact, as in the Mann, Lyda, and Barry cases, nor a suborner of perjury as in the Bixby case.
To justify its use of the hearsay testimony, the state has attempted to apply, in this case, the holdings in the Mann, Lyda, Bixby, and Barry cases on the purely technical reasoning that Nelson, because he did not fire the gun which killed Damitio, was merely an aider and abettor. 5
The same specious reasoning was urged on the court in State v. Beebe (1912), 66 Wash. 463, 120 P. 122, and was rejected. In that case, Mrs. Beebe and Mrs. Totten built a fence across a road and stood guard nearby, Mrs. Totten carrying a shotgun. James Sutton started to remove the fence, became involved in a dispute with Mrs. Beebe, and was shot and killed by Mrs. Totten. The women were jointly charged with murder, but were granted separate trials. At the trial of Mrs. Beebe, the court admitted testimony that Mrs. Totten had made threats against the Sutton family, which threats were out of the presence of Mrs. Beebe and, therefore, hearsay as to her. The conviction of Mrs. Beebe was reversed because of the admission of this hearsay testimony, and we there discussed the Mann case and pointed out why the rule on which the state relies was applicable to aiders and abettors where it was sought to connect the accused with the crime by prior acts, but was not applicable in the situation of joint participants and acts committed at the time and place the crime was consummated. 6
No act is charged against Nelson, save such as occurred at the time and place of the consummation of the crime. The cases relied on by the state simply have no applicability to the case at bar.
The second assignment of error relates to the admission of other hearsay testimony. This was all testimony which would have been admissible against Patrick. Some of it tended to show that Patrick knew that Damitio had money and that Patrick had, at other times, contemplated robbing him.
This testimony was also admitted on the same theory as the Patrick confession: That evidence which was admissible against Patrick was also admissible against Nelson, in that it established the principal crime as to which Nelson was an aider and abettor.
Nothing further needs to be added to what we have previously said about that theory; and, for the reasons given in our discussion of the first assignment of error, we hold that the admission of the testimony of statements made by Patrick, out of the presence of the defendant, constituted prejudicial error.
The next assignment of error is that there should not have been admitted in evidence Patrick's gun (the murder weapon), together with the brown gloves worn by Patrick, the white gloves worn by Nelson, and the nylon stockings (to be worn as masks) purchased by Mrs. Burns. These were all found in the Patrick car in which Nelson, Patrick, and Mrs. Burns had been riding at the time of the murder.
These articles were obviously material and relevant, but their admission was resisted on the basis that the state obtained possession of them by an unlawful search and seizure. What the procedure and the testimony might be on another trial, relative to the justification of the search and seizure of the Patrick car, we cannot tell. What the law relative to search and seizure and the admissibility of the evidence secured thereby may be, we can only wonder. There can, however, be no excuse for a failure by the defense to make a timely motion to suppress the evidence.
The trial court did not err in permitting Mrs. Burns to invoke her privilege under the Fifth Amendment to the United States Constitution, or in refusing to strike her direct testimony. Mrs. Burns testified for the state. She had accompanied Nelson and Patrick to the Damitio home. She had purchased the nylon stockings at Patrick's request, and testified that Nelson had been stretching one of them. She had stayed in the car with the motor running.
There was a rigorous cross-examination on the details of what happened that evening. The witness, however, claimed the privilege of the Fifth Amendment when questions were asked for the avowed purpose of showing that she had lived with Patrick for 3 years without benefit of marriage and that she was receiving public assistance during this time. The trial court correctly ruled that she could not be required to answer questions which might indicate the commission of other crimes unrelated to the one concerning which she had testified. Nor did the trial court abuse its discretion in failing to strike her testimony. Her cross-examination had been unrestricted, as to her participation in the crime for which the defendant was being tried; and that which was not permitted related to collateral and unrelated matters.
Nor do we believe that the trial court erred in permitting Patrick to be called by the state, even though the court knew that he would invoke the Fifth Amendment. There were questions which Patrick could have been required to answer without incriminating himself in anything but the shooting of Damitio to whose murder (second degree) he had already entered a plea of guilty and for which he could not again be prosecuted.
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