State v. Nelson
| Decision Date | 26 October 1967 |
| Docket Number | No. 38626,38626 |
| Citation | 432 P.2d 857,72 Wn.2d 269 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Reinhart Henry NELSON, Appellant. |
Schumacher & Charette, John W. Schumacher, Aberdeen, for appellant.
L. Edward Brown, Pros. Atty., 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, * * * then and there mortally wounding the said Dan Damitio * * *.
The amended information charged that the murder was committed at Damitio's home in Grays Harbor County on February 2, 1963.
Patrick pleaded guilty to the reduced charge of murder in the second degree and received a penitentiary sentence. Mrs. Burns entered a plea of guilty to a reduced charge of burglary in the second degree and received a probationary sentence. At his first trial Nelson, who pleaded not guilty, was tried and convicted. He was sentenced to life imprisonment. Upon appeal, that judgment and sentence was reversed by this court and he was granted a new trial because of the admission in evidence against Nelson of the testimony of A. M. Gallagher, undersheriff of Grays Harbor County, relating to the details of a purported oral confession of Patrick, made out of the presence of Nelson. State v. Nelson, 65 Wash.2d 189, 396 P.2d 540 (1964).
It is stated in appellant's brief in the present case that a second trial was commenced in Grays Harbor County on April 7, 1965, which terminated two days later in a mistrial ordered during presentation of the state's case. By stipulation, the cause was then transferred to Thurston County for the third trial, which was held June 28, 29, and 30, 1965, before visiting Judge Warner Poyhonen sitting with a jury. That trial resulted in appellant's second conviction of murder in the first degree and the imposition of a sentence of life imprisonment. This appeal is taken from that judgment and sentence.
Three assignments of error are stated by appellant as follows:
I. The trial court erred in permitting the prosecution to require John Thomas Patrick to claim his privilege against self-incrimination in the presence of the jury.
II. The trial court erred in admitting the opinion of R. F. Simmons as an expert.
III. The trial court erred in refusing to dismiss the state's case on the grounds of insufficiency of evidence.
We shall discuss these assignments of error in inverse order for reasons that will become apparent.
In instruction No. 15, the trial court properly instructed the jury:
The fact that Daniel E. Damitio died as a result of a gunshot wound suffered on or about February 2, 1963, if you find this to be a fact, does not of itself prove, or tend to prove, in any way that the defendant committed any crime, nor does it support any degree of probability that the defendant did so.
That the said Daniel E. Damitio was killed in a criminal manner, and that the defendant committed this crime, are two independent facts, both of which the State must prove beyond a reasonable doubt. If the State should fail to prove either beyond a reasonable doubt, your verdict must be for the defendant.
Exclusive of the disputed testimony of Mr. Simmons, the state's evidence tended to show the following:
Dan Damitio was the owner and operator of a grocery store and gas station located across the highway from his home in Cedarville. His body was discovered in his home on the morning of February 3, 1963, by two friends, Mr. Warness and Mr. Golman. There was a great deal of blood in various rooms of the house. The body, shot through the left arm, was lying on the floor of the bedroom. Dr. Charles Pollock, the county coroner, testified that there was what appeared to him to be a powder burn on the forearm of the victim. Dan Damitio died from loss of blood. According to the testimony of Dr. Pollock, the wound in Damitio's arm, from which he bled to death, was caused by a bullet striking his upper arm, producing disruption and breaking the blood vessels. Dr. Pollock found one or more fragmented metalic particles in the arm.
There was an apparent attempt by Damitio to write a will sometime after he was shot. Dr. Pollock testified to having seen the writing on a paper on the kitchen table, beneath which there was an accumulation of blood.
On the fireplace hearth, officers found a Smith & Wessen .38 special revolver which belonged to Damitio. The gun contained two loaded and four spent cartridges. There was one new bullet hole through the front door of the house, and two through an exterior porch wall. There was blood on the front porch. The slug which passed through the front door was recovered and was found to be from the .38 pistol.
There were no signs of forced entry through either the front or back door. Both doors were closed and locked when witnesses Warness and Golman arrived at the scene. A front window was broken out, however, and a stick of wood was found lying on the davenport inside the window. Mr. Warness entered the house through that window after removing two pieces of broken glass.
Law enforcement officers, utilizing a metal detector obtained from Fort Lewis, searched the premises thoroughly for a rifle casing or slug, but found none. Hence, except for the opinion testimony of Mr. Simmons, a former sheriff (to The foregoing evidence, taken together with Mr. Simmons' opinion testimony, constitutes the entire state's case relating to the corpus delicti, which is the first element of the crime to be proven beyond a reasonable doubt (see instruction No. 15, supra), to wit, that Dan Damitio was killed in a criminal manner.
be discussed later), there was no direct evidence that any weapon other than the .38 special belonging to the deceased was fired at the scene.
The only direct evidence connecting appellant with the death of Damitio was the testimony of Mrs. Burns, an alleged accomplice. Her testimony, if believed by the jury, would establish the following:
She and Patrick drove Patrick's station wagon north from Aberdeen on February 2, 1963, stopping for gas in Hoquiam. They subsequently made stops at the Wigwam tavern and at the Ox Bow. They met appellant at a tavern in Amanda Park at about 4 or 4:30 p.m. There, the three had a few drinks and played shuffleboard. Nelson and Patrick left for about five minutes, but Mrs. Burns testified that she did not know where they went. The trio left the tavern in Amanda Park shortly after Patrick and Nelson returned, and they went to Nelson's cabin near Lake Quinault. Patrick and Nelson went into the cabin, and returned a few minutes later with a rifle, placing it behind the front seat of the car on the floor. Mrs. Burns also testified that there had already been a rifle there, one given Patrick by her father at some earlier time. She said she had asked the two what the rifle was for, and one of them replied that 'something was up.'
The three then set out for Aberdeen, stopping on the way at the Ox Bow for coffee, and at the Midway tavern on the boundary between Aberdeen and Hoquiam.
When they left that tavern, they headed for Montesano, which is 10 miles east of Aberdeen. Patrick asked Mrs. Burns if she had some nylon stockings, and she replied that she did not. Patrick then stopped in Montesano and sent Mrs. Burns into the Safeway store to purchase two pairs of She testified that they did not continue on the main road through Cedarville, but turned off onto a side road when they noticed a car with no lights on in a garage. They went down the road about a mile, and stopped at a service station. Mrs. Burns testified that, after they had stopped, Patrick and Nelson discussed something about which would be the best way to go in.
nylons. She returned to the car after making the purchase, and Patrick then drove the car toward Elma. They passed on through Elma toward Cedarville.
At this point, Mrs. Burns took the nylon stockings she had purchased in Montesano out of the glove compartment and placed them on her lap. She stated that Nelson took one, stretched it as if to put it over his head, but that neither of the men wore the stockings when they left the car.
Patrick and Nelson got out of the car, Patrick telling Mrs. Burns to keep the motor going, and that, if any car came along, she was to drive until she passed the car and then turn around and come back. A car did come along once while the two men were out of the car and Mrs. Burns obeyed Patrick's instructions.
She further testified that neither of the men took anything with them when they first left the car. Patrick returned to the car after a time and took a flashlight. According to her testimony, to her knowledge, neither of the rifles lying on the floor behind the seat in which she was sitting was taken from the car. She also stated that she could not tell which way Patrick and Nelson went after they left the car, because it was dark and raining outside.
Mrs. Burns testified that there were no lights on either in the house across the street from the service station (Damitio's house) or in the service station itself. Mr. Golman, who heard two shots from the direction of Damitio's house, testified that the lights in the house went on just after the shots were fired.
Both Patrick and Nelson returned to the car, Nelson saying, 'I am shot.' Patrick later admitted to Mrs. Burns In the trial court's instruction No. 20, the jury was told that:
that he, too, had been shot, and she then took the wheel of the car and drove the rest of the way to St. Joseph Hospital in Aberdeen.
You should consider the testimony of an alleged accomplice only with great care and caution. You must subject such testimony to careful...
To continue reading
Request your trial
-
State v. J-R Distributors, Inc.
...and is properly qualified to express an opinion as an expert is within the sound discretion of the trial court. State v. Nelson, 72 Wash.2d 269, 432 P.2d 857 (1967); State v. Tatum, 58 Wash.2d 73, 360 P.2d 754 (1961). Clearly the trial court did not abuse its Finally, as pointed out in Kapl......
-
State v. Lord, 54385-2
...witness is properly qualified to express an opinion as an expert is within the sound discretion of the trial court. State v. Nelson, 72 Wash.2d 269, 276, 432 P.2d 857 (1967).9 Lord does not raise a claim under the due process clause of the Washington Constitution, article 1, section 3. Thus......
-
State v. Ruiz
...that Washington does not allow a witness to be called if she or he is going to assert a privilege. He relies upon State v. Nelson, 72 Wash.2d 269, 432 P.2d 857 (1967). Nelson is easily distinguishable. There a codefendant, Patrick, who had pleaded guilty to a lesser murder charge validly as......
-
State v. Blade, No. 29684-5-II (WA 2/1/2005)
...that the defendant is guilty because he exercised his constitutional rights. Silva, 119 Wn. App. at 429 (citing State v. Nelson, 72 Wn.2d 269, 285, 432 P.2d 857 (1967)). `The inference always adds weight to the prosecution's case and is always, therefore, unfairly prejudicial.' Silva, 119 W......