State v. Niblack

• Decision Date: 18 July 1968
• Docket Number: No. 39935,39935
• Citation: 443 P.2d 809,74 Wn.2d 200
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Larry Joe NIBLACK and Bennie Charles Hess, Appellants.

Page 200

74 Wn.2d 200

443 P.2d 809

The STATE of Washington, Respondent, v. Larry Joe NIBLACK and Bennie Charles Hess, Appellants.

No. 39935.

Supreme Court of Washington, Department 1.

July 18, 1968.

Horrigan, Sullivan & McKinlay, Edward H. McKinlay, Pasco, for appellants.

C. J. Rabideau, Pros. Atty., Pasco, for respondent.

ROSELLINI, Judge.

The defendants appeal from a judgment entered on a verdict of guilty of the crime of taking a motor vehicle without the permission of the owner. Their first contention is that they were denied a speedy trial and that their motion for dismissal, made on the day the case came up for trial, should have been granted.

According to the record, the defendants were arrested on June 2, 1967. The were arraigned June 16, counsel having been appointed on June 9, and entered pleas of not guilty. The court called the attention of counsel to the fact that the next jury term would begin in September and asked if a special jury panel would be requested. Although the defendants' counsel said that he might ask for a trial within the 60-day period provided by RCW 10.46.010, the record does not show that he ever made such a request, or that he in fact raised the objection that his clients had been denied a speedy trial until the day the trial was to begin.

The defendants concede that this court has held that the fact that, for practical reasons, jury panels are not maintained during July and August, is good cause for not setting a case for trial within those months. It was so held in State v. Jesse, 65 Wash.2d 510, 397 P.2d 1018 (1965). In this case, the record shows that the trial court was willing to call a special panel, but none was requested. The trial was held one week after the fall term began, which the record shows was the earliest convenient date. There is no showing that an earlier date would not have been provided had the defendants made a timely request. By waiting until the day set for trial, they waived their right to a dismissal. State v. Green, 70 Wash.Dec.2d 926, 425 P.2d 913 (1967).

In their second assignment of error, the defendants assert that the trial court erred

In refusing to appoint a psychiatrist for the examination of defendant Hess, while subsequently permitting a State psychiatrist to testify for the State, whose name was not on the Prosecutor's witness list.

The record shows that, on the application of the defendant Hess's attorney, concurred in by the prosecutor, the court entered an order on June 30, 1967, transferring the defendant Hess to the Western State Hospital for examination. He remained there until July 21, when he was returned to the Franklin County jail. The report of the examination, which was made to the trial court, with copies to defense counsel and to the prosecutor, showed that, although a personality or character disorder was found, there was no diagnosis of mental illness or of insanity.

The contention of the defendant Hess that he was insane was and is rested solely upon the fact that, in a criminal trial in a Colorado court in 1963, he was found to be criminally insane by a jury and was committed to the Colorado State Hospital. He subsequently escaped from that hospital and came to the state of Washington. Under Colorado law, in finding a defendant insane in a criminal proceeding, the jury may employ the 'irresistable impulse' test, a test which is not considered valid in this jurisdiction. State v. White,60 Wash.2d 551, 374 P.2d 942 (1962).

The request for the appointment of a psychiatrist was made on behalf of the defendant Hess on September 15, 1967, 10 days before the date set for trial. He cites no authority for the proposition that he was entitled to have a psychiatrist appointed. In the affidavit accompanying his request, it was not alleged that he was then insane or mentally irresponsible. Nor was it said that he had been inadequately examined at the Western State Hospital or that the report issued by that institution was untrustworthy. Furthermore, there was no allegation of new facts which were not before the examining physicians at that hospital, the consideration of which might produce a different diagnosis.

We find no statute requiring a court to appoint a psychiatrist on the request of a defendant. We do, however, have a rule that the trial court may appoint a commission to inquire into the sanity of a defendant where the issue of his sanity is raised. The rule is that the appointment of such a commission is within the discretion of the trial court. State v. Biondic, 47 Wash.2d 593, 288 P.2d 845 (1955); State v. Miller, 177 Wash. 442, 32 P.2d 535 (1934); State v. Peterson, 90 Wash. 479, 156 P. 542 (1916).

Here, the record shows that the trial court granted the defendant's application to be transferred to the Western State Hospital, that he was observed and examined over a period of time, and that a report was made, the reliability of which has not been challenged by the defendant. Under these circumstances, the trial court did not abuse its discretion in refusing to appoint another psychiatrist to examine the defendant Hess.

While the defendant Hess complains that the psychiatrist from the state hospital was permitted to testify on behalf of the state to rebut the presumption of insanity which he alleges arose from his introduction of evidence that he had been adjudicated criminally insane in Colorado, he concedes that the state is not required to furnish him a list of rebuttal witnesses. He suggests, however, that the state should have anticipated the fact that he would introduce evidence of his adjudication and commitment, and should have furnished him a list of the witnesses it would call in rebuttal to that evidence.

We are cited no authority for the proposition that the prosecutor must anticipate the evidence which a defendant will offer in support of his affirmative defenses and tender a list of the witnesses which it will call to rebut that evidence, nor are we given a rationale to support such a rule. In this case, the prosecutor was no better informed about the nature of the defendant's probable evidence than was the defendant about the identity of the prosecutor's probable rebuttal witness. The defendant had a copy of the hospital's report, and it showed on its face that it would be more useful to the prosecutor than to the defendant. He could reasonably assume that the examining psychiatrist would be called by the state if a rebuttal became necessary. The defendant could hardly be heard to claim surprise, and in fact he does not make such a claim.

We find no merit in the contention that this witness should not have been permitted to testify.

The state's key witness was an itinerant worker, admittedly an alcoholic, who claimed to have been given a ride from Pasco to Walla Walla in the truck which was alleged to have been taken without the consent of the owner. Another witness, a service station attendant, was able to identify the defendant Niblack as the driver of the truck, but it was only upon the testimony of the witness Doak that the defendant Hess was implicated.

This witness described how the truck stopped when he signalled for a ride, how he set between the two defendants and joined them in drinking wine as they drove to Walla Walla, stopping at one point to purchase gasoline. He testified that the defendant Niblack had to forcibly remove the gasoline cap in order to have the tank filled. He also testified that the truck was driven at an excessive rate of speed, and that he was afraid to ask to be allowed to get out of the truck, thinking the defendants would break the wine bottles over his head and throw him in a lake. According to the story told by the witness Doak, when the three reached Walla Walla, the truck was parked, and Doak got out of it and jumped into a pickup truck. The defendants, at this point, drove off in the truck, which was found later abandoned.

The defendants complain of prejudicial and inflammatory remarks made in the course of the testimony of this witness. They say that, by his testimony, they were accused of drunkenness, possible drunken driving, reckless driving, and assaults on two old men which, Doak said, occurred when one of the defendants was brought into the 'drunk tank' where he was incarcerated. This last testimony was given in response to the prosecutor's question, 'And when was the next time you saw the defendants?'

A number of cases have been cited in which we have held that the introduction of inflammatory and irrelevant matter, which has a natural tendency to prejudice the jury, denies to the defendant a fair trial. The prejudicial effect of such testimony, we have said, may be so serious that it cannot be cured by an instruction to disregard it. The most recent of these decisions is State v. Miles, 73 Wash.Dec.2d 65, 436 P.2d 198 (1968). In that case a policeman, testifying for the state...