State v. Oughton, 3582-II

• Decision Date: 30 April 1980
• Docket Number: No. 3582-II,3582-II
• Parties: The STATE of Washington, Respondent, v. Arthur James OUGHTON, Appellant.
• Court: Washington Court of Appeals

Page 74

26 Wn.App. 74

612 P.2d 812

The STATE of Washington, Respondent, v. Arthur James OUGHTON, Appellant.

No. 3582-II.

Court of Appeals of Washington, Division 2.

April 30, 1980.

[612 P.2d 813] David D. Gordon, Gig Harbor, for appellant.

Joseph D. Mladinov, Senior Deputy Prosecutor, Tacoma, for respondent.

REED, Chief Judge.

Arthur James Oughton appeals his conviction of first-degree murder. He does not challenge the sufficiency of the evidence presented against him but claims several procedural errors individually or cumulatively deprived him of a fair trial.

We reverse on the basis of the analysis set forth below.

As defendant's appointed counsel on appeal pointed out in oral argument, no matter how incredible a given defendant's story may sound, due process entitles him to a fair chance to get his version of the events before the jury so that they may make an unprejudiced decision. Because we are unable to say from the record before us whether the defendant would or would not have been convicted but for several errors which occurred at trial, we reluctantly Arthur Oughton and Joyce Johnson had lived together for about 7 months in 1977. The defendant moved out in October but, in spite of his having assaulted her with his fists at Christmas time, the couple continued to see each other on an intimate basis. Mrs. Johnson was a widow with 4 adult sons. The sons showed varying degrees of animosity toward the defendant. After the Christmas incident, the animosity became outright hostility and the sons threatened the defendant. The couple continued to see each other despite the sons' hostility, but the relationship continued to deteriorate.

reverse. State v. Martin, 73 Wash.2d 616, 627, 440 P.2d 429 (1968), cert. denied 393 [612 P.2d 814] U.S. 1081, 89 S.Ct. 855, 21 L.Ed.2d 773 (1969).

Determined, he says, to settle the situation once and for all, on the evening of Saturday, January 15, 1978, the defendant let himself into Mrs. Johnson's home and waited 5 hours for her return. They began discussing the relationship. According to the defendant, he took out a sheath knife (which he carried because he was afraid of the sons) and banged on the kitchen table to emphasize what he was saying. He declared that if the boys would not leave him alone, somebody was going to get hurt. The defendant says Mrs. Johnson answered that if someone was going to get hurt, that included her, too. With that, she grabbed the defendant's knife hand and pulled the knife into her chest twice. One wound was superficial, the other, fatal.

After the stabbing, the defendant says he tried to telephone for help but stopped dialing and left the house because he thought one of the sons had arrived. Forty-five minutes later he was arrested in a telephone booth while talking to the emergency operator. He said he wanted someone to go to the victim's home "to see if she's all right" and admitted he wanted to give himself up.

OPINIONS RE DEFENDANT'S TRUTHFULNESS

The first issue defendant raises relates to allowing a detective to testify about his opinion of defendant's truthfulness. ¹

The court had already permitted an exchange in which the defense counsel was allowed to ask similar questions of another police officer. ²

Without delivering a lengthy treatise on opinion evidence, we note this court has "recognized the impropriety of admitting the opinion of any witness as to guilt by direct statement or by inference." State v. Haga, 8 Wash.App. 481, 492, 507 P.2d 159, 167, review denied 82 Wash.2d 1006 (1973). Because this entire case turned on defendant's credibility, such questions are all the more suspect. However, defendant "opened the door" to this subject with his own question. He will not now be heard to complain of the prosecution's use of substantially the same words to rebut the earlier testimony. 5 Wash.Prac. § 323 (1965); State v. King, 58 Wash.2d 77, 78, 360 P.2d 757 (1961); State v. Atkinson, 19 Wash.App. 107, 112, 575 P.2d 240 (1978).

DENIAL OF CONTINUANCE

By the date of the omnibus hearing, less than a week before trial, the prosecuting attorney had not yet supplied the defendant with the substance of oral statements it had obtained from the victim's sons, Terry and Danny At 11 a. m. on the third day of trial, Terry Johnson for the first time gave the prosecutor additional information which has resulted in this assignment of error. Terry Johnson said that, shortly after his mother's death, he looked through her clothes and found they had been slashed or cut and spray-painted gold. The prosecuting attorney did not inform defense counsel or the court of this new information. It was revealed only when Terry Johnson testified at 2:20 p. m. that afternoon. The defendant objected to the testimony on grounds of relevance and surprise and because the information had not been supplied pursuant to the discovery rules.

                Johnson.  3  The sons [612 P.2d 815] having refused to speak with defense counsel, the court ordered them to grant interviews in the prosecutor's office the next day.  The prosecutor also gave defense counsel written statements from the witnesses
                

Rejecting the claim of surprise, the trial court noted defense counsel had had sufficient opportunity to elicit the information himself during his interview with the witness and had not done so. The trial court also overruled the relevance objection. Finally, the court denied the motion for a continuance.

The prosecution made no effort to present evidence directly connecting the slashed clothing either to the defendant or with the death of the victim or to explain why the police had not uncovered this evidence in their thorough search for the murder weapon. The prosecutor did The State argues that no error occurred. We disagree. This court has declared that "promptly" in CrR 4.7(h)(2) means at the moment of discovery or confirmation, even when that occurs during trial. State v. Falk, 17 Wash.App. 905, 908, 567 P.2d 235 (1977); State v. Harris, 14 Wash.App. 414, 420, 542 P.2d 122 (1975). The prosecuting attorney elected to keep this information from defense counsel and from the trial judge until Terry Johnson revealed it on the stand. This tactic not only falls within conduct barred by CrR 4.7(h)(2), it also runs contrary to the principles behind broad criminal discovery accepted in this state. See State v. Nelson, 14 Wash.App. 658, 662-63, 545 P.2d 36, 39 (1975). The United States Supreme Court has expressed the philosophy behind rules such as 4.7(h)(2) in language particularly appropriate in this case.

however, rely on this testimony in closing argument with 3 suggestive references.

The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. (Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970).)

(Quoted with emphasis in State v. Nelson, supra at 663, 545 P.2d at 39.)

The State would have us make a distinction between inculpatory and exculpatory evidence and find no duty to produce the former. CrR 4.7(a)(i) makes no such distinction and neither do we.

Generally speaking, the trial court has broad discretion to choose the appropriate sanction for violations of the discovery rules. CrR 4.7(h)(7). Likewise, the granting of a continuance is ordinarily a matter of discretion. However, if actual prejudice to the defendant is shown because of the denial of a continuance, reversible error has occurred. State v. Eller, 84 Wash.2d 90, 95, 524 P.2d 242 (1974).

In the present case, actual prejudice has been shown. It was critical to Arthur Oughton's defense that the jury believe that his relationship with Joyce Johnson had been basically warm and friendly to the very end. Although not

able directly to connect it with defendant, the prosecution's [612 P.2d 816] obvious purpose in presenting evidence of the mutilated clothing was to suggest that defendant had harbored violent feelings toward her. The defendant was entitled to a reasonable time to obtain rebuttal to the assertions of witness Terry Johnson and was therefore prejudiced by the denial of the continuance. See State v. Hoggatt, 38 Wash.2d 932, 934, 234 P.2d 495 (1951). Because the prosecuting attorney failed in the first instance to comply with the discovery rules and because defendant was then denied any reasonable opportunity to investigate and rebut newly discovered information, we hold the defendant was denied his right to a fair and unbiased trial.

HEARSAY LACK OF CAUTIONARY INSTRUCTION

Within a half-hour of the stabbing, Deputy Hodges asked Danny Johnson who had killed his mother. Over objection, the deputy testified that Danny answered, "Art." The court admitted the statement under the res gestae or excited utterances exception to the hearsay rule and for the limited purpose of providing a foundation for later testimony about why the deputies were en route to the defendant's home when they arrested him. Since Danny was neither a participant in nor a witness to the death, his statement does not qualify as a hearsay exception under our rules governing excited utterances. Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113, 127 A.L.R. 1022 (1939). The statement was arguably admissible for the limited purpose of showing a basis for later police activity although we have grave doubts as to the necessity for it in the circumstances.

In our review of the record, we note an instance where, over objection, the trial court permitted a witness to quote a telephone conversation in which Danny Johnson declared he had found his mother's body and that defendant had killed her. This was erroneously permitted as being within the res gestae rule. Danny Johnson also testified over objection that he told the officers when they arrived that Arthur Oughton was the suspect they ought to be looking The defendant claims the trial court committed reversible error because it failed to caution the...