State v. La Porte

• Decision Date: 28 September 1961
• Docket Number: No. 35250,35250
• Citation: 58 Wn.2d 816,365 P.2d 24
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Andres LA PORTE, Appellant.

Page 816

58 Wn.2d 816

365 P.2d 24

STATE of Washington, Respondent, v. Andres LA PORTE, Appellant.

No. 35250.

Supreme Court of Washington, En Banc.

Sept. 28, 1961.

Corbett & Siderius, Seattle, T. Patrick Corbett, Seattle, of counsel, for appellant.

Charles O. Carroll, Pros. Atty., King County, Hugh R. McGough, Jack B. Regan, Seattle, for respondent.

WEAVER, Judge.

This appeal presents four assignments of error: first, defendant was twice placed in jeopardy on Court I of the information; second, certain statements made during trial by the deputy prosecuting attorney constituted prejudicial error; third, four instructions given were erroneous; and fourth, the court erred when it refused to give seven of defendant's requested instructions.

February 7, 1958, defendant was charged in justice court with the crime of grand larceny--that he 'did take, steal and carry away from the person of one Michael Joyce, certain personal property'--on or about February 2, 1958. March 17, 1958, the charge was reduced to petit larceny; defendant pleaded guilty and was sentenced to six months in the county jail, with credit for time served.

May 15, 1959, defendant was charged in two counts with second-degree assault--the first, committed upon Michael Joyce, on or about February 5, 1958, 'by forcefully touching his person, with intent to commit a felony, to-wit, Robbery;' the second, committed upon Daniel Quiputla, with the same intent.

The charge of second-degree assault committed against Michael Joyce encompasses the acts of defendant used to support the previous charge of petit larceny, to which defendant pleaded guilty and for which he served a jail sentence.

Has defendant been in double jeopardy? We do not think so.

Double jeopardy does not exist where a defendant stands charged with different offenses, even though they arise out of the same act. State v. Boren, 1953, 42 Wash.2d 155, 164, 253 P.2d 939, and cases cited.

Double jeopardy does exist if the offenses are identical, or if a lesser offense can be said to be 'a constituent element in the perpetration of the greater offense.' State v. Campbell, 1905, 40 Wash. 480, 483, 82 P. 752, 753. However, the offenses must be identical in both fact and law. State v. Barton, 1940, 5 Wash.2d 234, 105 P.2d 63; State v Kingsbury, 1928, 147 Wash. 426, 266 P. 174; see State v. Schoel, 1959, 54 Wash.2d 388, 341 P.2d 481.

The offenses involved in the instant case do not meet this test.

Second-degree assault, insofar as it is here applicable, is defined by statute.

'Every person who, under circumstances not amounting to assault in the first degree----

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'(6) Shall assault another with intent to commit a felony, * * *

'Shall be guilty of assault in the second degree and be punished by imprisonment in the state penitentiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.' RCW 9.11.020.

RCW 9.54.010 defines larceny in general; RCW 9.54.090 sets forth specific acts constituting grand larceny and provides:

'Every other larceny shall be petit larceny and shall be a gross misdemeanor.'

Defendant pleaded guilty to petit larceny.

The gravamen of assault in the second degree is assault with intent to commit a felony; petit larceny is a taking of property.

The crimes are not identical in law; hence, defendant has not been in double jeopardy.

Defendant assigns error to six statements made by the deputy prosecuting attorney-- one in his opening statement to the jury, the remainder in his closing argument--claiming they were prejudicial and denied him a fair trial.

The most recent statement of the rule applicable to this assignment of error is found in State v. Cogswell, 1959, 54 Wash.2d 240, 242, 339 P.2d 465, 467, wherein this court said:

'As a general rule, this court will not consider an assignment of error based upon alleged misconduct of a prosecuting attorney unless the aggrieved party has made timely objection and requested an instruction that the jury disregard the incident. State v. Taylor, 1955, 47 Wash.2d 213, 287 P.2d 298. An exception to the rule is found in those cases where the misconduct has been so flagrant that an instruction could not cure it. State v. Case, 1956, 49 Wash.2d 66, 72, 298 P.2d 500, and cases cited. If such be the case, then the aggrieved party has not received a fair trial. See Ryan v. Ryan, 1956, 48 Wash.2d 593, 600, 295 P.2d 1111.' Quoted with approval in State v. Bowman, Wash.1960, 356 P.2d 999.

When the trial opened, the court told the jury, all of whom had had previous jury experience, that the opening statements of counsel were not to be considered 'as testimony or evidence of any facts stated.'

The deputy prosecuting attorney, in his opening statement, reiterated that 'nothing that we say is evidence.' He then gave a general outline of the facts the state expected to prove and closed by saying:

'After the evidence is in and under the instructions of the Court, I do not see how you folks, after careful deliberation, can reach any verdict other than guilty on both counts of assault in the second degree.'

At the end of the trial, the deputy prosecutor reviewed the evidence and closed his opening argument to the jury with these words:

'The issues you have to resolve are very simple, but we believe there is sufficient evidence here so that you can resolve the issues, and if you consider the evidence fully, we believe that the evidence does justify a verdict of guilty on each count.'

On both occasions, defense counsel objected to the expression of personal opinion by the deputy prosecutor and moved for a mistrial. On the same occasions, the court cautioned counsel that he could not argue his personal beliefs to the jury and instructed it to disregard these particular statements.

There is a distinction between the individual opinion of the prosecuting attorney (discussed at length in State v. Case, 1956, 49 Wash.2d 66, 298 P.2d 500) and 'an opinion based upon or deduced from the testimony in the case.' State v. Armstrong, 1905, 37 Wash. 51, 55, 79 P. 490, 491.

When read in context, the quoted statements fall into the second category. Any prejudice resulting from them, however, was removed by the court's instruction that they be disregarded.

Defendant's counsel made no objections to three statements of the deputy prosecutor to which error is now assigned. Conceding arguendo that they were erroneous, the exception to the rule is not applicable, for, when read in context, the statements were not so flagrant that an instruction could not have cured the error. See State v. Case, supra.

The final statement of the deputy prosecutor, to which defendant now assigns error, arose in the following manner. After the jury had retired to consider its verdict, defense counsel addressed the court as follows:

'May it please the Court using the famous Case case, * * * [49 Wn. (2d) 66, 298 P. (2d) 500 (1956)] I would again object to counsel's argument that the State urges that the defendant be sent to the penitentiary. I feel that it is misconduct of counsel, urging it to the Court. Move for a mistrial on that basis. It cannot be corrected by any instructions to the jury.' (Italics ours.)

Defendant testified in his own behalf. He testified about his incarceration in the county jail for petit larceny upon the 1958 justice court charge. He stated that he had been convicted 'some ten times,' but that he had never been sentenced to the penitentiary.

Defense counsel wove two thoughts through his argument to the jury: That defendant had pleaded guilty to petit larceny and served six months in jail for the incident upon which Count I is based--thus laying the foundation for the argument in support of the claim of double jeopardy; and that the state entertained some ulterior motive in bringing the assault charge based upon the same incident.

The court, on its own motion, interrupted argument of defense counsel and stated 'He pled guilty to petty larceny and he is not being tried for that, and I will ask you not to so argue that to the jury.'

Nevertheless, defense counsel continued:

'We have the two counts now before you. I think you have seen the picture. I think from what you may reasonably draw from the evidence, the reasonable inference to be drawn from the evidence as an over-all picture is that of someone seeking blood. Why?' (Italics ours.)

The backdrop painted by defense counsel presented a picture to which the deputy prosecutor was entitled to apply his brush if he so desired.

As a general rule, remarks of the prosecutor, including such as would otherwise be improper, are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel and where they are in reply to or retaliation for his acts and statements, unless such remarks go beyond a pertinent reply and bring before the jury extraneous matters not in the record, or are so prejudicial that an instruction would not cure them. See State v. Wright, 1917, 97 Wash. 304, 308, 166 P. 645.

In his closing argument, the deputy prosecutor replied:

'* * * he has asked why the State has done this? Why are we trying to send him to the penitentiary, which, of course, is why he is here.'

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'* * * and there is only one reason that he is here today, charged again with the same facts, and that is what the evidence shows you; that within two months of being released from the county jail on the prior assault, he was out doing it again. That is the only reason he is here today, charged with two counts of assault, second, and that is the reason why the State is asking you to send this man to the penitentiary.' (Italics ours.)

We do not approve of counsel's mentioning the penitentiary, for, in a case such as this, the jury may not consider the possible penalty in determining defendant's guilt. People v. Jensen, 1954, 43 Cal.2d 572, 275 P.2d 25; see State v. Ellsworth, 1952, 40 Wash.2d 375, 242 P.2d 1019. It...