State v. Price

• Decision Date: 01 April 1977
• Docket Number: No. 1865--III,1865--III
• Citation: 562 P.2d 256,17 Wn.App. 247
• Parties: STATE of Washington, Respondent, v. George PRICE, Appellant.
• Court: Washington Court of Appeals

Page 247

17 Wn.App. 247

562 P.2d 256

STATE of Washington, Respondent, v. George PRICE, Appellant.

No. 1865--III.

Court of Appeals of Washington, Division 3.

April 1, 1977.

Rehearing Denied May 2, 1977.

Alan D. Campbell, Willis, McArdle, Dohn & Talbott, Yakima, for appellant.

Michael J. McGuigan, Deputy Pros. Atty., Jeffrey C. Sullivan, Pros. Atty., Yakima, for respondent.

MUNSON, Chief Judge.

George A. Price appeals his conviction of indecent liberties under RCW 9.79.080(2), ¹ after trial to the court in November 1975. His appointed counsel on appeal filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Borsey, 6 Wash.App. 482, 494 P.2d 225 (1972), pointing out possible errors committed by the trial court and moving to withdraw as counsel on appeal. The defendant filed a supplemental brief. We affirm and grant counsel's motion to withdraw.

Defendant contends that the trial court erred in limiting his cross-examination of the victim. His attorney attempted to question the victim, a 13-year-old female, as to her past sexual behavior, purportedly to show (a) that Price was not the initiator or the actions and (b) her motivation for testifying against Price.

It is immaterial whether Price was the initiator of the actions; intent is not an element of indecent liberties, State v. Haywood,2 Wash.App. 109, 466 P.2d 859 (1970).

Prior to the enactment of RCW 9.79.150, defense counsel was allowed great latitude in cross-examining the victim relative to motive or credibility. State v. Peterson, 2 Wash.App. 464, 469 P.2d 980 (1970); State v. Tate, 2 Wash.App. 241, 469 P.2d 999 (1970). RCW 9.79.150(2) and (3), ² effective 1975, specifically prohibit cross-examination of a sex crime victim as to her past sexual behavior in order to show credibility. Cross-examination as to the victim's past sexual behavior as it may relate to motivation is still allowed. The extent of that cross-examination is a matter left to the court's discretion, particularly as to collateral matters that would affect the weight of the witness's testimony. See State v. Battle, 16 Wash.App. 66, 553 P.2d 1367 (1976).

Under RCW 9.79.080, repealed as of July 1, 1976, consent, a determination of who was the initiating party, or the victim's motive for testifying are not at issue. The only issue is whether conduct sufficient to constitute indecent liberties took place. The trial court did not abuse its discretion in denying the cross-examination. State v. Krausse, 10 Wash.App. 574, 519 P.2d 266 (1974).

Defendant contends, in his supplemental brief, that he was not given the best defense possible because a total of three attorneys handled his case, rather than having only his trial attorney represent him from the initial filing through the appeal. ³ The defendant's allegation that one attorney should have handled the case during all the proceedings is not well taken. The court has the right to appoint counsel for indigent defendants, without first consulting such indigents; there is a presumption that when the court appoints experienced counsel, such counsel is competent. State v. Bradley, 175 Wash. 481, 27 P.2d 737 (1933); CrR 3.1; CAROA 46, 47. After considering the entire record, both at the trial level and on appeal, we conclude that the defendant was afforded an effective and competent representation at both levels, was given a fair and impartial trial, and received fair and impartial treatment on appeal. Cf. State v. Thomas, 71 Wash.2d 470, 429 P.2d 231 (1967).

Defendant next contends that error was committed by allowing Judge Hettinger to remain as the trial judge after he had ruled at a pretrial hearing that defendant's polygraph test would be inadmissible. This issue was not raised at trial, but is considered because it relates to defendant's constitutional right to a fair trial. Cf. State v. Madry, 8 Wash.App. 61, 504 P.2d 1156 (1972).

Our review fails to disclose any unfairness perceivable during the trial, in the court's oral opinion, or at sentencing that relates to the fact the same judge ruled on the admissibility of the polygraph examination. The defendant did admit, at trial, to an incident of touching the victim's bosom several days earlier, but the judge did not convict the defendant for that incident. This issue is not well taken.

Even though refuted by both the defendant and his wife, the victim's uncorroborated testimony was sufficient to present the question of defendant's guilt or innocence to the trier of fact. State v. Johnson, 9 Wash.App. 766, 514 P.2d 1073 (1973).

After reviewing the entire record, we find no error. Defendant's counsel has complied with Anders v. California, supra, and State v. Borsey, supra, and his motion. to withdraw is...