State v. Richard

• Decision Date: 08 March 1971
• Docket Number: No. 332--I,332--I
• Citation: 4 Wn.App. 415,482 P.2d 343
• Parties: STATE of Washington, Respondent, v. Jules Henry RICHARD, Jr., Appellant.
• Court: Washington Court of Appeals

Page 415

4 Wn.App. 415

482 P.2d 343

STATE of Washington, Respondent, v.Jules Henry RICHARD, Jr., Appellant.

No. 332--I.

Court of Appeals of Washington, Division 1, Panel One.

March 8, 1971.

Lundin, Estep, Sindell, Haley & Chambers, Donald D. Haley, court appointed, Seattle, for appellant.

Christopher T. Bayley, King County Pros.Atty., Terrence A. Carroll, Deputy Pros.Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant was convicted after jury trial of committing a second degree assault and two robberies on February 20, 1969.The jury by special verdict also found that at the time of the commission of the crimes charged defendant was armed with a deadly weapon.By its verdict of guilty the jury impliedly rejected defendant's plea that he was temporarily insane or mentally irresponsible at the time the crimes were committed.The court denied defendant's motion for new trial and imposed sentence.Defendant appeals.

The sufficiency of the evidence to support the crimes of which defendant was convicted is not questioned.

Most of the testimony below bore upon defendant's plea of temporary insanity or mental irresponsibility under RCW 10.76.Defendant sought to prove that he became temporarily insane or mentally irresponsible on February 20, 1969, either or both because of various events in his past history and by reason of various incidents occurring on February 19 and 20.Because the assignments of error are principally concerned with defendant's plea, a proper understanding of the assignments requires a summary of the evidence introduced upon that plea.

Defendant, the eldest of six children, was raised in part by his long-divorced mother in an unhappy and poverty stricken home.When he was two, he swallowed a bottle of aspirin and acted strangely thereafter for several days.He received no medical treatment at the time, although he appeared to have recovered.Defendant's father on infrequent visits took defendant to gambling houses, pool halls, and places frequented by prostitutes.At 12 defendant was referred to the juvenile court because he could not get along at home.In his next 6 years, he lived in various correctional institutions such as Cascadia, Green Hill, and Stubblefield Home in Walla Walla.In his early years he suffered from enuresis and was nervous at school.When he was about 13, he was treated in the Community Psychiatric Clinic.In the next 3 years he had a series of dizzy spells and periods in which he lost consciousness.These occurred several times a week for a while, but eventually eased off.The last such incident occurred when defendant was in the army where he had problems of adjustment until discharged.In 1967he was knocked unconscious when struck on the head by a container containing a quart of oil.He received hospital treatment for this injury.In the same year he was involved in an automobile accident and sustained undetermined injuries.

On February 19, 1969, defendant slept most of the day.That evening he commenced drinking beer about 6 p.m., and then 2 hours later becan consuming wine, bourbon and other alcoholic beverages.By midnight defendant was 'high' and not acting normally.That evening he also attended a party where intoxicating liquors were served and LSD, a dangerous drug, was present.That evening, or some time the next day before the crimes charged were committed, he smoked a marijuana cigarette.Defendant knew that LSD came in powdered form and could be dissolved and quickly disappear in liquid.He testified in substance that he did not voluntarily and knowingly consume LSD.Dr. C. Richard Johnson, a Seattle psychiatrist who examined him later, concluded that defendant's behavior during the commission on February 20 of the crimes charged could best be explained by defendant, without his knowledge, having received LSD in one or more of the drinks he had consumed at the partyhe had attended.Defendant finally left the party at 1 a.m. on February 20.He then went into several cocktail taverns, but did not remember leaving them.According to the defendant's testimony, he had a total blackout lasting from approximately 3 a.m. to 8:30 p.m. on February 20.Accordingly, he was unable to testify to the occurrences during that period.His next recollection was waking up in a padded cell in the city jail.

Between 6:15 a.m. and the time of his arrest on the morning of February 20, defendant committed the three crimes for which he was convicted.The assault charge was one in which he held up Mr. Dennis Earl Lange, a Seattle cab driver.After asking Lange for money, defendant fired a shot at him which missed, and instead struck the dashboard.Defendant then broke the cab window and ran off without taking any money.The robberies were committed about 6:30 a.m. that morning, in which he robbed a small sum of money from James H. Damery, Sr., and then Lauren A. Ball.Mr. Damery was an employee of Madrona Foodliner in the 34th and E. Union Street area of Seattle, and Mr. Ball was a bread truck driver for Van de Kamp Bakeries.

While the robberies were committed there was a strong odor of alcohol on defendant's breath.Defendant's speech was excitable and he seemed to be acting and talking somewhat, but not entirely, irrationally.In the course of the commission of the robberies, defendant's gun went off between the heads of the two victims.Shortly after defendant left the scene of the robberies, he fired two or three additional shots.Seattle police officers then arrived on the scene, and, after seeing the defendant standing in a doorway near the area of the robberies, they attempted to arrest him.The defendant at that time had a gun in his hand.The police officers, including Officer Aardahl who initially sought to arrest defendant, drew their revolvers.Defendant threw down his gun.He then stood approximately eight steps above the officers.He refused the officers' demand that he come down, stating that the officers would have to shoot him before he would do so.Four officers then went up the steps, grabbed the defendant and pulled him down.Two officers handcuffed him and placed him in the back seat of Sgt. William R. Rutherford's car.Defendant was then advised of his constitutional rights and placed under arrest.Defendant yelled and screamed during the entire trip to the police station.He was enunciating words but it was impossible to hold a conversation with him that made any sense.He had to be physically restrained while in the car.

Dr. Antone F. Salel, the city jail physician, saw the defendant at approximately 7:15 a.m. on February 20.The defendant was angry, his pupils were dilated, and the doctor's examination disclosed there were fresh needle marks on his arm.Because of defendant's emotional state, the doctor could not examine him further.Officer Robert Garnet saw defendant later that day in the Seattle City Jail.He observed defendant was lethargic and placed him in a padded cell.On February 21, at approximately 9 a.m., defendant was interviewed by Detective William Karban at the city jail.He asked defendant what had happened.Defendant was unable to explain.Detective Karban then explained what had occurred.Defendant was very remorseful and seemed pleasant and courteous.

The court instructed the jury in substance that voluntary intoxication by alcohol or drugs was not a defense to the crimes charged, but that intoxication could be considered on the issue of whether the defendant had committed the crimes with the requisite criminal intent.RCW 10.76.010;RCW 9.01.114;seeState v. Tyler, 77 Wash.Dec.2d 737, 466 P.2d 120(1970);State v. Huey, 14 Wash.2d 387, 128 P.2d 314(1942);State v. Beaman, 143 Wash. 281, 255 P. 91(1927).By its verdict of guilty the jury necessarily found the crimes were committed intentionally and that the plea of insanity or mental irresponsibility was no defense, either because proof thereof was insufficient, or because insanity and mental irresponsibility were the result of voluntary intoxication by alcohol drinks, drugs, or both.

Defendant makes 10 assignments of error.Upon consideration of the record and briefs before us, we hold that none of the claimed errors prevented the defendant from having a fair trial, and so affirm.

Defendant principally contends that he was deprived of a fair trial because the court conveyed to the jury 'by words, actions and rulings' that the defendant had 'no defense of insanity on the grounds of involuntary intoxication on LSD.'The incidents relied on are the subject of separate assignments of error but are argued together.Several incidents involve alleged improper comments by the trial court, made in the presence of the jury, with respect to which the defendant neither objected nor requested a curative instruction As later pointed out, we do not find the incidents constitute even a colorable violation of Const. art. 4, § 16, prohibiting court comments to the jury on matters of fact; nor do we find the existence of prejudice in the incidents of the instant case(Heitfeld v. Benevolent & Protective Order of Keglers, 36 Wash.2d 685, 220 P.2d 655(1950);State v. Williams, 68 Wash.2d 946, 416 P.2d 350(1966)), although it is recognized that if the trial record shows the existence of unlawful comment, prejudice is presumed.State v. Lampshire, 74 Wash.2d 888, 447 P.2d 727(1968).

During voir dire examination of a juror, the prosecutor objected to a question by defendant's counsel on the ground that the question incorrectly stated the law concerning the legal effect of insanity upon criminal responsibility.The court thereupon cautioned the jury that he would instruct it on the law as to 'a matter of intent and as to intoxication or the use of drugs and responsibility and as to a defense under the proper circumstances.'Later he did so instruct the jury.Defendant contends that this was the first of several incidents on the part of the trial judge which...