State v. Robinson

• Decision Date: 23 January 1969
• Docket Number: No. 40035,40035
• Citation: 75 Wn.2d 230,450 P.2d 180
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Thomas Jefferson ROBINSON, Appellant.

Page 230

75 Wn.2d 230

450 P.2d 180

The STATE of Washington, Respondent, v. Thomas Jefferson ROBINSON, Appellant.

No. 40035.

Supreme Court of Washington, Department 2.

Jan. 23, 1969.

Paul J. Fisher, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Paul M. Acheson, Deputy Pros. Atty., Seattle, for respondent.

WEAVER, Judge.

Defendant appeals from a judgment and sentence entered after a jury had found him guilty of violating the Uniform Narcotic Drug Act. (RCW 69.33). He was represented at trial by retained counsel of his choice.

Defendant, who had been drinking, was asleep in the back seat of an automobile when it was stopped by the police for a traffic violation. The police recognized the driver; there were previous outstanding traffic warrants for him.

To impound the car, the police awakened defendant; he grabbed his pocket and threw a bag onto the floor of the car. At the police station, when defendant was searched, two cigarettes were found. Upon analysis, the contents of the bag and the cigarettes were determined to be marijuana.

Defendant alleges misconduct by the deputy prosecutor resulted in the denial of a fair trial. We do not agree.

During voir dire examination of jurors, the prosecutor referred to the 'hippie movement,' and to the growing marijuana problem in the Seattle area. He inquired whether the juror 'believed that the use of marijuana presents a health hazard.'

The trial judge instructed the jury to disregard 'all reference to hippies'; he sustained defense counsel's objection made to the drug problem reference; he prevented any further reference to the 'health hazard' by stating that the 'court will be instructing that the possession of marijuana is illegal.'

The limits and extent of voir dire examination are within the discretion of the trial court, and it has considerable latitude. State v. Tharp, 42 Wash.2d 494, 256 P.2d 482 (1953). The trial court controlled the scope of the voir dire examination as we have indicated, and we find nothing that would support a conclusion that the court abused its discretion.

Further, defendant did not use all of his peremptory challenges. This he must do before he can show prejudice arising from the selection and retention of a particular juror to try the cause. State v. Collins, 50 Wash.2d 740, 314 P.2d 660 (1957); State v. Tharp, supra.

Defendant also alleges misconduct by the prosecutor in his cross-examination of defendant and claims the prosecutor improperly inquired about previous 'charges' rather than previous 'convictions'. Read in its entirety, the record does not support defendant's contention. The cross-examination did not mislead the jury. No objection was made to the cross-examination. The jury was properly instructed that proof of defendant's prior conviction could be considered only in the determination 'of what weight or credibility should be allowed his testimony.'

Defendant argues that evidence of his prior conviction--16 years before--was inadmissible because it was too remote in time. He would have us burke RCW 10.52.030:

Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto.

The statute contains no exception, and this court has consistently refused to recognize one. State v. Smithers, 67 Wash.2d 666, 409 P.2d 463 (1965); State v. Bezemer, 169 Wash. 559, 14 P.2d 460 (1932).

In his closing argument the prosecutor stated:

Now to establish this charge, we have to prove that on the day in question which is May 3rd, the defendant had in his possession marijuana. * * * Now, after the state has went (sic) this far, we have established a prima facie case. In other words, with nothing more, if no one said anything more, we would win. Now, beyond that now, the Burden of proof shifts to the defendant and he has the burden of showing that it was lawful possession, that his possession was authorized by law or that he unwittingly had it. (Italics ours.)

No objection was made to this argument. Defendant, however, now contends that use of the statement improperly shifted the burden of proof to defendant. Although the phrase 'burden of proof' was unfortunate, we do not believe that it misled the jury. Moreover, the trial court's instruction on this point of law was correct and dispelled any doubt on the part of the jury.

This court, in State v. Morris, 70 Wash.2d 27, 422 P.2d 27 (1966); accord, State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961), stated:

The state had the burden of proving beyond a reasonable doubt that the appellant, on or about the times fixed in the information, had possession of the...