State v. Sauve

• Decision Date: 25 October 1982
• Docket Number: No. 10315-6-I,10315-6-I
• Citation: 652 P.2d 967,33 Wn.App. 181
• Parties: STATE of Washington, Respondent, v. Maurice SAUVE, Appellant.
• Court: Washington Court of Appeals

Page 181

33 Wn.App. 181

652 P.2d 967

STATE of Washington, Respondent, v. Maurice SAUVE, Appellant.

No. 10315-6-I.

Court of Appeals of Washington,

Division 1.

Oct. 25, 1982.

David Shorett (court-appointed), Marston, Hodgins, Shorett, Gillingham, Hardman & Jones, Seattle, for appellant.

Hon. Norman K. Maleng, King County Pros. Atty., Timothy Sullivan, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

In June, 1978 Maurice Sauve was convicted of 11 counts of first degree robbery (while armed with a deadly weapon), 2 counts of first degree kidnapping (while armed with a deadly weapon and a firearm), 1 count of second degree assault (while armed with a deadly weapon and a firearm), and 2 counts of second degree possession of stolen property. In January, 1979, he was found to be a habitual criminal, and on February 20, 1979, he was sentenced. In March, 1979, he appealed to this court from the judgment and sentence dated February 20, 1979.

Due to a stay of proceedings, pending the outcome in State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980), Sauve's appeal was not heard until January, 1981. He assigned error to the trial court's (1) order compelling him to submit to fingerprinting after the trial commenced, (2) findings of fact and conclusions of law as to the habitual criminal finding, and (3) findings of fact and conclusions of law as to a credit card forgery conviction. ¹

Early in 1981, the Court of Appeals issued a decision in the case, State v. Sauve, cause 7420-2-I (February 23, 1981). The court remanded the case to the trial court pursuant to Holsworth for a rehearing as to matters relied on in the habitual criminal proceeding. The State abandoned the habitual criminal finding upon remand and Sauve was re-sentenced in May, 1981. He then appealed from the judgment and sentence entered on May 11, 1981. This is the appeal now before us, which we will refer to as his second appeal.

The assignments of error in Sauve's second appeal raise issues relating only to the pre-remand trial. None of the issues now raised was presented to or passed upon by the trial court on remand. Thus, Sauve asks us to consider issues that were raised or could have been raised during his first appeal. ²

Our court rules and the law itself are sedulous in maintaining for the accused whatever forms of procedure that are the essence of an opportunity to defend and appeal. Privileges so fundamental as to be inherent in every concept of a fair trial and appeal that could be acceptable to the thought of reasonable men are kept inviolate and inviolable, however overwhelming may be the pressure of incriminating proof. But justice, although due to the accused, is also due to the accuser. The concept of fairness must not be strained until it is narrowed to a filament. We are to keep the balance true.

Sauve's brief in the second appeal does not devote a single word to why we should consider in the second appeal issues which were raised or could have been raised in the first appeal; nor did he or his attorney file a reply brief or appear at oral argument in the second appeal to respond to questions we had pertaining to this issue. ³ We anticipate that had Sauve's attorney filed a reply brief or appeared before us for the second appeal, he would have argued his client did not have the benefit at the first appeal of two important cases on search and seizure and warrantless arrest ⁴ that were issued after Sauve's trial. Such an argument would not have been well received because both important cases had been issued before the date oral argument was scheduled in the first appeal and even Sauve learned "from talking with people here at the Penitentiary" that one of the cases had been issued before oral argument. ⁵ Thus, Sauve and his attorney had the opportunity to present to this court in the first appeal issues addressed in these cases and all other cases issued before oral argument. ⁶

Because Sauve has not provided us in his second appeal with a reason to reconsider his first appeal, and because he does not appeal from decisions made by the trial court on remand, we adhere to a principle enunciated by the Washington Supreme Court:

This court from its early days has been committed to the rule that questions determined on appeal or questions which might have been determined had they been presented, will not again be considered on a subsequent appeal in the same case.

Davis v. Davis, 16 Wash.2d 607, 609, 134 P.2d 467 (1943). Accord, State v. Bauers, 25 Wash.2d 825, 830, 172 P.2d 279 (1946); State v. Jacobsen, 78 Wash.2d 491, 477 P.2d 1 (1970); State v. Bradfield, 29 Wash.App. 679, 630 P.2d 494 (1981).

The appeal is dismissed.

ANDERSEN, C.J., and CORBETT, J., concur.

1 In reviewing the correspondence file, we note a letter from Sauve addressed to the court, dated December 23, 1980, which asks that other issues, including warrantless arrest and defective instructions, be considered as part of the appeal.

2 Although not cited to us by appellant, we note the provisions of RAP 2.5(c)(1) and (2) that permit us to review the propriety of an earlier trial court or appellate court decision in the same case. The rule provides:

(c) Law of the Case Doctrine Restricted. The following provisions apply if the same case is again before the appellate court following a remand:

(1) Prior Trial Court Action. If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even though a similar decision was not disputed in an earlier review of the same case.

(2) Prior Appellate Court Decision. The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on...