State v. Smith

• Decision Date: 09 November 1967
• Docket Number: No. 39431,39431
• Citation: 72 Wn.2d 479,434 P.2d 5
• Parties: The STATE of Washington, Respondent, v. George L. SMITH, Appellant.
• Court: Washington Supreme Court

Page 479

72 Wn.2d 479

434 P.2d 5

The STATE of Washington, Respondent, v. George L. SMITH, Appellant.

No. 39431.

Supreme Court of Washington, Department 1.

Nov. 9, 1967.

Rehearing Denied Jan. 3, 1968.

William L. Bennett, Cooney & Cooney, Spokane, for appellant.

Sid Buckley, Robert D. Skidmore, Colville, for respondent.

OTT, Judge. ^*

George L. Smith was found guilty by a jury in Stevens County of committing the crime of second degree burglary. Thereafter a supplemental habitual criminal information was filed which alleged that George L. Smith had previously been convicted in the state of Washington of the following felonies:

Grand Larceny March 21, 1941

Second Degree Burglary and Grand Larceny June 11, 1943

Voluntarily Riding in a Stolen Motor Vehicle October 11, 1944

Negligent Homicide August 19, 1950

Larceny by Check January 24, 1966

On the supplemental information Mr. Smith waived a jury trial and the cause was tried to the court. He was found to be an habitual criminal, was sentenced to life imprisonment, and from the entry of judgment George L. Smith has appealed.

His first assignment of error is that the sheriff and his deputies entered and searched his room in the Colville Hotel without his consent and without a search warrant. The record establishes that Mr. James R. Northrup, a parole officer, and Mr. George L. Smith were walking down the stairs from Mr. Smith's room on the third floor of the hotel when they were met by Sheriff Albert E. Holter. While the sheriff was talking with Mr. Smith, Mr. Ray Price, the owner of the burglarized store, and Deputy Sheriff Jerry R. Mugaas arrived. The sheriff requested permission to enter George L. Smith's room. Mr. Smith was thereupon advised by Mr. Northrup that he need not permit the sheriff to enter the room and could 'force the sheriff to get a search warrant.' The sheriff again said, 'Well is it all right if we look at your room?' Mr. Smith answered, 'I guess we might as well.' After he unlocked the door Mr. Smith said, 'Come on in.' Much of the stolen clothing was in plain sight. Other stolen items were found in the dresser drawers and elsewhere in the room.

A search without a warrant does not itself prove an invasion of one's constitutional rights. The necessity for a search warrant is a constitutional guarantee which can be waived. In re McNear v. Rhay, 65 Wash.2d 530, 536, 398 P.2d 732 (1965); State v. Greco, 52 Wash.2d 265, 324 P.2d 1086 (1958). The duty to establish that there was a waiver rests upon the state. Whether there has been a waiver is a factual issue. Where the evidence of waiver is in conflict, the factual findings of the trial court, upon review, are given great weight. When constitutional rights are in issue, this court will make an independent examination of the record for the purpose of determining whether there has been a denial of the accused's constitutional rights. In re McNear v. Rhay, supra.

At the hearing to suppress the evidence, held in absence of a jury under Rule of Pleading, Practice and Procedure 101.20W, RCW vol. O, the appellant testified that he was well aware of his constitutional rights at the time of the alleged unlawful search and at the time of his arrest. In addition to this knowledge, he was expressly admonished by Mr. Northrup that he need not permit the officers to enter his room without a search warrant and could require that one first be obtained. With this actual knowledge of his constitutional rights, together with the admonition of Mr. Northrup made prior to the entry, we are convinced, as was the trial judge, that the consent to enter appellant's room was unequivocally, specifically, freely and intelligently given.

Appellant next asserts that the court erred in permitting the officers to testify relative to his admission of guilt made at the time of the arrest for the reason that he was not advised of his constitutional right to remain silent prior to the time the admissions were made. At the hearing on the motion to suppress these statements, mentioned above, three officers testified that Mr. Smith was informed of his right to remain silent, to have counsel and to use the telephone. The appellant testified that he was fully aware of his constitutional rights, but asserted that the officers had failed to so inform him on this occasion.

The court entered findings of fact and conclusions of law that the officers had informed appellant of his right to remain silent, his right to counsel and all of his constitutional guarantees. There is ample evidence in the record which sustains the trial court's factual determination. The trial court did not err in denying the motion to suppress the evidence of appellant's oral admissions of guilt.

Appellant's next assignment of error is that the court erred in failing to grant a mistrial when evidence was introduced from which the jury could infer that Mr. Northrup was appellant's parole officer.

In this regard, the prosecuting attorney, in his opening statement to the jury, stated: 'The probation officer went up to him (George L. Smith) and folded down his trousers to see if in the plastic band of the trousers he had a key.'

The second occasion of the alleged inference that Mr. Northrup was appellant's parole officer occurred when Mr. Northrup was a witness for the state and testified as follows:

Q. And then the three of you left? A. No, Deputy Mugaas was there just a couple of minutes, George and I remained and discussed his marital situation, his past drinking, past employment, reasons for lack of employment and an injury on the job, and his plans for the future.

The third alleged inference occurred when the following question was asked Mr. Northrup on cross-examination by counsel for appellant:

Q. * * * At the time that you and the others were in the room with him, was there anyone there representing him as counsel or otherwise? A. Me. Q. Were you representing him? A. I was, and advising him. * * * Q. (By Mr. Bennett) Isn't it a fact that in your previous testimony in this case in the absence of the jury that you never held yourself out as being a representative of the defendant in any capacity? A. That's incorrect. I made the statement that I advised Mr. Smith of his rights for his protection.

Counsel for appellant made proper motions for mistrial. The court denied the motions, giving as its reasons that '(n)o probable inference could be drawn from the testimony on direct as to the status of the witness and his relationship in the particular case.'

Appellant relies upon State v. Taylor, 60 Wash.2d 32, 371 P.2d 617 (1962). In that case there was direct testimony that the appellant was a parolee. The trial court granted a new trial for the reason that the direct reference to the defendant being a parolee in his opinion prejudiced the minds of the jury and thereby denied the defendant a fair trial. This court sustained the trial court's granting a new trial, holding that prejudicial error occurred when there was injected into the record direct evidence that defendant had a parole officer.

In the instant case the trial court denied the motion to dismiss for the reason that no probable inference could be drawn from the testimony as to the status of Mr. Northrup.

We held in the Taylor case, supra, that a much stronger showing of abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying a new trial. This is because the trial court, in granting a motion for a new trial, has a distinct advantage in that the trial court observes the atmosphere of the courtroom and the effect, if any, that an alleged prejudicial statement may have had upon the jury. This court noted in the Taylor case, supra, at 41, at 622, of 371 P.2d;

If this were an appeal from an order denying a new...