State v. Suleski
| Decision Date | 07 October 1965 |
| Docket Number | No. 37433,37433 |
| Citation | 67 Wn.2d 45,406 P.2d 613 |
| Parties | The STATE of Washington, Respondent, v. Thomas Stanley SULESKI, Appellant. |
| Court | Washington Supreme Court |
Savage & Nuxoll, Wesley A. Nuxoll, Colfax, for appellant.
Philip H. Faris, Prosecuting Atty., D. L. McMannis, Sp. Asst. Pros. Atty., Colfax, for respondent.
This case strikingly illustrates the incongruity of undertaking to test the legality of a search and the admissibility of seized evidence in the presence of a jury. The following sequence of events leads to this appeal.
On August 14, 1962, appellant (defendant), using his brother's name, obtained a prescription for dolophine (a narcotic drug) from a doctor in Palouse, Washington, claiming he was afflicted with trigeminal neuralgia. He forestalled an adequate physical examination by the doctor. The doctor became suspicious and, fearing that she had issued a prescription to a drug addict, notified the Palouse police of her suspicions and advised them of appellant's description and out-of-state automobile license number. Thereafter, appellant undertook to have the prescription filled in a Palouse pharmacy. The pharmacy did not have the drug in stock, and appellant proceeded to Pullman where he tried a second pharmacy, arriving there shortly after 6 p.m. The second pharmacist (who likewise did not have a supply of the prescribed drug) had, in the meantime, been notified by the Pullman police of the doctor's report and of appellant's description. In the course of his dealing with appellant, he observed that the prescription appeared to have been altered by an ink spot which obliterated the part of the prescription specifying the amount of the drug to be dispensed. Appellant volunteered the information that the ink blot was occasioned by a leaky fountain pen. As appellant left the store, the pharmacist followed him, observed the license number of his automobile and notified the police. The news of appellant's presence in Pullman was broadcast over the local police network.
Shortly after 6:36 p.m., a Washington State University Campus patrolman noted a vehicle traveling past and beyond 'Dead Man's Corner,' on the Pullman-Moscow 60-mile an hour highway, at 30 miles an hour. The slow speed and its potential impediment to traffic piqued the officer's interest, and he commenced to follow the vehicle, at which time he discovered that the license number matched the one broadcast over the police radio. At about this time, appellant, who was driving the vehicle, pulled over to the side of the road and the officer pulled in behind him. Appellant was unable to supply either a driver's license or a motor vehicle registration certificate. The officer arrested him for driving without a license or registration certificate and took him to the Pullman police station.
At the police station, appellant's automobile was impounded and placed in the police lot. A police sergeant, who had personally questioned the doctor and the pharmacist, fully informed appellant of his constitutional rights to remain silent and to have benefit of counsel and allowed him the use of the telephone to call his brother. The officer then commenced to interrogate him relative to the narcotic incident. Seemingly by way of explanation, appellant voluntarily produced the prescription he had obtained from the doctor and gave it to the sergeant. The sergeant examined it, noted the ink blot, placed it on a desk, and left the room on other business. He, thereafter, observed appellant doing something to the prescription and upon his return to the room found the prescription missing. Appellant denied knowledge of its whereabouts. Whereupon, the officer, without objection from appellant, picked up appellant's wallet, which was apparently also on the desk, and found the prescription therein. The ink blot on the prescription then appeared to be smudged by erasure marks. The sergeant advised appellant he was under arrest for fraudulently trying to obtain narcotics in violation of state law, confined him, and notified the Whitman County Sheriff. This took place at about 7:30 p.m. At about 8:30 p.m., the sheriff arrived at the police station and, with the chief of police and the police sergeant, searched appellant's vehicle. At this time, miscellaneous articles, tools, and keys were observed in the vehicle. Some of the tools and keys were seized. The next day, August 15, 1962, appellant was formally charged by information with possession of burglary tools. In the meantime, appellant's vehicle was stored in a local garage. Thereafter, appellant's vehicle was searched three times, once following filing of the formal charge on August 15, once on August 16, and finally on a date a few days before the trial commenced. All searches were conducted without benefit of a search warrant.
On August 24, appellant was formally charged, by separate information, with the crime of attempting to obtain a narcotic drug by fraud, deceit, misrepresentation, or subterfuge, and/or alteration of a prescription. Pleas of not guilty were entered as to each information, and by stipulation of counsel the two charges were consolidated for purposes of trial. Prior to trial, appellant filed in each cause a motion to suppress all evidence obtained by the state by means of any search of his automobile.
At the time of trial, it was agreed between counsel for the state and for the appellant, with the consent of the trial court, that the motions to suppress would be determined upon the basis of the evidence admitted during the trial.
The trial commenced with the attorney for the state advising the jury, in his opening statement, that:
Sheriff Humphreys and several other officers made the search and they found enumerable devices, tools, drills, machines, what have you, which could be used, and we allege, are burglary tools. These tools were in his possession. A search of the back of the car also revealed a .38 caliber revolver.
He told at an interview later on to one of the Treasury agents from the United States Government who was investigating the matter, and who will also testify here, that he was aware the gun was back there, that it was his gun, that he had it in his possession and explained the circumstances under which he had the gun. We will introduce, or attempt to introduce court records and F.B.I. records showing past convictions of burglaries. 1
These statements were permitted to stand, over the objection and motion for mistrial of defense counsel, upon the basis of the pendency of the motions to suppress and upon the premise that the state was permitted to show burglarious inclinations in connection with the charge of possession of burglary tools.
The state's first witness, the doctor, then explained to the jury that she issued the narcotics prescription in question because she feared violence from the defendant, based upon her suspicion that he was 'quite possibly a narcotics addict.' Thereafter, and during the presentation of the state's case, the fruits of the searches and seizures were introduced in evidence, including a dismantled .38 caliber German Luger pistol, a considerable number of tools and keys, and a bottle of india ink. In addition, the defendant's automobile (which was viewed by the jury) and his fingerprint card were admitted in evidence. In connection with the fingerprint card, the jury was advised that it had been sent to the Federal Bureau of Investigation to ascertain the defendant's criminal record. Later on, in the course of the state's evidence, a four or five-page document was, in the presence of the jury, identified as 'a report which we received from the Federal Bureau of Investigation.' It was offered in evidence and rejected. At another point in the state's case, a 'criminal investigator' for the United States Treasury Department was called and testified he interviewed the defendant while in custody concerning the German Luger and an 'alleged' violation of the Federal Firearms Act.
Defendant's counsel interposed objections and motions for mistrial, running to part, if not all, of the foregoing.
At the conclusion of the state's case, the trial court granted defendant's motion to suppress the evidence obtained as a result of the searches and seizures, holding that such searches were not incident to or contemporaneous with a lawful arrest. 2 The trial court then dismissed the charge of unlawful possession of burglary tools, denied defendant's motion for mistrial, and thereafter instructed the jury to disregard the burglary tools charge and all stricken exhibits, testimony, or inferences from such charge.
On appeal, the defendant makes eight assignments of error, essentially directed to the state's opening statement, admission of evidence, and the denial of defendant's motions for mistrial and for new trial. In response, the state contends that dismissal of the burglary tools charge and the court's instructions to the jury with respect thereto cured any error or prejudice that might have arisen under the circumstances. Furthermore, the state argues that defendant waived any claim of error pertaining to denial of his motions for mistrial. This latter contention arises out of the following statement of defense counsel after the trial court had dismissed the burglary tools charge:
I feel that the ruling on the part of the Court dismissing the C-850 (burglary tools charge) probably cures any problem I had as far as mistrial is concerned on the admission of the weapon and statements of counsel during the course of the opening statement, however, for the record I would like to renew those motions at this time, Your Honor.
THE COURT: They will be denied.
Our review of the record convinces us that the trial court erred in denying defendant's motion for new trial upon the narcotics charge.
The basic issue presented in this case is not whether defense counsel tacitly waived his objections or his motions for...
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