State v. Tate

• Citation: 74 Wn.2d 261,444 P.2d 150
• Decision Date: 01 August 1968
• Docket Number: No. 39785,39785
• Parties: STATE of Washington, Respondent, v. George David TATE, Appellant.
• Court: United States State Supreme Court of Washington

Page 261

74 Wn.2d 261

444 P.2d 150

STATE of Washington, Respondent, v. George David TATE, Appellant.

No. 39785.

Supreme Court of Washington, Department 2.

Aug. 1, 1968.

Odine H. Husemoen, Longview, for appellant.

Wayne Roethler, Pros. Atty., Kelso, Henry R. Dunn, Deputy Pros. Atty., for respondent.

HUNTER, Judge.

This is an appeal from a conviction of the crime of carnal knowledge.

A 7 1/2-year-old girl was sexually assaulted on March 16, 1967, at about 8:30 a.m. She returned home and her mother called the police. A doctor confirmed that she had been assaulted. When an investigating police officer showed the girl pictures of possible suspects, she identified the defendant (appellant), George David Tate, as her assailant from one of the pictures.

The defendant was arrested and charged with carnal knowledge under RCW 9.79.020. He placed not guilty, and the court assigned counsel to assist him in his defense. Prior to the commencement of the trial, the defendant's counsel moved, orally, for a continuance so that the trial court could determine if the defendant was mentally competent to stand trial. In support of the motion, counsel offered (1) a 1962 court order of the Grays Harbor County Superior Court declaring the defendant a 'psychopathic delinquent' under RCW 71.06 and committing him to Western State Hospital, and (2) a second court order dated May 9, 1966 issued by the Cowlitz County Superior Court, recommitting the defendant to the same institution. The trial court refused to grant the motion unless the defendant entered a plea of not guilty by reason of insanity. The defendant refused to enter such a plea on the ground that it would admit the commission of the act charged, and the motion was denied. The jury returned a verdict of guilty and the court sentenced the defendant to life imprisonment. This appeal followed.

The first assignment of error is to the trial court's denial of the motion for a continuance in order to allow time to determine the defendant's competency to stand trial. The defendant argues, and we agree, that the court abused its discretion in denying the motion.

Although there is no statute in this jurisdiction governing the matter, this court long ago determined that this state would follow the common law rule that no person who is mentally incompetent to stand trial may be subjected to criminal prosecution. State ex rel. Mackintosh v. Superior Court, 45 Wash. 248, 255, 88 P. 207, 210 (1907). We there said:

Criminal courts are possessed of an inherent power to ascertain whether one accused of crime is sane and able to avail himself of all his constitutional rights during the progress of his trial.

The opinion correctly characterized the issue of competency to stand trial as a matter of constitutionally guaranteed due process of law. The United States Supreme Court, in a recent opinion, has expressed the same view. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

In State v. Peterson, 90 Wash. 479, 482, 156 P. 542, 543 (1916), we said:

it is a matter within the discretion of the trial court as to whether or not it will enter upon an examination of the question of the sanity of the accused with a view of determining the right of the state to put him upon trial and render judgment against him.

In that case there was little evidentiary basis for the claim of incompetency. Where such a basis exists, amounting to a 'substantial question of possible doubt as to * * * competency to stand trial,' then due process requires that the trial court resolve that doubt. See Rhay v. White, 9 Cir., 385 F.2d 883 (1967); State v. Wilks, 70 Wash.Dec.2d 603, 424 P.2d 663 (1967).

In the instant case, the defendant had been adjudicated a psychopathic delinquent, and had been committed to a mental institution. Under these circumstances, and where the defendant in addition contended he was incompetent to stand trial, there is a sufficient showing made in the record to raise the question of a possible doubt on this issue. We therefore hold that the trial court erred in overruling the defendant's motion for a continuance, and in failing to make an inquiry into the defendant's competency to stand trial.

The state argues, however, that by refusing to enter a written plea of not guilty by reason of insanity, pursuant to RCW 10.76.020, the defendant waived his right to have his competency to stand trial determined. This argument is without merit. A defendant is not required to plead not guilty by reason of insanity in order to get the issue of his competency to stand trial before the court. The test for a finding of not guilty by reason of insanity and the test for a finding of incompetency to stand trial are not the same. Moreover, a defendant who has no grounds on which to urge insanity at the time of commission of the alleged offense may have adequate grounds to raise the question of mental competency at the time of trial. The trial court may open the matter of a defendant's competency to stand trial, on its own motion, if necessary, at any time during the proceedings. State v. Schrader, 135 Wash. 650, 283 P. 617, 243 P. 10 (1925). It follows then that a defendant need employ only such means as will serve to properly draw the court's attention to the question, when an issue of incompetency to stand trial is raised.

The defendant assigns error to the trial court's refusal to allow in evidence the court orders of commitment and recommitment, and also to its refusal to give his proposed instruction No. 14, which read:

George D. Tate has previously been adjudged mentally incompetent and it is presumed that he is absolutely incompetent as a witness and that presumption can only be rebutted by the party offering him as a witness.

The defendant contends that he should have been able to show the jury why he did not take the stand. This contention is baseless. The state is not entitled to show why a defendant chooses not to take the stand and the defendant is not entitled to do what the state may not do. The trial court properly instructed the jury that it was not to draw any inferences of guilt or innocence from the defendant's failure to take the stand. The defendant's right to a fair trial was thereby protected, and it was not error to refuse the proffered evidence and instruction.

The defendant contends that the prosecuting witness should not have been allowed to testify, relying on State v. Allen, 70 Wash.Dec.2d 666, 424 P.2d 1021 (1967), and RCW 5.60.050, which provides in pertinent part:

Who are incompetent. The following persons shall not be competent to testify:

* * *

* * *

(2) Children under ten years of age, who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.

In State v. Allen, supra, we decided that youth alone does not render a witness incompetent under the statute, and we set forth the test to be applied to determine if a witness under 10 years of age was competent. We said further that it lay within the discretion of the trial court to determine 'the witness's ability to meet the requirements of this test * * *.'

In the instant case, the trial court heard the evidence of a psychiatrist who had interviewed the girl, and who testified that she was capable of receiving correct impressions of the facts about which she was to be examined, and was...