State v. Temple

• Decision Date: 17 May 1971
• Docket Number: No. 545--I,545--I
• Citation: 485 P.2d 93,5 Wn.App. 1
• Parties: STATE of Washington, Respondent, v. James Lee TEMPLE, Appellant.
• Court: Washington Court of Appeals

Page 1

5 Wn.App. 1

485 P.2d 93

STATE of Washington, Respondent, v. James Lee TEMPLE, Appellant.

No. 545--I.

Court of Appeals of Washington, Division 1, Panel Two.

May 17, 1971.

Francis & Ackerman, Jack J. Ackerman, Seattle, court appointed, for appellant.

Christopher T. Bayley, King County Pros. Atty., Patricia G. Harber, James E. Warme, Deputy Pros. Attys., Seattle, for respondent.

JAMES, Associate Justice.

James Lee Temple was convicted by a jury of first-degree murder. Under the instructions, the jury could have found that the homicide was either premeditated or that the victim was shot while Temple was 'in the commission of, or in an attempt to commit, or in withdrawing from the scene of an attempted robbery.'

Temple first assigns error to the limitation placed on his cross-examination of an eyewitness to the homicide. The witness was a 16-year-old boy. Some years prior to the time of the homicide he had been adjudged delinquent and had spent approximately 1 year in a juvenile institution primarily because he had no other home. He was, at the time, living with his aunt in the apartment building where the homicide occurred. Out of the presence of the jury and prior to any interrogation of the witness, the state requested and was granted a ruling that the witness' 'juvenile involvements' be excluded from the area of cross-examination.

A prior conviction of a crime may be shown to affect the credibility of a witness. ¹ A juvenile commitment, however, is not equivalent to a conviction of a crime. ² State v. Wilson, 1 Wash.App. 1001, 465 P.2d 413 (1970).

The legislative determination that an adjudication of delinquency or dependency is not to be deemed equivalent to a criminal conviction does not necessarily mean, however, that evidence of juvenile court involvement is never admissible. If the witness is himself the criminal defendant who has taken the stand, his adult conviction, though not relevant to the charge at issue, may nevertheless be shown for the limited purpose of attacking his credibility. His juvenile record may not. If, however, the witness is not a criminal defendant, different considerations prevail. No constitutional or statutory immunity of the witness is at stake. What is at stake is the defendant's constitutional right to confront the witnesses against him.

In Pointer v. State of Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, this Court held that the Sixth Amendment right of an accused to confront the witnesses against him is a 'fundamental right * * * made obligatory on the States by the Fourteenth Amendment.' * * *

As the Court said in Pointer, 'It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.' 380 U.S., at 404, 85 S.Ct. at 1068. Even more recently we have repeated that 'a denial of cross-examination without waiver * * * would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314.

Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968).

Unless an accused it afforded reasonable latitude in examining witnesses against him, he is effectively denied his right of confrontation.

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.

Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1930).

Temple argues that reasonable latitude in cross-examination should have permitted him to explore the extent of the witness' juvenile court involvement to demonstrate that he was 'a person who was accustomed to having someone in authority dictate to him what he could or could not do.'

It is a basic and essential rule that '(t)he extent of the cross-examination of a witness upon collateral matters which tend to affect the weight to be given the witness' testimony, rests within the sound discretion of the trial court.' State v. Goddard, 56 Wash.2d 33, 37, 351 P.2d 159, 162 (1960).

The record suggests that the trial judge may initially have felt that the Juvenile Court Law, RCW 13.04.240, required him to exclude any reference to the juvenile court record of the witness. However, it is clear that the trial judge carefully considered Temple's contention but concluded that because of the collateral nature of the proposed cross-examination, no prejudice would result if testimony concerning the witness' juvenile court involvement was excluded. We find no abuse of discretion.

Error is next assigned to the following exchange as constituting a comment on the evidence by the trial judge in contravention of the Washington State Constitution. ³

BY MR. ACKERMAN:

Q. Percy, have you discussed your testimony in the case with anyone before you came here this morning?

A. No.

Q. You haven't discussed this case with anyone at all before you came in?

MISS HARBER: That wasn't the question he asked the witness, your Honor. He asked him if he had discussed the case this morning with anyone.

THE COURT: Yes, be sure, Percy, before you answer a question that you fully understand it, and if you don't, ask them and you may ask that it be explained to you. Perhaps if the Court Reporter read the question back.

(The last question read by the reporter.)

Q. (By Mr. Ackerman) Maybe I misled the witness. Percy, have you discussed the case with anyone before you came and took the witness stand this morning, not particularly today, but on other days?

A. Other days, no.

THE COURT: I don't think he understands the question. You had better use words like, have you talked this over with anyone, or have you talked about the case with anyone before you came into court today.

Temple contends that in the above exchange, the trial judge commented 'with respect to matters of fact' by indicating his belief in the credibility of the witness.

The purpose of article 4, section 16 of the state constitution "is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted." State v. Lampshire,74 Wash.2d 888, 892, 447 P.2d 727, 730 (1968).

If the trial judge conveys to the jury his personal opinion regarding the truth or falsity of any evidence introduced at the trial, he has thereby violated the constitutional mandate. State v. Bogner, 62 Wash.2d 247, 382 P.2d 254 (1963).

The 16-year-old juvenile had dropped out of school in the seventh grade and could not read. Clearly the judge's admonition was intended to insure that the boy understood questions put to him before he answered them. This was a proper exercise of judicial responsibility to insure a fair trial. It was not an unconstitutional comment on the evidence. See State v. Hettrick, 67 Wash.2d 211, 407 P.2d 150 (1965).

Temple's next assignment of error is that, as a matter of law, the evidence is insufficient to sustain a conviction of murder in the first degree.

As to the alternative charge of 'felony' murder, Temple points out that 'time and circumstances had intervened between the homicide and the taking' of the victim's property. Temple argues that because of the sequence of events the essential connection between the crime of robbery and the homicide was absent.

There was substantial evidence from which it could be found that the following occurred: Following an encounter with the victim and a companion, Temple produced a girl who was presumably a prostitute. The girl and the victim went to the first-floor hallway of a nearby apartment building. There they conversed and the girl attempted to put her hands into the victim's pockets. He pushed her away. The girl called to Temple who entered the building carrying a revolver. The girl said, 'Shoot him, shoot him.' Temple pointed his gun at the victim and fired point blank. The victim staggered and fell on the entry-way stairs. Temple and another man dragged the victim to the sidewalk in front of the building, removed his shoes, took his watch and wallet, and left the scene.

By the terms of Washington's first-degree murder statute, ⁴ a 'felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must Not be separate, distinct, and independent from it.' State v. Harris, 69 Wash.2d 928, 933, 421 P.2d 662, 665 (1966). Temple argues that the taking of the victim's property was, at most, a larceny under RCW 9.54.090(1). ⁵ Temple's apparent theory is that at the time the victim's property was taken, the essential elements of the crime of robbery, I.e. force or violence or fear of injury ⁶ were not present.

The facts do not support Temple. There was substantial evidence to permit a finding that the shooting of the victim and the taking of his property were parts of the same transaction. The fact that the homicide preceded the final act of the robbery does not fragment the transaction. State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962).

Neither could Temple prevail if he argued that the victim was dead when the property was taken from his body.

The final contention made is that one can not be guilty of robbery if the victim is a deceased person. As an abstract principle of law this is true, as essential elements of the crime of robbery would necessarily be lacking. However, that principle can not apply here, because the robbery and the homicide were all a part of the same transaction and the fact that death may have momentarily preceded the actual taking of the property from the person does not affect the guilt of the appellant in the commission of...