State v. Todd

Citation78 Wn.2d 362,474 P.2d 542
Decision Date17 September 1970
Docket NumberNos. 40034,40036 and 40091,s. 40034
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Eddie Wayne TODD, Augustus Wood, and George Stewart Butler, Appellants.

Kempton, Savage & Gossard, Anthony Savage, Jr., William J. Gaffney, Ronald Meltzer, Seattle, for appellants.

Charles O. Carroll, Pros. Atty., Robert E. Dixon, Deputy Pros. Atty., Seattle, for respondent.

ROSELLINI, Associate Justice.

The appellants Todd and Stewart were charged as principals and the appellant Wood as an aider and abetter in the crime of murder in the first degree. All were found guilty.

None of the appellants questions the sufficiency of the evidence to support the convictions. That evidence tended to show that the appellants met at a party in Seattle's central area on the evening of May 28, 1967; that during the course of the evening the appellant Wood loaned his car and his gun to the other two appellants for the purpose of committing a robbery; that the appellants Todd and Stewart did in fact participate together in the robbery of a Seattle Transit bus being operated by one Harry Lee Wren Jr., and that, during the commission of this robbery, Harry Lee Wren, Jr., was slain. Todd and Stewart returned to the party and thereafter, together with appellant Wood, disposed of the stolen property.

The appellants and another man went to Portland, Oregon, and participated in another robbery the following afternoon. As a result of the description of this offense being broadcast on police radios, the appellants were apprehended a few minutes later. In their possession was found not only the goods which were stolen in the Portland robbery but also the gun which, according to a firearms identification expert's testimony, fired the shot which killed Harry Lee Wren, Jr.; also there were found women's stockings which the appellants Todd and Stewart had borrowed at the party to use as masks in the Seattle robbery and which had been cut and tied with the apparent object of using them as masks.

The evidence against the appellants was supplied in large part by other guests at the party, to two of whom the appellant Todd stated that he had had to 'blast' the driver of the bus because he would not open the door of the bus and let him get off. One of these witnesses, the girl friend of Todd, later led police to the spot where the coin changer taken from the bus had been thrown by appellant Stewart, while the witness was riding in the car with the appellants after the robbery.

The three appellants were charged jointly and they were tried together. Their separate appeals to this court were consolidated for hearing. All three appellants have urged one assignment of error relating to the admission of certain evidence, and the appellants Stewart and Wood have both urged that their motions for severance should have been granted. Each of the remaining assignments of error has been advanced by one of the appellants. We will discuss the contention concerning the admissibility of evidence alleged to have been discovered in an unlawful search first, the contentions of the appellants Stewart and Wood concerning severance second, the separate contentions of the appellants Stewart and Wood next, and finally we will consider the only contention having merit, that of the appellant Todd concerning an allegedly erroneous instruction.

The contention that certain evidence (namely the gun which was used to kill Harry Lee Wren, Jr., and ammunition for it, and two women's stockings which were supposedly used as masks in the robbery) was erroneously admitted is grounded on the theory that Deputy Sheriff Hancock, who stopped the appellants' automobile in Portland, had no legitimate reason to stop it because, they say, they were driving in a lawful manner at the time they were stopped, and the officer did not have probable cause to believe that they had committed or were about to commit a felony.

In order to be justified in arresting without a warrant, an officer must believe and must have good reason to believe that a person has committed or is about to commit or is in the act of committing a felony. Not only must the officer have a real belief that the person is guilty, but that belief must be based upon reasonable grounds. Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Palmer, 73 Wash.2d 462, 438 P.2d 876 (1968); State v. Easton, 69 Wash.2d 965, 422 P.2d 7 (1966); State v. Miller, 151 Wash. 114, 275 P. 75 (1929).

The trial judge in this case concluded that Deputy Sheriff Hancock had reasonable and probable cause to arrest the appellants. He based his conclusion upon the following facts which he found upon the evidence and which are supported by it: Multnomah County Deputy Sheriff Hancock had received a radio message that a robbery had been committed at a grocery store between 52nd and 53rd Streets on Halsey Street in the city of Portland. The suspects were described as being three Negroes of slight build, and as having departed the scene in an automobile. Deputy Sheriff Hancock knew that Halsey Street was a logical eastbound thoroughfare for departure from the city of Portland and assumed a position of surveillance near Halsey and 92nd. At approximately the time which he calculated a vehicle coming from 52nd would be passing the point where he was stationed, the appellants were observed in an automobile proceeding east along Halsey Street.

While the automobile did not conform to the description given over the radio, there were three Negro men of slight build visible in the car; and the officer stopped the car, believing that the three were the people who had committed the robbery. He explained that he noted the car did not conform to the description but supposed the car had either been misdescribed or had been exchanged for another car after the robbers left the scene of the robbery.

The appellants say that Deputy Sheriff Hancock would have stopped any vehicle with three Negro men in it which might have been passing at that time, even though the occupants were entirely innocent. This proposition is not justified by the evidence in this case. The fleeing felons were described not only as Negroes but also as slender or slight of build and the appellants fitted that description. The officer was justified in believing that the appellants were the persons who committed the robbery.

If the robbers had been described as three white men of slight build, and three white men of that description had driven past the same spot at the same time and proceeding in the same direction, the officer would have had probable cause to arrest them. Of course, if only one man had been involved, the description would have been inadequate to justify an arrest, since it would not be unusual for more than one person of that description to drive past a given point within a short period of time. But it would have been coincidental indeed if another vehicle bearing three men of the same description had passed that point at that particular time, headed in the same direction. Deputy Sheriff Hancock's experience had taught him that escape vehicles are sometimes misdescribed because only a fleeting glimpse is caught of them. It had also taught him that fleeing felons often change vehicles. Therefore, it was not unreasonable for him to discount the fact that the vehicle did not fit the description broadcast over his car radio.

The appellants make much of the fact that there were four men in the vehicle, rather than three, but the evidence showed that one of them was lying on the back seat of the car and was not visible to the officer. Apparently he was not observed at the scene of the crime, since the participants were described as three, rather than four men.

In State v. Young, 39 Wash.2d 910, 917--918, 239 P.2d 858, 862 (1952), we said:

It is the duty of courts to protect citizens from unwarranted, arbitrary, illegal arrests by officers of the law. But we should not permit our zeal for protection of constitutional rights to blind us to our responsibility to other citizens who have the right to be protected from those who violate the law. In these days of modern transportation, when robbers have fast 'get-away' cars, police must also have fast cars. Those fast cars must be equipped with radios, in order that law violators may be apprehended before they can make their escape, provided of course, that the officers have reasonable grounds to believe that the persons whom they arrest have committed the felony complained of.

And in State v. Poe, 74 Wash.2d 445, 445 P.2d 196 (1968), we observed that the probable cause for arrest should be examined in the light of the arresting officer's special experience, and that the standard should be, not what might appear to be probable cause to a passerby, but what would be probable cause to a reasonable, cautious, and prudent officer.

Here the officer anticipated that the escaping felons would choose the route on which he stationed his vehicle; at a time when an automobile coming from the scene of the crime could be expected to reach the place where the officer was stationed, the appellants, whose physical appearance matched the description given over the police radio, drove past headed away from the scene of the crime. He noted that the car did not match the description, but did not consider this significant in the light of his knowledge and experience. He had only a moment to make a judgment, but the judgment which he made was sound.

We conclude that there was probable cause for arrest. Consequently, the fruit of the search made incident to that arrest was admissible.

In assigning error to the court's denial of their motions for separate trials, the appellants Stewart and Wood...

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