State v. Trevino, 730--III

• Decision Date: 06 December 1973
• Docket Number: No. 730--III,730--III
• Citation: 516 P.2d 779,10 Wn.App. 89
• Parties: STATE of Washington, Respondent, v. Jose TREVINO, Appellant.
• Court: Washington Court of Appeals

Page 89

10 Wn.App. 89

516 P.2d 779

STATE of Washington, Respondent, v. Jose TREVINO, Appellant.

No. 730--III.

Court of Appeals of Washington, Division 3.

Dec. 6, 1973.

Rehearing Denied Jan. 22, 1974.

Review Denied March 5, 1974.

John Gavin of Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., Jon R. Harlan, Deputy Pros. Atty., Yakima, for respondent.

DOLPH BARNETT, ^* Judge.

The defendant was charged in Yakima County with having committed first degree murder by shooting and mortally wounding one Pedro Alvarez with a .38 caliber revolver. A change of venue was requested, and trial was held in King County. The jury returned a verdict finding the defendant guilty of manslaughter and a special verdict finding defendant was armed with a deadly weapon. The court entered judgment on the verdict.

Because the prosecuting attorney decided to request the death penalty, the defendant, prior to trial, filed a motion for an order in limine prohibiting the prosecutor from either requesting the death penalty or interrogating the jurors on voir dire about their feelings concerning imposition of the death penalty on the ground that such penalty was unconstitutional. That motion and subsequent similar motions were denied. Accordingly, all jurors and prospective jurors were examined with respect to their feelings concerning the imposition of the death penalty, and any who indicated that under no circumstances would they impose that penalty were excluded from the jury. This was done in accordance with the rule announced in Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770 (1968). After the trial was in progress, it was announced through the media that the United States Supreme Court had determined that the death penalty was unconstitutional and the defendant promptly moved for a mistrial, which motion was denied.

The defendant in this case was a 43-year-old farm worker of Mexican descent whose home was in Toppenish, Washington. He and his wife had five sons and a daughter, Olga. The two sons at home and Olga were all in the vicinity of 20 years of age. At the time of the incident here in question, Olga was married to one Jose Capi Velasquez, also referred to in the record as Capi. The record indicates that Olga and Capi had in the past experienced marital problems, including some incidents of assault by Capi upon Olga.

Pedro Alvarez, the deceased, was a close friend of Jose Capi Velasquez. The record indicates that Pedro Alvarez had previously visited the Trevino home, and on one such occasion, while intoxicated, had started fighting with the defendant's sons. The record also shows that Pedro Alvarez, with permission, made at least one telephone call from defendant's home to Mexico to inform his parents that one of their sons had been killed in a car accident. There was testimony showing that when the defendant tried to collect the charges for the phone bill from Alvarez, a minor altercation ensued. The defendant was eventually paid by Mr. Alvarez for the phone bill.

The incident here in question took place on the evening of April 11, 1972, in Toppenish, Washington. The defendant was home with his wife and two of his sons when Olga arrived there crying, with blood on her face. Without much discussion as to the causes of her injuries, she washed herself and left the house with her mother to visit Olga's sick infant at a hospital. As they departed by automobile, defendant saw a vehicle which he identified as Capi's, following his wife and daughter, honking its horn.

The two Trevino boys, who had also seen the commotion involving the Capi vehicle, then left the house on foot in pursuit of their mother and sister. A short distance from their home, both the Trevino vehicle and the Capi vehicle stopped in the street. Pedro Alvarez, the deceased, emerged from the Capi vehicle. While Capi remained in the car, the testimony shows that Pedro Alvarez proceeded to make threatening and derogatory statements toward the women present and the two Trevino boys who had approached the scene. Furthermore, the testimony shows that Alvarez pulled a knife from his boot, made threatening gestures with the knife, and chased the two Trevino boys toward their home. Upon the urging of Mrs. Trevino, Capi emerged from his car. He pulled Alvarez from the scene, leaving on foot, heading toward the Toppenish business area.

The defendant, after seeing the Capi vehicle following his wife and daughter, procured a .38 caliber pistol from his bedroom and left the house in search of his wife and daughter. He originally traveled to the hospital, expecting to find them there. Upon failing to find them, he proceeded back towards his home until he met his son, Johnny, who directed him to the scene of the altercation between his wife and daughter and Pedro Alvarez. The defendant and Toppenish police officers arrived after Capi and Alvarez had departed. The defendant's wife related to defendant the incidents that had happened, and defendant stated he was going looking for Capi and Pedro Alvarez.

Two Toppenish police officers sought Capi and Alvarez to determine if either had a knife. The officers located Alvarez in front of Ed's Barbeque in downtown Toppenish. They stopped him, noticed he had been drinking, searched him for weapons, but found none. As the uniformed officers and Alvarez were carrying on a discussion, the defendant drove up in his pickup truck and parked in an angular direction on South Toppenish Avenue, facing Alvarez and the officers. Defendant got out of his pickup and came around to the left front fender so that his upper body was visible. At this time both police officers were within a very few feet of Alvarez. As Alvarez and the defendant began exchanging words in Spanish, one officer returned to the police vehicle and the other officer apparently moved a few feet further away from Alvarez. After defendant asked Alvarez why he wanted to do harm to defendant's family, Alvarez was quoted by defendant as uttering the Spanish equivalent of: 'I got to get mother and all.' After this statement, Alvarez apparently started to approach the defendant. Defendant testified that he never saw a knife in Alvarez's hand. As Alvarez approached, the defendant raised his revolver and pointed it at Alvarez. Shortly thereafter, a shot went off and Alvarez was killed. The defendant testified he raised the gun when he saw Alvarez move his hands. He also testified he raised the gun so Alvarez would see it and stop. Defendant said he did not intend to shoot or kill Alvarez.

Defendant first assigns error to the exclusion of prospective jurors who would decline to impose the death penalty and to the court's denial of defendant's motion for a mistrial upon that basis. He contends that these rulings deprived the defendant of jurors who were completely qualified to hear the case. We find no error.

The court specifically instructed the jury that the death penalty was no longer an issue in the case and should not be considered in its deliberation, under authority of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, rehearing denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972). It is presumed, absent any contrary showing, that the jury followed the court's instructions. State v. Cerny, 78 Wash.2d 845, 480 P.2d 199 (1971).

We believe Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), is dispositive of the question presented and shows defendant's contention to be without merit. In that case the defendant was convicted of rape and felonious assault. The laws of North Carolina at that time provided that such a conviction should be punishable by death unless the jury provided otherwise. The defendant was convicted, the jury recommended life imprisonment, and a life sentence was imposed. Petitioner argued that his constitutional right to a fair and impartial jury was violated when the prosecution was permitted to challenge for cause any prospective juror who stated he opposed capital punishment or had conscientious scruples against imposing the death penalty. Answering this contention the court in Bumper v. North Carolina, Supra at page 545, 88 S.Ct. at page 1790 said:

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. (citations omitted) We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone,' and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.

State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970) applies this reasoning from Bumper v. North Carolina, Supra. The defendant therein contended that the trial court erroneously excluded certain jurors from a capital case because of their views opposing capital punishment. The court found no error since the sentence imposed was life imprisonment and there was no showing that the jury was prosecution prone. In so ruling the court stated in Golladay at page 146, 470 P.2d at page 206:

On the same day Witherspoon was decided, the Supreme...