State v. Trickel, 1822--II
| Decision Date | 28 July 1976 |
| Docket Number | No. 1822--II,1822--II |
| Citation | 16 Wn.App. 18,553 P.2d 139 |
| Parties | The STATE of Washington, Respondent, v. George Donald TRICKEL, Appellant. |
| Court | Washington Court of Appeals |
John A. Strait, Seattle, for appellant.
Christopher T. Bayley, Pros. Atty., Doug Smith, Deputy Pros. Atty., Seattle, for respondent.
The defendant, George Trickel, was convicted of first-degree murder of Carolyn Boggs, the woman with whom he lived and whom he referred to as 'my common law wife,' and of second-degree assault upon her 18-year-old son, Donald Boggs, who lived with them. His appeal, following imposition of judgment and sentence, presents primarily two issues; (2) whether the trial court's mid-trial revocation of bail denied the defendant due process of law and deprived him of a fair trial because the manner and timing of the revocation (a) materially impeded his ability to assist in the preparation of his defense, (b) constituted an unwarranted comment on the evidence by the trial court, and (c) presented a high probability that outside influences tainted the jury's impartiality; and (2) whether the trial court's instruction defining the term 'premeditated' allowed the jury to return a verdict of guilty to the crime of first-degree murder without the necessity of finding that the defendant did in fact form the requisite intent to commit that crime.
Somewhat secondarily, but nevertheless forcefully presented, the defendant contends the trial court committed reversible error by (3) unreasonably restricting the number of witnesses who would testify solely to the defendant's reputation for truth and veracity; and (4) prohibiting testimony as to the chief prosecuting witness' reputation for truth and veracity.
We affirm the conviction.
Carolyn Boggs died as a result of a single, perforating gunshot wound in the head. The projectile was fired from a very close range, perhaps as close as 1/4 inch, entering in front of the right ear canal, and existing slightly behind the left ear canal. The autopsy surgeon concluded the manner of death could have been either homicide or suicide. Both sides agree that the fatal weapon was a .22 caliber pistol.
Two persons were in Mrs. Boggs' home with her when the fatal shot was fired-- George Trickel and Donald Boggs. Each related contradictory stories of the material events which preceded and followed the shooting. The defense to the murder charge was that Mrs. Boggs committed suicide.
The testimony of Donald Boggs, if believed by a jury, was devastating to any defense that Mrs. Boggs' death was self-inflicted. He testified that preceding the shooting, his mother and Trickel had been arguing; that Trickel 'way pushing or shoving her;' that she called him a leech and a parasite; that she wanted him to leave the house and if he did not she would call the sheriff; that Trickel insisted he wanted his .38 pistol, but Mrs. Boggs, who apparently had hidden it, twice stated 'she would give it to him once he was out.' Additionally, Boggs testified that moments before the shooting, he saw Trickel reach into the top drawer of a dresser (the drawer in which the fatal weapon was kept) in the master bedroom; that Trickel then closed the bedroom door; that he (Boggs) then 'could hear a bullet being slipped into a clip' followed by a 'loud jingling of Keys;' that soon thereafter his mother went into the master bedroom; that within seconds she yelled 'No, don't;' that he then heard a shot; and finally, that he heard a thud.
Boggs also testified that right after he heard the shot, Trickel came out of the bedroom with a .22 automatic pistol in his hand and pointed it at Boggs. Boggs told the jury that he thought Trickel was enraged and 'was going to shoot me.' Moments later, according to Boggs, Trickel returned to the bedroom, got a 7 mm. rifle, returned to the hallway, and 'I pinned the rifle between him and I and the hallway, pointed up.' Trickel broke down, 'I asked him if he shot my mom,' and he replied, 'Yes.' Trickel then indicated that he wanted to shoot himself with the rifle and subsequently asked Boggs to shoot him. Boggs then called the authorities, but before they arrived Trickel said to Boggs, 'Listen, Donald, you mom killed herself,' and Boggs replied, 'No way.'
Mr. Trickel expressed his relationship with Mrs. Boggs by testifying, 'We loved each other very much;' that she suffered considerably from arthritis and 'I would try to comfort her the best I could;' and that at 'times I would sit down and cry with her.' He told the jury that the day of the fatal shooting he drank 6 to 8 beers at a tavern and, returning home in the evening, had another beer with his nephew; that shortly before the fatal shot he did enter the master bedroom, but he exited by another door and went to the kitchen; that Mrs. Boggs made some remarks to him about sitting on furniture with greasy clothes and getting a 'smelly pole off the kitchen table;' that she then left the kitchen and went to the master bedroom; that he heard her open his dresser drawer; and that he heard two clicks, one 'sounded like a clip put into the .22' and 'the second one I heard was the breech being opened to be loaded;' that he left the kitchen returned to the bedroom and Mrs. Boggs had her left hand on the gun barrel; that 'she turned back real quick and fired;' that He shouted, 'No, don't;' and that when he lunged at her, the ejecting shell struck his hand, and he caught the gun as it was falling.
Trickel then related that he entered the main hallway, encountered Boggs, but the pistol's 'barrel was pointed to me.' He specifically denied shooting Mrs. Boggs and threatening or assaulting Boggs.
Photographs taken by a King County detective at the scene of the fatality indicated that Mrs. Boggs' death occurred in front of a clothes closet and at the time of death she held in her right hand two clothes hangers containing some of her clothing.
On the fourth day of trial, July 11, 1974, and before the prosecution completed direct examination of Donald Boggs, the court recessed the trial and expressed the 'basic thought' that the 'defendant does pose a substantial danger to another or to the community, and that therefore this Court has discretion that he be detained.' Thereupon, after brief argument of counsel, the court revoked Mr. Trickel's bail and remanded him to the custody of the sheriff.
We note, as did the trial court, that a superior court judge had initially set bail at $100,000, but that almost a month later and after a psychiatric examination indicated a lack of suicidal tendencies, alcohol problems, or danger to society, another judge authorized Trickel's release under specified conditions (one of which was that he 'not be w/in the area of the Boggs residence') upon posting cash bail in the amount of $1,000.
With this background, we turn to the defendant's first contention--that because of the bail revocation he was denied due process of law and deprived of a fair trial. At this late date we are obviously not asked to determine whether Mr. Trickel should be released on bail during trial; rather, our review is limited to consideration of whether he should be granted a new trial.
The defendant does not seriously challenge the power of a trial court to revoke bail at mid-trial--even without a specific hearing for that purpose as CrR 3.2(g) appears to require. 1 Indeed, the defendant directs our attention to a per curiam opinion of the Supreme Court of the United States in which the court indirectly at least acknowledged the inherent power of a United States District Court to revoke bail at mid-trial. Bitter v. United States, 389 U.S. 15, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967). In Bitter, the court declared at page 16, 88 S.Ct. at page 7:
A trial judge indisputably has broad powers to ensure the orderly and expeditious progress of a trial. For this purpose, he has the power to revoke bail and to remit the defendant to custody. But this power must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant's conduct presents or by danger of significant interference with the progress or order of the trial.
The Bitter court cited approvingly a memorandum of Mr. Justice Harlan in chambers in which he asserted his belief
(T)hat, on principle, District Courts have authority, as an incident of their Inherent powers to manage the conduct of proceedings before them, to revoke bail during the course of a criminal trial, when such action is appropriate to the orderly progress of the trial and the fair administration of justice.
(Emphasis added.) Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961). See also State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974). We hold, therefore, that the superior court does have inherent power to exonerate bail and order a defendant's confinement at mid-trial.
We proceed, then, to determine whether or not the trial court's revocation of bail produced a prejudicial error with respect to the process by which Mr. Trickel was convicted of first-degree murder. United States v. Stroud, 474 F.2d 737 (9th Cir. 1973).
The defendant does contend that the trial court's asserted reasons for the revocation do not satisfy the Bitter test. Bitter does not specifically recite the standard which an appellate court must apply when reviewing a trial court's mid-trial revocation of bail. In reversing the revocation order, the court did declare that in a criminal trial for mail fraud, a trial judge's mid-trial order of revocation was 'unjustified' when the record reflected only the defendant's brief incident of tardiness and the revocation resulted in the defendant's commitment for the remainder of the trial in a jail 40 miles distant from the courtroom. The court also declared that the 'order of commitment, made without hearing or statement of reasons, had the appearance and effect of...
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