State v. Vindhurst
| Decision Date | 23 January 1964 |
| Docket Number | No. 36358,36358 |
| Citation | 63 Wn.2d 607,388 P.2d 552 |
| Parties | STATE of Washington, Respondent, v. Howard D. VINDHURST, Appellant. |
| Court | Washington Supreme Court |
Kizer, Gaiser, Stoeve, Layman & Powell William J. Powell, Spokane, for appellant.
John J. Lally, Pros. Atty., George A. Kain, Spokane, for respondent.
Howard D. Vindhurst appeals from a judgment and sentence entered after his conviction on one count charging him with the possession or control of narcotic drugs, in violation of RCW 69.33.230. In the same trial, the jury acquitted appellant of a similar charge.
On or about March 15, 1961, the Spokane County sheriff's office contacted Mrs. Lucille Twaddell to request her to act as an informant in the event that she should receive information concerning a quantity of narcotic drugs sought by the police. The narcotics had been taken in a local drugstore burglary a day or two before. Mrs. Twaddell's husband had been, for several years, a burglar and receiver of stolen goods and was then serving a sentence in the state penitentiary, so the officers considered her a likely person to be contacted by whoever had control of the narcotic drugs.
March 16, 1961, Joseph Bitz had a conversation with Mrs. Twaddell in which he inquired whether she had a list of prices she would be willing to pay for various narcotics. Mrs. Twaddell informed the officers of her meeting with Bitz. A price list was prepared by a deputy sheriff for use in a later meeting with Bitz. The list was picked up by him at Mrs. Twaddell's home early on the morning of March 17. That same morning, appellant called at Mrs. Twaddell's home and asked her to buy 'the stuff.' Appellant was told of her conversation with Bitz and he departed, saying that he would see Bitz. A meeting was arranged for that evening at the informant's home. Mrs. Twaddell informed the officers, who then placed a radio transmitter in her home for use in connection with the forthcoming meeting.
About 10 p. m. on the 17th, appellant and Bitz came to Mrs. Twaddell's home. A discussion followed concerning the purchase of narcotic drugs, and appellant produced a handwritten list of drugs.
Mrs. Twaddell testified as follows concerning the list produced:
Thereafter, Bitz suggested that appellant procure a sample of the drugs. Appellant left the house and returned shortly with a bottle of pills. The police, who had overheard the conversation via the radio transmitter, entered the informant's house and arrested appellant and Bitz. The list of drugs and the bottle of pills were seized at that time by the officers. (The pills, upon later analysis, were shown to contain Dilantin, a non-narcotic drug.) Appellant and Bitz were taken to the county jail and booked. The officers then proceeded, with a search warrant, to search appellant's house, but discovered no drugs.
Sunday, March 19, 1961, the officers, after they had discovered that Dilantin was not a narcotic drug, had a conversation with appellant and Bitz while they were still in custody. The officers did not inform the two men that the bottle did not contain narcotic drugs. In exchange for the production of undiscovered narcotic drugs 'that were on the street,' the officers offered to return Bitz to the reformatory as a parole violator and not charge him with a new offense, and to allow appellant to plead guilty to a gross misdemeanor (possession of stolen goods). No agreement was then reached, so the proposal was explained again to the two men in the presence of their then attorney, Carl Maxey, who was called at their request. Mr. Maxey and his clients then conferred privately, and thereafter Mr. Maxey stated that they accepted the proposal 'all the way around.'
Mr. Allen, the deputy sheriff in charge of the case, testified that Mr. Maxey stated that he wanted appellant to be released from jail that day to recover the narcotics because he was the only who could produce them. Mr. Maxey, in his testimony, stated: 'I do not recall that statement,' but did not specifically deny that he had made it.
Parenthetically, it should be stated that Bitz, who was being held because of having violated his parole, was not eligible to be released on bail.
Appellant was released on bail Monday morning, March 20, 1961. That same evening, Mr. Allen received a telephone call about 10:40 p. m. from Mr. Maxey. He then proceeded to the sheriff's office and then to Mr. Maxey's home. His testimony as to what occurred is as follows:
'* * * Captain Shearer and one of our stenographers and I went to Carl Maxey's residence and looked over the narcotics, inventoried them, left Maxey's and returned to the Sheriff's office where they were marked for evidence and locked up. Q. You say
Mr. Maxey's testimony regarding this event was:
At this point the witness was asked where he had obtained the drugs that he delivered to the officers that evening. The objection of appellant's counsel, on the ground that the question involved the disclosure of a privileged communication between attorney and client, was sustained. (The question is the subject of appellant's fifth assignment of error.)
The officers at Mr. Maxey's house made an inventory of the bottles 1 received by them. The inventory was later typed and a copy was admitted as evidence at the trial of the present case.
Thereafter, appellant discharged Mr. Maxey as his attorney and pleaded not guilty to the gross misdemeanor charge of possession of stolen goods. At the hearing, the charge was dismissed by the state for lack of proof since the druggist could not identify the bottle offered in evidence as having been taken from his store; whereupon, appellant was charged with two counts of having, in his possession or control, narcotic drugs, and was again arrested before he could leave the courtroom. The prosecution states he was thus arrested and charged because he did not abide by the 'deal' made with the officers.
Appellant's trial on the two counts resulted in a conviction on the second count only.
The first four of appellant's ten assignments of error present substantially the same issue of law. Appellant claims that it was prejudicial error to allow certain testimony to be admitted over his objection relating to an alleged burglary of a drugstore from which the narcotic drugs involved in this case were stolen. Also, error is claimed in the admission of a list of stolen drugs into evidence. Error is likewise predicated on the trial court's failure to grant a new trial when the prosecution made reference to the alleged burglary in its opening and closing statements to the jury.
We have said many times that it is grossly and erroneously prejudicial to permit the introduction of evidence of unrelated crimes in a criminal trial, unless the evidence comes within one of the recognized exceptions: (1) to show motive or intent, (2) the absence of accident or mistake, (3) a common scheme or plan, (4) identity, or (5) if the evidence is relevant to any material issue before the jury. State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950). Or, such evidence may be admitted if it tends to prove some essential ingredient of the crime charged in the information. State v. Dinges, 48 Wash.2d 152, 292 P.2d 361 (1956), and cases cited.
The question before this court is whether the evidence of the alleged burglary of the drugstore was so related to the charge of possession or control of narcotic drugs that it was admissible in this case.
The prosecution argues that the burglary is a related crime to the one with which appellant was charged. It is also contended by the state that the evidence of the burglary is probative as tending to show that appellant had illegal possession or control of the narcotics.
Appellant claims that the state does not have to prove illegal possession because, where the charge is unlawful possession or control of narcotic...
To continue reading
Request your trial
-
State v. Louie
...(1962); State v. Moore, 61 Wash.2d 165, 377 P.2d 456 (1963); State v. Harris, 62 Wash.2d 858, 385 P.2d 18 (1963); State v. Vindhurst, 63 Wash.2d 607, 388 P.2d 552 (1964); State v. Goldstein, 65 Wash.Dec.2d 873, 400 P.2d 368 (1965).2 An appeal by a defendant in a criminal action shall stay t......
-
State v. Young
...that it was the function of a lawyer to do those things. Defendant argues that such instruction was approved in State v. Vindhurst, 63 Wash.2d 607, 388 P.2d 552 (1964). That case did footnote such an instruction as ameliorating a possibly objectionable question. It did not approve the instr......
-
State v. Reeves
...constitutes possession within the meaning of the particular narcotic drug act in force in the jurisdiction involved are: State v. Vindhurst, 63 Wash.2d 607, 388 P.2d 552 (State must show possession or control but need not establish knowledge or intent); Jackson v. State, 254 A.2d 852, 853 (......
-
State ex rel. Sowers v. Olwell
...371, 382 P.2d 1019 (1963) on the question of the right of a client to confer privately with his attorney.5 See State v. Vindhurst, 63 Wash.Dec.2d 611, 388 P.2d 552 (1964), where the defendant's former counsel was asked a question concerning the production of narcotics, a privileged communic......