State v. Walker

• Decision Date: 26 May 1975
• Docket Number: No. 2558--I,2558--I
• Citation: 536 P.2d 657,13 Wn.App. 545
• Parties: STATE of Washington, Respondent, v. Albert WALKER, Appellant.
• Court: Washington Court of Appeals

Page 545

13 Wn.App. 545

536 P.2d 657

STATE of Washington, Respondent, v. Albert WALKER, Appellant.

No. 2558--I.

Court of Appeals of Washington, Division 1.

May 26, 1975.

Rehearing Denied Sept. 29, 1975.

Sam Peach (court appointed), Hobart S. Dawson, Bellingham, Craig P. Hayes Bellingham, (court appointed), for appellant.

David S. McEachran, Whatcom County Pros. Atty., William A. Gardiner, Deputy Pros. Atty., Bellingham, for respondent.

CALLOW, Judge.

Luther Durling died on July 4, 1973 from knife wounds inflicted by the defendant during a fight between the two at the Lighthouse Mission in Bellingham, Washington. The following day, the defendant was charged with murder in the first degree. He was convicted of the charge by a jury on August 16, 1973. After the filing of a notice of appeal, this court remanded the cause to the Superior Court on December 21, 1973 for hearings on the post-trial motions which had been filed. These hearings took place, findings and conclusions were entered, and it was found that the defendant appeared to be of sound mind prior to and during the trial and that he was competent to assist in his defense at the time of trial. See appendix.

TRIAL

Error is claimed to have been committed during the trial when

(1) a psychiatric examination was not conducted prior to or during the trial;

(2) the trial court ruled before trial that no mention of the propensity of the deceased for acts of violence during his life would be admissible;

(3) the jury was not instructed on the law of manslaughter resulting from assault without premeditation or intent to kill;

(4) challenged instructions on self-defense were given;

(5) the jury verdict resulted from passion and prejudice (6) the prosecution was overreaching in the cross-examination of the defendant;

(7) the prosecuting attorney failed to advise the court or defense counsel that an interview of the defendant had been conducted and the interviewer had recommended an examination as to his mental capacity to stand trial.

1. Should a psychiatric examination have been conducted before or during the trial?

The record of the trial indicates that before and during the trial itself, the defendant was able to understand the proceedings against him and assist in his own defense. At an omnibus hearing held on Saturday, July 7, 1973, the defendant was represented by two attorneys who informed the court that they would claim the defendant acted in self-defense. One of the defense counsel stated:

(I)nsanity will not be a defense. I would like the record to show that we discussed this, both (defense counsel), with the defendant this morning, and there will be no insanity defense raised.

Further, defense counsel stated that there would be no claim of incompetency to stand trial raised.

One of the motions raised by the defense at the conclusion of the state's case was a motion to preclude the prosecution from inquiring into all of the arrests show on the defendant's FBI report. Defense counsel read down the various notations on the record and stated that, except for certain convictions thereon, there should not be any reference to the report by the prosecution. One of the entries on that report showed that the defendant had been sent to the Atascadero State Hospital in California in 1968 as 'mentally ill.' No apparent notice was taken of this entry at the time, and no other reference to the possibility of the defendant being insane or not competent to stand trial was raised during the trial in chief. The defenses pursued were that the homicide was excusable and the killing occurred in self-defense.

The 1973 legislature repealed prior statutes relating to criminal insanity (RCW 10.76.010--.080) and adopted Chapter The evidence known to the defense counsel and the trial court before and during the trial did not indicate that the defendant was insane or incompetent. ² The record of the trial shows that the defendant rejected any plea of insanity The report of the Whatcom County mental health coordinator would have brought the possibility of insanity or incompetence to the attention of the prosecution, defense counsel, and the court had the report been communicated to any of those parties, but there is nothing in the record to indicate that the report was so transmitted, or that anyone privy to the court proceedings perceived insanity or incompetence to be probable defenses. We do not fault the trial court for a failure to act on the own motion to hold pretrial hearings on the sanity or competence of the defendant when defense counsel stated that such defenses would not be raised and there was no indication before the court that such defense should be raised. When the evidence is examined, as it must have appeared to the trial judge before and during the trial, we find no abuse of discretion in proceeding without conducting an evidentiary hearing into the sanity of the defendant or into his competence to stand trial. State v. Johnston, 84 Wash.2d 572, 527 P.2d 1310 (1974).

117, Laws of 1973, 1st Ex. Sess., effective July 1, 1973 and codified as RCW 10.77. Although RCW 10.77 was amended in 1974, the 1973 language is applicable to this crime and trial. ¹ being raised in his behalf and that he assisted in the trial as would a rational man in possession of his faculties.

2. Was it erroneous to exclude the arrest record of the victim showing prior acts of violence by the decedent during his life?

Following the impaneling of the jury, the prosecution moved to prohibit any mention to the jury of the prior arrests of the victim. The FBI record of the victim showed arrests for crimes involving violence. The defense argued that this record should have been admissible to show the victim's violent propensity, but the defense did not offer to prove the reputation of the victim for violence. The defense did not offer to show that the victim had a reputation for violence known to the defendant, or that the defendant was aware of specific acts of violence committed by the victim. Proof of either of those circumstances would have been admissible as justifying forceful acts of the defendant in self-defense. State v. Cloud, 7 Wash.App. 211, 217--18, 498 P.2d 907 (1972). Likewise, the defense did not seek to introduce proof of the reputation of the victim for violence

to corroborate the defendant's claim that the deceased was the aggressor. The FBI report reflects isolated specific acts of violence by the victim, but standing alone it does not establish the reputation of the victim nor prove that the defendant was aware of past violent acts by the victim. The report was excluded properly. State v. Cloud, Supra.

3. Should the jury have been instructed on manslaughter?

The defense did not propose an instruction on the lesser included offense of manslaughter, and, in fact, rejected the possibility when it was raised. It is not erroneous to fail to instruct on manslaughter as a lesser included offense within the crime of murder in the first degree when no request for such an instruction is made. State v. Mayner, 4 Wash.App. 549, 483 P.2d 151 (1971). When the evidence would support a finding of guilty on a lesser included offense and an instruction on the lesser included offense is proposed, then the instruction must be given, but not otherwise. RCW 10.58.020, 10.61.010; State v. Stationak, 73 Wash.2d 647, 440 P.2d 457 (1968); State v. Gallagher, 4 Wash.2d 437, 103 P.2d 1100 (1940); State v. Rader, 118 Wash. 198, 203 P. 68 (1922).

4. Were the instructions on self-defense erroneous?

The defense raises as a claim of error on appeal the absence of comment in the court's instructions on the alleged violent propensities of the deceased victim. This ground for claimed error was never presented to the trial court. The instruction given on self-defense was objected to at the conclusion of the presentation of evidence by appointed trial counsel on the basis that the instruction would make self-defense available only to those who were without fault in occasioning an affray. This ground of objection is not being pursued on appeal. We will not consider objections to the giving of instructions raised on appeal when the basis for such objections was not brought to the attention of the trial court. Palmer v. Waterman S.S. Corp.,52 Wash.2d 604, 328 P.2d 169 (1958); Bombardi v. Pochel's Appliance Further, the instruction objected to is not set out in the appellant's brief. CAROA 42(g)(1)(iii) and 43 require an instruction to be set out in the brief in full if an objection is raised to its sufficiency. This was not done, no issue is raised that the self-defense instruction violated the constitutional rights of the defendant, and therefore we may not consider the claimed error. State v. Lake, 7 Wash.App. 322, 499 P.2d 219 (1972); State v. Williams, 4 Wash.App. 411, 481 P.2d 918 (1971).

& TV Co., 9 Wash.App. 797, 151 P.2d 540 (1973), modified, 10 Wash.App. 243, 518 P.2d 202 (1973).

5. Should the verdict be set aside as being the result of passion and prejudice?

The trial court admonished the jury to disregard statements made by witnesses who categorized the death as a murder. The admonitions given by the trial court were appropriate to remind the jury of their duty to act disinterestedly and impartially. Meabon v. State, 1 Wash.App. 824, 463 P.2d 789 (1970). Additional admonitions were discretionary with the trial court. Curtis v. Perry, 171 Wash. 542, 18 P.2d 840 (1933). The usual instruction was given to the jury to reach their verdict on the evidence and not be influenced by prejudice. The record does not affirmatively show that the verdict of the jury was reached because of improper influences upon them. Even though the verdict was returned within 4 hours, this is not sufficient to support a conclusion that substantial justice has not been done. See Casey v. Williams, 47 Wash.2d 255, 287 P.2d 343 (1955).

6. Did the prosecution commit error by overreaching in...