State v. Weddel

• Decision Date: 29 May 1981
• Docket Number: No. 4250-II,4250-II
• Citation: 629 P.2d 912,29 Wn.App. 461
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Donald R. WEDDEL, Appellant.

Page 461

29 Wn.App. 461

629 P.2d 912

The STATE of Washington, Respondent, v. Donald R. WEDDEL, Appellant.

No. 4250-II.

Court of Appeals of Washington, Division 2.

May 29, 1981.

Stephen Whitehouse, Olympia, for appellant.

Chris Pomeroy, Deputy Pros. Atty., Olympia, for respondent.

REED, Chief Judge.

Defendant Donald R. Weddel appeals his conviction of second degree burglary. We affirm.

On March 18, 1979, Larry and Jacqueline Wassman returned to their home in Lacey and discovered a gray Chevrolet Chevelle in their driveway with a young woman in the front seat. After the Wassmans had a brief conversation with the woman, who indicated that she thought their house was the residence of "the Hansons," a man they later identified as defendant Weddel came out from behind the house. He circled on foot to a vacant lot next to the house and then approached the vehicle, asking if the lot was for sale. After the man and woman left, Mr. Wassman, suspicious because of their inconsistent explanations for being at the house, wrote down the Chevelle's license number, NET 900, and subsequently reported the incident to the police. There was no evidence, however, of any attempted entry to the Wassman residence.

On March 19, Paul and Wendy Johnson, returning from a shopping trip, arrived at their home located approximately seven-tenths of a mile from the Wassman residence. As the Johnsons pulled up to their mailbox across the street from their home, they noticed a gray Chevrolet Chevelle, occupied by two persons, leaving their driveway, some 50 to 75 feet from the mailbox. Dr. Johnson noted the Chevelle's license number, NET 900, and got a brief look at the driver. The Johnsons subsequently discovered that someone had stolen two stereo speakers from their living room after kicking open the front door.

Kelso police arrested defendant on March 20, apparently because he previously had been convicted of burglary and owned a vehicle matching the license number and description the Wassmans and Johnsons furnished. On March 23, while defendant was in custody, Mrs. Wassman positively identified him from a 6-picture photographic array, and on March 26 Mr. Wassman did likewise. Shown the same series of 6 pictures on March 23, Dr. Johnson tentatively identified defendant's picture as "the only one that looked like the individual I had seen driving the car."

On March 30 the State formally charged defendant with second degree burglary of the Johnson residence. On June 6 an amended information was filed, adding a second count charging attempted second degree burglary of the Wassman residence. ¹ Before and during trial, defendant's timely motions pursuant to CrR 4.4 to sever the attempted burglary count were denied. ² At trial defendant presented three alibi witnesses who testified they saw him in Longview at approximately the time the Johnson burglary was committed, but he presented no evidence directed to the Wassman attempted burglary count. Defendant did not testify in his own defense. The jury returned a verdict of guilty on the burglary count and not guilty on the attempted burglary count. Defendant appeals from the burglary conviction, assigning error to the trial court's refusal (1) to sever the attempted burglary count; and (2) to suppress Dr. Johnson's photographic identification of defendant conducted while he was in custody.

Addressing first the issue of severance, we are mindful that joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right. State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968), vacated on other grounds sub nom., Smith v. Washington, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). The determination of whether prejudice resulting from joinder of counts is sufficient to warrant severance, however, is within the discretion of the trial court. State v. Thompson, 88 Wash.2d 518, 564 P.2d 315 (1977); State v. McDonald, 74 Wash.2d 563, 445 P.2d 635 (1968). The trial court's exercise of this discretion will be overturned on appeal only upon a showing of manifest abuse. State v. Wills, 21 Wash.App. 677, 586 P.2d 543 (1978), review denied, 92 Wash.2d 1006 (1979).

Defendant contends he was prejudiced by joinder of the attempted burglary charge in three ways. First, he argues the jury may have inferred that because he did not deny being at the Wassman residence, he must also have been at the Johnson residence; thus, joinder "confounded and embarrassed" him in his alibi defense to the Johnson burglary charge. Second, he argues the jury may have cumulated evidence of the crimes charged to find him guilty of the Johnson burglary when it might not have so found if the charges had been tried separately. Third, he argues joinder of the charges frustrated his desire to testify concerning the burglary charge but not to testify concerning the attempted burglary charge.

We believe the first two of these arguments clearly are without merit and essentially complain of the same harm that in their deliberations on the burglary count the jurors may have considered evidence introduced to prove the attempted burglary. Where the general requirements for joinder are met and evidence of one crime would be admissible to prove an element of a second crime, joinder of the two crimes usually cannot be prejudicial. State v. Pleasant, 21 Wash.App. 177, 583 P.2d 680 (1978), review denied, 91 Wash.2d 1011 (1979), cert. denied, Pleasant v. Washington, 441 U.S. 935, 99 S.Ct. 2058, 60 L.Ed.2d 664 (1979); State v. Kinsey, 7 Wash.App. 773, 502 P.2d 470 (1972), review denied, 82 Wash.2d 1002 (1973); State v. Conley, 3 Wash.App. 579, 476 P.2d 544 (1970). The general requirements for joinder of offenses are satisfied in this case because burglary and attempted burglary obviously are offenses "of the same or similar character." CrR 4.3(a). The remaining question, then, is whether evidence of the attempted burglary would have been admissible in a separate trial of the burglary charge. As a general rule, a defendant must be tried for the offenses charged in the information and evidence of other offenses may not be admitted as proof of guilt of the charged offenses if the evidence is relevant only to prove the defendant's criminal disposition. State v. Goebel, 40 Wash.2d 18, 240 P.2d 251 (1952). The general rule excluding evidence of uncharged offenses is subject to certain exceptions, the most common of which involve "other crimes" evidence offered to show (1) motive, (2) intent, (3) absence of accident or mistake, (4) common scheme or plan, or (5) identity. The foregoing list of exceptions is not exclusive, however, and the true test of admissibility is whether the other crimes evidence is relevant and necessary to prove an essential ingredient of the crime charged. See State v. Lew, 26 Wash.2d 394, 174 P.2d 291 (1946); State v. Kinsey, supra; ER 404(b). We believe that evidence of the attempted burglary was admissible to establish defendant's presence in the near vicinity of the burglary a short time before it occurred. See State v. Cartwright, 76 Wash.2d 259, 456 P.2d 340 (1969); State v. Leroy, 61 Wash. 405, 112 P. 635 (1911); State v. Norris, 27 Wash. 453, 67 P. 983 (1902); State v. Hyde, 22 Wash. 551, 61 P. 719 (1900). Defendant's presence in the Johnson neighborhood one day before the burglary clearly was relevant to an important issue in the burglary prosecution because defendant lived in the Longview/Kelso area (more than 70 miles south of Lacey) and relied on alibi witnesses placing him in Longview at the time of the burglary as a defense to that charge. Accordingly, because evidence of the attempted burglary would have been admissible in any event in a separate trial of the burglary count, joinder of the two offenses did not unduly prejudice defendant either by undercutting his alibi defense or by permitting the jury to cumulate evidence of separate crimes.

We also reject defendant's third argument that joinder effectively denied him the right to testify in his own defense by forcing him to choose between testifying about both crimes or not testifying at all. In support of this argument, he relies principally on Cross v. United States, 335 F.2d 987 (D.C.Cir.1964). In Cross, the court vacated convictions of two defendants and remanded for new trials because it concluded that joinder of counts had been prejudicial within the meaning of Rule 14 of the Federal Rules of Criminal Procedure, which is substantially similar to CrR 4.4. The court noted that prejudice may develop

when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence.

Cross, 335 F.2d at 989. The defendants in Cross did not specify at trial the counts upon which they wished to remain silent and why, but this apparently was because the trial court insisted that the issue of joinder had been determined finally in its denial of a pretrial motion to sever and refused to hear the defendants' arguments. Id. at 990 and n.6. Examining the record of the defendants' testimony, the Court of Appeals determined that defendant Cross offered convincing evidence on the count upon which he was acquitted but was plainly evasive and unconvincing in his testimony on the count upon which he was convicted. The court held:

Thus it would appear that Cross had ample reason not to testify on Count I and would not have done so if that count had been tried separately. In a separate trial of that count the jury would not have heard his admissions of prior convictions and unsavory activities; nor would he have been under duress to offer dubious testimony on that count in order to avoid the damaging implication of testifying on only one of the two joined counts. Since the joinder embarrassed and confounded Cross in making his defense, the joinder was prejudicial within the meaning of Rule 14.

(Footnote omitted.) Id. at 990-91....