State v. Whalon

• Decision Date: 15 January 1970
• Docket Number: No. 36,36
• Citation: 1 Wn.App. 785,464 P.2d 730
• Parties: The STATE of Washington, Respondent, v. Wesley WHALON, Appellant. (40576) II.
• Court: Washington Court of Appeals

Page 785

1 Wn.App. 785

464 P.2d 730

The STATE of Washington, Respondent, v. Wesley WHALON, Appellant.

No. 36 (40576) II.

Court of Appeals of Washington, Division 2.

Jan. 15, 1970.

Review Denied May 21, 1970.

McCormick, Hoffman, Rees & Arnold, Paul Hoffman, Jr., Tacoma, appointed, for appellant.

Joseph D. Mladinov, Special Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., and Eugene G. Olson, Chief Crim. Deputy Pros. Atty. on the brief) for State of Washington.

PEARSON, Judge.

The defendant, Wesley Whalon, Jr., is appealing from a judgment and sentence following a conviction for the crime of rape.

On October 13, 1967 at approximately 6:15 a.m. the prosecuting witness was raped. The crime took place in the bedroom of her home in South Tacoma in the presence of her 3-year-old son. The assailant threatened the victim with a knife. The victim described her assailant to the police as a light-skinned Negro, about 5 feet 8 inches tall, and weighing around 140 pounds. She said he wore a light tan mask, which came halfway down over his face. The entire incident, according to the victim, lasted approximately 10 to 15 minutes.

On December 6, 1967 the defendant was seen behaving suspiciously in a parking lot in South Tacoma. He was wearing a light blue mask which covered his entire head. Whalon was apprehended after a chase. The mask, which the defendant dropped as he fled, was recovered by the police. When Whalon was searched, the police removed a piece of yellow paper with writing on it and an address book from the defendant's clothing. The piece of paper had handwritten on it nine steps for the commission of a rape in an automobile. ¹

The address book contained at the top of one page a name, address, and phone number in South Tacoma (not the victim's) and an arrow pointing from the words below--'rape her'--to the address. Another arrow pointed downward from the words 'rape her' to 'call tomorrow (Monday--'.)

The place where Whalon was arrested was within one block of his residence. It was within three blocks of the address in the address book. The location of Whalon's house was about five blocks from the scene of the rape.

After his arrest, the defendant was required to appear in a police lineup with four other Negroes. Whalon was of somewhat slighter build than the other participants in the lineup and his skin was of lighter color. Moreover, the other participants in the lineup wore street shoes, while Whalon wore slippers. The defendant's attorney was present at the lineup.

Each person in the lineup was required to repeat statements allegedly made by the assailant during the crime. The prosecuting witness was not able to identify the defendant as her assailant until she heard him speak. She stated that the basis for her identification was his voice, together with his physical appearance.

At the trial, the defendant insisted on testifying against the advice of his attorney. His testimony was in support of an alibi. Also, he offered explanations for his conduct on the night of his arrest, December 6, 1967, and for the exhibits found on his person. The defendant said he was planning to burglarize a store on that date to obtain needed money. Whalon said the writing in the address book was written down and shown to his wife to make her jealous. He said the notes on the piece of yellow paper constituted an outline for a short story he was planning to write.

There is no challenge to the sufficiency of the evidence to support the verdict. We will address the defendant's assignments of error in the order they were presented to us.

The first issue for our consideration involves the fairness of the lineup. The defendant has claimed that evidence of the lineup should not have been admitted because the lineup was unnecessarily suggestive and conducive to mistaken identification. There is no evidence that the defendant's attorney objected to the lineup at the time it was held, either as to the physical differences between the persons or the statements they were asked to recite.

The United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149

(1967) holds that there is no violation of an accused's constitutional rights in requiring him to speak within hearing distance of the witnesses, even to utter the words purportedly uttered by the criminal, so long as his counsel is present to insure an objective lineup and to enable the defense attorney to reconstruct at the trial any unfairness that might have occurred. In Wade, as here, the voice identification was combined with observations of physical characteristics other than voice, and identification was not solely limited to the victim's recognition of defendant's voice.

It is a general rule that voice identification is sufficient identification to sustain a conviction where the witness has some reasonable basis for comparison of the accused's voice with the voice which is identified as the accused's. The probative value of such evidence is a question for the jury. See Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957). Also see 70 A.L.R.2d 995 for a collection of cases concerned with the identification of an accused by his voice.

In our opinion, the victim's exposure to her assailant and hearing him speak before, during, and after the crime, together with her identification of his physical characteristics are sufficient bases on which to sustain her identification. See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968), where the United States Supreme Court upheld a conviction for rape and the only evidence connecting the accused with the rape was the testimony of the complaining witness that she had identified him by his size, his voice, his smooth skin, and his bushy hair.

However, defendant claims that the totality of circumstances surrounding the lineup made it unfair. He claims that physical differences distinguishing the defendant from the other participants in the lineup and the outrage inevitably aroused in the victim when she heard the words uttered by her assailant, created a highly suggestive situation which could easily lead to mistaken identification.

We are aware that a lineup, particularly in a rape case, presents a particular hazard that a victim's understandable outrage will excite vengeful motives. United States v. Wade, Supra. This is the very reason for having defendant's counsel present, as was done in this case. Defendant's counsel vigorously attacked the victim's identification on cross-examination. His efforts were directed toward weakening the identification of the defendant with the crime. He exposed the lineup and the precedures used there to the scrutiny of the jury. He also examined the police officers who administered the lineup. The jury was made fully aware of what happened, and could give the lineup identification its proper weight.

Similar considerations are present here as were in the Wade case and two companion cases, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). However, we, like the United States Supreme Court in Wade, are cognizant that eye witness identifications may sometimes be unreliable. Police officials should make every effort to present as many persons as is practically possible with similar physical characteristics in a lineup. We believe that was done in this case and the differences in physical characteristics were effectively brought to the jury's attention by cross-examination. We do not find reversible error in the lineup.

The second assignment of error concerns the admission of evidence concerning the events of December 6, 1967, and the admission into evidence of the mask (exhibit 2), the address book (exhibit 1), and the yellow paper with notes on it (exhibit 7). This assignment of error, like the first one, concerns the central issue in the case at trial--identity of Whalon as the assailant. The defendant has not made any complaint, either at trial or on appeal, concerning the seizure of the items in question. Consequently, we shall assume that the only issue concerning the admission of the items is their relevancy.

The defendant has claimed that the testimony of the arrest and the items seized on December 6 are totally irrelevant to the crime of rape charged. Defendant contends the evidence was of a separate and independent crime, that it was highly inflammatory in nature, and should therefore have been excluded.

A trial court has discretion concerning the admissibility of evidence insofar as its relevance is concerned. The standard for relevancy is whether the evidence gives rise to reasonable inferences regarding contested matter or throws any light upon it. State v. Schock, 41 Wash.2d 572, 250 P.2d 516 (1952). Relevancy means a logical relation between evidence and the fact to be established. Chase v. Beard, 55 Wash.2d 58, 346 P.2d 315 (1959). Any evidence which tends to identify the accused as the guilty person is relevant. State v. Spadoni, 137 Wash. 684, 243 P. 854 (1926).

Any competent evidence which tends logically to prove a defendant's connection with a crime is material. Materiality is judged not only upon what the evidence shows standing alone, but also on whatever inferences may be drawn when it is viewed in connection with other evidence. Relevant and material evidence is admissible. Its cogency and the degree to which it elucidates facts in issue become matters of the weight given the evidence by the jury. State v. Gersvold, 66 Wash.2d 900, 406 P.2d 318 (1965).

The general rule stated in State v. Goebel, 40 Wash.2d 18, 21, 240 P.2d 251, 253 (1952) is that a defendant must be tried for the offenses charged in his indictment or information, and evidence of unrelated crimes may not be admitted unless certain exceptions exist:

These exceptions are to show (1) motive, (2) intent, (3) the...