State v. White

• Court: Washington Supreme Court
• Writing for the Court: DONWORTH; HILL; HUNTER; FINLEY, C. J., and FOSTER
• Citation: State v. White, 60 Wn.2d 551, 374 P.2d 942 (Wash. 1962)
• Decision Date: 25 September 1962
• Docket Number: No. 35692
• Parties: STATE of Washington, Respondent, v. Don Anthony WHITE, Appellant.

Page 551

60 Wn.2d 551

374 P.2d 942

STATE of Washington, Respondent, v. Don Anthony WHITE, Appellant.

No. 35692.

Supreme Court of Washington, En Banc.

Sept. 25, 1962.

David A. Weyer, James C. Young, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Robert E. Dixon, James J. Caplinger, Victor V. Hoff, Seattle, for respondent.

DONWORTH, Judge.

Appellant was charged, by Information, with committing two murders alleged to have been committed at different times and places on the same day (December 24, 1959).

Count I. The first-degree murder of Mrs. Alice Jumper, committed with premeditation and while engaged in committing, in attempting to commit, or in withdrawing from the scene of the commission of, the crimes of rape and robbery.

Court II. The second-degree murder of Willie LeRoy Dixson.

Since appellant was without means to employ an attorney, his present counsel were appointed by the court to represent him. Thereafter, he orally pleaded not guilty to each count and also entered a written plea of not guilty by reason of mental irresponsibility.

Appellant's trial began May 16, 1960, and the case was submittted to the jury for deliberation on May 26. On the following day, the jury returned its verdict of guilty as charged as to each count and, also, a special verdict as to the first count inflicting the death penalty.

Thereafter appellant's alternative motions for arrest of judgment and for a new trial were heard and denied, and judgment and sentence were entered in accordance with the verdict. Appellant has appealed to this court therefrom, assigning as error eleven rulings of the trial court, which will be considered later in this opinion.

There was little dispute in the evidence as to the commission of the two homicides. The state offered three confessions signed by appellant which related to his activities between the evening of December 23 and the evening of December 24, 1959. In the first of these statements (four pages), given to Sgt. Swindler of the Seattle Police Department on December 28, 1959, appellant described the events preceding and following his assault on Willie Dixson the evening of December 24. In the second statement (six pages), given to the same detective later on the same date, appellant related the circumstances of the assault on Mrs. Alice Jumper, which took place in the laundry room of the Yesler Terrace housing project in Seattle about 7 a. m. on December 24. Mrs. Jumper died on December 25 as the result of this assault. The third statement (three pages) was given by appellant to Detective Shaneyfelt on January 6, 1960, in order 'to help determine the amount of alcohol I had consumed on the night of Dec. 23, and morning Dec. 24, 1959, also the amount of marijuana that I had smoked during this same period of time.'

After the state had rested its case, appellant took the stand in his own behalf and testified as to both assaults. However, while on the stand, his memory as to the details of the assault on Mrs. Jumper was not as clear as it was in his second confession. As to the assault on Willie Dixson (which he claimed was made in selfdefense), appellant's memory was much clearer. There is no present contention that appellant did not kill both Mrs. Jumper and Willie Dixson.

Assignment No. 1. In appellant's first assignment, he contends that the trial court erred in admitting in evidence, over his objection, two tape recordings of two interviews between him and Sgt. Swindler during which he confessed that he had committed both homicides. Without the knowledge of appellant, the microphone was concealed in a telephone and the machine was located in a desk drawer. During these interviews, the sergeant was supposedly writing out a statement for appellant to sign.

Appellant's ground for objection to the admission of the two tape recordings was that their use in court violated rights guaranteed him by the fifth and fourteenth amendments to the United States Constitution, and that playing them before the jury would prejudice him as to his defenses, particularly on the question of whether the death penalty should be imposed.

A further objection to these tape recordings was that they were not properly identified and authenticated in accordance with the rules laid down by this court in State v. Williams, 49 Wash.2d 354, 301 P.2d 769 (1956). We have considered appellant's argument in support of the latter objection and are of the opinion that the admission and use of the recordings by the trial court was in accordance with the rules laid down in the Williams case and cases cited therein.

Nor was appellant deprived of any constitutional rights because he was unaware of the presence of the recording device during the interview. His contention between speaking orally to the detective between speaking orally to the detective and 'speaking for the purpose of having what he said recorded as a confession.' This argument is based on the premise that, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), it was held that both the fourth and fifth amendments to the United States Constitution are applicable to the states under the fourteenth amendment. We do not so read the majority opinion. Only the fourth amendment was held to be applicable to the states, and no unreasonable search and seizure is involved in the case at bar. Even if it be assumed that appellant was by deception compelled to give evidence against himself, the fifth amendment affords him no basis for relief, because it has no application to state action. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884); Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947); In re Huffman v. Smith, 34 Wash.2d 914, 210 P.2d 805 (1949). No federal question is presented here. (Note that in a similar case in a federal court it was held that there was no violation of a constitutional right. Todisco v. United States, 298 F.2d 208 (9 Cir., 1961) cert. den. Feb. 19, 1962, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527.)

In the present case, the trial court did not abuse its discretion in admitting the tape recordings, because they tended to show matters which the written confessions could not show, such as the voluntariness of his statements (or lack thereof) and his general attitude toward the two homicides. In such situations, the trial court may exercise its discretion in admitting or excluding evidence. State v. Wilson, 38 Wash.2d 593, 231 P.2d 288 (1951).

We find no merit in appellant's first assignment of error.

Assignment No. 2. The basis for appellant's second assignment of error is the trial court's refusal to strike or reduce Count I to second-degree murder on the ground that the state's evidence failed to show premeditation or a felony murder.

Appellant's position regarding his challenge and motions made at the trial is stated in his brief as follows:

'At the close of the state's case the appellant challenged the sufficiency of the evidence as to the count involving First Degree Murder. The challenge was made both as to premeditated design and the 'Felony-Murder' Doctrine. The appellant had presented to the trial court a memorandum pertaining to the Felony Murder Doctrine. The court denied the challenge and motion. Appellant then presented his evidence, a large portion of which consisted of psychiatric testimony. At the close of appellant's case and state's rebuttal, appellant again moved to have the question of premeditation and felony murder removed from Count 1 thereby removing the count of murder in the First Degree. The court denied appellant's motion as to premeditation and the felony murder doctrine.

'In order to establish a charge of murder in the First Degree based upon premeditation, proof of deliberation or premeditation is necessary. State v. Davis, 6 Wn.2d 696, 706, 108 P.2d 641, (1940). The fact of killing alone raises no presumption of premeditation or deliberation. State v. Gaines, 144 Wash. 446, 258 Pac. 508, 512 (1927). In the case at bar the state on its charge of Murder in the First Degree showed a beating from which Alice Jumper died. It was a beating by fists, no instrument being used. In addition, the state failed to show any prior relationship or acquaintance or any other evidence from which a jury could infer deliberation or premeditation. The beating occurred in a community-type washroom when appellant walked in to use the toilet. Nothing else was shown as a basis for the beating, therefore, the evidence failed to establish a prima facie case of premeditation or deliberation.'

Appellant further contends that the testimony of the psychiatrists produced by the defense established that he was incapable of formulating an intent to effect the death of Mrs. Jumper. Consistent with the contention, he excepted to the court's instructions on premeditation.

The state's evidence bearing on the issue of premeditation and also on the issue of felony murder included appellant's signed confession of December 28, 1959, in which he described the beating of Mrs. Jumper (whom he had never seen before) as follows:

'* * * I believe it was about 3:00 a. m. when I arrived back in the vicinity of 12th Ave. & Jackson St. I then walked around in the vicinity of the Yesler Housing Project for two or three hours. Finally, I passed by oen of the Yesler Housing Project Laundry Rooms which is located just off Fir St. I used to live in the next unit from where the laundry room is located. As I was passing the laundry room, I looked in and noticed a white woman doing something with some clothes. She was either folding or hanging up clothes. I decided to go into the laundry room to use the head. The woman had her back to me as I entered the door and was standing over by one of the dryers. I walked pass [sic] the woman into the back and tried the door to the head but it was locked. I then turned around and started back out. When I got even with the woman I just punched...