State v. Williams

• Decision Date: 08 October 1981
• Docket Number: No. 47505-9,47505-9
• Parties: The STATE of Washington, Respondent, v. Clarence E. WILLIAMS, Petitioner.
• Court: Washington Supreme Court

Page 215

96 Wn.2d 215

634 P.2d 868

The STATE of Washington, Respondent, v. Clarence E. WILLIAMS, Petitioner.

No. 47505-9.

Supreme Court of Washington, En Banc.

Oct. 8, 1981.

Allen & Hansen, David Allen, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Philip Y. Killien, J. Robin Hunt, Deputy Pros. Attys., Seattle, for respondent.

STAFFORD, Justice.

A jury found petitioner Clarence Williams guilty of robbery in the first degree, kidnapping in the first degree, and murder in the first degree. The trial judge set aside the verdicts and granted petitioner a new trial on several statutory grounds. The Court of Appeals reversed, holding that none of the grounds was applicable. We affirm the Court of Appeals.

The facts were set out in detail by the Court of Appeals in State v. Williams, 27 Wash.App. 430, 618 P.2d 110 (1980), thus, we need touch only the pertinent highlights here. At about 3:50 a. m. on September 25, 1978, the 7-11 store on Beacon Avenue South in Seattle was robbed and Laura Ann Bayliss, the night clerk, was abducted. During the robbery a hidden camera was activated producing pictures of a large black man dressed in an olive drab fatigue jacket and a cap, and wearing glasses. Two frames were of his left profile. Some 200 copies of the profile photographs were distributed by the police to aid in the apprehension of the robber and to find the victim. Copies were published in newspapers and displayed on television as well.

Ms. Bayliss' body was found on October 14 in the basement closet of a vacant house at 6309 Beacon Avenue South. She had been stabbed numerous times, and had been dead three to four weeks.

On October 16 an anonymous caller informed the police petitioner was possibly the man in the robbery photograph. When petitioner was interviewed soon thereafter he was wearing a fatigue jacket and safety glasses. He admitted having been in 6309 Beacon Avenue South, including the basement, on three or four occasions during the previous six months. A subsequent search of his residence, located only four buildings from 6309, revealed many knives and pairs of safety glasses. He was also found to own clothing similar to that worn by the man in the "robbery-in-progress" photographs. More importantly, petitioner himself closely resembled the man in the photograph. Further, he revealed that both his wife and a close family friend initially thought he was the man in the picture.

At trial the State introduced the testimony of two eyewitnesses to the robbery. Alan Johnson and Bradley Farris testified they had gone to the 7-11 store at approximately 3:50 a. m. to purchase some cigarettes. When Farris started to enter the unlocked door he was confronted by a large black man in a fatigue jacket and hat who told him the store was closed. Farris persisted and, after a brief discussion, the man agreed to sell two packs of cigarettes for $2. Johnson testified he was suspicious and so observed the events closely from the car. Upon leaving the store's parking lot they drove to a telephone booth and called the police, reporting a suspected robbery.

After petitioner's arrest, Johnson identified him in a lineup but Farris identified another man. At trial, however, both identified petitioner as the man they had seen in the store that night.

After Johnson and Farris had testified, the prosecution learned for the first time that the sergeant in charge of petitioner's lineup had shown the assembled witnesses a 3 X 5 copy of the robbery-in-progress photograph minutes before they were to view the lineup. Sergeant Scheuffele testified, and a tape of the incident confirmed, that his exhibition of the picture had lasted only five to ten seconds and that it was shown from a distance of about four feet. His explanation was that he "wanted them to remember they had seen the photograph". The court ruled this did not justify a dismissal of the case. Thereafter the court and counsel devised what was then considered to be the best method of handling the situation. This procedure will be discussed below.

During the trial, the State also produced testimony of the police officers involved with the investigation, an expert on fibers, and an anthropologist from the University of Washington who testified about the many similarities between discernable features in the robbery-in-progress photograph and petitioner. The jury also had ample opportunity to compare those photographs with petitioner's actual physical appearance in court.

Petitioner called 18 witnesses to counter the State's circumstantial evidence and to show that this was a case of mistaken identity. Petitioner's major witness was Larry Wilkins. Wilkins testified that on the night of the robbery he had been at the 19th Hole Tavern located across the street from the 7-11 store. He noticed two black men enter the tavern on three separate occasions between 9:00 and 12:00 that night. The larger one was wearing a fatigue jacket and hat. He felt they acted suspiciously. At the lineup and at trial he stated that although petitioner looked somewhat like the man in the tavern, he was sure it was not him because he remembered petitioner from his previous participation in softball. He also testified that on October 6, a few days after the robbery, he had seen the same man, dressed in the same manner, coming out of the Veterans Administration hospital and had notified the police. This was corroborated by the VA pharmacist who had also noticed a black man in a fatigue jacket and hat at the hospital that day. Despite repeated efforts by the police, both before and after trial, the man seen by Wilkins and the pharmacist was never identified.

The trial lasted 12 days; jury deliberations continued another 5. On the third day of deliberations a juror became ill and was excused. Instead of seeking a mistrial, petitioner elected to proceed with the remaining 11 jurors. The jury returned a "guilty" verdict on each of the three charges.

After the trial the police and defense continued to investigate the crime. The defense interviewed Richard Crookes, a security guard at the VA hospital, and discovered that he too had seen a black man at the VA pharmacy on October 6. Due to this and other reasons set out below the trial judge granted a new trial. The State appealed.

Petitioner first asserts the State (appellant below) failed to assign error to the findings of fact as required by RAP 10.3(g). Thus, he asserts those findings must be considered as verities on appeal. Riley v. Rhay, 76 Wash.2d 32, 33, 454 P.2d 820 (1969). The rule is inapplicable for two reasons, however.

First, we held in Daughtry v. Jet Aeration, 91 Wash.2d 704, 710, 592 P.2d 631 (1979), that under RAP 1.2(a) a "technical violation of the rules will not ordinarily bar appellate review, where justice is to be served by such review.... (W)here the nature of the challenge is perfectly clear, and the challenged finding is set forth in the appellate brief, (this court) will consider the merits of the challenge." The nature of the challenge is clear and the challenged findings are, in fact, set forth in the State's appellate brief. Further, little purpose would be served by requiring strict compliance with RAP 10.3(g) in appealing a grant of a new trial given its unique procedural setting. See Rock v. Rock, 62 Wash.2d 706, 712, 384 P.2d 347 (1963).

Second, there were no disputed evidentiary facts which the trial court determined adversely to the State. Rather, the State's clearly disclosed dispute is with conclusions drawn from the facts. Some of these conclusions were erroneously labeled "findings of fact". Conclusions of law cannot be shielded from review by denominating them findings of fact.

We are firmly committed to the rule that when findings of fact are supported by evidence, none that are truly findings of fact will be disturbed on appeal. Firefighters Local 1296 v. Kennewick, 86 Wash.2d 156, 161, 542 P.2d 1252 (1975). It is the function of an appellate court to determine questions of law, however. If a conclusion of law is incorrectly denominated a finding of fact, it is subject to review. Id. at 161-62, 542 P.2d 1252; State v. Washington Tug & Barge Co., 140 Wash. 613, 250 P. 49 (1926).

" 'A finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect.' " Leschi Improvement Council v. Highway Comm'n, 84 Wash.2d 271, 283, 525 P.2d 774 (1974). Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion. Cline v. Altose, 158 Wash. 119, 126, 290 P. 809, 70 A.L.R. 1471 (1930). We are confronted with that question here, i. e., whether the evidence justified the conclusions drawn by the trial judge whether labeled findings of fact or conclusions of law. Thus, we will consider the merits of the case.

The trial court stated five basic grounds for granting a new trial: (1) the proffered testimony of officer Crookes constituted newly discovered evidence, CrR 7.6(a)(3); (2) the display of the robbery-in-progress photograph prior to the lineup was an irregularity in proceedings which prevented defendant from having a fair trial, CrR 7.6(a)(5); (3) the late disclosure of the photograph's exhibition constituted a surprise, CrR 7.6(a)(4); (4) the verdict was contrary to law and the evidence, CrR 7.6(a)(7); and (5) substantial justice had not been done, CrR 7.6(a)(8).

Except where questions of law are involved, a trial judge is invested with broad discretion in granting motions for new trial. The exercise of that discretion will not be disturbed on appeal absent an abuse of discretion. State v. Marks, 71 Wash.2d 295, 301-02, 427 P.2d 1008 (1967); Bunnell v. Barr, 68 Wash.2d 771, 775, 415 P.2d 640 (1966). It has been repeatedly pointed out, however, that such discretion does not give a trial court license to weigh the evidence and...