State v. Williams

• Decision Date: 13 October 1980
• Docket Number: No. 7706-6-I,7706-6-I
• Citation: State v. Williams, 618 P.2d 110, 27 Wn.App. 430 (Wash. App. 1980)
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Clarence E. WILLIAMS, Respondent.

Page 430

27 Wn.App. 430

618 P.2d 110

STATE of Washington, Appellant, v.Clarence E. WILLIAMS, Respondent.

No. 7706-6-I.

Court of Appeals of Washington, Division 1.

Oct. 13, 1980.

Law Offices of Allen & Hansen, David Allen, Seattle, for appellant.

Norman Maleng, King County Pros.Atty., Phillip Y. Killien, Charlene Iboshi, Deputy Pros.Attys., Seattle, for respondent.

SWANSON, Judge.

A jury found Clarence E. Williams guilty of robbery in the first degree, kidnaping in the first degree, and murder in the first degree.The trial judge set aside the verdicts and granted Williams a new trial from which the State appeals.

The identity of the culprit was the primary issue at trial, and concern over possible misidentification was the underlying basis for ordering a new trial.¹ Whether the trial court abused its discretion in overturning the jury verdict is the primary issue on appeal.

At about 3:50 a. m. on September 25, 1978, Alan Johnson and Bradley Farris drove to a 7-11 store at 4886 Beacon Avenue South in Seattle to buy some cigarettes.Farris started to enter the store to make the purchase but was stopped at the door by a man inside who said, "We're closed.I can't sell you anything."Farris persisted and, after a brief discussion, the man agreed to sell Farris two packs of cigarettes for $2.Farris and Johnson, who had watched the incident from the car, agreed that the man's conduct was suspicious.They drove to a telephone booth half a block from the store and called the police, reporting a suspected robbery.Shortly before 4 a. m., officers responded to the call but found the store dark, the doors locked, and nobody in the vicinity.At about 6:15 a. m., the owner of the store arrived to relieve Laura Anne Baylis, the night clerk.The owner found the store locked and Baylis missing.Entering the store, the owner found the cash register open and empty of money.A $2 bill that tripped a hidden camera in the store when removed from the register was also missing.The owner's efforts to locate Baylis were unsuccessful.

Processing of film in the hidden camera revealed a series of photographs showing Laura Baylis and a black man.The man stood behind a counter with his back to the camera as Baylis apparently emptied money from the cash register into a paper bag.In most of the photographs, the man faced directly away from the camera.In two of the pictures, he faced to his left so that his left profile was revealed.The man was dressed in a khaki "fatigue" jacket and a blue cap and wore glasses.

Some 200 copies of one of the profile photographs were prepared.The photograph was published in newspapers displayed on television, and shown by police investigating the case.Alan Johnson and Bradley Farris were shown the picture the day after the robbery and identified the man in the picture as the man they had seen inside the store.Police also interviewed Curtis Woo, who told them that he had entered the 7-11 store between 3:30 and 4 a. m. on September 25.He saw no clerk in the store and noticed the cash register drawer was open and empty.A man then came from a back room of the store and told Woo the store was closed.Woo told police that the man in the photograph was not the man he had seen in the store.Patrons of the 19th Hole Tavern near the 7-11 store were also shown the picture.Three of them identified the man in the photograph as having come into the tavern with another man between the hours of 10 p. m. and midnight on September 24.One of the tavern customers said the men acted very suspiciously.

Distribution of the photograph produced many calls to the police reporting sightings of men resembling the man in the photograph.On October 7, police received a call from Larry Wilkins, one of the 19th Hole Tavern customers previously interviewed.Wilkins said that he had seen the man from the tavern again the previous evening leaving the Veterans Administration Hospital.The hospital is located in the vicinity of the tavern and the 7-11 store.Police showed the robbery photograph to Richard Crookes, a security officer at the hospital.According to a police report, Crookes said he had not seen the man in the photograph but that several hospital employees, including a pharmacist, had seen the man on the day Wilkins reported seeing him at the hospital.

On October 14, 1978, the body of Laura Baylis was found in the basement of an abandoned house at 6309 Beacon Avenue South.She had been stabbed numerous times.The doctor who examined the body testified that Baylis had been dead for approximately 3 to 4 weeks before her body was found.

On October 16, an anonymous caller to the police identified the man in the robbery photograph as possibly being Clarence E. Williams.On October 19, police interviewed Williams at the Seattle shipyard where he worked and arrested him the next day.Williams lived at 6131 Beacon Avenue South, several doors away from the abandoned house where Baylis' body was found.He told police that three or four times in the preceding 6 months he had been inside the abandoned house.He admitted resembling the man in the photograph and said his wife thought he was the same man.He denied involvement in the crimes.Officers searching Williams' home and locker at work found clothing similar to that worn by the man in the photograph, numerous knives, and about ten pairs of safety eyeglasses.

On October 23, police conducted a lineup of five men including Clarence Williams.Witnesses at the lineup were Alan Johnson, Bradley Farris, Curtis Woo, Larry Wilkins, and the other two 19th Hole Tavern customers.Johnson selected Williams from the lineup as the man he had seen inside the 7-11 store.Farris picked another man.Woo stated the man he had seen in the store was not in the lineup.Wilkins said the man he had seen in the tavern was not in the lineup but that he recognized Williams as a participant in a neighborhood softball program that Wilkins supervised.The two other tavern witnesses identified Williams as the man they had seen in the tavern.Williams was subsequently charged with the robbery of the 7-11 store and the murder and kidnaping of Laura Anne Baylis.

At Williams' trial, Johnson and Farris identified him as the man they had seen in the store.Woo, Wilkins, and one of the other tavern witnesses testified Williams was not the man they had seen.The third tavern witness did not testify.

Williams' trial, excluding jury deliberations, lasted 12 days.Johnson and Farris testified on the first day of the trial.Five days later the prosecution revealed to the court that it had learned the previous afternoon that an irregularity had occurred during Williams' lineup.A police sergeant had shown lineup witnesses a copy of the robbery-in-progress photograph minutes before they were to view the lineup.A hearing followed outside the jury's presence.A tape recording of the sergeant's instructions to the witnesses was played to the court.The instructions included the statement, "I'm sure all of you have seen this photograph before?Have you not?"The sergeant testified that at this point he had removed a 3 by 5 inch copy of the photograph and held it in front of the witnesses who were assembled approximately 50 inches away from him.The sergeant testified that he showed the picture to the witnesses because, "I wanted them to remember that they had seen the photograph ..."He stated that all the witnesses nodded that they had seen it.Timing of the tape suggests that the sergeant displayed the photograph for no longer than approximately 10 seconds.

Williams then moved, on the basis of the lineup irregularity, to suppress the identifications of Johnson and Farris and to dismiss under CrR8.3(b). ²The court denied both motions.³The prosecution proposed several remedies to cure any prejudice to the defendant caused by the belated revelation of the lineup procedure.These included calling the sergeant to testify before the jury, granting the defense a continuance, and recalling Johnson to the stand.The defense objected to recalling Johnson, stating that to do so would simply reemphasize his identification of Williams.⁴The court decided then to allow the State to call the sergeant and another police officer.The sergeant testified before the jury that he had shown the photograph to the lineup witnesses.The tape of the sergeant's instructions to the witnesses was played to the jury.Defense counsel cross-examined the sergeant, eliciting testimony that showing lineup witnesses a photograph was an unusual practice and that the sergeant had not done it before.The State then called a detective to explain that police reports did not include mention of the sergeant's showing of the photograph to the lineup witnesses.

The trial then proceeded without incident to its conclusion.Jury deliberations lasted 5 days.On the third day of deliberations, a juror became ill and had to be excused.The defendant did not seek a mistrial but elected to proceed with 11 jurors.The jury returned a "guilty" verdict on each of the three charges.

The defendant moved for a new trial on two principal grounds: the lineup procedures and alleged newly discovered evidence concerning the testimony of Richard Crookes, the security officer at the Veterans Administration Hospital.Crookes testified at the hearing on the motion for a new trial that he believed he saw a man resembling the man in the robbery-in-progress photograph standing in a line at the hospital pharmacy on October 6, 1978.He said he believed he gave the police this information.He also testified that he could not tell whether that person was Clarence Williams.Williams' counsel argued that Crookes' testimony constituted newly discovered evidence because the police report had indicated that Crookes had not seen the man in the photograph at the hospital.Defense counsel argued that Crookes' testimony was important because "it would...