State v. Young, 1115--II

• Decision Date: 06 June 1974
• Docket Number: No. 1115--II,1115--II
• Citation: 523 P.2d 946,11 Wn.App. 398
• Parties: The STATE of Washington, Respondent, v. Larry Donzell YOUNG, Appellant.
• Court: Washington Court of Appeals

Page 398

11 Wn.App. 398

523 P.2d 946

The STATE of Washington, Respondent, v. Larry Donzell YOUNG, Appellant.

No. 1115--II.

Court of Appeals of Washington, Division 2.

June 6, 1974.

James S. Witt, III, Allotta, Witt, Witt, Tacoma, for appellant.

Joseph D. Mladinov, Sp. Counsel to the Pros. Atty. for Pierce County (Ronald L. Hendry, Pros. Atty., Tacoma, with him on the brief) for respondent.

PEARSON, Chief Judge.

The defendant appeals from a conviction of rape. There is no challenge made to the sufficiency of the evidence, which shows that defendant picked up the victim, who was hitchhiking, took her to an apartment, and raped her. The defendant's principal assignments of error relate to the trial court's denial of a continuance on the morning of trial to enable the defendant to retain counsel, and to the denial of a new trial on the asserted ground that an alibi witness changed his story as a result of police intimidation and was consequently not called at trial. We affirm the conviction.

Defendant's first assignment is entirely without merit. The granting or denial of a motion for a continuance rests within the sound discretion of the trial court. State v. Sutherland, 3 Wash.App. 20, 472 P.2d 584 (1970); State v. Johnson, 74 Wash.2d 567, 445 P.2d 726 (1968); State v. Cadena, 74 Wash.2d 185, 443 P.2d 826 (1968). Defendant made his motion on the morning of trial, having contacted retained counsel on the preceding day, and having informed him that an arraignment, not trial, was to take place the following day. Appointed counsel was fully prepared to try the case; witnesses and veniremen were ready. Furthermore, the case was well tried by appointed counsel. It cannot be said that the trial court abused its discretion. State v. Sutherland, Supra.

Defendant's counsel produced two affidavits in support of the motion for a new trial. One was that of a listed alibi witness who related that he had been contacted by a police officer, who in the course of his investigation expressed his opinion of the defendant's culpability in this and other rapes, and further his opinion that no one should testify in the defendant's behalf. The witness stated further simply the testimony as to the whereabouts of the defendant at a certain time--testimony he would have given had he been called at trial--and indicated that this time varied somewhat from that which he had originally related to defense counsel.

The other affidvit was that of defense counsel, wherein he stated that the alibi witness told him he had changed his version of the time involved 'after further reflection upon the indicent.' Since the variance in times was crucial to the alibi, the witness was not called.

These affidavits fail to make any showing of witness intimidation, even if taken as true on their face. Indeed, the affidavit of the proposed alibi witness, in light of the purpose for which it was brought forward by the defendant, is remarkable in the meticulousness with which it avoids implying that the actions of the police officer influenced his recollection.

The affidavits if taken as true in all respects, establish that an investigative officer acted improperly in attempting to prejudice the defendant in the eyes of the witness. They further establish that the witness modified his previous story after further reflection. In our opinion, the trial court did not err in refusing to infer a connection that the witness did not assert.

In reaching this conclusion, we observe that our recent case of State v. Kearney, 11 Wash.App. 394, 523 P.2d 443 (1974), is distinguishable on its facts. In Kearney, we reversed a conviction for child molesting and ordered a dismissal, upon the ground of incurable prejudice occasioned by the misconduct of a deputy prosecuting attorney in apprising three of the defendant's listed witnesses of the defendant's refusal to submit to a polygraph examination. In that case, we observed that any attempt by a prosecutor to influence the mind of a potential defense witness by extraneous material, inadmissible before the trier of fact, is highly improper. The same must, of course, be said with respect to the clearly deliberate attempts in this case to prejudice the mind of a potential witness by the use of such material. ¹

In Kearney, however, the probability of prejudice to the defendant as a result of the improprieties was amply apparent. One of the witnesses in that case, a psychiatrist, affirmatively stated in his affidavit that the revelation of the defendant's failure to submit to a polygraph test created a suspicion in his mind that defendant was guilty of the crimes charged. Furthermore, the crucial issue at trial in Kearney was the credibility of the minor complainants. The lay witnesses contacted by the prosecutor there were character witnesses whom the defendant anticipated calling for the sole purpose of bolstering the credibility of his protestations of innocence by their affirmation of his good character. The information concerning the defendant's failure to take the lie-detector test...