State v. Lampshire

Hill, J.

(dissenting)—I dissent. The majority urges that “no physical evidence was introduced. In order to return its *895 verdict the jury had to believe the prosecuting witnesses instead of the defendant and her witnesses.” This is, after all, not an unusual situation in a criminal case. The jury-having believed the state’s witnesses, it is not our function, on review, to set aside its factual decision for no better reason than the collection of trial trivia on which the majority relies.

I shall discuss each of the three minor incidents which ■the majority has attempted to magnify into grievous error prejudicial to the defendant:

1. The trial court’s statement:

Counsel’s objection is well taken. We have been from bowel obstruction to sister Betsy, and I don’t see the materiality, counsel.

To place this incident in its proper context requires a short explanation. The prosecution had just made its second objection to the materiality of the defendant’s lengthy, rambling, and completely irrelevant account of her life history beginning at age 3 and proceeding, with many digressions, up to a time some months before her move from Colorado Springs to Richland, Washington, where the alleged commission of the criminal acts occurred. After the objection, the court made the above-quoted statement, whereupon the defendant’s counsel answered:

Well, Your Honor, I think we have a right to show the circumstances of this girl’s life, and we are just about up to date, Your Honor. I don’t think it will be any more tedious—as I say we are about up to date. May I continue?

To which the court replied, “Well proceed.” And proceed he did.

Apparently counsel at that time did not regard the court’s statement as a prejudicial comment on the evidence, but as an explanation of why the court thought the objection should be sustained. Counsel, by his reply, persuaded the court to let the personal historical narration continue. It is only on appeal that the court’s statement blossoms into a violation of the constitution and a prejudicial comment on the evidence.

*896 The court, in construing article 4, section 16, of the state constitution, 1 recently said:

In Blackburn v. Groce, 46 Wn.2d 529, 536 , 283 P.2d 115 (1955), we noted that it was stated relative to article 4, section 16:

All comment is prohibited, but it does not follow that every comment constitutes grounds for a mistrial or that a new trial will be granted in consequence thereof. The test is, Was the party complaining of the comment prejudiced thereby? Heitfeld v. B.P.O.K. (1950), 36 Wn. (2d) 685, 220 P. (2d) 655 , 18 A.L.R. (2d) 983; State v. Herwitz (1919), 109 Wash. 153 , 186 Pac. 290 .

In the present case the comment fails the test. The court’s comment unmistakably refers to the colloquy between the court and counsel on a collateral matter, and did not relate in any way to what appellant terms the “evasions and inconsistencies” of the witness Mc-Guinness. We cannot but conclude that appellant was not prejudiced by the court’s remark, and the assignment of error is without merit. See Blackburn v. Groce, supra. (State v. Haye, 72 Wn.2d 461, 475-76 , 433 P.2d 884 (1967))

A court cannot rule on the admissibility of evidence without, in a sense, commenting thereon. If, in the present case, the court had merely said “Objection sustained,” it would have indicated its view that the testimony being given was not material. From such a ruling, terminating the matter, there could be no basis for an appeal. But because the court explained why it felt the testimony being elicited was not material, defense counsel had the opportunity to persuade the court to let him continue on the same course. Within a matter of minutes another objection to the relevancy of the testimony being given was made. The court then said:

Sustained. I see no relevancy. At this time I want to caution the jury that there have been three exchanges between counsel, and comments about evidence, none of which with any desire on counsel’s part to mislead you or desire on the part of the Court to comment on the evidence. You will notice as you go through jury service *897 that we have to rule on objections of counsel from time to time, and you are not to consider the comments of counsel or the Court, and you are to totally disregard the comments of Court and counsel concerning such objections.

In the Heitfeld case, cited in the quotation from State v. Haye, supra, we pointed out,

[T]hat remarks addressed entirely to attorneys, in ruling upon questions presented during the progress of the trial, are not comments on the evidence prohibited by the constitution. (Heitfeld v. B.P.O.K., 36 Wn.2d 685, 706 , 220 P.2d 655 , 18 A.L.R.2d 983 (1950))

In the light of the circumstances and the court’s explanatory instruction, it is clutching at straws to argue that the claimed comment was in any way prejudicial to the defendant, or violative of her rights under our state constitution.

2. The trial court’s permitting cross-examination of the defendant concerning a telephone hill.

This is more straw clutching. As the trial court pointed out, the defendant had opened up the matter of the telephone bill on her own direct examination by accusing one of the prosecuting witnesses of making several ’phone calls to a girl in Utah and charging them to Mr. Hanneman’s telephone 2 without permission. This was apparently intended to show the depraved character of the prosecuting witness.

On defendant’s cross-examination, it developed that there was a large telephone bill resulting primarily from calls to and from her friends, the Quinn family, in England. She testified:

They had called and I had called them, and we talked back and forth. We made arrangements with a finance company to pay the bill. It got a little higher than we estimated it to be.

*898 She was asked how much that telephone bill was, and she said, “About $800,1 guess. If it is any more, then it will be taken care of.” The prosecuting attorney then asked: “Could it be in the neighborhood of $3,000?” Her reply was, “No, it couldn’t. If it is, it sure got awful high.”

As the trial court pointed out, the lengthy irrelevant direct examination may have resulted in some irrelevant cross-examination. The gist of the matter is that any telephone bill the defendant may have contracted was being taken care of. That seems to be entirely creditable to the defendant, not something that could prejudice the jury against her.

3. Permitting two rebuttal witnesses to give testimony that was merely cumulative and repetitious.

The cases cited by appellant represented situations where we approved the exclusion of cumulative or repetitious testimony. Appellant cites no case, nor does the majority, where a new trial was ever granted because of the admission of such testimony. The testimony of the two rebuttal witnesses in this case is compressed within three pages in the statement of facts, and almost half of the three pages is made up of objections and colloquy.

The rebuttal had nothing to do with the offenses charged or any similar offenses. It was neither cumulative nor repetitious, but had to do with the contradiction of defense witnesses on collateral matters that were not particularly important. I have made a short resume of the rebuttal testimony.

The offenses charged occurred during December, 1966 and January, 1967, and in two different houses occupied by Mr. Hanneman—one in Richland, the other in West Rich-land. Mr. Hanneman had testified that Paul Wooten (one of the boys involved) had never lived in the Richland house; the appellant had testified that she drank only an “occasional beer.” When Paul Wooten was called on rebuttal he testified that he had lived in the Richland house 5 days before the move to West Richland and, further, that the appellant drank from 6 to 12 beers a day.

*899 The appellant testified that she had never seen Paul Davis (another of the boys involved) but twice. He was called on rebuttal and testified that he was at Mr. Hanne-man’s house when the appellant was there 10 or 15 times and stayed overnight on 4 or 5 of those occasions.

This was the extent of the rebuttal. It might well have been excluded, but it is a far cry from prejudicial error.

My conclusion is that no one, or no combination of these three incidents, prejudiced the substantial rights of the appellant. In State v. Britton, 27 Wn.2d 336, 341 , 178 P.2d 341 (1947), we discussed at some length the distinction between harmless and prejudicial error, saying:

A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case. Rem. Rev. Stat., § 307 [P.P.C. § 84-13], [3] provides:

“The court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

A prejudicial error is an error which affected the final result of the case and was prejudicial to a substantial right of the party assigning it. 3 Am. Jur. 555 , § 1003, [4] states:

“It is a fundamental rule of modern appellate procedure that in order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the appellant or plaintiff in error.”

A common test to determine whether an error was harmless or prejudicial, is found in 3 Am. Jur. 563 , § 1007: [5]

“One very common test which is applied in a variety of situations is whether or not the error affected the result. If it did not, then it is not reversible error.

“For the purpose of determining whether or not the appellant has been injured, it is proper to look to the whole record, and not to that part only which precedes *900 and includes the particular exception under consideration.”

Such an aggregation of minuscule errors (if they were errors) as we have here, would normally receive short shrift as the basis for a reversal of conviction based on a jury verdict where the only issue was which witnesses the jury was going to believe. This case does, however, represent an unusual application of the carnal knowledge statute. It seems to me that the majority, because it disagrees with the use made of that statute in the present case, has dignified this collection of trivia as prejudicial error.

Personally, I am not happy with the use which is here made of that statute, but I am- satisfied that the law is applicable to the present situation and that there was no prejudicial error in the trial. If a change is to be made it should be by the legislature, not by judicial disapproval. Therefore, I would affirm.

Weaver, Hamilton, and Neill, JJ., concur with Hill, J.

January 24,1969. Petition for rehearing denied.

"Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” Const, art. 4, § 16.

Robert L. Hanneman, sometimes referred to as “Uncle Bob,” rented the house in which the defendant was living and where the violations being prosecuted in this case were alleged to have occurred. He testified that the telephone was in her name. When asked if the telephone was in Mr. Hanneman’s name, she replied, “I wouldn’t know. I know I have a phone bill over there that we are paying for.”

3Now RCW 4.36.240.

4See 5 Am. Jur. 2d 218, § 776.

5See 5 Am. Jur. 2d 225, § 783.