# State v. McFarland > Washington Supreme Court · September 12, 1974 · 84 Wash. 2d 391 URL: https://www.frixlaw.com/law-library/cases/9791571 ## Case - **Full name:** The State of Washington, Respondent, v. James Everett McFarland, Petitioner - **Court:** Washington Supreme Court - **Decided:** September 12, 1974 - **Citations:** 84 Wash. 2d 391; 526 P.2d 361; 1974 Wash. LEXIS 742 - **Precedential status:** Published - **Opinion:** Concurrence by Hale - **Judges:** Finley, Hale, Stafford - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9791571 ## Opinion text Hale, C.J. (concurring specially) — I join in the opinion but would make further reference to the absurd consequences produced by latter-day judicial thinking on the suppression of sound evidence in criminal cases. In many cases, the rule of suppression sounds the death knell of the State’s case for light and transient causes arising out of a minor and sometimes even trifling infraction of a rule of evidence committed by a distant peace officer at a distant place. In this case, I cannot find where any officer committed any error whatever with respect to the arrest and search of the defendant, and the judge’s error — if any — was unrelated to the present case. Defendant accepted the burdens of his guilt in two traffic offenses, freely acknowledging them in open court by his plea of guilty; his guilt in another charge was established *395 by trial. He now asserts that the claimed errors, based upon a failure of the court to notify him that his right to counsel would be at public expense, occurring in these three cases should be visited upon the State in another wholly separate, distinct and unrelated offense. From the moment that the defendant entered the courtroom of the municipal court, throughout all stages of his arraignment, trial, sentencing and trip from the courtroom to the jail, he was engaged in the commission of a crime. During that interval, in the presence of the judge, court attachés and peace officers, he was liable to arrest and prosecution for the crime he was then actively engaged in committing — the concealed and unlawful possession on his person of a contraband and illegal drug. And, it is immaterial whether the illegal and concealed object on his person was a deadly weapon, a grenade or bomb, heroin or amphetamine. In any event, the court’s failure to appoint counsel in three municipal court cases had no relevance to the proof of guilt in the unlawful possession of drugs case —nor should it operate to immunize the defendant from prosecution for other crimes committed by him in the courthouse during the trial of the very charges which brought him there. Aside from the doubtful conclusion that it was error to allow the defendant to plead guilty after he had been succinctly advised in writing by the judge that he had both a right to counsel and to a continuance enabling him “to prepare a proper defense or to seek advice,” the error should not be deemed transferable to another case involving a separate and distinct crime having no connection whatever with the crimes or the trials in which the error is said to have occurred. What was strenuously argued here is actually a new theory of jurisprudence — the theory of floating error, fluttering from place to place until it lights on a point where it will do the defendant the most good. Defendant’s convictions without counsel in the three municipal court cases, it is argued, were conceived in error notwithstanding that the *396 defendant, after being advised of his right to counsel ah the outset made no claim of indigency and did not- request counsel. The record discloses a singular lack of curiosity on defendant’s part concerning appointment of counsel at public expense and further discloses no inclination to request counsel until after he had testified in his own behalf. He freely and voluntarily elected both to plead guilty to two charges and to go to trial without counsel on the third. To be reversible, the claimed error must be proximate to the conviction. Error should not be transferable from one cause to a different and wholly unrelated one; nor should it be judicially expanded to create an immunity from prosecution for other and different crimes tried in other and different, cases. This should be specially true of error arising in the trial of an offense committed before, during and after a judicial proceeding not connected with the judicial proceedings in which the error is claimed. Accordingly, it should be stated as a principle that error asserted in the prosecution of one set of crimes is not proximate and cannot be transferred to the prosecution of a wholly separate, distinct and unrelated crime. There is another reason, however, why a failure to advise of the right to counsel at public expense in the municipal court cases cannot operate as error in the illegal possession of drugs case, and that is the lack of causation. This error cannot be deemed to have contributed to a wrongful conviction, for an attorney in the discharge of his duty to his client ought not participate in the commission or concealment of a crime. Aside from the accidental circumstance that counsel, in the three municipal court cases, might conceivably have persuaded the court to grant probation, or enter a judgment of acquittal in the three cases in which defendant was convicted, thus obviating the lawful search at the jail, the lawyer could not have surreptitiously disposed of the illegal drugs or taken possession of them without becoming particeps criminis. The most that can be made of the court’s error in the municipal court cases is that, had counsel been appointed there, circumstances *397 might have developed so that possession of the drugs would never have been revealed. This possibility does not rise to the concept of legal cause. That the services of counsel might possibly have enabled the defendant to prevail in municipal court or induce him to demand a continuance and thus conceal his offense, counsel’s services would not have prevented the defendant from committing a crime he had already committed and was continually committing but would simply enable him to hide it. And, of course, for the attorney surreptitiously to relieve his client of the contraband so as to protect him from conviction would not only make the attorney particeps criminis but would constitute a service neither required of nor reasonably to be expected of counsel. Professional services to a client do not legitimately extend to committing an offense nor concealing the evidence of one. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9791571. Public record. Not legal advice.