State v. Wells , 72 Wash. 2d 492 ( 1967 )

Hill, J.

This is an appeal from a conviction on three counts of first-degree forgery.¹ The defendant was sentenced to serve 20 years on each count, the sentences to run consecutively.

The long delays in getting to trial and in getting this appeal perfected were urged upon us as a violation of the plaintiff’s constitutional right to a speedy trial. We were urged to release the defendant from custody and to dismiss the charges against him.

We have considered the supplementary record, covering the defendant’s numerous appearances in the superior court, and are satisfied that the delays complained of were attributable for the most part to the defendant’s continuous insistence that he had funds which would soon be available and his desire to retain his own counsel; also to his failure to so retain counsel and prosecute his appeal while he was released on bail.

Having concluded that the defendant Wells was primarily responsible for the delays in getting to trial and in prosecuting this appeal,² we now turn to a consideration of the claimed trial errors.

The principal contention at the trial was that the defendant’s confession should not have been received in evidence because he had not been advised of his right to an attorney before making the confession.

The trial was recessed while the court considered the admissibility of the confession under Rule of Pleading, Practice and Procedure 101.20W. In disposing of this issue, the trial court found that the officer who took the confession had advised the defendant of his constitutional right to remain silent and of his right to counsel; and that the defendant had intelligently and knowingly waived those rights.

The court, speaking of the voluntary character of the confession, said:

No one put any pressure on him. He was not threatened. There was no indication of force. He made the statement and apparently, even under his testimony, he was warned that he didn’t have to make the statement, that it could be used against him, and he understood that. It was read to him, he says, and he read it, himself.

The issue of whether he was adequately advised of his right to remain silent and of his right to have an attorney at state expense before he made his confession had to be decided on the divergent testimony of the defendant and the officer who took the confession. The court believed the officer, but gave consideration also to the defendant’s prior court experience,³ saying:

In addition to this we must take into consideration the fact that this man apparently had been convicted of two felonies in which he was represented by an attorney and apparently, I take it, he was actually tried and went through the process of trial, and apparently statements were involved in those cases.

We don’t have a lawyer, a man legally trained, but we do have a man who knows far more than the average about criminal processes.

We are satisfied that the trial court did not err in admitting the confession.

Other assignments of error relate to the failure to give the defendant a preliminary hearing; to the failure to grant a continuance requested by the defendant; to permitting amendments to the information. These are all without merit.

One other claimed trial error remains for discussion—the failure to grant a mistrial when Sergeant LaPierre testified that Chief of Police Olney said to the defendant, “Hello Frank, when are you going to knock this old stuff off?”

Counsel for the defendant immediately objected, and the trial court sustained the objection and ordered that portion of LaPierre’s testimony which we have quoted “stricken.”

There was no claim of a mistrial at that time, and no request for an instruction to disregard the statement.

It is now urged for the first time that the answer of the witness was so inflammatory as to warrant a mistrial. As indicated, the objectionable statement was stricken.

To hold that the trial court, on its own motion, should have declared a mistrial would be to impeach the intelligence of the jury, which had heard the defendant’s objection sustained and the order striking the statement.

Finding no prejudicial trial error and no merit in the claim of a violation of the defendant’s right to a speedy trial, the conviction is affirmed.

Finley, C. J., Weaver, Rosellini, and Hale, JJ., concur.

1 The three forged instruments were counter checks; two for $52 each; one for $53.

2 One of the Yakima County superior court judges insisted on action when he came to the conclusion that the defendant Wells had been “playing games” with the court—the defendant had been before five judges of that court with his contention that he was about to receive tribal funds.

This presents one of the problems of a multiple-judge court that demands solution.

3 The defendant had a relatively extensive criminal record dating back to a commitment as a juvenile to the Training School at Chehalis in 1950, and continuing through to his release from the United States Penitentiary at McNeil Island just a short period before his arrest on the forgery charges with which we are here concerned.