State v. O'Donnell

STEINERT, C.J., HOLCOMB, ROBINSON, and TOLMAN, JJ., dissent. On the night of November 26, 1935, two police officers of the city of Seattle were shot to death in a tavern outside the north limits of the city. They had gone to the tavern in response to information that it was being burglarized. Subsequently, the appellants, together with Lester Rorick, were charged, by information in two counts, with the crime of murder in the first degree, in that, while in the commission of burglary, they fired the gun shots resulting in the death of the two officers.

Rorick pleaded guilty to the charge and testified as a witness for the state at the trial of the appellants. The jury returned verdicts finding the appellants guilty on both counts, as charged in the information. A special verdict recommended the death penalty for Joseph O'Donnell; no recommendation was made as to John O'Donnell. After the denial of motions in arrest of judgment and for new trials, the court entered judgments sentencing John O'Donnell to the state penitentiary for the term of his natural life and imposing the death penalty on Joseph O'Donnell, in accordance with the recommendations of the jury.

The evidence was sufficient to sustain the jury's verdict, and the judgment should be affirmed, unless, as contended by the appellants, prejudicial errors were committed by reason of which they were denied the fair and impartial trial guaranteed to them by law.

The first and controlling error assigned is gross misconduct of the prosecuting attorney in his opening statement to the jury. In the course of this statement, the prosecutor said:

"Incidentally, the evidence will show both of these men have records for burglary and robbery — prior records, and they have both served time in penitentiaries. . . . in view of the other testimony, in view of the other burglaries and the records that will show from the evidence, the state is going to ask you to hang these two men."

[1] These remarks of the prosecuting attorney, made at the initial stage of the trial, were highly improper and, beyond question, prejudicial to the appellants, so much so that, whether guilty or innocent, they could not thereafter have had a fair trial.

"It may be that the defendant is guilty. On that we express no opinion. It must be remembered, however, that ``though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community'." State v. Pryor, 67 Wn. 216,121 P. 56; citing Hurd v. People, 25 Mich. 404.

The prosecutor's remarks violated certain principles, basic in our system of criminal procedure. First, he placed the appellants' character in issue in advance of their taking the witness stand to testify in their own behalf; second, he asked the jury to hang the appellants not alone for the specific offenses with which they were charged, but "for the other burglaries and the records that will show from the evidence"; and third, by charging the appellants with the commission of collateral crimes, he placed them in a position where they had either to take the witness stand or rest under the imputation of those crimes; this being, in effect, a specie of compulsion to testify in violation of the immunity granted by the Federal and state constitutions. If the court had permitted the state to introduce evidence tending to show the commission by the appellants of other felonies, the error of the procedure would not be questioned, nor would the court hesitate to grant a new trial.

While the prosecuting attorney was not testifying as a witness under oath, his statements were no less injurious to appellants. The office of prosecuting attorney is quasi-judicial. The incumbent is elected by the people to perform the highly responsible duties of the office in the belief that he possesses the high standard of character deemed necessary to the proper performance of his functions; his declarations to the jury are not taken lightly as the words of a mere advocate, but as having the prestige of authority. And so the law holds him to a high degree of fairness in presenting the state's case against persons charged with crime.

"The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth's case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate." Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737.

"He is an officer of the state, provided at the expense of the state for the purpose of seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain, and holding a position analogous to that of the judge who presides at the trial. Such is the view taken of the office of the prosecuting attorney by the courts of this country as well as of England, and we think it is the true view of his position." Biemel v. State, 71 Wis. 444,37 N.W. 244; and cited with approval in State v. Montgomery, 56 Wn. 443,105 P. 1035, 134 Am. St. 1119.

The rule which excludes evidence of the bad character of the accused is grounded on the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce.

Speaking of the rule that the defendant's bad character may not be offered against him, Wigmore says:

"This policy of the Anglo-American law is more or less due to the inborn sporting instinct of Anglo-Normandom — the instinct of giving the game fair play even at the expense of efficiency of procedure. This instinct asserts itself in other departments of our trial-law to much less advantage. But, as a pure question of policy, the doctrine is and can be supported as one better calculated than the opposite to lead to just verdicts. The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of Court. There are also indirect and more subtle disadvantages. Our rule, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendant's character." 1 Wigmore on Evidence (2d ed.), § 57, p. 272.

This policy of the law is referred to in State v. Devlin,145 Wn. 44, 258 P. 826, as follows:

"It is the law of the land, a right vouchsafed by the direct written law of the people of the state. It partakes of the character of fair play which pervades all the activities of the American people, whether in their sports, business, society, religion or the law. In the maintenance of government to the extent it is committed to the courts and lawyers in the administration of the criminal law, it is just as essential that one accused of crime shall have a fair trial as it is that he be tried at all, whether he be guilty or not, has his picture in the rogue's gallery or not."

Judge Peckham, in People v. Shea, 147 N.Y. 78, 41 N.E. 505,511, says:

"Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, his practices, and, in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such course is pursued than where it is omitted. The common law of England, however, has adopted another and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear, beyond a reasonable doubt, to a jury of 12 men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question."

Putting the characters of the accused in issue by charging them with the commission of crimes other than the one for which they were being tried, in effect, as we have before said, required them to take the witness stand or rest under the imputation of having committed the collateral crimes with which they were charged. This was doing what we condemned in principle in the case of State v. Jackson, 83 Wn. 514, 145 P. 470, where the prosecuting attorney, in the presence of the jury, made demand upon the defendant for the production of certain documents. Holding this to be reversible error, the court said:

"``To permit a demand to be made on the defendant in a criminal case, in the presence of the jury, to produce a paper or document containing incriminating evidence against him, is a violation of the immunity secured to him by the fifth amendment to the Constitution of the United States, providing that no person in any criminal case shall be compelled to be a witness against himself.' McKnight v. United States, 115 Fed. 972.

"The reasoning to sustain this principle lies in this: That the state is not put to the necessity, neither will it be permitted to put an inference of guilt which necessarily flows from an imputation that the accused person has suppressed or is withholding evidence, when the constitution provides that no person shall be compelled to give evidence against himself. Not being bound to produce evidence against himself, the demand is futile and can serve no purpose, except to put defendant in a false light before the jury and compel him to defend himself against the inferences arising from a collateral circumstance and to the stress of extricating himself from a position in which the constitution says he shall not be placed."

At the outset of its answering brief, the state confesses misconduct in the opening statement of the prosecuting attorney, but contends, first, that the remarks were not so flagrant or prejudicial as to work an injury on the appellants, since no more favorable verdict could have been rendered; second, that the remarks were justified under the rule what whatever is a proper argument after all the evidence is in is proper in the opening statement; and third, that a duty rested upon the appellants to protect themselves by making timely objections, moving the court for an instruction to the jury to disregard the remarks, or for mistrial.

We shall consider these contentions of the state in their inverse order.

[2] Disposing of a contention similar to the last in Statev. Navone, 186 Wn. 532, 58 P.2d 1208, we said:

"It is true that counsel for the defense might have then asked the court to instruct the jury to disregard the statements made, but, had that been done, it seems to us the virus could not have thus been removed. This question of character bears with peculiar force upon the issue of intent, and the character of appellants having been destroyed with a single blow, the jury, as ordinary men and women, must necessarily have been greatly influenced thereby in determining the issue of intent. The ordinary direction to disregard could not restore the minds of the jurors to that fair and impartial state which the law requires."

In the recent case of State v. Smith, 189 Wn. 422,65 P.2d 1075, answering a like suggestion made in exculpation of prejudicial and improper conduct on the part of the prosecuting attorney, the court said:

"The question was highly prejudicial and of such a nature that the prejudice largely consists in the mere asking of the question.

"The fact that the question was not objected to is not controlling. It may well be that an objection to such a question, even though sustained, is more damaging to a defendant's case than almost any answer could be. Neither, under the circumstances shown by this record, was a motion to strike the answer and instruct the jury to disregard the same necessary."

[3] The state urges that the prosecutor's remarks were justified under a rule that whatever remarks are proper after all the evidence is in, are proper in the opening statement. We are not advised of any such rule. On the contrary, Rem. Rev. Stat., § 339 [P.C. § 8504], specifically inhibits anything in the nature of comment or argument in the opening statement.

[4] Finally, considering the point made by the state, that however flagrantly the prosecutor's remarks may have violated the established rules of criminal procedure, the appellants could not have been prejudiced because they were proven to be guilty by evidence properly before the jury. This may be so, but the appellants are not alone involved here. The integrity of our system of administering criminal justice is also involved. The appellants are safely held in the King county prison without bail and may be tried again without great inconvenience to the state, except in the matter of expense. This expense is but a small price to pay for maintenance of the standard of judicial fairness which is our boast. If, on the other hand, we condone the admittedly irregular procedure occurring in the trial,

"'Twill be recorded for a precedent And many an error, by the same example Will rush into the state."

We are constrained to hold that the appellants must have a new trial.

[5] With one exception, the other errors assigned are not likely to occur at a second trial and, therefore, call for no discussion. The exception is the admission in evidence of photographs of the bodies of the two slain officers. This assignment is disposed of adversely to appellants' contention inState v. Gaines, 144 Wn. 446, 258 P. 508.

The judgment is reversed and the cause remanded, with direction to grant the appellants a new trial.

MAIN, BLAKE, BEALS, and MILLARD, JJ., concur.