State v. Gairns

Farris, C.J.

Robert C. Gairns appeals from a judgment and sentence entered upon a jury verdict finding him guilty of first-degree robbery while armed with a deadly weapon.

In the early morning hours of October 22, 1976, Gairns and a companion entered a "7-11" store in West Seattle and forced the store clerk at knife-point to surrender the money in the cash register. The defense at trial was voluntary intoxication and lack of criminal intent. Gairns assigns error to the admission of evidence on rebuttal from which the jury could infer that he had previously been convicted of a crime and to the trial court's comments to defense counsel which, he contends, put both counsel and client in an unfavorable light before the jury.

The admission and the determination of the propriety of rebuttal evidence rests within the discretion of the trial court. State v. White, 74 Wn.2d 386, 444 P.2d 661 (1968); State v. McCray, 15 Wn. App. 810, 551 P.2d 1376 (1976). Here, eight defense witnesses testified that Gairns had been drinking heavily prior to the holdup. The prosecution sought to rebut evidence of voluntary intoxication and lack of intent by introducing the following testimony of a probation and parole officer who visited Gairns after his arrest and incarceration:

Mr. Gairns said something to the effect that I was responsible for making him do this. I asked him how I was responsible, and he stated that I was pressuring him to pay off his court-ordered costs; and if he didn't pay, that I was going to arrest him and throw him in jail.

Gairns asserts that the references to a probation and parole officer, court-ordered costs, and jail were prejudicial and deprived him of a fair trial. We disagree. While evidence of prior convictions is generally inadmissible, State v. Sayward, 63 Wn.2d 485, 387 P.2d 746 (1963), exceptions are recognized for evidence which shows intent or which relates to any material issue before the jury. State v. Wells, 17 Wn. App. 146, 561 P.2d 697 (1977). The question of voluntary intoxication was raised by Gairns. It was necessary for the prosecution to prove beyond a reasonable doubt that Gairns had, in fact, the requisite intent to steal. The testimony of the probation officer is probative on an essential element of the crime charged and therefore admissible.

Gairns argues that even if the testimony is admissible, the trial court committed reversible error by permitting the witness to identify himself as a probation and parole officer. While we agree that the jury could have inferred from the witness' statement of his occupation when combined with his other testimony that Gairns had previously been convicted of a crime, the alleged error must be viewed in the context of all of the evidence.

A prejudicial error may be defined as one which affects or presumptively affects the final results of the trial. . . . When the appellate court is unable to say from the record before it whether the defendant would or would not have been convicted but for the error committed in the trial court, then the error may not be deemed harmless, and the defendant's right to a fair trial requires that the verdict be set aside and that he be granted a new trial. But, where the defendant's guilt is conclusively proven by competent evidence, and no other rational conclusion can be reached except that the defendant is guilty as charged, then the conviction should not be set aside because of unsubstantial errors. ... To determine whether prejudice has resulted, it is necessary that the appellate court examine the entire record.

(Citations omitted.) State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968). Several photographs were taken by a hidden camera and admitted into evidence; three show Gairns in front of the open cash register holding a long knife in his right hand. The store clerk, who was the sole eyewitness, also identified Gairns at a pretrial lineup and in court. The clerk testified that there was no indication that either Gairns or his companion was intoxicated at the time of the incident. In view of the overwhelming evidence in the record supporting the jury verdict, we cannot find that the admission of inferential evidence of a prior conviction deprived Gairns of a fair trial. See State v. Mack, 80 Wn.2d 19, 490 P.2d 1303 (1971) and State v. Baker, 4 Wn. App. 121, 480 P.2d 778 (1971).¹

The second assignment of error concerns admonitions of defense counsel by the trial court which, it is alleged, "indicated a lack of respect for the defense role and also for counsel's role both throughout the voir dire and through the trial;..." Gairns contends that remarks such as, "Oh, that is enough of it," "He answered the question, but counsel, just don't try the case on voir dire," and "You are not giving [the prospective juror] a fair chance," impaired the effectiveness of counsel and contravened the right to a fair and impartial trial.

Rebukes of an attorney within the presence of the jury are within the discretion of the trial court and do not warrant a reversal unless prejudice is shown. Prejudice may be presumed, however, if the remarks were calculated to have a prejudicial effect.

State v. Stamm, 16 Wn. App. 603, 615, 559 P.2d 1 (1976). The record reveals ho prejudice, and we do not find from the record that the remarks were calculated to have a prejudicial effect. The remarks complained of did not impugn the integrity of defense counsel or insinuate unethical conduct; they do not warrant the granting of a new trial. Affirmed.

James, J., concurs.

1 While an instruction regarding the identity of the probation officer might have been given, none was requested. See Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 403 P.2d 351 (1965).