State v. Taylor

¶1This is an appeal by the State of Washington from an order granting two respondents a new trial on a joint information charging second-degree burglary. Because no question arises as to the sufficiency of the proofs to sustain the verdict of guilty, it is unnecessary to narrate the evidence.

¶2The court granted both defendants a new trial because of the voluntary injection by a member of the Kent police department that the respondent Taylor had a parole officer. Instantly, counsel moved for a mistrial. It was denied.

¶3The incident occurred during the state’s case in chief while a deputy prosecuting attorney was examining the witness. The entire episode is as follows:

“Q. Now, when was the next time you talked to either Gilcrease or Taylor? A. On the 20th. I talked to Taylor and Gilcrease, both. Q. And do you recall which one you talked to first? A. I believe it was Taylor. Q. And where did that take place? A. At the Renton City Jail. Q. He had been moved to Renton at that time? A. Yes. Q. What did you talk about at that time? A. The burglaries. Q. And did he tell you anything about them at that time? Would you just tell us what took place during this conversation? A. During that day, or that period of interrogation, I had contacted his parole officer, Mr. Snow, and I had been trying to get him to give me a statement admitting the burglaries. Mr. Opendack: Your Honor, please, I will have to move for a mistrial. The Court: On what grounds? Mr. Opendack: On the grounds that nobody has a parole officer unless they have been convicted of a crime. The Court: I will deny the motion. Mr. Opendack: This forces the defendant to take the stand under the circumstances. The Court: I will deny the motion. Mr. Opendack: I would like to renew it again without the jury being here. The Court: Yes, you may have that privilege. Q. What did you talk about? A. Where were we? Q. Well, you had called somebody and you were having— A. Well, I had previously contacted the parole officer of the defendant, Taylor, and I met him at Renton. Then I continued my interrogation of Taylor . . . ”

¶4From the position taken on the motion for a mistrial, the respondents’ counsel has never receded, but, on the *34contrary, has at all times steadfastly maintained it. After the objection was overruled, the witness reiterated his allusion to the parole officer.

¶5Both during the state’s case in chief and at its close, the motion was renewed and denied. An offer was made by the court to instruct the jury to disregard the statement, but declined by respondents’ counsel because it would only emphasize the error, in which view the trial court ultimately concurred.

¶6It should be noted that the offending remark was not responsive to the prosecutor’s question and is not claimed to be misconduct. The court was at pains to point out that neither counsel was to blame for the error.1

¶7After post-trial reargument, the court ordered a new trial. The court, in a memorandum opinion, stated its reasons clearly and in detail.

“. . . Mr. Opendack promptly moved for a mistrial and in response to a question by the court stated his grounds therefor. The motion was denied, and Mr. Opendack asked permission to renew it again in the absence of the jury. Mr. Kennedy again asked the witness what they had talked about and provoked a second unresponsive answer, the witness saying that he ‘had previously contacted the parole officer of the defendant … .’

“The jury was thereupon excused, the motion for a mistrial was renewed, and the matter was discussed at some length. At this point the court offered to instruct the jury to disregard the references to the parole officer. This offer was declined by Mr. Opendack. He stated that he felt (and I agreed with him) that such an instruction would only serve to emphasize the matter and would do no real good. The motion for a mistrial was denied, the jury was brought back in, and the trial continued.

“. . . I had not caught the import of the first reference to the parole officer, and when Mr. Opendack moved for a mistrial I inquired as to the grounds. Mr. Opendack’s answer to my inquiry further emphasized the significance of the remark. Even then I failed to caution the witness, with the result that he immediately thereafter repeated *35the offending statement while making another completely unresponsive answer.

“There is, it seems to me, a great probability that all of this may have revealed to at least some members of the jury that the defendant Taylor had been in previous trouble with the law. They were not told in so many words that Taylor had previously been convicted of another crime, but it was made evident that he was on probation. Laymen might easily conclude from this that he had committed one or more previous offenses.”

¶8The State of Washington has the right to appeal in a criminal case from an order granting a defendant a new trial. This right exists only by reason of statute or rule (24 C. J. S. 1034, § 1659 (e)), and is a very recent development.2 It was authorized in Washington in 1893,3 but was limited to setting aside the indictment or information or arresting judgment for the insufficiency of the indictment or information or for an error of law. Rem. Rev. Stat., § 1716(7).

¶9By 1932, in only eleven states, including Washington,4*36was such an appeal permitted from an order granting a new trial.5 This, perhaps, then, accounts for the relative dearth of decisional law respecting the extent of appellate review of such orders.

¶10We have here the antithesis of State v. Johnson, ante p. 21, 371 P. (2d) 611 (1962), in which this court affirmed an order denying a motion for a new trial. There the defendant claimed he was denied a fair trial because a nonprofessional witness inadvertently referred to his parole officer. The remark was instantly stricken and the jury instructed to disregard it. The reason for the decision is that the trial judge was of the opinion that no prejudice was created. We declined to interfere with his discretion.

¶11Here, on the other hand, we are dealing with the opposite situation. The witness was a member of the Kent police department holding the rank of sergeant. The injection of the existence of Taylor’s parole officer was deliberate. This is emphasized by the fact that the witness reiterated the comment about the defendant’s parole officer as soon as the motion was overruled. The trial court had *37the same opportunity here to determine the existence or absence of prejudice as in the Johnson case, and it was its conclusion that prejudice did ensue for which reason a new trial was ordered.

¶12Here we deal with an evidential harpoon which would only be aggravated by an instruction to disregard. Such was the view of the trial judge who, in his memorandum opinion, said:

“ . . . At this point the court offered to instruct the jury to disregard the references to the parole officer. This offer was declined by Mr. Opendack. He stated that he felt (and I agreed with him) that such an instruction would only serve to emphasize the matter and would do no real good. . . . ”

¶13That the prejudice from this evidential harpoon is only aggravated by an instruction to disregard is exemplified by the Oklahoma Court of Criminal Appeals in Wright v. State, 325 P. (2d) 1089, 1093 (Okla. Crim. 1958), which, in reversing a conviction upon this ground, was provoked to say:

“This type of testimony has often been referred to as an ‘evidential harpoon’ that has been wilfully jabbed into the defendant and then jerked out by an admonition to the jury not to consider the same. This court has never condoned, but often criticized a witness being intoxicated with eagerness in an all out effort to obtain a conviction. We are fully aware that these harpoons are often thrown through inadvertence or ignorance of the law, but we cannot lead ourselves to believe that such was the case. The witness Hagstrom is one with long experience in law enforcement who now occupies the position of Narcotic Agent for the State of Oklahoma, affiliated with the Attorney General’s office, which office serves as an advisor of the law to most state officials. Surely, he was conscious of the rules of evidence that prohibit such actions of a witness. It would seem unreasonable to say he was unaware of the consequences of his actions. It is of such universal recognition that elaborating seems useless to recite again that to place a defendant’s character or reputation in issue before it becomes an element of the trial is error of the worse type. Evidence relative to previous conviction, with the exception of those alleged in the information is permitted for one *38purpose and one only and that is to effect the credibility of the witness. See Tit. 12 O.S.A. § 381. And where defendant did not present himself as a witness nor present testimony of good character, it is forbidden. In a trial of a criminal case the issue is singular, as to guilt or innocence: ‘Did the defendant commit the crime charged?’ and not upon the question, ‘Has the defendant the reputation of committing crime before.’ ”

¶14It is impossible to accurately determine the number of state appeals in criminal cases from orders granting new trials.6 With the exception of State v. Douglas, 193 Wash. 425, 75 P. (2d) 1005,7 this court has never reversed such an order although a departmental opinion in State v. Brent, 28 Wn. (2d) 501, 183 P. (2d) 495,8 did so, but thereafter *39the order was affirmed on rehearing, 30 Wn. (2d) 286, 191 P. (2d) 682. Judge Hill reported that he had found but twenty-eight cases, both civil and criminal, in the history of this court (1948) in which an order granting a new trial had been reversed. Perhaps the reason is, as the court said:

“. . . a much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying a new trial. . . . ” State v. Brent, 30 Wn. (2d) 286, 290, 191 P. (2d) 682.

¶15After reviewing the conflict in the evidence, the court concluded:

“. . . There being a substantial conflict in the evidence upon controlling issues, a majority of the court has taken the position that, while it does not believe that the verdict is contrary to either the law or the evidence, it cannot say that the trial judge abused his discretion in granting a new trial on the ground that it was contrary to the evidence.” State v. Brent, 30 Wn. (2d) 286, 300, 191 P. (2d) 682.

¶16No case has been called to our attention and the deputy prosecuting attorney in oral argument forthrightly admitted that he had been unable to find a single case in which an order granting a new trial in a criminal case had been reversed on a state’s appeal in comparable circumstances.9 Perhaps there is one, but, if so, it still remains hidden, notwithstanding exhaustive research.

¶17*40Pure questions of law offer no difficulty, but when, as here, the order is granted because of the very atmosphere of the courtroom, there is unanimity of judicial opinion that an appellate court will not substitute its judgment for that of the trial court.

¶18In People v. Canfield, 173 Cal. 309, 159 Pac. 1046,10 the trial judge granted a new trial because of the admission of evidence of other crimes. He was of the view that such fact may have had a prejudicial effect upon the jury. The state appealed, but the order granting Canfield a new trial was affirmed by the Supreme Court of California. In a unanimous opinion, that court stated its reasons therefor as follows:

"... The judge who presided at the trial of the cause, who heard the testimony, who observed the jurors and had an opportunity also of testing the truth of the defendant’s statements by noticing his demeanor, was in a peculiarly favorable position for determining justly the question whether or not the defendant had been accorded a fair trial. We cannot follow the mental processes of the judge. He may have been profoundly impressed with the influence upon the jury, to Canfield’s injury, of the introduction of the evidence tending to prove another offense. Or he may have doubted the identification by the witnesses for the prosecution of Canfield as the man who passed as Rabild in the transactions leading to the sale of the note and mortgage. We can hardly manufacture in fancy a hypothetical situation in which a reviewing court would be justified in questioning the discretion of a trial court who should grant a new trial in a case involving a criminal charge. Surely there is no basis in the case before us for the substitution of the discretion of this court for that of the superior court. We must assume that the learned judge *41of the trial court acted with a full appreciation of his duties and obligations, with the cited section of the constitution in mind, and that the conclusion which he reached was not governed by any idle nor any mere technical reasons.”

¶19Based upon the Canfieldcase, supra, the Supreme Court of Nevada in State v. Sorenson, 73 Nev. 218, 223, 315 P. (2d) 508 (1957), reached the same conclusion. The Supreme Court of North Dakota has taken the same position (State v. McEnroe, 68 N. D. 615, 622, 283 N. W. 57), as has the Supreme Court of South Dakota. State v. Lambert, 60 S. D. 172, 174, 244 N. W. 118; State v. Ruhaak, 59 S. D. 636, 637, 241 N. W. 793. The Supreme Court of Kansas is in accord. State v. Miller, 154 Kan. 267, 269, 118 P. (2d) 561.

¶20The Supreme Court of Kentucky in Commonwealth v. Metcalfe, 184 Ky. 540, 546, 212 S. W. 434, affirmed an order granting a motion for new trial upon the state’s appeal.11

¶21There is a fundamental difference between the question presented on an appeal from an order granting and one denying a new trial, and especially is this so where the trial court has granted the motion because of its peculiar advantage in observing the effect on the jury of prejudicial evidence. If this were an appeal from an order denying a new trial, the cases cited by the state would be applicable because the appellate court in those instances relied upon the determination of the trial court that there was no prejudice.

¶22On the other hand, when the court has granted a new *42trial, it has decided that prejudice did ensue. The trial judge, by his very presence, is in a favored position. It has been reiterated in appeals from orders granting new trials in both civil and criminal cases that a much stronger showing is required to overturn an order granting the new trial than denying a new trial. The question is: Did the respondents have a fair trial? The trial judge thought that they did not. The question is not whether this court would have decided otherwise in the first instance, but whether the trial judge was justified in reaching his conclusion. In that respect, he has a very wide discretion.

¶23The state argues that the remark respecting the parole officer applied alone to Taylor and not to respondent Gilcrease for which reason Gilcrease should not be granted a new trial. It must be remembered that both defendants were charged and tried jointly with the commission of the same offense, and that the same evidence was offered against each of the respondents. The trial judge disposed of the contention in the following language:

“I at first thought that perhaps Taylor is the only defendant entitled to a new trial, as he was the one to whom the witness was referring in speaking of the parole officer. However, the two defendants are in this thing together, and both of them are either innocent or both are guilty. What hurts one, hurts the other. Accordingly, I have concluded that, if the defendant Taylor did not have a fair trial, the same thing must be said as to the defendant Gilcrease. Both defendants will therefore be given a new trial.”

¶24We are not disposed to interfere with the discretion the trial court exercised.

¶25The order granting a new trial is affirmed.

¶26Weaver, Rosellini, and Hunter, JJ., concur.

¶42(concurring in the result)- — I concur in the result. My reason is epitomized in the next to the last sentence of the majority opinion, “We are not disposed to interfere with the discretion the trial court exercised.”

¶43Finley, C. J., Donworth, and Hamilton, JJ., concur with Hill, J.