State v. Bromley

432 P.2d 568, 72 Wash. 2d 150, 1967 Wash. LEXIS 794
CourtWashington Supreme Court
DecidedOctober 5, 1967
Docket38888
StatusPublished
Cited by30 cases

This text of 432 P.2d 568 (State v. Bromley) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bromley, 432 P.2d 568, 72 Wash. 2d 150, 1967 Wash. LEXIS 794 (Wash. 1967).

Opinions

Hill, J.

This appeal arises out of a crime which was widely publicized in the Pacific Northwest—the kidnapping of Charles Hyde, III, near Tacoma, Washington. A ransom of $45,000 was paid, the lad returned to his home unharmed.

The participants in the kidnapping either surrendered voluntarily or were speedily apprehended—the appellant, Dean Allen Bromley, in Arkansas.

The three were tried together. Tilford G. Baker, who forced the boy into the “kidnap” car, and the appellant Bromley, who drove the car, were both found guilty of kidnapping in the first degree. The jury, however, did not impose the death penalty. The third defendant, James Edward Evans, who did not participate in the actual “taking” of the boy, was found guilty of conspiracy to kidnap.

Neither Baker nor Evans appealed his conviction; however, Bromley has appealed making 9 assignments of error.

A majority of the court agrees that there was such an accumulation of matters of dubious propriety that a fair trial was denied the appellant Bromley and that he must be granted a new trial, despite the fact that he concededly drove the “kidnap” car, accepted part of the ransom money, and fled to Arkansas with his wife and child.

We will consider the accumulated items separately. With one exception all members of the court are agreed that it was prejudicial error to permit Dr. Harlan McNutt to testify in rebuttal that, in his opinion, Bromley was not a person who could be easily coerced.

To fully understand the importance of this testimony, it must be understood that the actual participation of the [152]*152defendants Baker and Bromley in the physical act of kidnapping was not denied. Each of the three defendants entered a plea of insanity, but Bromley withdrew his plea during the trial. Bromley (and Evans) claimed coercion by Baker who, Bromley testified, had threatened to kill him and his wife unless he cooperated in the kidnapping. This, in the final analysis, was his only defense.

Bromley, by reason of his original plea of insanity, had been required to submit to an examination by Dr. McNutt, the state’s psychiatrist.

It is conceded that the state could not 'have used Dr. McNutt’s testimony against Bromley, in its case in chief, but it was admitted to meet his defense of coercion.1 The defense contends that it was devastating, but urges that it was not admissible.

It smacks of compelling a defendant to furnish testimony against himself, and of proving a trait of character by the opinion of an expert instead of by the proof of [153]*153reputation in the community. Bromley having been required to submit to an examination by the psychiatrist to enable the state to meet the defense of insanity, and that defense having been withdrawn, the state should not have been permitted to make any further use of the testimony of the psychiatrist against the appellant.

As we said in State v. O’Brien, 66 Wash. 219, 223, 119 Pac. 609 (1911),

It has ever been the law that one who offers himself as a witness is bound to disclose his motive and disposition. But the rule which allows this inquiry on cross-examination is not inconsistent with, but is in harmony with the rule that, if others speak of the general character of a person, it must be by way of reputation. To hold otherwise would be to substitute the judgment of a witness for that of the jury.

Certainly, the effort by the state here was to substitute the judgment of Dr. McNutt for that of the jury on the issue of whether Bromley was coerced.

In the language of the caption of an article in 102 U. Pa. L. Rev. 980 (1954), by Judson F. Falknor and David T. Steffen,2 the state would take the determination of the appellant’s susceptibility to coercion “from the ‘Crucible of the Community’ to the ‘Couch of the Psychiatrist’.”

The general rule is well stated by Mr. Justice Jackson in Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168, 69 Sup. Ct. 213 (1948):

The witness may not testify about defendant’s specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance, observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good general or spe[154]*154cific character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood, (p. 477)

Except where the defense is insanity, or in sexual deviation cases, the instances in which psychiatrists have been permitted to testify to the likelihood of a defendant’s specific trait of personality or character have always been, in the first instance at least, on behalf of the defendant. Thereafter it may well become a battle of the psychiatrists.

We find no authority to support the trial court’s permitting the state to inaugurate the battle.3 As a matter of interest, the only case involving the offer of expert testimony as to the likelihood of a defendant having been coerced, which we have been able to find, is People v. Villegas, 29 Cal. App. 2d 658, 85 P.2d 480 (1938). In that case, the defendant called a psychologist and offered to prove by her that she had known him for 14 years,

. . . and that by reason of her study of psychology she was in a position to testify that appellant’s will power was weak, that his physical condition was bad, and that he therefore was without sufficient force to “resist the impulse of this other boy to take him out on these robberies”. (p. 663)

The trial court sustained an objection to the prof erred testimony. The court of appeals affirmed, saying:

It was both incompetent and immaterial, and she was entitled only to testify, as she was permitted under the court’s ruling to do, concerning the general reputation of appellant in the community in which he lived for the traits involved in the offenses charged, (p. 663)

A majority of the court are also of the view that the trial court erred in instructing the jury that when a defendant claims coercion or duress as a defense, he must prove it by the greater weight of the evidence.

[155]*155It is believed that such defense need only be established to the extent of creating a reasonable doubt in the minds of the jurors as to the guilt of the one accused of the crime charged. State v. Pistona, 127 Wash. 171, 219 Pac. 859 (1923) (alibi); State v. Rosi, 120 Wash. 514, 208 Pac. 15 (1922) (alibi). In the Rosi case, supra, we said:

As to all such affirmative defenses we have always held that the burden is upon the accused to support his defense to the extent of establishing a reasonable doubt in the minds of the jurors as to the guilt of the accused of the crime charged, (p. 518)

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Cite This Page — Counsel Stack

Bluebook (online)
432 P.2d 568, 72 Wash. 2d 150, 1967 Wash. LEXIS 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bromley-wash-1967.