State v. Cole

413 P.2d 341, 68 Wash. 2d 400, 1966 Wash. LEXIS 750

• Court: Washington Supreme Court
• Decided: April 14, 1966
• Docket: No. 38251
• Status: Published

Opinions

Hunter, J.

The defendant (appellant), Jesse Lymon Cole, was charged by information with the crime of taking and riding in a motor vehicle without permission of the owner. RCW 9.54.020.

The defendant entered a plea of not guilty by reason of temporary insanity or mental irresponsibility at the time of the alleged commission of the crime. At the conclusion of a jury trial a verdict of guilty was returned and a judgment and sentence was entered accordingly. The defendant appeals.

There is no dispute on the facts in this case except as to the issue raised by the defendant’s plea of temporary insanity. The record shows that on March 6, 1964, the defendant was a passenger in a Farwest taxicab, and at his request he was taken to the Seattle-Tacoma Airport. Upon arrival at the airport, he gave the taxicab driver a $20 bill. Not having sufficient change the driver went into the airport terminal for the purpose of securing change. While the driver was inside the terminal the defendant moved behind the wheel of the taxicab and drove off. Sometime later that evening he was observed by a state trooper to be driving erratically and at excessive speed, whereupon he was apprehended and arrested at the Tacoma Narrows Bridge. He was taken to the Tacoma city jail; after a brief stay he was transferred to the King County jail. He was subsequently charged in the King County Superior Court with the crime of taking and riding in a motor vehicle without permission of the owner. He was determined to be an indigent, and counsel was appointed to represent him on April 7, 1964. The same counsel represented the defendant at the subsequent proceedings in the superior court and upon this appeal.

The defendant was arraigned on April 10, 1964, whereupon he entered a plea of not guilty, and the case was set for trial on May 13, 1964.

Defense counsel and the prosecuting attorney’s office became aware that the defendant appeared to be suffering from an emotional disturbance. Upon motion of defense counsel, the court entered an order on May 22, 1964, which was approved by the state, appointing Dr. Jack J. Klein, a psychiatrist, for the purpose of examining the defendant to determine his mental competency, and to determine whether he was mentally capable of going to trial and assisting with his defense.

On May 19, 1964, Dr. Klein made the following report to the prosecuting attorney’s office in King County:

Mr. Thomas A. Stang

Deputy Prosecuting Attorney

Seattle 4, Washington

Dear Mr. Stang: Re: Jesse Lymon Cole, Cause 40658

I examined Mr. Jesse Cole at King County Jail on May 17, 1964. He is a very confused man. I will relate the history as I was able to obtain from him.

Mr. Cole says he was born and raised in Buffalo, New York. He was discharged from the United States Army' in February of 1963 after four and a half years’ service. He gave a confused history about being discharged from Fort Jay or Queens. He denies any previous arrest. He says he has never married.

Mr. Cole smiles inappropriately and his conversation is wandering and disconnected. His delusional systems seems to go something like this; he got a cab and went to the airport, reasons unknown, and gave the cab driver a twenty dollar bill. When the cab driver went to get change, Mr. Cole drove the cab away. He said “the driver went too slow; I went nuts about the cab radio; apart from the Army; operated a radio too good for the Army” and apparently he was getting some sort of radio messages from the cab radio. He also talked about someone in the Army wanting to harm him when he was asleep, pouring water in his nose and drowning him. He says this goes on at the jail, too. He is confined to a private cell, he cannot see the man in the next cell but, he hears the man pouring water just to aggravate him. He feels sometimes his food is doped but the first time it was ever doped was in Tacoma. While in jail Mr. Cole, without provocation, hit one of the guards and this is why he is presently confined to a cell alone.

It is my opinion Mr. Jesse Lymon Cole is suffering from a schizophrenic psychosis of a paranoid type. He is now too ill to realize his peril, he is too mentally ill to participate in his own defense and at the time he took the taxi-cab he was unable to distinguish the difference between right and wrong.

I think someone should sign a mental illness complaint and he should be sent through normal mental illness chan-neis to the nearest state hospital for observation and treatment. Sincerely,

/s/ Jack J. Klein

Jack J. Klein, M.D.

Subsequent to this report, upon motion of defense counsel, the following “Order For Stay of Proceedings And Order Committing Defendant To Eastern State Hospital,” dated May 26, 1964, was entered:

This Matter having come on before the undersigned judge of the above-entitled court on the motion of the court appointed attorney for the defendant herein, the defendant being represented by his attorney, Jack Stein-berg, and the state being represented by Charles O. Carroll, Prosecuting Attorney for King County, through his deputy, Thomas A. Stang, the court having considered the petition and attached report of Dr. Jack J. Klein and having heard oral representation on behalf both the plaintiff and defendant, and having reviewed the records and flies herein, and being fully advised in the premises,

Now, Therefore,

It Is Hereby Ordered, Adjudged and Decreed that the criminal proceedings in the superior court for King County in the above-entitled cause be and the same hereby are ordered stayed;

It Is Further Ordered, Adjudged and Decreed that the court finds that the defendant cannot stand trial at this time because he cannot understand the nature and peril of the charges against him and cannot assist in his own defense;

It Is Further Ordered, Adjudged and Decreed that the defendant be transported by the Sheriff of King County to Eastern State Hospital, Medical Lake, Washington, to be confined therein by the hospital authorities;

It Is Further Ordered, Adjudged and Decreed that at such time the defendant is able to stand trial the Eastern State Hospital Superintendent shall so advise the prosecuting attorney of King County whereupon the Sheriff of King County shall return the defendant to the King County Jail for the purpose of standing trial.

Done In Open Court this 26 day of May, 1964.

/s/ Story Birdseye

Judge

Presented by:

/s/ Jack Steinberg

Approved:

/s/ Thomas A. Stang

Deputy Prosecuting Attorney

In pursuance of the last paragraph of the order the record discloses that the following letter dated December 4, 1964, signed by Dr. Paul F. Shirey, Section Chief of Eastern State Hospital, and Dr. Harris F. Bunnell, the Superintendent, was communicated to the prosecuting attorney and the trial judge, and filed in the King County clerk’s office on December 14, 1964:

Mr. Charles O. Carroll,

Prosecuting Attorney of King County

King County Court House

Seattle, Washington

Re: Jesse Lymon Cole

ESH #524608

Attn: Mr. Robert E. Dixon,

Deputy Prosecuting Attorney

Dear Mr. Carroll:

Mr. Jesse Cole was admitted to Eastern State Hospital May 27, 1964 under King County Superior Court Order No. 40658 over the signature of Judge Story Birdseye. There is a charge pending against this patient in King County.

This patient was committed to Eastern State Hospital because “the Court finds that the defendant cannot stand trial at this time because he cannot understand the nature and peril of the charges against him and cannot assist in his own defense.” The Staff of this Hospital felt that at the time of his admission this patient was indeed psychotic (insane) and when his case was considered by the Staff he was assigned a diagnosis of: Schizophrenic reaction, chronic undifferentiated type.

This patient has made a satisfactory adjustment, has lost all of his psychotic symptoms and because of this he was considered by the Staff of the Hospital on Dec. I, 1964 for disposition; so far as the Hospital is concerned. It was the opinion of the Staff on that date that the patient had recovered and was now able to understand the charges against him and aid in his own defense. Further hospitalization would be of no benefit to this patient and he can now be returned to the jurisdiction of King County for the disposition of the charges pending against him.

If we can be of any further service in this case, please let us know.

Very truly yours,

/s/ Paul F. Shirey, M.D.

Paul F. Shirey, M.D.

Section Chief

/s/ Harris F. Bunnell, M.D.

Harris F. Bunnell, M.D.

Superintendent

, CC: The Honorable Story Birdseye

Judge of the Superior Court

King County

Seattle, Washington

The case thereafter went to trial on March 24, 1965.

The state’s testimony in support of the allegations charged in the information was not refuted. The defendant in support of his plea of not guilty by reason of temporary insanity introduced the testimony of Dr. Klein, which was substantially that contained in his report to the prosecuting attorney’s office.

The state introduced no medical testimony, relying on the testimony of certain lay witnesses that the defendant was faking his insanity when confined in the King County jail, and introduced testimony concerning the defendant’s statements to another jail inmate in this regard. The jury by its verdict chose to believe the lay witnesses on this issue.

The error assigned by the defendant which we deem to be crucial in this case involves the failure of the court to permit the defendant to introduce certified copies of various documents in the court file which were contained in exhibit 2, including the court order and the letters hereinbefore referred to, to which he contends he was entitled, in' pursuance of the written stipulation between the defendant and the deputy prosecuting attorney which appeared in a letter from defense counsel, addressed to and approved by the deputy prosecuting attorney:

Although we have in our possession an Order Endorsing Witness and Providing for Subpoena Duces Tecum, copy of which has been shown to you, it is agreed that we will not process said document in view of the fact that the State has already processed a Subpoena on Dr. Jack J. Klein. The State will see to it that Dr. Klein is available at the trial, or, in the alternative, will give us adequate notice in order to process our own Subpoena. There will be no objection to the introduction as exhibits of certified copies of the Court Order confirming the mental condition of the defendant at the time of his being sent to Eastern State Hospital and at the time of his release from the Hospital. The State will make said document available to the Court at the time of the trial. (Italics ours.)

The state objected to the introduction of any part of exhibit 2, contending that the following statement of the court to the jury constituted compliance with the stipulation:

Ladies and gentlemen, it has been stipulated by the attorney for the State and the attorney for the defendant, that on May 27th, 1964, the defendant, Jesse Lymon Cole, was transported from the King County Jail to Eastern State Hospital at Medical Lake, and that on December 29th, 1964, the defendant was discharged and returned to the King County Jail for trial.

The state argues that the stipulation provides only for the introduction of certified copies of court orders and that the foregoing statement constituted compliance.

The defendant’s counsel contends that it was within the purview of his oral conversation with the deputy prosecutor that the items to be included in the stipulation were the report of Dr. Klein at the time of entry of the order of commitment, and the letter from Dr. Shirey and Dr. Bun-nell of Eastern State Hospital, advising the court that the defendant had recovered from his mental disorder and was ready to stand trial.

Even though the oral conversation referred to be disregarded and the stipulation be restricted to the admission of a certified copy of the order of commitment, we hold the stipulation to have been violated by the deputy prosecuting attorney’s objection to the introduction of this order and the trial court’s ruling pursuant thereto. The order heretofore set out expressly recites that the court

having considered the petition and attached report of Dr. Jack J. Klein ....

It Is Further Ordered, Adjudged and Decreed that the Court finds that the defendant cannot stand trial at this time because he cannot understand the nature and peril of the charges against him and cannot assist in his own defense;

It Is Further Ordered, Adjudged and Decreed that at such time the defendant is able to stand trial the Eastern State Hospital Superintendent shall so advise the prosecuting attorney of King County whereupon the Sheriff of King County shall return the defendant to the King County Jail for the purpose of standing trial. (Italics ours.)

We need not decide whether the trial court was bound by the stipulation. It is enough to find that by the deputy prosecuting attorney’s office being a party thereto, the state led the defendant into relying on the availability of the order of commitment in the preparation of his defense. The language of the order, and the final direction therein that the Eastern State Hospital superintendent shall advise the prosecuting attorney when the defendant was able to stand trial, went to the heart of the defendant’s defense of temporary insanity at the time of the commission of the crime with which he was charged.

Defense counsel, having been denied this evidence agreed to in the stipulation which he had relied upon, was prejudiced in the preparation of his defense on the vital issue of the defendant’s temporary insanity at the time of the commission of the crime, and the defendant was thereby denied a fair trial.

The state argues, however, that the defendant was not prejudiced since he did not accept the trial court’s offer to issue’ subpoenas for any witnesses he would want to bring in. We do not agree. This may have required the defendant to request a substantial interruption of a jury trial in order to contact and adequately interview Drs, Shirey and Bunnell of the Eastern State Hospital. There is no showing that the court would have granted such a request or that the state would have consented thereto. Neither is there a showing that Drs. Shirey and Bunnell would have been available to respond to subpoenas. In any event, under these circumstances, the defendant would have been denied the right to interview such witnesses before trial, to which he would have been entitled in the preparation of the defense of his case.

The trial court erred in denying the defendant’s motion for a new trial. The judgment is reversed, and the cause is remanded for a new trial.

Rosellini, C. J., Hale, J., and Langenbach, J. Pro Tern., concur¡