State v. Suleski

406 P.2d 613, 67 Wash. 2d 45, 1965 Wash. LEXIS 644

• Court: Washington Supreme Court
• Decided: October 7, 1965
• Docket: 37433
• Status: Published

Opinions

Hamilton, J.

— This case strikingly illustrates the incongruity of undertaking to test the legality of a search and the admissibility of seized evidence in the presence of a jury. The following sequence of events leads to this appeal.

On August 14, 1962, appellant (defendant), using his brother’s name, obtained á prescription for dolophine (a narcotic drug) from a doctor in Palouse, Washington, claiming he was afflicted with trigeminal neuralgia. He forestalled an adequate physical examination by the doctor. The doctor became suspicious and, fearing that she had issued a prescription to a drug addict, notified the Palouse police of her suspicions and advised them of appellant’s description and out-of-state automobile license number. Thereafter, appellant undertook to have the prescription filled in a Palouse pharmacy. The pharmacy did not have the drug in stock, and appellant proceeded to Pullman where he tried a second pharmacy, arriving there shortly after 6 p.m. The second pharmacist (who likewise did not have a supply of the prescribed drug) had, in the meantime, been notified by the Pullman police of the doctor’s report and of appellant’s description. In the course of his dealing with appellant, he observed that the prescription appeared to have been altered by an ink spot which obliterated the part of the prescription specifying the amount of the drug to be dispensed. Appellant volunteered the information that the ink blot was occasioned by a leaky fountain pen. As appellant left the store, the pharmacist followed him, observed the license number of his automobile and notified the police. The news of appellant’s presence in Pullman was broadcast over the local police network.

Shortly after 6:36 p.m., a Washington State University Campus patrolman noted a vehicle traveling past and beyond “Dead Man’s Corner,” on the Pullman-Moscow 60-mile an hour highway, at 30 miles an hour. The slow speed and its potential impediment to traffic piqued the officer’s interest, and he commenced to follow the vehicle, at which time he discovered that the license number matched the one broadcast over the police radio. At about this time, appellant, who was driving the vehicle, pulled over to the side of the road and the officer pulled in behind him. Appellant was unable to supply either a driver’s license or a motor vehicle registration certificate. The officer arrested him for driving without a license or registration certificate and took him to the Pullman police station.

At the police station, appellant’s automobile was impounded and placed in the police lot. A police sergeant, who had personally questioned the doctor and the pharmacist, fully informed appellant of his constitutional rights to remain silent and to have benefit of counsel and allowed him the use of the telephone to call his brother. The officer then commenced to interrogate him relative to the narcotic incident. Seemingly by way of explanation, appellant voluntarily produced the prescription he had obtained from the doctor and gave it to the sergeant. The sergeant examined it, noted the ink blot, placed it on a desk, and left the room on other business. He, thereafter, observed appellant doing something to the prescription and upon his return to the room found the prescription missing. Appellant denied knowledge of its whereabouts. Whereupon, the officer, without objection from appellant, picked up appellant’s wallet, which was apparently also on the desk, and found the prescription therein. The ink blot on the prescription then appeared to be smudged by erasure marks. The sergeant advised appellant he was under arrest for fraudulently trying to obtain narcotics in violation of state law, confined him, and notified the Whitman County Sheriff. This took place at about 7:30 p.m. At about 8:30 p.m., the sheriff arrived at the police station and, with the chief of police and the police sergeant, searched appellant’s vehicle. At this time, miscellaneous articles, tools, and keys were observed in the vehicle. Some of the tools and keys were seized. The next day, August 15, 1962, appellant was formally charged by information with possession of burglary tools. In the meantime, appellant’s vehicle was stored in a local garage. Thereafter, appellant’s vehicle was searched three times, once following filing of the formal charge on August 15, once on August 16, and finally on a date a few days before the trial commenced. All searches were conducted without benefit of a search warrant.

On August 24, appellant was formally charged, by separate information, with the crime of attempting to obtain a narcotic drug by fraud, deceit, misrepresentation, or subterfuge, and/or alteration of a prescription. Pleas of not guilty were entered as to each information, and by stipulation of counsel the two charges were consolidated for purposes of trial. Prior to trial, appellant filed in each cause a motion to suppress all evidence obtained by the state by means of any search of his automobile.

At the time of trial, it was agreed between counsel for the state and for the appellant, with the consent of the trial court, that the motions to suppress would be determined upon the basis of the evidence admitted during the trial.

The trial commenced with the attorney for the state advising the jury, in his opening statement, that:

Sheriff Humphreys and several other officers made the search and they found enumerable devices, tools, drills, machines, what have you, which could be used, and we allege, are burglary tools. These tools were in his possession. A search of the back of the car also revealed a .38 caliber revolver.

He told at an interview later on to one of the Treasury agents from the United States Government who was investigating the matter, and who will also testify here, that he was aware the gun was back there, that it was his gun, that he had it in his possession and explained the circumstances under which he had the gun. We will introduce, or attempt to introduce court records and F.B.I. records showing past convictions of burglaries.¹

These statements were permitted to stand, over the objection and motion for mistrial of defense counsel, upon the basis of the pendency of the motions to suppress and upon the premise that the state was permitted to show burglarious inclinations in connection with the charge of possession of burglary tools.

The state’s first witness, the doctor, then explained to the jury that she issued the narcotics prescription in question because she feared violence from the defendant, based upon her suspicion that he was “quite possibly a narcotics addict.” Thereafter, and during the presentation of the state’s case, the fruits of the searches and seizures were introduced in evidence, including a dismantled .38 caliber German Luger pistol, a considerable number of tools and keys, and a bottle of India ink. In addition, the defendant’s automobile (which was viewed by the jury) and his fingerprint card were admitted in evidence. In connection with the fingerprint card, the jury was advised that it had been sent to the Federal Bureau of Investigation to ascertain the defendant’s criminal record. Later on, in the course of the state’s evidence, a four or five-page document was, in the presence of the jury, identified as “a report which we received from the Federal Bureau of Investigation.” It was offered in evidence and rejected. At another point in the state’s case, a “criminal investigator” for the United States Treasury Department was called and testified he interviewed the defendant while in custody concerning the German Luger and an “alleged” violation of the Federal Firearms Act.

Defendant’s counsel interposed objections and motions for mistrial, running to part, if not all, of the foregoing.

At the conclusion of the state’s case, the trial court granted defendant’s motion to suppress the evidence obtained as a result of the searches and seizures, holding that such searches were not incident to or contemporaneous with a lawful arrest.² The trial court then dismissed the charge of unlawful possession of burglary tools, denied defendant’s motion for mistrial, and thereafter instructed the jury to disregard the burglary tools charge and all stricken exhibits, testimony, or inferences from such charge.

On appeal, the defendant makes eight assignments of error, essentially directed to the state’s opening statement, admission of evidence, and the denial of defendant’s motions for mistrial and for new trial. In response, the state contends that dismissal of the burglary tools charge and the court’s instructions to the jury with respect thereto cured any error or prejudice that might have arisen under the circumstances. Furthermore, the state argues that defendant waived any claim of error pertaining to denial of his motions for mistrial. This latter contention arises out of the following statement of defense counsel after the trial court had dismissed the burglary tools charge:

I feel that the ruling on the part of the Court dismissing the C-850 [burglary tools charge] probably cures any problem I had as far as mistrial is concerned on the admission of the weapon and statements of counsel diming the course of the opening statement, however, for the record I would like to renew those motions at this time, Your Honor.

The Court: They will be denied.

Our review of the record convinces us that the trial court erred in denying defendant’s motion for new trial upon the narcotics charge.

The basic issue presented in this case is not whether defense counsel tacitly waived his objections or his motions for mistrial, or whether the trial court’s instructions effectively struck the burglary tools charge, and its evidentiary derivatives, from the minds of the jury. Rather, the underlying issue is whether the defendant, under all of the circumstances, in fact received a fair and unbiased trial upon the charge which the trial court submitted to the jury. State v. Johnson, 60 Wn.2d 21, 371 P.2d 611 (1962).

In State v. Devlin, 145 Wash. 44, 51, 258 Pac. 826 (1927), we said:

In State v. Pryor, 67 Wash. 216, 121 Pac. 56, this court said:

“A fair trial consists not alone in an observation of the naked forms of law, but in a recognition and a just application of its principles.”

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.

In the instant case, the bells of the dismissed burglary tools charge, prior burglary convictions, a four or five-page F.B.I. record, a possible violation of the Federal Firearms Act, and the fruits of the various searches, were so conclusively rung as to effectively preclude their “unringing.” The adroitly drawn picture of the defendant’s criminal proclivities, sketched upon the backdrop of the medical witness’s fear of violence and suspicion of drug addiction, literally dissolved any legalistic curtain based upon the theory that the court’s instructions could remove all undue impressions from the jurors’ minds. The defendant was irretrievably prejudiced.

It is presumed that juries follow the instructions of the court. State v. Costello, 59 Wn.2d 325, 367 P.2d 816 (1962). However, where evidence is admitted which is inherently prejudicial and of such a nature as to be most likely to impress itself upon the minds of the jurors, a subsequent withdrawal of that evidence, even when accompanied by an instruction to disregard, cannot logically be said to remove the prejudicial impression created. State v. Albutt, 99 Wash. 253, 169 Pac. 584 (1917). As was aptly observed in State v. Meader, 54 Vt. 126, 132 (1881):

[T]he school boy uses his sponge to rub out the pencil marks on his slate. He eventually discovers that at some time — he never can tell when — his pencil has scratched, and learns to his sorrow, that the ugly evidence of the fact, however vigorously he may apply his sponge, cannot be removed. The question in all cases, is not whether the court, if trying the case, would disregard the obnoxious evidence, but whether the court is assured that the jury has done so.

We are not assured that the evidentiary harpoon here inserted could effectively be withdrawn. It was equipped with too many barbs.

And, assuming arguendo that counsel for defendant did not adequately preserve his objections, we are satisfied that the prejudice was of such a nature as to warrant disregarding such a failure. See State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956) for a discussion of the exception to the general rule requiring preservation of objections.

Since the case is being remanded for new trial on the narcotics charge, only one further assignment of error requires comment. Defendant has assigned error to the admission into evidence of the prescription, contending that it was the product of an unlawful search. Aside from the fact that defendant did not timely move to suppress this item of evidence or object to its admission at the time of trial, we are satisfied that the record, as it now stands, reveals that defendant voluntarily surrendered the prescription to the authorities. We find no basis in the evidence which would indicate otherwise.

The judgment of conviction is reversed, and the cause is remanded for new trial upon the charge of attempting to obtain a narcotic drug by fraud.

Hill, Finley, Weaver, Ott, Hunter, and Hále, JJ., concur.

1 No court records were produced or offered.

2 The state has not cross-appealed or otherwise challenged the trial court’s ruling; hence, we are not called upon to review the correctness thereof. As to the searches, however, attention is called to Preston v. United States, 376 U.S. 364, 11 L. Ed. 2d 777, 84 Sup. Ct. 881.