State v. Weekly

252 P.2d 246, 41 Wash. 2d 727, 1952 Wash. LEXIS 506

• Court: Washington Supreme Court
• Decided: December 26, 1952
• Docket: 32018
• Status: Published

Opinions

Olson, J.

This is an appeal from the judgment and sentence entered upon the verdict of a jury in the trial of defendant for the crime of attempted rape.

Upon arraignment, defendant pleaded not guilty. Later, he appeared with counsel and withdrew this plea and pleaded guilty to the charge. At a subsequent hearing, when he again appeared with counsel for sentence, he was questioned carefully by the court upon the basic facts of the charge against him. He admitted these facts, but, when the court was about to pronounce sentence and indicated that probation would not be granted, he requested and obtained leave to withdraw his plea of guilty and re-enter his plea of not guilty.

During the trial of the cause upon this plea, defendant testified in his own behalf. On cross-examination, counsel for the state asked him the following question: “Mr. Weekly, on the 3rd day of September, 1951, did you appear in Judge Greenough’s court with your counsel, and enter a plea of guilty to this charge?”

Defendant’s objection was sustained, and, upon his motion, the question was stricken and the jury instructed to disregard it. These rulings are not before us for review, and we need not and do not express any opinion on them.

Defendant contends that the court “erred in failing to declare a mistrial or to allow the appellant [defendant] to go into the facts involved after the state asked the question.”

Basically, defendant’s contention is that the question was so prejudicial that, by asking it, the state deprived him of a fair trial. While it is not so labeled by defendant, it is in fact a claim of misconduct of counsel for the state. To prevail on such a claim, defendant must show that counsel did not act in good faith, and that asking the question was in fact prejudicial. State v. Whetstone, 30 Wn. (2d) 301, 337, 191 P. (2d) 818 (1948).

The good faith of counsel can be tested by the following, among other inquiries: Was the question based upon facts established by the record? Was it material and relevant? Did counsel have any basis for a belief that the court would overrule an objection to it? Did counsel abide the ruling of the court and not pursue the inquiry after the objection was sustained? Each of these questions must be answered in the affirmative in this case.

The record shows that the facts stated in question form were true. Defendant not only admitted the legal conclusion of guilt by his plea, but, in answer to inquiries by the court- at that time, admitted the facts charged. These facts were material, and proof of their admission or confession was relevant to the issue.

When the objection was made, the jury was excused promptly. Counsel for the state asserted to the trial court that the question was not objectionable, and cited authority for his position. See State v. Bringgold, 40 Wash. 12, 82 Pac. 132 (1905), wherein this court held that a plea of guilty to a complaint in justice court was admissible against the defendant, in a trial in the superior court upon an information charging the same offense. That the rule advanced by the state is not universally followed, does not concern us here. It is sanctioned by respectable authority, in which the view is taken that such a plea is an admission which may be introduced in evidence against the accused. People v. Steinmetz, 240 N. Y. 411, 148 N. E. 597 (1925); Rascon v. State, 47 Ariz. 501, 512, 57 P. (2d) 304, 309 (1936); People v. Cooper, 81 Cal. App. (2d) 110, 118, 183 P. (2d) 67, 72 (1947), and cases cited. See discussion in 4 Wigmore on Evidence (3d ed.) 66, § 1067, and 1951 Supp., p. 26; Annotation, 124 A. L. R. 1527, 1532; Model Code of Evidence, p. 241.

No effort was made by counsel for the state to renew the matter by reframing his question or by a statement, in arguing the objection in the presence of the jury or otherwise, showing any intention to circumvent or disregard the court’s ruling. The record plainly indicates that he acted in good faith.

We cannot say that the trial court abused its discretion in deciding that the conduct of the deputy prosecutor was not prejudicial to defendant, and in denying defendant’s motion for a new trial. To do so, we would have to assume that the jury did not obey the court’s instructions to disregard the question. This we will not do. Our assumption is that, when a question is asked and an objection sustained, a jury will understand that for some good and sufficient reason the court believed the question improper. State v. Whetstone, supra, p. 340.

This disposition of the case makes it unnecessary for us to consider the state’s contention that the question was proper, and for that reason cannot be the basis of a successful claim of error.

Defendant further contends that he should have been permitted to explain the circumstances under which he made his plea of guilty. Viewing this plea as an admission against interest, the fact that it was made in open court certainly should not detract from the consideration it should receive. When an accused is confronted with any admission or confession, he may, if he affirms it, explain fully all the circumstances under which he claims it was made. But here no admission was before the jury for explanation. Defendant did not choose to waive his objection and offer any proof in this regard, or otherwise present this contention to the trial court. A claim of error of this nature, first asserted in this court, cannot be considered.

The judgment is affirmed.

Schwellenbach, C. J., Mallery, Hill, and Grady, JJ., concur.