State v. O'Donnell , 191 Wash. 511 ( 1937 )

The majority have reached the conclusion that it is the duty of this court to restore the legal presumption of innocence to a man who, in the lower court, confessed, before court and jury and all other persons present at the trial, that he committed the brutal murder with which he is charged. I can find nothing in the record, or in our rules of law or procedure, or in the majority opinion, that convinces me that it is my duty to participate in such an act. On the other hand, I find many things in the record which convince me that it is my duty to vigorously protest against it.

To grant a new trial in this case is not only to make the administration of criminal justice appear ridiculous, but it can only be done at the cost of departing from a rule which is well-settled and long-established, as may be seen by referring to the long line of decisions cited in the dissenting opinion of Judge Holcomb. I refer, of course, to the rule that a case will not be sent back by this court for new trial on account of alleged prejudicial comment of counsel unless a mistrial is demanded at the time, or the court requested to instruct the jury to disregard it, or, at least, some kind of a vigorous objection is made.

The rule is in no sense arbitrary or capricious. It is grounded upon sound reasons; one is that, if no protest was made at the time, it may justly be assumed that the comment was not, in fact, harmful. Another and more important reason is that, if appellate courts should grant new trials where no relief was asked, or exception taken, or objection made, in the court below, the practice would result in the prolongation of litigation and in the opening of avenues through which the administration of justice might readily be impeded, obstructed, delayed, and even wholly prevented.

In justification of their departure from the well-settled and long-established rule, the majority cite but two cases. They quote from the very recent case of State v. Smith, 189 Wn. 422,65 P.2d 1075:

"The fact that the question was not objected to is not controlling. It may well be that an objection to such a question, even though sustained, is more damaging to a defendant's case than almost any answer could be. Neither, under the circumstances shown by this record, was a motion to strike the answer and instruct the jury to disregard the same necessary."

The quotation does not reveal the fact that, in that case, counsel preserved his record by securing a ruling from the court in advance that the question was prejudicial and should not be asked. The question was put, however, in direct disobedience of the court's order, and counsel was entitled to assume that the court would deal appropriately with that matter in due course and upon its own motion. I cannot think that this case in any way justifies a departure from the long-established rule.

The other case cited as sustaining a departure from the rule is also a recent decision of this court. State v. Navone,186 Wn. 532, 58 P.2d 1208. After setting forth in full the alleged prejudicial remarks of counsel, the court said:

"Misconduct is to be judged not so much by what was said or done as by the effect which is likely to flow therefrom. What would be misconduct in one case might very well be held not to be misconduct in another. Each situation involving the question of misconduct must stand by itself and must be considered in the light of all of its facts and circumstances to the end that verdicts properly arrived at shall not be disturbed, and that those verdicts which may have been induced by prejudice, or by something beyond the issues, shall not be allowed to stand."

Then, keeping in mind that every such case must be considered in the light of its own facts and circumstances, the court proceeded to analyze the facts and circumstances in the case before it, and, having done so, very properly held that a new trial should be granted, because (1) the case was "nicely balanced;" (2) "the state's case was none too strong at best;" (3) "the only issue before the jury was upon the question of intent, . . . a delicate subject;" (4) the objectionable remarks were made in the prosecutor's closing statement, and he therefore "had the last word;" and (5) "it would seem but fair and just to hold that counsel's repeated objections, three or four times repeated, should be sufficient to enable us to rule upon the real question involved."

The Navone case is clearly not an authority which in any way justifies a departure from the accepted rule. In the first place, there were objections, — three or four times repeated. In this case, there was no objection at all. There, the case was nicely balanced, the state's case was none too strong at best, the only question before the jury of a highly technical nature, and the statement complained of was made in the prosecutor's closing argument. Not one of these facts or circumstances, or anything analogous to them, is present in the case at bar. Nevertheless, if, in complete disregard of all previous authority, we depart from the rule upon which the dissenting opinion of Judge Holcomb is based, we shall find the Navone case of the greatest possible value in solving the question then remaining, and this is so because it not only points out the correct method of approach to its solution, but also gives a concrete illustration of the proper application of that method.

If we depart from the rule, the question remaining in this case is: Did the error complained of affect the verdicts? This question, as the opinion in the Navone case points out, cannot be answered by the mere matching of precedents, nor can it, with all deference to the majority, be satisfactorily answered by assembling beautifully phrased quotations, more or less dissociated from the facts which provoked their expression. When that method is employed, sentiment is apt to obscure reality. In the very nature of things, the correct answer can only be arrived at by the method used in the Navone case, that is, by an inquiry into the facts and circumstances surrounding the case at bar.

Lester Rorick and the appellants, John James O'Donnell and Joseph R. O'Donnell, were charged in one count of the information with having, on November 26, 1935, murdered Trent A. Sickles, a police officer, when interrupted by him while they were committing a burglary in a Seattle tavern, and, in the other count, with murdering officer Theodore E. Stevens at the same time and place and under the same circumstances. Rorick was granted a separate trial. The trial of appellants began on November 17, 1936. On November 25th, the jury found the appellants guilty on both counts, and, in the case of Joseph R. O'Donnell, directed that the death penalty should be inflicted.

The evidence on behalf of the state was, in substance, as follows: On November 26, 1935, at about 4:30 a.m., Charles Maskell, who lives about two hundred feet from the Elk tavern, saw some lights flashing therein, and notified police headquarters. In about fifteen minutes, two officers arrived in a prowler car, looked about the building, and walked in. Several shots were fired. "Three men ran out of the tavern, two north and one south." About two minutes later, another prowler car arrived. Mrs. Maskell testified to the same effect, saying: "Two men ran north after the shooting and one south." F.V. Winkler, who lived directly across from the Elk tavern, testified that he heard several shots; that one man ran around the corner and "I saw two other men run north." A fourth witness, living in the neighborhood, saw one man run south, and testified that at least more than one escaped in another car which was parked within fifty feet of her house, for she heard them talking together as they started the car.

Within a few minutes after the three men ran away, two other police officers arrived at the tavern. They found Officer Stevens doubled up on the doorstep, with a bullet through his liver. He begged them to look after Officer Sickles who, he said, was more severely hurt. They found Sickles dying just inside the door. A portion of his face had been blown away by a shotgun charge. Stevens died the next day. On the premises, the officers found a bolt cutter which had been used to cut the lock on the door, and some crowbars and an electric drill which had been used to drill the locks on the steel cabinets enclosing the slot machines. Some of these appliances were identified by owners from whose premises they had previously been stolen by breaking and entry.

The state called Rorick, John O'Donnell's brother-in-law. He testified, in substance, that he and the two appellants, on November 25th, planned to break into the Elk tavern and steal the slot machines, and he agreed to meet them at the tavern at one o'clock a.m. He overslept, but appellant Joseph R. O'Donnell called him by phone about two. He took his car and met the O'Donnells in their car near the Elk tavern. They thought it was too early to break in and went elsewhere to get something to eat. Later, the three men returned to the Elk tavern. Rorick identified the tools found on the premises. They were brought there by Joe O'Donnell in the secret compartment of his car. Joe O'Donnell carried the shotgun; Jack O'Donnell a .45 automatic. The witness had a .32 Mauser. At about four o'clock, they cut the lock on the door with the bolt cutter. The two O'Donnells went inside to drill the locks on the slot machine cabinets. Rorick went outside to serve as lookout. When he thought the O'Donnells were about through, he went in, and just then Jack O'Donnell said: "Here comes a car without lights." They heard someone back of the building. Then they came around to the front of the building. The three men hid in the booths. One officer came in the door and said: "It looks like they are gone." Joe O'Donnell said: "Wait until both come inside." Joe O'Donnell yelled: "Stick them up," and the shooting began.

The witness did not know whether he shot an officer or not. Everything happened so fast. He ran out of the building carrying the Mauser in one hand and a .38 revolver, which he had picked up in the tavern, in the other. On his way, he was shot in the leg, presumably by the accidental discharge of one of his own guns. He dropped both of them. They were found by a milkman and produced at the trial. He got in his car and drove down 90th and met the O'Donnells in their car. The three of them went to the home of a man named Jurey, where Rorick's wound was dressed. He had participated, with Joe O'Donnell, in seven or eight previous slot machine raids, but Jack O'Donnell was present at only one of them.

Jurey testified that the O'Donnells rented his garage, stating that they were in the slot machine business and wanted it as a place to repair slot machines. He built the secret compartment in Joe O'Donnell's car. I quote a portion of his testimony, as abstracted by the appellants:

"Jack and Joe both worked on the slot machines. They came to my house on the morning of November 26th. Lester Rorick was with them and had been shot in the knee. They came about five in the morning. They said Lester had had an accident."

Josephine Pierce, a sister of Rorick and of John O'Donnell's wife, testified that Jurey phoned her to pick up Rorick's car. Not being able to find it, she sought the aid of Jack O'Donnell to show her where it was parked.

The foregoing is by no means a complete digest of the state's case, but it is, I think, a fair statement of its salient points. It is, at least, sufficient to show that it cannot be said, as was said in the Navone case, "The state's case was none too strong at best."

The defense opened with an attempt to prove an alibi for Jack O'Donnell. His wife, who had been estranged from him, was called and testified that she happened to be at his house on the night of November 25th, and that he was there all night; that at five or five-thirty in the morning, Joe O'Donnell rapped on the window and called Jack O'Donnell out; that he dressed and went away with Joe. It is impossible to analyze her testimony here, but it is extremely unconvincing, and it is difficult to see how the jury could have given it any credit. There was another woman in the house at the time who was not called.

John O'Donnell then took the stand on his own behalf. On his examination in chief, he detailed the various crimes of which he had been convicted and for which he had served three terms in Walla Walla. He said that there was bad feeling between himself and Rorick. Rorick had been keeping bad company, and he had advised him to break away from his evil associates. He denied ever having had anything to do with his brother's and Rorick's slot machine activities and all evidence of any kind and character which tended to prove that he was at the Elk tavern on the morning of November 26th. He testified that he had been awakened by Joe's rapping on his window at about 5:30 that morning. He was told that Rorick had been accidentally shot. Joe asked him to park Rorick's car and accompany them to Jurey's house, all of which he did.

At the end of his testimony in chief, John O'Donnell's attorney moved for severance, and also for leave to withdraw from the case, stating that he had lost the confidence of his client. In the argument which followed, Joseph O'Donnell took part. In urging the court to provide his brother with another attorney, he said: "My brother's life is at stake." Be it said to his credit that he seems to have been greatly concerned for his brother. He was also concerned for himself. I find in the appellants' abstract the following testimony by Ernest Yoris, chief of detectives, Seattle police department, given on cross-examination just before the close of the case:

"I have talked to him [Joseph O'Donnell] in this court since the trial opened. He asked me if they could both plead guilty and take life. I told them they would have to take it up with Mr. Magnuson."

Joseph O'Donnell was recalled on sur-rebuttal very shortly thereafter and testified that certain statements ascribed to him by Yoris were never made. He did not, however, include the above mentioned matter in his denials.

The motion for severance and for substitution of attorneys having been denied, Joseph O'Donnell was called as a witness. He testified that he and Rorick had been in the business of stealing slot machines, and that they stored them at Jurey's. That Rorick was to meet him at twelve o'clock on the night of November 25th to burglarize the Elk tavern. That Rorick did not turn up, and he called him by telephone at two a.m. That Rorick was already in the vicinity when he drove up to the tavern at 2:20. That they concluded it was too early and drove then out into the country. When they returned, they opened the secret compartment in his car, took out the drill, bolt cutter, and crowbar. Rorick carried the shotgun and the .32 Mauser. They cut the lock off the door and entered.

He began drilling one of the steel slot machine cabinets when Rorick came in and said there was a car coming without any lights. He ran to the back door. Somebody tried it and said: "Come out of there." They knew then they could not get out the back and they returned to the front of the building. Rorick picked up a gun from the back bar and handed him the shotgun. They crouched in the booths. I here quote from appellants' abstract, which, upon comparison with the statement of facts, appears fair and accurate. Italics used here and elsewhere are mine.

"Two men came in. I did not know they were officers. One man stopped just opposite the booth I was in. One man had a shotgun or rifle in his hand. I said, `Don't move, stick them up.' The man opposite turned and I realized that it was his life or mine,I shot that man. I did not want to hit him and tried to shoot over his head."

That, of course, constituted a confession of murder in open court. It may be noted at this point that an expert on gunshot wounds testified that the shotgun must have been held within two or three feet of Sickles' head. Both the autopsy surgeon and Captain Yoris testified that Sickles was shot from the back. His bloody uniform coat, with a portion of the collar blown away, is among the exhibits.

Joseph O'Donnell further testified that, when he and Rorick met again shortly after they had made their get-away, they went to Jack O'Donnell's home, awakened Jack, told him that Rorick had been accidentally hurt, and asked him to help take care of him. Jack O'Donnell objected, saying that he was not on speaking terms with Rorick, but finally went along.

With the exception of the details of a feeble and ineffective attempt to prove that Rorick was especially well-treated in the county jail, the foregoing is, I think, a fair picture of the defense.

Our rules governing procedure and the admission and rejection of evidence are so highly technical that it is almost impossible to conceive a record entirely free from error in a case, either civil or criminal, which has been bitterly contested for five or six days, as this case was, no matter how skillful the attorneys engaged or how able the trial court. It is obvious, therefore, that cases cannot be reversed simply because errors have occurred, but only when those errors are harmful. If it were otherwise, litigation would be interminable. The experienced and able judge who presided over the trial of this case, and who was in a better position to determine whether or not the error was harmful than anyone else could possibly be, has held that it was not harmful by denying the motion for a new trial and entering judgment and sentence. I do not see any reason why his determination of the matter should not be accepted.

The statements of the prosecutor, which are complained of, were made at the very opening of the trial, and, in view of the fact that the minds of the jury were almost immediately fixed upon crimes in comparison with which burglary is trivial, and remained so fixed for five or six days, I cannot doubt but that they were almost, if not altogether, forgotten.

It is claimed that the prosecutor's statement forced the appellants to take the stand, thus giving the state an opportunity to go into their criminal records. In view of the case made out by the state, what else could the appellants have done other than take the stand; and, as to these other crimes which they themselves detailed without waiting for cross-examination, the court gave them the utmost possible protection. I find among the instructions the following:

"Neither should you determine the facts in this case because of other acts and things admitted by any defendant. Each defendant here is either guilty or not guilty by reason of his acts on the morning of November 26, 1935."

It is argued, however, that the prosecuting attorney's statement may have induced the jury to direct the death penalty in the case of Joseph O'Donnell. Again, I cannot believe or imagine that the prosecutor's statement was in the minds of the jury as they deliberated upon the fate of Joseph O'Donnell. They had before them in the jury room the blood-drenched and shottorn tunic of Trent Sickles and six or seven large photographs of his body; horrible, gruesome, closerange photographs of his head, with the side of his face shot away. If, as the members of the jury examined those exhibits, there was any statement made at the trial ringing in their ears, it was not the comparatively mild statement of the prosecutor made a week before, but the statement of Joseph O'Donnell himself, made to them from the witness stand a few hours before: "I shot that man." In any event, why should it be thought or supposed that the members of the jury directed that Joseph O'Donnell should suffer the death penalty because the prosecuting attorney called him a burglar, when they had his own personal assurance that he was, in fact, a murderer?

It is rightly said in the majority opinion that the appellants are not alone involved here. When we have broken down our long-established rule, we may expect other counsel to remain silent when like errors are committed and speculate upon the outcome, secure in the fact that, if the case goes against their clients, they can invoke the precedent made in this case to secure a new trial and thus further put off the day of reckoning, or, perhaps, by some fortunate break, escape it altogether.

It is further said in the majority opinion that the appellants may be tried again without great inconvenience to the state, other than the expense of trial, and that this will be a small price to pay for the maintenance of the standard of judicial fairness "which is our boast." The average citizen is likely to say that a system which restores the presumption of innocence to a defendant who has confessed his crime under oath in open court, and sends him back for a new trial, in which he may be, due to one mishap or another, declared wholly innocent, is nothing to boast about.

For that matter, I have not, of late, heard many boasts about the American system of criminal procedure. I have had the impression that it was generally agreed that we had fallen far, far behind the English system from which it was derived. I have very recently heard it said, by an expert in the matter, that, in comparison with the present English system, our system is positively mediaeval. I had supposed that it was generally agreed that this is one of the principal reasons why America is so much more grievously crime-ridden than England and the English dominions. If this is true, or only half true, or if it has in it only a modicum of truth, it is no time to take this backward step.

In my opinion, the judgments and sentences appealed from should be affirmed.

STEINERT, C.J., and TOLMAN, J., concur with ROBINSON, J.