State v. Heffernan

Ott, J.

(dissenting)—I dissent for the following reasons: (1) During the trial, a smear slide taken approximately twenty-four hours after the offense was marked for identification. Upon appellants’ objection thereto, the slide was not admitted into evidence. The appellants did not thereafter request that the expert’s testimony with reference to the slide be stricken and the jury instructed to disregard it. The majority state in this regard that

“If it were reasonable to suppose that an instruction to disregard this testimony would have removed its effect from the minds of the jury, the appellants, having failed to request such an instruction, would be foreclosed at this point.”

With this statement, I agree. However, the majority further state:

“. . . But we think the impression created by this evidence was ineradicable from the minds of reasonable men. ... We must conclude that an instruction, no matter how framed, could not have prevented the mischief. In such a case, a new trial is the only adequate remedy.” (Italics mine.)

With this statement, I disagree. A trial by jury in criminal cases is fundamental in our democratic system of jurisprudence. Amendment 6, United States Constitution; Art 1, *417§ 22, state constitution. Each juror, upon assuming the duties of office, takes a solemn oath that he will follow the court’s instructions and decide the case upon the instructions and the evidence. For a majority of this court to hold that jurors do not follow the court’s instructions, and will not disregard evidence when instructed by the court to do so, is to hold that jurors cannot be trusted; that they violate their oath of office, and that our jury system is an utter and complete failure. This court has consistently held that jurors are presumed to follow the court’s instructions. State v. Kelsey, 46 Wn. (2d) 617, 283 P. (2d) 982 (1955), and cases cited.

The majority cite State v. Albutt, 99 Wash. 253, 169 Pac. 584 (1917), in support of their contention. In the cited case, a general instruction was given relating to all objectionable evidence. With reference to the sufficiency of a general instruction, this court said:

“When incompetent evidence is erroneously permitted to go to a jury, and an attempt is subsequently made to withdraw it from their consideration, the direction of the court should be plain and specific—if the harm done is to be avoided. ...” (Italics mine.)

According to the cited decision, a specific instruction to disregard the harmful testimony would have been sufficient. The case does not support the majority’s determination.

From my reading of the record, there is no basis for the assumption on the part of this court that the jurors empaneled to try this case in any manner violated their oath of office, and the presumption that they would have followed the court’s instructions must stand.

(2) The expert’s questioned testimony was not material to establish any element of the crime. The sordid details of the manner in which the appellants perpetrated the crime upon the 15-year-old complaining witness included many felonious instances of penetration. Penetration alone is the gravamen of the offense, and whether discharge followed as a result of the penetration is immaterial. The jury chose to believe the evidence of the complaining witness that she had been ravished sexually by two of the appellants, and *418that the third aided and abetted the other two in the commission of the offense, and returned a verdict accordingly.

(3) Finally, the majority hold that “The evidence was in considerable conflict, and the jury could well have found the uncorroborated testimony of the complaining witness implausible.”

• I agree that the evidence was in conflict, and that there was no corroboration of the complaining witness as to the fact of intercourse itself. Corroboration in such cases is, by statute, not required, and the jury was so instructed. The complaining witness’ girl companion testified to having seen the complaining witness lying stark naked on the bed at three o’clock in the morning; that the three appellants were standing beside her, and that she was crying when her companion entered the room. This evidence, together with that of the complaining witness relating to the forcible disrobing and repeated assaults by the appellants (aged 19, 21, and 22) during a considerable period of time, is certainly plausible, and the jury, exercising their discretion, so found.

In my opinion, the appellants had a fair and impartial trial by jury, and the judgments and sentences based upon the verdicts should be affirmed.

Mallery and Foster, JJ., concur with Ott, J.