79 Wn.2d 647, THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT CANADAY, Appellant
[No. 41370. En Banc. Supreme Court September 23, 1971.]
THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT
CANADAY, Appellant. «*»

To warrant a new trial on the ground of newly discovered evidence requires five essentials: The newly discovered evidence must be such that it (1) would probably change the result of the trial; (2) could not have been discovered before trial by the exercise of due diligence; (3)

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was actually discovered since the trial; (4) is material and relevant to the issues; and (5) is not merely cumulative or impeaching. State v. Adams, 181 Wash. 222, 43 P.2d 1 (1935); State v. Gibson, 75 Wn.2d 174, 449 P.2d 692 (1969); State v. Peele, 67 Wn.2d 724, 409 P.2d 663 (1966).

The evidence alluded to in counsel's affidavit and upon which a new trial is sought appears to have been neither newly discovered nor is it evidence available and admissible as competent, material and relevant. There was no showing that the purported evidence was unknown to or in the exercise of due diligence undiscoverable by the defendant before trial. Eunice Thomas, the proposed witness, had been held captive by the defendant for many hours; the accused knew that during this interval he had been under her observation and in her view. Defense counsel's affidavit made on behalf of the accused in support of the motion for a new trial acknowledged that defendant had forcibly taken the young woman to a cabin, threatened to rape her and held her involuntarily captive by force, fear and violence. It thus showed that Canaday had earlier and better knowledge of the witness and the information and facts to which she could testify than had the prosecution. Knowledge of what the witness saw, heard and felt was thus readily available to the defendant long before trial. Eunice Thomas' testimonial knowledge, therefore, from the very circumstances of her captivity was known to the accused long before trial and cannot be deemed newly discovered evidence.

The trial court could also consider whether the evidence described as newly discovered actually existed and would be available at a new trial. Defendant did not show in counsel's' affidavit or elsewhere what Eunice Thomas would testify to on a new trial. Her affidavit not only failed to support counsel's affidavit but implied that she had no testimonial knowledge that would be material or relevant to the issues or tending to support the defense of insanity, and to the contrary could quite possibly show not only sanity, but scheme, design and premeditation. She neither said nor

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implied that defendant's' demeanor, behavior and conduct during her captivity gave her the opinion that he was insane or mentally irresponsible. Thus, none of the first four essentials to the granting of a new trial appeared to exist as set forth in State v. Adams, supra, and we hold perforce that the court did not abuse its discretion in denying a new trial sought on the grounds of newly discovered evidence.

In assignments 14, 15 and 16, defendant challenges the admission of exhibit No. 23, a diagram or sketch presumably drawn by Mary Bjornson to aid in giving someone directions, and to the testimony of one Donald Brian Simmer, a neighbor of Mary Bjornson, regarding statements made to him by Mary Bjornson at a time before she entered Canaday's car for the ride that ended in her death. In its case in chief, the prosecution called Donald Simmer, a young man who lived in an apartment near the one occupied by Mary Bjornson on the day of her disappearance. He was planning to entertain three guests in his apartment for dinner later that evening and Mary Bjornson came there at about 8 p.m. for a brief visit. She was at that time wearing a 1-piece pink chiffon dress and white high-heeled shoes. During their conversation, she indicated she was going out for the evening.

Following is the testimony of Mr. Simmer, along with the admission of the sketch, to which error is directed. It should be noted that defendant made no objection to this testimony:

Q. (By Mr. Kinzel) Now, Mr. Simmer, at the time that Mary came to your apartment at eight o'clock, did she make any statement relative to something that had just happened? Answer yes or no.

A. Yes.

Q. And what was the - What were the statements made by her?

A. She said that a man had just been there, that is, to her apartment, asking about Steve, the proximity of Steve, which I inferred to be Steve Shelton who was a friend of Linda Williams' who lived there. She said that he had asked about Steve and that she - she had said that she didn't believe Steve was there, but that Linda Williams' apartment was upstairs, and she directed him up to Linda Williams' apartment. He came back, she said, a

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short time later, and again then asked for a pencil and a paper to write a note which she gave to him, and then he left again and came back very quickly after that and said that he had left a note, that he would be back in about an hour.

Q. Okay. Now, did she mention anything as to what this man wore?

A. Yes.

Q. What?

A. She said he had on a blue Navy coat; those were her words.

Q. Did she mention anything as to what he looked like?

A. Yes. She said he looked young, rather husky.

Q. Now, Mr. Simmer, how long did Mary remain at your apartment?

A. Until 8:30.

Q. And what did she do then?

A. She went back to her apartment, saying that she had something cooking on the stove and that she wanted to tend to that.

Q. Did you ever see her again?

A. No. I did not.

Simmer testified that later, while still in his own apartment, he heard someone knocking at the door of Mary Bjornson's apartment. He heard her apartment door closing and then shortly thereafter the door closing again. More than 2 hours later that evening, when he entered her apartment, he saw that "food was still cooking on the stove," her "purse [was] in the bedroom," and her cigarettes were "on the kitchen table." Referring to the diagram (exhibit No. 23), he said that he and Mary had worked on some art projects together. And on the witness stand, he identified the sketch or diagram which had been found in her apartment by others as a drawing characteristically and distinctly hers. Defendant cross-examined the witness extensively.

Simmer's testimony corroborated and was corroborated in turn by that of another young man, Donald Duane Thornton. Called as a witness by the prosecution next following Mr. Simmer, Thornton said that he and Mary Bjornson were to go dancing that evening of January 4 at the Civic Center where a West Indian dance band was playing. He told her he would arrive at her apartment between 8:30 and 9. When he did get there at 9:05, he said, nobody was home, the curtains were open and the door unlocked. He "checked with Brian Simmer who lived next door to see if she was over there, and he came out and said no, that she had gone back to the apartment to prepare

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supper." Simmer told him he thought she'd be back soon, so Thornton said he sat down and listened to music in Mary's apartment. He noticed the food cooking on the electric stove, and that the oven and three burners were on. On a piece of paper (exhibit 23) on the kitchen table, "There was a little diagram," the one which Simmer identified (exhibit 23) as having been drawn by Mary Bjornson. No objection was made by defendant to Mr. Thornton's testimony. Corroborating this evidence, a police officer testified that on January 7, after Mary's disappearance had been brought to the attention of the police department, he found the diagram or sketch (exhibit 23) on the kitchen table of her apartment. He marked it with his initials and placed it in the department's evidence file.

Defendant objected to the admission of exhibit 23 on the ground that "while it has been identified as being an object that was found in the premises, it has not been connected to this case." He contends, too, that Mary Bjornson's remarks to Simmer were hearsay, and that the sketch found on the kitchen table remained unconnected with any issues in the case. The prosecution urges that exhibit 23, the sketch, was properly identified and when regarded with all of the evidence proved to be material, relevant and competent and rationally connected to a wealth of other evidence presented in its case in chief. The prosecution thus contends that exhibit 23 was properly admitted; that Mary Bjornson's statements to Simmer, unprompted and spontaneous - to the effect that a husky young man in a navy pea coat had made inquiries about one Steve Shelton - were admissible as a part of the res gestae. We find the state's position sound on both points.

As earlier noted, exhibit 23 was a sketch or diagram identified by witness Simmer who, because he knew her style of drawing, testified it had been made by Mary Bjornson. The sketch had been found on her kitchen table shortly after her mysterious disappearance under circumstances of time and place from which the jury could infer that her disappearance was in some way related to or connected

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with someone who had asked for and to whom she had given directions. The sketch, received in evidence as exhibit 23, was corroborated by defendant's written confession of the abduction and murder of Mary Bjornson and in turn was corroborated by the testimony of Simmer who said that Mary had remarked to him that evening of her disappearance that someone had "asked about Steve Shelton." The stranger had asked her for pencil and paper with which to write Shelton a note and she had told Simmer that he said he would be back in about an hour to see if their neighbor Steve Shelton had returned. From this testimony considered with all of the other evidence, it could be inferred that Mary Bjornson had given directions, illustrated by a sketch, to an unidentified man inquiring how to find Steve Shelton's apartment and who had later returned to her apartment and thence lured her away to her death. These inferences in turn were corroborated in time, place and event by the defendant's written confession, his oral statements to the police and sheriff's deputies and a wealth of other evidence. Exhibit 23, the sketch, competently identified by Simmer as having been drawn by Mary Bjornson and found on her kitchen table, was, we think, material and relevant and, therefore, properly admitted.

There were several sound reasons for admitting Simmer's testimony about the husky young man in the blue navy pea coat. First, most of Simmer's testimony described the actions and a series of verbal acts of Mary Bjornson tending to prove that she had talked to Simmer in his apartment at about 8 p.m., had been in Simmer's presence until about 8:30, had left there saying that she had to tend to something cooking on her stove. It was during the course of this conversation with Simmer that she casually remarked that a stranger had come to her door looking for a Steve whom she assumed to be a neighbor named Steve Shelton; that the stranger returned and asked for a pencil and paper with which to write a note to Steve; and that he had returned quickly saying he had left a note and would be back in an hour. This evidence could be viewed by the

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jury as tending to show that Mary Bjornson was alive and in her apartment at 8:30; that she was not expecting to be leaving it to go anywhere except with Donald Thornton, the young man with whom she had a date to go dancing later that evening; and that her unexplained and mysterious disappearance was not connected with any of her plans for the evening. Simmer said that later, about 15 minutes after Mary Bjornson had left his apartment, he heard the sound of her apartment door opening and closing and a short interval later being closed again, leaving the inference subsequently fully corroborated - that she had left her apartment at about 8:45 p.m. When Thornton, her escort for the evening, testified that he asked Simmer 20 minutes later or at about 9:05 if he knew where Mary was, the jury could infer that, during the intervals between the sounds of her door closing and Thornton's arrival at Simmer's apartment, she had left her apartment for the last time. No objection was made to any of this testimony as it came in.

Nor was any objection particularly made to Simmer's testimony that Mary Bjornson had said that the stranger inquiring about Steve Shelton who had said he would return later looked young, rather husky, and had on a blue navy coat. A blue navy pea coat found in a search of Canaday's bedroom closet, was later marked as exhibit No. 36 and received in evidence without objection.

Defendant knew that other evidence in possession of the state would show that he was a husky young man, and that at the time of Mary Bjornson's departure he was wearing a blue navy pea coat. Knowing this and that this evidence would be fully corroborated later by his own statements and in part by his written confession, defendant may have decided that objections would be pointless and thus made none to its admission. Before signing a written statement of confession to each crime, the defendant gave detailed oral statements to the police. Lieutenant Schoener of the Seattle homicide unit testified that Canaday at first denied knowledge of the two dead girls but later, when he asked if he knew anything of the disappearance of Mary Bjornson,

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Canaday told him that he was involved. He described to the officer and later on cross-examination how, while wearing his navy pea coat, he had gone to her door, much as Mary Bjornson had related this incident to Simmer. On cross-examination, the defendant, having made no objection directed to the testimony nor motion to strike nor request for instruction, supplied strong corroboration to this evidence when he described his first encounter with Mary Bjornson, and testified:

Q. Okay. Now, but you had never seen the Bjornson girl, the brunette, prior to knocking on the door?

A. Yes.

Q. But you had no other purpose at that point other than to look for a girl?

A. Yes.

Q. All right. Now, at the time you went to the door, were you wearing your peajacket?

A. Yes.

Q. This is it? (Indicating)

A. It should have my name in it.

Q. Okay. Let's take a look.

A. Yes, it is.

Q. And you had this peajacket on?

A. Yes.

He thus on cross-examination corroborated the testimony to which he now assigns error by testifying that he had gone to Mary Bjornson's door; that while there was actually nothing wrong with his car he told her there was something wrong with the car in order to induce her to come out of her apartment and get into the front seat of his car; that she was cooperative when he went to her door; that he got her out to the car, lifted the hood and asked her to start the car; that she started the car and he walked around to the driver's side and pulled a knife he had concealed on the floor under the seat; and that she started to scream so he put his hand over her mouth telling her to be quiet. When asked on the witness stand, "Did she appear to be scared," he testified: "Yes. I think anybody under that situation would." According to the defendant, it was after Mary Bjornson had shown her fear of him and the knife that he drove her in his car away from her residence area to the place he described as the hydroplane pits on Lake Washington where ultimately he tied her hands and murdered her.

On cross-examination, when asked about the rape and murder of the other girl, Lynne Tuski, he said that, at the

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time, he was wearing his blue pea coat. Thus, abundant evidence admitted without objection tended to prove the things which defendant now says were proved by the evidence to which he assigns error as hearsay, i.e., that he was the person to whom Mary Bjornson referred when she casually mentioned to Simmer that a husky young man wearing a navy pea coat had come to her door looking for Shelton and said he would return soon.

[2] Aside from the absence of an objection or motion to strike out the testimony or request to the court to limit its application, the record shows that the remarks of Mary Bjornson to Simmer were admissible as proof of the res gestae. The state produced Simmer's testimony about the husky young man in a blue Navy pea coat inquiring about one Shelton and remarking that he would return later to show not only time, place and sequence of events but as a substantive part of its proof of the crimes charged. It was evidence tending to prove the commencement of the abduction, the departure, and the beginning acts in execution of a criminal scheme and plan. Statements growing naturally out of the event and made by the deceased spontaneously or instinctively evoked without premeditation or reflection, and made close enough in time to the event which produced the statements, exclude the presumption of design, calculation or fabrication.

Accordingly, these statements of Mary Bjornson to Simmer concerning the husky young man in the navy pea coat were, we think, properly admitted as a part of the res gestae in accordance with principles stated in Moen v. Chestnut, 9 Wn.2d 93, 113 P.2d 1030 (1941), and Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939). Recently, in State v. Daba, 75 Wn.2d 234, 450 P.2d 183 (1969), this court, passing upon the res gestae exception to the rule against hearsay, affirmed these principles. In that case, it was contended that insults and name calling from across the street and other statements made to the deceased which preceded a fatal stabbing were inadmissible as hearsay. There was testimony that the victim's two companions asked defendant's

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companion, one Quebral, "to call his friend off," to which Quebral answered, "Your friend asked for it, and he is going to get stuck." Discussing the objection to this evidence as hearsay, this court reviewed the res gestae principles and held that the conversation and verbal exchanges preceding the actual killing were all an integral part of the main event even though the stabbing required but a few seconds and the verbal exchanges covered about 10 minutes.

Declarant Mary Bjornson's statements, we think, meet the standards set by the res gestae rule concerning exceptions to excludable hearsay. Her casual, offhand remarks to her friend Simmer that a husky young man in a navy pea coat had come to her door in search of one Shelton who lived in one of the apartments, and would return in about an hour, was a remark evoked by the event itself, not a product of deliberation or premeditation. It was a remark made so close in time to Mary Bjornson's leaving her own apartment never to be seen alive thereafter by anyone who knew her as to be part of the event or occurrence for which the defendant was standing trial. Her casual offhand comments made at a time when and under such circumstances that she could not have anticipated their significance belied the idea of deliberation, design or fabrication.

This court, along with many others, adheres to the rule as stated in 31A C.J.S. Evidence § 403(1) (1964), that, to be admitted as a part of the res gestae, "While the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation." Accord: Wafers v. State, 444 P.2d 825 (Okla. Crim. 1968); State v. Reese, 250 La. 151, 194 So. 2d 729 (1967); and Smith v. State, 44 Ala. App. 96, 203 So. 2d 279 (1967).

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automobiles, threatening them and committing other acts of terror. There was ample evidence to support the indictment. A witness, speaking of one Guest, allegedly involved in the same conspiracy but not on trial, testified that Guest had told him that the three defendants had been "chasing a Negro car with a D.C. tag on it;" that the three defendants had the declarant (Guest's) gun; and that he (the declarant) would have gone with them when they pursued the Negro to his car, but was alone at his place of business and couldn't leave it at the time.

Upholding the admission of these statements' as a part of the res gestae, the court said:

Moreover, since Guest himself had furnished the gun for the chasing of the Penn car, we agree with the United States that this statement by him as to the use that his co-conspirators were putting the gun to was admissible as part of the res gestae, that is of Guest's act in permitting his alleged coconspirators to take his weapon with him. Rogers v. United States, 5 Cir., 334 F.2d 83, 84,86.

Donald Simmer's testimony concerning the statements made to him by Mary Bjornson was, we think, properly admitted.

Defendant directs several assignments of error to the removal of insanity or mental irresponsibility from the case. In instruction No. 25, the court expressly withdrew that issue from the jury's consideration. Defendant contends, too, that the court should have made a finding that he was mentally incompetent to stand trial.

As to defendant's competence to stand trial, no issue was ever made of it before or during trial. To the contrary, on the morning of trial, the defendant through his counsel requested leave of the court to withdraw his plea of not guilty and to enter a plea of guilty to count 4 of the amended information which charged him with assault in the second degree against one B.B. This request to withdraw and change pleas was made without any indication, suggestion or even implication that the defendant was

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incompetent to make it, or that he was suffering from any mental or emotional disability that would vitiate his plea. The court thereupon granted defendant's request, allowed the plea of not guilty to be withdrawn and, so far as can be seen in the record, the defendant voluntarily, deliberately and competently entered the plea of guilty with neither indication nor claim of mental incompetency.

The record additionally shows that three psychiatrists examined John Canaday before trial - one on April 14, 1969, another on April 16, 1969, and the third not quite 2 weeks later, on April 27. Each doctor prepared and furnished the court and record with a detailed report of the examination and of his observations, findings and conclusions. Each psychiatrist found, and so reported in writing, that the defendant was sane and not psychotic at the time the crimes charged were committed. Two of the doctors expressly concluded from their examination that defendant appreciated his peril, was able to assist in his defense, and knew at the time of examination and at the time of the commission of the crimes charged the difference between right and wrong. There was no evidence whatever to the contrary and nothing in the record to warrant further inquiry by the court on the question of whether the accused was mentally competent to stand trial. State v. Gwaltney, 77 Wn.2d 906, 468 P.2d 433 (1970); State v. Henke, 196 Wash. 185, 82 P.2d 544 (1938); Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960). Moreover, where there is little or no basis in evidence for a claim of incompetency to stand trial, the court is under no duty to require a mental examination. State v. Tate, 74 Wn.2d 261, 444 P.2d 150 (1968). The record shows no basis to support the claimed error that the accused was mentally incompetent to stand trial.

[3] Whether the court properly withdrew from the jury the issue raised by defendant's plea of insanity or mental irresponsibility at the time of the commission of the crimes charged is, as noted, also raised as an assignment of error. Insanity or mental irresponsibility is not to be

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presumed. To constitute a defense to a criminal charge, the accused must prove by a preponderance of the evidence that he was suffering from a disease or mental condition so affecting the mind that, at the time the crime is charged to have been committed, he was unable to distinguish right from wrong with reference to the acts charged. State v. Tyler, 77 Wn.2d 726, 466 P.2d 120 (1970); State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962); State v. Carpenter, 166 Wash. 478, 7 P.2d 573 (1932); and State v. Reece, 79 Wn.2d 453, 486 P.2d 1088 (1971). As a general rule, the court ought not submit to a jury issues of fact which are unsupported by the evidence. State v. Woods, 163 Wash. 224, 1 P.2d 219 (1931). Insanity or mental irresponsibility being an issue raised by affirmative defense, is not to go to the jury unless there is substantial evidence to support it. The accused must, therefore, present substantial evidence of his insanity or mental irresponsibility or the court should not submit it as an issue to the jury. State v. Tyler, supra; State v. Rio, 38 Wn.2d 446, 230 P.2d 308 (1951); State v. Piche, 71 Wn.2d 583, 430 P.2d 522 (1967); State v. Niblack, 74 Wn.2d 200, 443 P.2d 809 (1968). Thus, where the affirmative defense of insanity or mental irresponsibility is pleaded and at the conclusion of the evidence there is no substantial evidence to support that plea, the court should withdraw the issue from the jury's consideration. State v. Tyler, supra; State v. Rio, supra; State v. Piche, supra.

The court ruled correctly when it withdrew the issue of insanity or mental irresponsibility from the jury, for the record shows a lack of evidence to support that issue and establish it as an affirmative defense. Of four witnesses called by defendant, not one gave evidence from which the jury could infer his insanity or mental irresponsibility. Dr. John B. Riley, a psychiatrist, testifying on defendant's behalf, said that the defendant was a sexual psychopath, a finding, he said, which excluded insanity, mental deficiency or irresponsibility; one who is mentally deficient, irresponsible or insane, he said, cannot under Washington law, be considered a sexual psychopath. On cross-examination, the

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doctor testified that defendant's conduct and personality were consistent with sanity, that defendant had no disease which would prevent him from knowing the difference between right and wrong on the dates of January 4, 1969, and January 24, 1969, and that defendant knew the difference between right and wrong in the strangling of Mary Bjornson and Lynne Tuski. Neither witness Raymond Guy Van Gelder, a boyhood friend, nor defendant's brother, James, could or did testify that defendant was mentally irresponsible or insane, and the defendant's own testimony established no basis for such a finding.

Two other psychiatrists, Dr. Richard Jarvis and Dr. George MacDonald, who had examined the defendant, both testified that he was not mentally irresponsible or insane at the time of the two killings, and the defendant presented no evidence tending to show that he suffered from a mental condition or disease which rendered him incapable of distinguishing right from wrong in accordance with the rule in M'Naghten's case as applied in this jurisdiction. There being no substantial evidence to support the issue raised as an affirmative defense by plea of insanity or mental irresponsibility, the court properly withdrew it from the consideration of the jury.

In the next assignment of error to be discussed, defendant contends that it is unconstitutional to require one to defend on the issue of guilt or innocence and at the same time meet the issue of whether, in case of guilt, the death penalty be inflicted. Defendant thus' assigns error to the submission of the two issues to the jury at the same time without interruption. Implicit in this contention is the argument that, in those jurisdictions where the jury and not the court must decide upon the death penalty, the constitutions require the courts to grant what has become known as a bifurcated trial, i.e., a first trial on the issue of guilt and, if the verdict is guilty, then a separate trial to the jury on whether the death penalty shall be inflicted.

[4] There is now little doubt that the legislature may constitutionally prescribe that the issue of the death

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penalty be resolved by the same jury which tries the issue of guilt and that both issues may be resolved in one return of general and special verdicts, or as it is sometimes described the single-verdict procedure requiring that the jury return its verdicts into court at the same time at the conclusion of the evidence, summation and deliberation.

RCW 9.48.030 represents a time-honored prescription of this procedure, and one prevailing in the great majority of the states. This legislatively-established procedure for the trial of capital cases, requiring that questions of guilt and penalty be submitted simultaneously and resolved by the trial jury in its return of the verdict at the same time has almost universal support in this country. Defendant has not called our attention to any authority that this procedure constitutes a denial of due process of law or denial of equal protection of the laws or is otherwise invalid. In State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962), and again in State v. Cerny, 78 Wn.2d 845, 480 P.2d 199 (1971), the court upheld the constitutionality of RCW 9.48.030. In State v. Smith, 74 Wn.2d 744, 776, 446 P.2d 571 (1968), passing directly upon this point, we said:

It is contended that the submission to the jury of the issues of guilt and punishment in a single trial resulted in the denial to the defendants of the right to present evidence on the issue of punishment. This contention is patently without merit, inasmuch as neither defendant was denied the right to present whatever evidence he thought relevant and desirable on this issue. The defendant Smith presented evidence about his background and capabilities; the defendant Riggins did not see fit to do so. Defense counsel also argued to the jury the reasons why the death penalty is considered by many to be unwise and unnecessary to effect the legitimate aims of society.

Here, as in Smith, the defendant supplied extensive evidence of his personal history, family relationships, marital life, social and educational background and development. At no time throughout the trial was defendant denied an opportunity to present to the jury competent admissible evidence touching upon the issue of the penalty. His candid

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acknowledgment with many descriptive details of several vicious crimes, carried out by plan and scheme and after deliberation, freely confessed by him both in direct and on cross-examination, may have been largely motivated by the thought on his part that, in the face of such overwhelming and damning evidence this would be the best if not the only tactic available to him to avoid the death penalty. Whether a bifurcated trial shall be authorized in capital cases has always been and remains a question to be resolved by the legislature. Constitutional principles concerning due process and equal protection of law and procedures established to insure fair and impartial trials either by statute or rule do not mandate and legislatures are not required to provide for separate trials on the issues of guilt and punishment. That the legislature may provide for bifurcated trials does not mean that under the constitutions it must do so. Spencer v. Texas, 385 U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967); United States v. Curry, 358 F.2d 904 (2d Cir. 1966). This question has been laid to rest, we think, in McGautha v. California, 402 U.S. 183,28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971), which held that the constitution does not bar the states from prescribing that the jury in capital cases shall in a single trial make simultaneous return of its verdicts as to both guilt and punishment.

Appellant assigns error to the search of his bedroom and his automobile by Seattle police officers and their seizure of certain articles at the time of his arrest. As earlier noted, Canaday was arrested at his residence when the officers were called there by John Thomas, a young naval officer whose sister had been held captive by the defendant for more than 2 days. A series of witnesses were offered by the state to lay a predicate for the admission of these exhibits. One Gerald L. Robinson, a mutual friend of John and Eunice Thomas, testified that on Friday, February 21, 1969, John Thomas called him at about 6 p.m., to tell him and his wife that he had been waiting 2 or 3 hours for Eunice and to inquire whether the Robinsons had any knowledge of her whereabouts or could offer any explanation of her

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absence. Robinson said he met John Thomas at Eunice's apartment about 8 p.m. to find two police officers there taking down a missing persons report. He said that Thomas mentioned that someone had given him a description that fit John Dwight Canaday. The next day they called the accused's former wife to find out the kind of car Canaday had been driving and where he would be living in Seattle. They were informed he would be driving a "white stationwagon, about a `65 or `66 model" and that he was living with his parents on Dayton Avenue North, at what sounded like No. 12527.

Robinson drove to that vicinity and "spotted a car that matched the description that I had of his car, and I noticed that Eunice Thomas was sitting in the passenger side on the front seat." Circling the block twice, Robinson drove past the house again and saw the same white station wagon in the driveway and saw Eunice and a man entering the house. He called John Thomas and 10 minutes later Thomas, accompanied by his uncle, arrived, and at that moment Eunice came running from the house telling them that Canaday had some guns and rifles. She was crying, he said, her eyes were red, and she had scars or bruises across her mouth and bruises on her neck. A few minutes later, the police arrived and the Thomases and Robinson reported to them what they had seen and heard.

John Thomas, in his testimony, corroborated Robinson's description of these events preceding the search, describing how he had waited for and searched for his sister and how he had learned that she had been last seen with John Dwight Canaday, the defendant. He told of learning that Canaday at the time had been driving a small white Chevrolet station wagon. He testified of calling Canaday's residence on the telephone, of Canaday's response, and then Thomas related to the jury as follows:

A. Yes. I asked, "John Canaday?" He said, "Yes." I identified myself and said that I understood he had my sister, and he very quickly said, "No; no. I dropped her off in the University District last night." I said, "You're a

682 STATE v. CANADAY [Sept. 1971
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liar. Someone just saw you take her into the house." At that point, he said, "Just a minute," and he went off the phone, and I could hear voices in the background. I couldn't determine or who or what was being said. I couldn't determine who was talking or anything else, but he came back on the phone and admitted or - Yes, admitted that my sister was indeed there. I demanded to talk to her. He said, "Just a minute," again, and repeated - I could hear murmuring of some sort in the background.

He came back on and said, "Okay. Here's your sister."

And my sister came on the telephone and l spoke with her briefly, and then he came back on and said, "She's okay," and then I said, "I'm coming out to get her," and then hung up.

Q. Did he request any manner in which you come out there to his house?

A. He did say, "Be sure and come alone."

Q. And did you subsequently drive out to the Canaday house at 12527 Dayton Avenue North?

A. Yes.

John Thomas corroborated Robinson's description of Eunice Thomas' battered condition, describing a large bruise on a corner of her mouth and rope bums around her neck.

When the police arrived a few moments after Eunice had run from the house, they met Eunice Thomas' uncle and Gerald Robinson, who informed them of what had transpired earlier and of the events of the 2 preceding days. Acting partly on information given them at the scene and partly on Eunice's appearance, they went to the door and Canaday opened it. The officers entered, told Canaday he was under arrest and advised him of his rights to remain silent and to an attorney. They then searched the white station wagon parked in the driveway. In the car under the edge of the front seat on the driver's side they found a trench knife and two pair of gloves in the front seat area, one glove being on the seat and three on the floor. They found several pieces of rope on the back seat of the car and on the front and rear floorboards. The knife, the gloves and some of the pieces of rope were marked as plaintiff's exhibits offered and received in evidence without objection.

Officers Robert Bender and Charles Lindbloom, almost immediately after entering the house, searched the area of

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defendant's bedroom where they found a glove and a gray blanket similar to one they had seen in the station wagon, and in the bedroom closet they found a blue navy pea coat. These were admitted into evidence without objection.

[5] Defendant did not object to their admission or make timely motion to exclude these exhibits. He raises the issue now for the first time. With rare exception, this court will not consider and reverse on claims of error made for the first time on appeal. The trial court must be given an opportunity to consider and rule upon claims of error related to the admissibility of evidence. Fisher v. Jackson, 120 Wash. 107, 206 P. 929 (1922); State v. Murley, 35 Wn.2d 233, 212 P.2d 801 (1949); State v. Reid, 74 Wn.2d 250, 444 P.2d 155 (1968).

We feel impelled, however, to consider the assignment of error despite the lack of objection or want of timely motion to exclude the exhibits on account of the intervention of Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), filed June 23, 1969, long after the challenged search but less than 2 weeks before the commencement of trial July 8, 1969, and now cited by the defendant as a bar to the search for and seizure of evidence made at the time of his arrest at his residence on February 22, 1969.

In addition to the want of objection to the admission of these exhibits taken during the search of the station wagon and the accused's bedroom, and the lack of timely motion to exclude or bar this evidence, there are, we apprehend, many reasons why Chime, v. California, supra, is not applicable.

[6] Assuming, without deciding, that the Chimel holding would apply if given retroactive effect, we think it was not designed to and does not operate retroactively but rather announces a kind of rule of criminal procedure which should be deemed to have prospective application only. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966). This is in accord with the holding in Desist v. United States, 394 U.S. 244, 22 L. Ed. 2d

684 STATE v. CANADAY [Sept. 1971
79 Wn.2d 647, 488 P.2d 1064

248, 89 S. Ct. 1030 (1969), that the wiretap rule declared in Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), would not be given retroactive effect or application. We agree with the categorical statement in United States v. Harris, 435 F.2d 74 (D.C. Cir. 1970), that Chimel ought not and will not be given retroactive effect. Desist v. United States, supra.

But even if Chimel were given retroactive effect, it is doubtful that it would control here. In Chimel, three policemen went to the accused's home and were admitted by defendant's wife. They waited there to serve him with an arrest warrant for a coin shop burglary committed at a different time and place but not specified in the opinion. They had no search warrant, but over the accused's declared protests searched the house, attic, garage and workshop, opening and sifting the contents of drawers in the bedroom and sewing room. The search without a search warrant took between 45 minutes and an hour and yielded evidence of an incriminating nature including coins and medals. It should be noted that, although the Chimel opinion does not reveal where and when the burglary took place for which the arrest warrant had been issued, there is nothing either to suggest that at the time of his arrest on his return to his home where the officers awaited him with a warrant, the defendant was then engaged in, about to engage in, was withdrawing from the scene of, or fleeing from the commission of a felony. The search in Chimel was made under circumstances and conditions of minimal personal danger to the officers when they could quite readily have obtained a search warrant at the time they got the arrest warrant.

In the instant case, aside from the failure to note objections to the search and seizure at the trial or earlier, the search of the car and room was made at a time closely related to the arrest of the accused for a serious and violent crime then in course of or so close to completion as to be a part of it. The tests under both constitutions is whether the search was reasonable under the circumstances.

Sept. 1971] STATE v. CANADAY 685
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The officers here, unlike those in Chimel, were acting under the enormous pressures of a sudden and extremely grave emergency. Arriving at the accused's house under an emergent summons to find a young woman just released from a reported apparent kidnapping, abduction and assault, and bearing the marks of battery and physical captivity - crimes terminated so close in time as to be still a part of an apparent and continuous crime - with the perpetrator possibly armed and conceivably with confederates about the premises, the officers took what would appear to be reasonable and intelligent police action under the circumstances. First, they arrested the accused, taking him into custody, explicitly warning him of his rights to be silent and of the other rights and privileges said to apply to persons taken into custody. Then, moments later, they searched the automobile which had been reported to them as having been used in the commission of the crime, and after being freely admitted to the house, they almost simultaneously searched the accused's bedroom where he had obviously been.

[7] The search of the car and the bedroom for weapons and other articles possibly employed in the commission of serious crimes of violence were, we think, under these circumstances of a continuing crime, reasonably incident and appropriate to a lawful arrest for a vicious crime of violence. The United States Constitution, amendment 4, states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Italics ours.), and Const. art. 1, § 7, states:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Constitutionally, the basic test is whether the search was reasonable under the circumstances, and we think that under neither provision could the search and seizure be

686 STATE v. CANADAY [Sept. 1971
79 Wn.2d 647, 488 P.2d 1064

deemed either unreasonable or unlawful in the circumstances and conditions revealed by the instant record. To hold otherwise would make the law itself a means of destroying and concealing evidence and the constitutions a device for preventing peace officers from taking reasonable steps to protect and preserve crucial evidence from destruction or mutilation, or loss of identity of crucial evidence through inability to preserve a continuous police custody of the exhibits, or protecting themselves and others from felonious assault by possible confederates, allies or friends of the accused. The search of the bedroom was, we think, lawful under United States v. Rabinowitz, 339 U.S. 56, 94 L. Ed. 653, 70 S. Ct. 430 (1950), and Harris v. United States, 331 U.S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098 (1947), and Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790 (1925); and of the automobile under the long-held principles reiterated in Agnello v. United States, 269 U.S. 20, 70 L. Ed. 145, 46 S. Ct. 4, 51 A.L.R. 409 (1925), and in Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970).

The assignment of error, therefore, directed to the admission of evidence obtained in a search of defendant's automobile and bedroom a few minutes after his arrest in his residence is not well taken because (1) no objection to the admission of the articles taken in the search was made at trial or before; (2) no timely motion to exclude this evidence was made before or during the trial; (3) Chimel v. California, supra, ought not and does not have retroactive application; and (4) the search under these circumstances, even under Chimel, would be deemed a reasonable one and lawfully incident to the arrest.

[8] Defendant directs assignments of error 2, 3, 4, 5, 6, 7 and 9 to the court's excusing of certain jurors for reasons of their opposition to the death penalty. In capital cases, veniremen may be excluded from the jury for conscientious or religious scruples against the death penalty by virtue of RCW 10.49.050 which precludes persons whose views are

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such as to prevent them from returning a verdict of guilty.«1» Other statutes covering selection of juries provide for challenges by both parties. RCW 10.49.040, 4.44.170(2). Although defendant does not cite it, his arguments on these assignments are aimed at what we perceive to be the principles expressed in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and later in Boulden v. Holman, 394 U.S. 478, 22 L. Ed. 2d 433, 89 S. Ct. 1138 (1969), and Maxwell v. Bishop, 398 U.S. 262, 26 L. Ed. 2d 221, 90 S. Ct. 1578 (1970). Seven prospective jurors, in the course of selecting the jury, were excused by the trial court on the grounds of their stated opposition to the death penalty. In each instance, the venireman categorically declared that, regardless of the evidence, he or she could not possibly vote for the death penalty and could conceive of no case or circumstance in which he could bring himself to vote to impose it. Every prospective juror excused on this ground, in one way or another, stated his position against the death penalty as being fixed, irrevocable and unalterable, and that, regardless of the evidence, the circumstances and the court's instructions in case of a verdict of guilty, he or she would automatically vote against the imposition of the death penalty.

The record shows that in each instance the defendant made no objection to the exclusion of any of the seven prospective jurors, and further that no well-taken objection could have been made to the court's excusing them. The jury was selected, impaneled and sworn in accordance with the Witherspoon doctrine. Accord: Hawkins v. Rhay, 78 Wn.2d 389, 474 P.2d 557 (1970).

Finding insufficient merit in the remaining assignments of error to warrant discussion, we are of the opinion that

«1» RCW 10.49.050: "No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense."

688 WANDERMERE CORP. v. STATE [Sept. 1971
79 Wn.2d 688, 488 P.2d 1088

the judgment should be and is, therefore, affirmed. So ordered.

FINLEY, ROSELLINI, HUNTER, NEILL, STAFFORD, and WRIGHT, JJ., concur.

HAMILTON, C.J., concurs in the result.

Petition for rehearing denied December 7, 1971.

79 Wn.2d 647, THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT CANADAY, Appellant[No. 41370. En Banc. Supreme Court September 23, 1971.]THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT CANADAY, Appellant. «*»

79 Wn.2d 647, THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT CANADAY, Appellant
[No. 41370. En Banc. Supreme Court September 23, 1971.]
THE STATE OF WASHINGTON, Respondent, v. JOHN DWIGHT
CANADAY, Appellant. «*»