70 Wn.2d 854, THE STATE OF WASHINGTON, Respondent, v. RICHARD ALLEN RINKES, Appellant THE STATE OF WASHINGTON, Respondent, v. GERALD HERBERT BARNETT, Appellant THE STATE OF WASHINGTON, Respondent, v. MITCHELL THOMPSON, Appellant

[Nos. 38452, 38446, 38441. Department Two.      Supreme Court      March 23, 1967.]

THE STATE OF WASHINGTON, Respondent, v. RICHARD ALLEN
                              RINKES, Appellant.

THE STATE OF WASHINGTON, Respondent, v. GERALD HERBERT
                              BARNETT, Appellant.

THE STATE OF WASHINGTON, Respondent, v. MITCHELL
                          THOMPSON, Appellant.*

[1] Searches and Seizures - Legal Entry - Consent of One Authorized to Show Premises. Knowledge of stolen goods deposited in that portion of a warehouse leased to one of the defendants was not obtained in violation of U.S. Const. amend. 4, where the police entered the building without a warrant upon the invitation of another person who had discovered the openly displayed goods while exercising his authority to show the building to prospective tenants.

[2] Same - Fruitless Search - Standing to Object. A defendant has no basis to object to a search of property under his control without a warrant having been obtained, where no evidence was obtained as a result of the search, and the search was futile and fruitless in a legal sense.

[3] Same - As Incident of Arrest - Admissibility of Evidence. Evidence seized incident to a lawful arrest is admissible in a criminal prosecution.

[4] Criminal Law - Trial - Verdict - Affidavits in Support - Hearsay. A hearsay affidavit by counsel based on statements from jury members as to matters influencing their deliberations cannot be used to sustain a verdict.

[5] Same - Trial - Verdict - Submission to Jury of Matters Not Admitted Into Evidence. Consideration of any material by a jury not properly admitted into evidence vitiates a verdict when there is a reasonable ground -to believe that the defendant may have been

* Reported in 425 P.2d 658.

[3] See Ann. 51 A.L.R. 424; Am. Jur., Searches and Seizures (1st      ed. 19).

 Mar. 1967]              STATE v. RINKES               855

prejudiced; hence, the inadvertent submission to the jury of an extraneous newspaper article alleging lenience on the part of local judges in dealing with criminals was reversible error.

Consolidated appeals from a judgment of the Superior Court for King County, No. 42522, Ward Roney, J., entered July 23, 1965. Reversed and remanded.

Prosecution for grand larceny. Defendants appeal from convictions and sentences.

James Gooding (of Reaugh, Hart, Allison, Mortimer & Prescott), for appellant Rinkes and Thompson (Appointed counsel for appeal).

Irving C. Paul, Jr., for appellant Barnett (Appointed counsel for appeal).

Charles O. Carroll and Larry L. Barokas, for respondent.

FINLEY, C. J. -

This is a consolidated appeal on an agreed statement of facts. The three defendant-appellants were tried together and convicted of grand larceny by possession of stolen plumbing supplies. Each was sentenced to a maximum of 15 years in the penitentiary. Defendants Rinkes and Thompson make three assignments of error. The first two relate to an allegedly prejudicial comment, not supported by the evidence, made by the prosecutor in his opening statement, and to the admission of evidence purportedly obtained in violation of defendant Thompson's Fourth Amendment rights. The only assignment of error made by defendant Barnett is the same as the third assignment of error made by Rinkes and Thompson. It involves consideration by the jury of an allegedly prejudicial newspaper editorial with accompanying cartoon which was accidentally sent to the jury room.

At the trial, the defendants moved to suppress all physical evidence taken from them at the time of arrest, any statements given to the police at that time and any visual evidence which was made available to the police when they looked through apertures in the warehouse at which the defendants were arrested. The motion, which was denied

 856    STATE v. RINKES      [70 Wn.2d 854

by the trial court, was based on the following background facts.

One DeVore, who was leasing a warehouse from a man named Riddle, was behind in his rent, and they agreed that each would look for a subtenant. DeVore gave Riddle a set of keys so that Riddle could show the premises. DeVore and defendant Thompson thereafter agreed that Thompson would rent a portion of the warehouse for a week to 10 days to store equipment. DeVore told Thompson that Riddle and some brokers would continue to try to rent the premises during Thompson's Occupancy. On April 6, 1965, Riddle came to the warehouse for the purpose of showing it to a prospective subtenant. On entering, Riddle saw boxes labeled "Bowles Northwest", which were apparently visible from all portions of the warehouse. He remembered reading about a burglary of Bowles Northwest and called the police. A detective responded, and Riddle took him into the warehouse and showed him the boxes. The building was then placed under police surveillance from a school across the street until April 11, 1965, when the defendants were arrested, Rinkes and Barnett in the building and Thompson outside. During the surveillance, the police entered the warehouse and looked inside the Bowles Northwest boxes.

[1] We find no violation of the Fourth Amendment which is of any assistance to the defendants. Thompson did not at any time have exclusive possession of the demised warehouse. He rented only a portion of the building for a short period of time, and he agreed and understood that other people, including Riddle, would be entering and leaving the premises. Riddle observed the Bowles Northwest boxes from an area riot leased to Thompson. This occurred while Riddle was legitimately present for the purpose of showing the warehouse to a prospective subtenant. The detective who came to the scene at Riddle's invitation thus also legally entered and observed the boxes. When an officer is lawfully invited to enter, it would seem to be logically rather clear that there is no illegal entry, and the officer is able legally to observe that which is obvious, State v. Reed,

 Mar. 1967]          STATE v. RINKES               857

56 Wn.2d 668, 354 P.2d 935 (1960), aff'd. sub nom. Reed v. Rhay, 323 F.2d 498 (9th Cir. 1963), cert. denied, 377 U.S. 917 (1964).

[2] It was after the detective saw the boxes that the warehouse was placed under surveillance from a school across the street. Defendants Rinkes and Thompson complain that no search warrant was obtained during the 5 days that the building was under surveillance. It is clear, however, that none was necessary merely to maintain police surveillance from across the street. As a matter of fact, no search warrant was obtained because no search was necessary nor would it have served a useful purpose at that point; the police already had the information that a large number of Bowles Northwest boxes, matching those stolen were in the warehouse, and they could have obtained no further information as to the identity of the perpetrators of the theft had they conducted a search. The entrance of the warehouse and the examination of a few of the boxes by police officers during the surveillance was thus futile and fruitless in a legal sense. Since there is no indication that any evidence was thus obtained, the defendants have no basis for objection. See Burke v. United States, 328 F.2d 399 (1st Cir. 1964). That is to say, certainly the defendants were no more prejudiced than by the first, entirely legal observation of the boxes by Riddle and the detective which eventually resulted in their arrest.

[3] When the defendants did appear at the back of the warehouse on April 11, 1965, and began to load the stolen goods on a truck in the presence of police, the officers had probable cause to believe that a felony had been or was being committed. The consequent arrest was lawful. State v. Nolan, 69 Wn.2d 961, 421 P.2d 679 (1966); State v. Brooks, 57 Wn.2d 422, 357 P.2d 735 (1960). The acquisition and seizure of evidence later used at trial was incident to a lawful arrest, and thus the evidence was properly admitted. State v. Schwartzenberger, ante p. 103, 422 P.2d 323 (1966); State v. Smith, 56 Wn.2d 368, 353 P.2d 155 (1960).

Defendants Rinkes and Thompson cite State v. Riggins,

 858    STATE v. RINKES           [70 Wn.2d 854

64 Wn.2d 881, 395 P.2d 85 (1964), and State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962), in support of their position on the Fourth Amendment issue. Neither of these cases is apposite. Both involved illegal searches productive of evidence admitted at trial. We find no merit to the defendants' Fourth Amendment argument.

In his opening statement, the deputy prosecuting attorney told the jury that Jeanne Nicholson, alleged to be the girl friend of defendant Barnett, would testify that, sometime after the burglary of Bowles Northwest, she saw defendant Barnett burning labels which read "Bowles Northwest." The jury was also told that Miss Nicholson would implicate all three defendants in the crime. No objection was made to the opening statement. When Miss Nicholson was called, she relied upon the Fifth Amendment, refused to testify, and her refusal was upheld by the trial court. No motion was made to strike the opening statement nor was there a motion for a mistrial or for cautionary instructions. The state made an offer of proof as to the testimony anticipated from Miss Nicholson. This was based upon her statements to police officers.

First it should be stated that we are convinced the prosecutor's remarks were made in good faith. Miss Nicholson had made a statement to Seattle police officers which substantiated the comments made by the prosecutor. During the trial, when Miss Nicholson was called to the stand, counsel for defendants Rinkes and Thompson asked the court's permission to interview the witness in private. After a recess; during which time she was interviewed by defense counsel, the witness returned to the courtroom with her attorney, who theretofore had not been in the courtroom. At this point, Miss Nicholson claimed the privilege of the Fifth Amendment and refused to testify. The state made the aforementioned offer of proof out of the presence of the jury, and no further questioning of Miss Nicholson occurred in the presence of the jury. There is

 Mar. 1967]          STATE v. RINKES               859

every indication that the prosecutor was genuinely surprised by Miss Nicholson's refusal to testify and that he intended no misconduct. We note further that the dubious comment now questioned here was made in the opening statement, when pertinent testimony was reasonably anticipated, rather than in the closing statement after all the available evidence had been presented.

If we were to decide the problem presented by defendants it would be significant, of course, that the defendants failed to preserve any rights which they might have had by moving to strike the offending portion of the opening statement and by requesting that the jury be instructed to disregard it, or possibly by moving for a mistrial when Miss Nicholson raised the Fifth Amendment. The general rule is that one cannot voluntarily elect to submit his case to the jury and then, after an adverse verdict, claim error which, if it did exist, could have been cured or otherwise ameliorated by some action on the part of the trial court. State v. Perry, 24 Wn.2d 764, 167 P.2d 173 (1946). The only exception to this rule is in the case of remarks or misconduct so obviously prejudicial or flagrant that an instruction could not have cured the inflammatory effect. Nelson v. Martinson, 52 Wn.2d 684, 328 P.2d 703 (1958); State v. Perry, supra. The instant case does not thus qualify, in our judgment, particularly in view of the instructions given to the jury, that the statements of counsel are not evidence and that only the evidence admitted in the trial is to be considered.

The three convictions involved must be reversed for another reason, so it is actually unnecessary to reach a decision on this assignment of error. The error, if any, is unlikely to reoccur at a subsequent trial of the same cause.

The third issue raised, which is dispositive of this appeal, involves a newspaper editorial and cartoon which went to the jury. The jury in the instant case was empaneled on

 860    STATE v. RINKES      [70 Wn.2d 854

June 16, 1965, and permitted to go home that night. The following morning, June 17, 1965, an editorial and cartoon appeared in the Seattle Post-Intelligencer which were most critical of supposedly lenient court decisions in criminal actions, and criticized certain allegedly liberal probation policies of some of the judges of the King County Superior Court. The cartoon and editorial are reproduced below.
      `Gentlemen, Prepare Your Weapons!'

Notice: Graphical Material Omitted.

      See Official Report Bound Volume.

 Mar. 1967]          STATE v. RINKES               861

                     Lenient Court Decisions
                     Threatening Your Security
LAST WEEK the King               ceived a near-fatal shock. Lenin
County prosecutor felt impelled ency was shown also to a man
to go before the Superior Court who shot in the back a process
to recommend leniency for an      server who had served him with
elderly woman who admittedly      divorce papers. A 23-year-old
had embezzled nearly $40,000      burglar was given probation al-
from her employers to hand over though he had already served
to a male friend.                two prison terms and was on
The prosecutor's reasoning      parole when he committed his
was this: he found it inconsistent third known crime.
to send an aged woman to prison      In all but one of these cases
for stealing, considering that so the prosecutor recommended
many who have robbed at the      prison terms. But the courts
point of a gun have been allowed saw fit to make it probation in-
to go free on probation.           stead.
His point was well taken. By      THE LIST SEEMS endless,
and large the local bench has de- and it grows by the week.
veloped an amazingly tolerant      In one day seven men and a wom-
pattern in the handling of what an were brought before a judge
used to be considered grave      for sentencing for various
crimes.                          crimes: robbery, burglary, mis-
Granting probation for armed     appropriation of funds.
robbery, once unheard of, has be-
come commonplace.                    Not one of the eight went to
Within one month before the      prison.
elderly woman came up for sen-      The record further shows
tencing three robbers had re-      that long criminal records are
ceived probation from the courts. no bar to probation. One such
                                   was up for a narcotics rap. He
AMONG OTHERS who had           got probation, and the judge even
received probation for robbery be- got down off the bench to shake
fore them was a nineteen year old his hand. Within a year the
who confessed three filling sta- criminal was back at the rail for
tion robberies in which he took participating in $20,000 worth of
along a fifteen year old helper. burglaries.
Another had held up a restaurant     We could go on with the sor-
and left three employees bound     ry, incredible record, but this
with tape. Still another held up gives you an idea.
a food market and then a delica-
tessen at the point of a rifle. An The bench and bar might well
ex-reformatory inmate from      contemplate what this crystalliz-
Ohio abducted a housewife in her ing pattern does to the morale of
own automobile and robbed her. police officers.
All these criminals were           They might well consider
granted probation.                what it does to encourage others
This is a dangerous pattern     to crime.
which feeds upon itself. Proba-      They might well think of the
tions for serious crimes create inherent dangers in this mount-
precedent for further probations. ing record of probations.
Let's look at this curiously      "The quality of mercy is not
soft-hearted record further.      strained," the poet said. "It
Probation has been granted      droppeth, as a gentle rain from
to dozens of death drivers. It Heaven.
was granted to a man who           Maybe so. But the bench of
knocked down two women with      this region is certainly straining
his fists because he was brood- itself as to mercy, and probations
ing about an unhappy first mar- are no gentle rain. They have be-
riage.                          come a downpour which threat-
Probation was given to a man     ens torrential damage to the
who pleaded guilty to wiring a     peace and security of Seattle
bathtub in which his wife re-      and the county.

 862    STATE v. RINKES      [70 Wn.2d 854

All three defendants moved for a change of venue or in the alternative for a continuance on the grounds that the jury members, who might have had access to the newspaper in question, would be prejudiced by reading this material. The editorial and cartoon, marked "Defendants Exhibit One," were offered to the court solely for purposes of the motion and out of the jury's presence. Through inadvertence, this material went into the jury room with the other exhibits.

[4] The prosecuting attorney subsequently stated in an affidavit that he had contacted three members of the jury who stated that they were not influenced in their deliberations by the editorial. Such a hearsay affidavit by counsel cannot be used to impeach a jury verdict. Cox v. Charles Wright Academy, ante p. 173, 422 P.2d 515 (1967). For similar reasons, a verdict cannot be sustained by such an affidavit. State v. Burke, 124 Wash. 632, 215 Pac. 31 (1923). The situation would be no different if the affidavits were those of the jurors themselves. State v. Adamo, 128 Wash. 419, 223 Pac. 9 (1924).

[5] The newspaper material clearly should not have gone to the jury room. This court has stated that consideration of any material by a jury not properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have been prejudiced. State v. Burke, supra. See also State v. Boggs, 33 Wn.2d 921, 207 P.2d 743 (1949), and Marshall v. United States, 360 U.S. 310 (1959). In McCarthy, Fair Trial and Prejudicial Publicity: A Need for Reform, 17 Hasting L.J. 79 (1965), the author comments with approval on the Marshall holding that consideration by jury members of any material, the admission of which at trial would be reversible error, is inherently prejudicial.

Here we have a case where not just the character of the defendant was attacked, but rather the alleged leniency of the judicial process in regard to criminals. The material published in the newspaper was clearly intended to influence the readers of it to be concerned about the

 Mar. 1967]          STATE v. RINKES                863

purported leniency to alleged criminals of Seattle area judges. It was so calculated that it may well have evoked in jury members feelings or convictions of the necessity for being stricter and less careful about observing legal principles and procedure in dealing with defendants accused of crime. We think the material was very likely indeed to prejudice the cause of the defendants in this case. We cannot accept the state's argument that, since the material was marked as a defense exhibit. it would therefore, as a matter of course, be considered in the light most favorable to the defendants. Nor do we agree that defense counsel had a duty to check the exhibits before they went to the jury in view of the existing practice to the contrary.

We are convinced that the defendants were unable to meet or cope with the prejudicial effect of the material. The jury had no guidelines or specific instructions regarding it. Under the circumstances, we will not speculate at great risk to the defendants. We feel compelled to assume that the requisite balance of impartiality was upset. We note particularly that this is not a case, such as State v. Adamo, 128 Wash. 419, 223 Pac. 9 (1924), where the jury was instructed not to consider the extraneous newspaper material, and could be presumed not to have done so, since it was a matter outside the evidence. Nor do we have a case, such as State v. Harris; 62 Wn.2d 858, 385 P.2d 18 (1963), where interrogation of the jury by the trial court established that no jury member had read the questionable portion of a newspaper article which was found in the jury room. In the instant case, the jury was in effect instructed to consider the very like]y prejudicial material since it was marked as all exhibit and they were specifically instructed to consider all the exhibits. We can only presume that the members of the jury did as they were instructed.

The convictions should be reversed and the case remanded for a new trial free from potential taint, by the extraneous material inadvertently before the jury in this case. It is so ordered.

 864    BERG v. SETTLE      [70 Wn.2d 854

WEAVER, ROSELLINI, and HAMILTON, JJ., and BARNETT, J. Pro Tem., concur.

May 29, 1967. Petition for rehearing denied.