# State v. Hieb

> Court of Appeals of Washington · December 24, 1984 · 39 Wash. App. 273

URL: https://www.frixlaw.com/law-library/cases/9547469

## Case

- **Full name:** The State of Washington, Respondent, v. Peter Jacob Hieb III, Appellant
- **Court:** Court of Appeals of Washington
- **Decided:** December 24, 1984
- **Citations:** 39 Wash. App. 273; 693 P.2d 145; 1984 Wash. App. LEXIS 3620
- **Precedential status:** Published
- **Opinion:** Concurring in part by Williams
- **Judges:** Ringold, Callow, Williams
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by State v. Hieb, 107 Wash. 2d 97 (1986).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9547469

## Opinion text

Williams, J.
(concurring in part, dissenting in part) — I am unable to concur in the majority opinion reversing the judgment of conviction of second degree murder and granting a new trial because the 3-year-old child was not present in court to testify. As I view the record, Hieb consented to her not being there, i.e., he waived his right of confronta *285 tion. The purpose of that right is to "advance a practical concern for the accuracy of the truth-determining process in criminal trials ..." State v. Kreck, 86 Wn.2d 112, 118 , 542 P.2d 782 (1975). "Whether the confrontation right has been denied must be determined on a case-by-case basis after examination of all the circumstances and evidence." State v. Boast, 87 Wn.2d 447, 453 , 553 P.2d 1322 (1976).
As shown by the record, the circumstances are that on the day trial commenced the question of the admissibility of a statement by the 3-year-old, Shawna Turner, to a deputy prosecuting attorney was argued to the court upon Hieb's motion in limine. The substance of the statement was contained in the report of a police officer in attendance at the meeting between the deputy prosecutor and Shawna. A copy of that report was in the hands of defense counsel and before the trial judge. The report was not admitted as an exhibit at trial and hence is unavailable but it clearly appears from the report of proceedings that defense counsel and Hieb were then advised of what the child had said and that the deputy prosecutor, not the child, would be the witness in that regard. Defense counsel acknowledged that Shawna would not be a witness at the trial when he said,
The other question here is certainly the evidence is going to be extremely contradictory on some of these other instances where people have seen bruises not only on the deceased but also on Shawna, the three-year-old, who will not be called as a witness, as to how they were caused and admissions apparently by the mother and babysitter that they were caused — some of them that were referred to here may have been caused at the babysitter's house.
(Italics mine.)
While still on the motion and before the jury was selected, the following occurred:
The Court: Have you completed your argument?
Mr. Short: Yes.
The Court: Will Shawna Turner be called as a witness during the trial of this matter?
Ms. Roe: At this point I don't intend to call her.
*286 During the cross examination of the deputy prosecuting attorney at trial, defense counsel inquired into the conditions of the interview and actions of both the deputy prosecuting attorney and Shawna. At no time was there an objection to introduction of Shawna's statements because she was not present nor did defense counsel at any time, although having full opportunity, even ask the prosecuting attorney about Shawna's availability as a witness.
Although the majority reverses the judgment because Shawna was "not called as a witness", defense counsel showed no interest in having her present. Rather he spoke with apparent agreement that she not take the stand. As a trial tactic this could well have been the best possible move, far less damaging than direct testimony from the little girl. The evidence was admissible under State v. Goebel, 40 Wn.2d 18 , 240 P.2d 251 (1952), and there was more of it available from other sources. The following applies:
Having noted appellant's decision not to call Hartzog to the stand, apparently for tactical reasons, it would have been reasonable for the prosecution not to have called Barr on its own initiative. While the burden of producing out-of-court declarants is generally on the prosecution, Simmons v. United States, 440 F.2d 890, 891 (7th Cir. 1971), where a defendant's apparent trial tactics and his obvious reluctance to call or subpoena a witness indicate his intention not to seek cross-examination, the "unavailability" factor will not be applied to require exclusion of the extrajudicial statements.
State v. Boast, 87 Wn.2d 447, 455 , 553 P.2d 1322 (1976).
Under the circumstances it would be unconscionable to apply the "unavailability factor" in this case. Therefore, I dissent.
Reconsideration denied January 31, 1985.
Review granted by Supreme Court May 10, 1985.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9547469. Public record. Not legal advice.