Petition — Haga v. Washington

; Meeuacy Hse

Supreme Court of the United States

October Term, 1975

Eric L. Haca

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF WASHINGTON

DIVISION I

Law Offices of Epwarps,

WETHERALL & BARBIERI

By: MALcoLM L, Epwarps

RICHARD L. BARBIERI

3701 Bank of California Center

Seattle, Wa. 98164

Counsel for Petitioner

Of Counsel:

Jack A. RIcHEY

904 Pacific Building

Seattle, Wa. 98104

Murray B. GuTERSON

CRAFTSMAN @ MET PRESS SEATTLE, WASHINGTON

i

SUBJECT INDEX

Page

I. Citation to Opinion Below....................0..c.sccccsssecesesee 1

Te I aicscccinsonssnnienniennerionssnmnsonvmeetonansevonsmesatonta 2

ee Se I sliaeeinenniinianeneel 2

IV. Constitutional Provision Involved........................--.- 2

ce I ieirtacereisicceitincencencetinetiinbsneniii 3

A. Procedural Background ..................:0-:sses0se+e000+- 3

i 4

VI. Reasons for Granting the Writ.........0..0....0.....0.00000000- 9

ER SR Ne ee OE a 17

Appendices:

| EREPSTESEE = eeRE) RTE PT Re Ne Re A-1

I ae B-1

FD RG A eI Te OM MT NRE TE ATT C-1

TABLES OF AUTHORITY

Table of Cases

Barket v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92

ile. Ss Ie la taatdibicschacainccacitastencsiccotcicndseaiiiaiceiitiondiinaes 9

Codis Poti v. Pennsylvania, 418 U.S. 506, 93 S. Ct.

- Fe > | F) _. | SRC 12

Hamilton v. Lumpkin, 389 F. Supp. 1069 (1974).......... 10

Jones v. Superior Court of Los Angeles,

91 Cal. Rptr. 578, 478 P.2d 10 (1971) ....ccceccccccsessese- 10

Napue v. Illinois,

360 U.S, 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959) 12

Robinson v. United States,

459 F.2d 847 (D.C. Cir. 1072)............................ 10, 15, 16

ii

Page

Ross v. United States, 349 F.2d 210 (D.C. Cir. 1968).... 10

United States v. Barket, 18 Cr.L. 2429 (1976)................ 13

United States v. Golden,

GD Bae GEE CUT. TTA ) aecceeccncscensccncccesccceeecs 12,13

United States v. Hauff, 461 F.2d 1061 (7th Cir. 1972 )..9-10

United States v. lannelli, 461 F.2d 482 (2d Cir. 1972).. 10

United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468,

te. SF) | Se 9, 10, 11

United States v. Mones,

336 F. Supp. 1320 (S.D. Fla. 1972) ............-c.c-scseceesees 10

United States v. Norton, 504 F.2d 342 (8th Cir. 1974)

cert, denied, 419 U.S. 1113 (1975) 20.22... eeceeceseeseoee 13

Constitutional Provisions

ff > sae 2, 3, 11, 12, 17

FT Pf Rn 2

Statutes

I a a ae ll

LRRD EEE. ere enn Ene 2

Other Authority

I TO viiisstcnsitcerenisitncinomscinnnincencnnneans 2

I i dnlaesaiiniaiel 2

penitent 2

IN THE

Supreme Court of the United States

October Term, 1975

Eric L. Haca

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF WASHINGTON

DIVISION I

The petitioner, Eric L. Haga, respectfully prays that a

Writ of Certiorari be issued to review the decision of the

Court of Appeals of Washington, Division I, affirming

petitioner's trial court convictions. That decision became

final on December 15, 1975 when the Supreme Court of

Washington denied review of the decision of the Court of

Appeals of the State of Washington in this cause.

I,

CITATION TO OPINION BELOW

The order of the Supreme Court of Washington is

printed in Appendix A hereto and is reported at 86 Wn.2d

1007, ...... — The decision of the Washington State

2

Court of Appeals, to which this petition is directed, is

printed at Appendix B hereto and is reported at 13 Wn.

App. 630, 536 P.2d 648.

Il.

JURISDICTION

The jurisdiction of this Court is invoked under Title

28 USC § 1257 and Rules 19, 21, 22 of this Court.

Ill.

QUESTION FOR REVIEW

Must a state criminal prosecution be dismissed as a

violation of petitioner’s right to Due Process under the

Fourteenth Amendment to the United States Constitution

when (a) petitioner is not charged until five years after

the crimes; (b) there is no prosecution justification for

the delay in charging petitioner; and (c) petitioner's

first trial does not take place until more than five year

after the crimes charged and his retrial, from which this

is taken, does not take place until more than sevei. years

after the crimes charged; (d) in the interim defense wit-

nesses have died, defense evidence in possession of the

police has been lost, defense witnesses have moved and

cannot be located and the recollection of significant events

by defense witnesses is severely impaired; (e) there is no

applicable statute of limitations.

IV.

CONSTITUTIONAL PROVISION INVOLVED

“(N]or shall any state deprive any person of

life, liberty, or property without Due Process of Law”.

U.S. Const, Amend. XIV § 1.

3

V.

STATEMENT OF THE CASE

A. Procedural Background

Judy Haga and Peri Lynn Haga, the wife and daughter

of the petitioner, were murdered on July 6, 1966. The

petitioner was the only suspect at that time. (St. .15)°

The Coronor’s jury determined in August of 1966 that the

deaths were homicide by a person known to the Coroner's

jury. (St. 15) More than five years later on August 30,

1971, the State of Washington filed an information

against petitioner charging him with the first degree mur-

der of his ~vife and daughter. (Tr. 28) The case was

tried to a jury beginning on December 13, 1971. The jury

returned a verdict of guilty on both charges. That con-

viction was reversed because of trial error not relevant to

this appeal. State v. Haga, 8 Wn.App. 481, 407 P.2d 159

(1973). However, this state appellate court decision is

printed in Appendix C hereto to show that the due process

issue has been consistently raised and because the analysis

in the first opinion of the prejudice suffered by petitioner

from the delayed prosecution is adopted by the second

appellate decision with which this petition is concerned.

Petitioner's second trial, with which this petition is con-

cerned, began on November 26, 1973. The jury returned

a verdict of guilty on both charges. (Tr. 10)

Petitioner moved for dismissal of the charges against

him on the grounds of unconstitutional delay in his trial

For this Court’s convenience in referring to the record and briefs,

designations required by Washington State Rules of Appeal will

used in this petition. “Statement of Facts” (abbreviated St.) will

er to the verbatim report of the trial court proceedings and

trial

ranscript” (abbreviated Tr.) will refer to the documents filed in

court.

fute

4

at the beginning of his second trial (St. 228; Tr. 9, 12,

20), at the end of the prosecution's case (St. 897) and at

the end of the trial. (St. 1183-1184) Petitioner's motion

summarized the lack of prosecution justification for delay

and the prejudice suffered by petitioner because of the delay

which will be discussed in this statement of the case. (St.

228) The trial court denied petitioner's motion to dismiss

in each instance.

Petitioner's timely appeal to the Washington State Court

of Appeals resulted in the opinion set forth at Appendix

B, in which the Court of Appeals rejected petitioner's

assignment of error that the pre-accusation delay in prose-

cution resulted in violation of petitioner's right to Due

Process under the Fourteenth Amendment (Appendix B,

pp. 2-5). Petitioner's timely Petition for Review to the

Washington State Supreme Court; in which he assigned

the same violation of Due Process as a question for review,

was denied by the order printed at Appendix A.

B. Factual Background

Petitioner's wife and daughter were ‘illed on July 6,

1966. Petitioner was the only suspect when the Coroner's

jury concluded that it knew the identity of the murderer.

(St. 15) More than five years later the State formally

charged petitioner with the murders. (Tr. 28) The evi-

dence against petitioner was entirely circumstantial. Noth-

ing linked him directly to the murders. (Appendix C-3)

No new evidence was obtained during the intervening

five years and the State asserts no justification for the delay

except for a difference of opinion in the prosecutor's office

as to whether there was sufficient evidence to charge the

petitioner with the crimes. (Appendix B-2, C-6)

5

Petitioner testified at trial, denying all accusations

against him. The testimony which petitioner had remain-

ing available to him at trial indicated that at the time of

the murders petitioner and his wife and daughter were

a close and loving family (St. 558, 609, 860, 863, 869,

1065, 1066, 1010-1012); that petitioner and his wife were

both troubled by prowlers in the neighborhood (St. 560,

566, 1026-1029); and that Harmon, a man who had a

history of mental illness, blackouts while drinking, and

violence, and who had been emotionally involved with

petitioner's wife, could not substantiate his whereabouts

when the murders were committed. (St. 448-462, 786-

788 )

As a result of the delay between the time of the murders

and the time of the trials, at least the following conse-

quences resulted to petitioner:

(a) The sheriff's office lost the tape recording of ap-

proximately eight hours of interrogation of the petitioner

on the date of the murders. (St. 277, 732) The sheriff's

office had not lost the notes which it, unlike petitioner, had

made of the interrogation. The State was permitted to read

directly from these notes as a means of impeaching peti-

tioner’s recollection of what he told the officers on that

day. (St. 965-980, 985, 990, 1000) The impeachment in-

volved such critical issues as doubts about the paternity

of the murdered daughter (St. 971-981); incriminating

knowledge about how the murders were committed (St.

999, 1000, 1004, 1011), and contradictions in testimony.

(St. 732, 923) Petitioner's lack of notes and the absence

of the tape recorder eliminated the possibility of substan-

tiating that petitioner's recollection of the conversations

was the correct one. (St. 933, 934)

6

(b) The only individual who testified to threats by

the petitioner against his wife was Harmon, the unstable

individual who had been emotionally involved with peti-

tioner’s wife. The sheriff's office lost a letter from Harmon

in which he indicated that he had not been truthful at

the Coroner’s Inquest. (St. 408-410, 414-416) As a result

the letter could not be used to impeach this witness.

(c) The cancelled check for wages which could have

established the location of Harmon on the date of the

murder was lost in a flood which took place in 1972. (St.

786 )

(d) The prosecution devoted a substantial portion of

its cross examination of the petitioner to convincing the

jury that petitioner's testimony was not reliable because of

his inability to recall details of relevant events. (St. 952,

953, 956-959, 976, 977, 986, 958, 989, 991, 992, 1000, 1004,

1009, 1011, 1012, 1014, 1015, 1019). These significant de-

tails involved a substantiation of petitioner's testimony

that he was ill and thus sleeping in a different part of the

house at the time of the murders, that he had seen a

prowler the afternoon before the murders, that he had no

lingering doubts regarding his daughter's paternity, that

his wife had discovered the phone out of order and he

accidentally discovered cut telephone wires the day of the

murder, and details of how he discovered the deaths of

his wife and daughter. The delay in trial resulted in the

inability of the petitioner to answer these detailed ques-

tions by the prosecutor.

(e) By the time of the trial, both doctors who had

cared for petitioner's wife during her pregnancy with the

murdered daughter were dead and thus were unable to

7

testify that petitioner's wife was not pregnant by her for-

mer lover and that petitioner 2nd his wife Judy were a

loving couple. (St. 6, 865; Tr. 2022 Re: Dr. Penny; St. 7,

8, 864, Tr. 13 Re: Dr. Mudge) Pregnancy by another man

was the prosecution's motive for petitioner killing his

daughter.

(f) The Haga’s family priest, who would have testi-

fied to the lack cf any current marita! problems between

petitioner and his wife and further undercut the prosecu-

tion's motive for petitioner killing his wife, had left the

area and could not be located. (St. 8, Tr. 22)

(g) A family friend who was with petitioner and his

wife and children on the days immediately preceding

the murder and who would have substantiated the good

relationship between all of them, died in 1970. (St. 10)

(h) The insurance agent who wrote the insurance

which the prosecution contended petitioner put on his

wife and daughter in order to monetarily benefit from

their deaths was unable to recall whether the insurance

was sought jointly by petitioner and his wife, as contended

by the defense (St. 876, 877), or just by the petitioner as

contended by the prosecution. (St. 495, 498, 502, 509)

Nor could the insurance agent recall when the insurance

inquiry was made (St. 509), which would have supported

petitioner's testimony.

(i) The doctor who first examined the victims at the

scene of the murders was no longer able to recall and

testify effectiveiy as to his observations establishing the

time of death and could not completely verify his written

statement made at the time. (Tr. 22, St. 1080-1082, 1094,

1096-1098, 1104-1106, 1108, 1109, 1185) His testimony

placing the time of death significantly later than the prose-

cution was critical to establish that a person seen in the

window of the Haga house was the unknown killer and

not the petitioner.

(j) A neighbor who saw a person in the window of

the Haga home at 6:45 a.m. on the day of the murders

revised his direct testimony from his statement made im-

mediately after the deaths. According to the first statement,

the neighbor had seen what could have been a man wear-

ing a hat and coat in the window. His direct testimony

five years later was that the person he saw was a man

dressed in a bathrobe. (St. 724-729) Petitioner wore a

bathrobe, but not a coat and hat, the morning of the

murder.

(k) A fellow employee of the petitioner could not

be located. The employee would have substantiated the

petitioners testimony that he gave a message to his office

on the day before the murders which corroborated the

fact that the petitioner was ill and thus sleeping in another

room and unaware of the attack on his wife and daughter.

(St. 9, 529, 531)

(1) The detectives who investigated the crime could

not recall who had examined the unidentified footprints

outside the Haga home and what the results of the ex-

amination were. (St. 689-691, 719, 720) There had been

substantial testimony about prowlers in the area. (St. 559,

560, 611, 1026-1029)

9

VI.

REASONS FOR GRANTING THE WRIT

The decision of the court below is in conflict with the

applicable decisions of this Court and is in violation of

petitioner's right to Due Process under the Constitution

of the United States.

Although petitioner was not formally charged by In-

formation until 60 months after the Coroner's Jury found

that it knew who the murderer was, the Coroner's Jury

finding was the equivalent of indictment in terms of the

anxiety and concern discussed by this Court in Barket v.

Wingo, 407 U.S. 514, 33 L. Ed.2d 101, 92 S.Ct. 2182

(1972). Petitioner was the only suspect considered by

the authorities at the time of the Coroner's Jury finding

and during the entire five years the State forced petitioner

to live under this cloud without formalizing the charge.

This case is virtually unprecedented for the length of the

delay, the failure to justify the delay, and the intensity

of accusation right from the day of the murders.

The state court below acknowledged that this Court,

in United States v. Marion, 404 U.S. 307, 324-325, 30

L.Ed.2d 468, 92 S.Ct. 455 (1971), proposed a flexible test

for determining when actual prejudice resulting from pre-

indictment delay requires the dismissal of a prosecution

under the Due Process clause. The court below adopted

the more prevalent view that the Due Process test pro-

posed by this Court requires the dismissal of a criminal

prosecution when actual prejudice from the delay is shown

and the prosecutor has no reasonable justification for that

delay, (Appendix C4-5, B-2), citing United States v. Hauff,

10

461 F.2d 1061 (7th Cir. 1972); United States v. Iannelli,

461 F.2d 482 (2d Cir. 1972); United States v. Mones, 336

F. Supp. 1320 (S.D. Fla. 1972). This rule is supported by

Hamilton v. Lumpkin, 389 F. Supp. 1069 (1974); Jones v.

Superior Court of Los Angeles, 91 Cal. Rptr. 578, 478

P.2d 10 (1971); Ross v. United States, 349 F.2d 210

(D.C. Cir. 1968); Robinson v. United States, 459 F.2d 847

(D.C. Cir. 1972).

Because the appellate court below ruled that the prose-

cution asserts no justification for the five year delay, and

the court itself found no justification, (Appendix B-2, C-6,

7) the only issue remaining to be decided by the state ap-

pellate court was the existence of actual prejudice to the

petitioner.

Unfortunately, the court below actually violated the

Marion test it had recognized by requiring that the quality

of the actual prejudice demonstrated by petitioner be

weighed against the “legislative intent” expressed by the

absence of any statute of limitations whatsoever on the

crimes with which petitioner is charged. The first state

appellate decision to consider the actual prejudice suffered

by petitioner held:

“The allegations of prejudice in this case do not over-

come the absence of any statute of limitations con-

i the crime of murder in the first degree. We

hold that the actual prejudice must be sufficient to

overcome the legislative intent expressed by the ab-

sence of limitation on prosecution for such a crime,

before the prosecution be forbidden. The showing

of actual prejudice is insufficient to amount to a de-

nial of Due Process when subjected to that criteria.”

(Appendix C-9)

The state appellate court decision with which this petition

11

is concerned adopted the first decision’s analysis of the

actual prejudice suffered by petitioner. (Appendix B-4)

It also stated:

“Haga asserts that ‘the only proper factor to balance

against prejudice to the defendant from delay is any

reasonably prosecutorial justification that might exist

for that delay.’ We do not agree.” (Appendix B-3)

The analysis of the court below is faulty for two reasons.

In the first place, this Court in United v. Marion, supra

at 322, 323, held that statutes of limitations function to

establish an irrebuttable presumption of prejudice, whether

or not actual prejudice is demonstrated. This Court did not

hold, where actual prejudice has been demonstrated under

the Due Process test for dismissal due to delay, that what-

ever legislative intent might be gleaned from a statute of

limitations must be balanced against the actual prejudice

to determine whether there is a high enough degree of ac-

tual prejudice.

Secondly, state statutes cannot take precedence over

the Due Process Clause of the Fourteenth Amendment.

It is inappropriate for the court below to argue that a

state enactment, which eliminated the protection of a

statute of limitations (RCW 10.01.020) and leaves the

entire burden of protecting petitioner on the Due Process

Clause of the Fourteenth Amendment, somehow increases

the amount of actual prejudice which must be demon-

strated by petitioner to fall under the protection of the

Fourteenth Amendment.

The court below further compounded its error when it

relied upon the determination of the trial court and the

first Haga appellate decision that the petitioner was not

actually prejudiced in a great enough degree by the de-

12

lay. (Appendix B-4, 5) When constitutionally protected

rights such as due process are involved, the appellate court

must make an independent examination of the facts and

not rely upon conclusions reached by another court. Napue

v. Illinois, 360 U.S. 264, 3 L. Ed.2d 1217, 79 S. Ct. 1173

(1959) determined this precise point in reviewing a state

violation of the Due Process Clause of the Fourteenth

Amendment. The rule enunciated by this Court is:

“When constitutional rights turn on the resolution

of a factual dispute we are duty bound to make an

independent examination of the evidence in the rec-

ord.” Codis Poti v. Pennsylvania, 418 U.S. 506, 517

Note 6, 94 S. Ct. 2687, 41 L. Ed.2d 912 (1974).

In fact, the prejudice suffered by petitioner exactly fits

the definition of prejudicial effect summarized by United

States v. Golden, 436 F.2d 941, 943 (8th Cir. 1971):

“In determining the prejudicial effect of a pre-indict-

ment delay, the governing standard is whether the

delay has impaired the defendant's ability to defend

himself. e.g. United States v. Ewell, 383 US 116, 86

Supreme Court 773, 15 L. Ed.2d 627 (1966); Hodges

v. United States, 408 F.2d 543 (8th Cir. 1949); United

States v. Deloney, 389 F.2d 324 (7th Cir. 19703

United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970);

Bradford v. United States, 413 F.2d 467 (5th Cir.

1969) . . . In Hodges [supra] the Court speaking

through then Judge Blackmun, now Justice Blackmun,

concluded that to establish a claim of impairment, the

defendant must point to specific evidence which has

actually disappeared or been lost or witnesses known

to have disappeared.”

This same criteria has been most recently applied in the

Eighth Circuit to 2 47 month pre-indictment delay in which

witnesses had died and other witnesses had difficulty re-

13

membering relevant facts. United States v. Barket, 18 Cr.

L.2429 (Jan. 28, 1976) The Barket Court acknowledged

that the defendant could orly allege that the missing wit-

nesses and impaired testimony would have favored his

defense. The court held that it was up to the Government

to bear the burden of demonstrating that the missing wit-

nesses did not possess exculpatory evidence. Barket, supra,

18 Cr.L.2431 citing United States v. Norton, 504 F.2d

342 (8th Cir. 1974) (Cert. denied, 419 U.S. 1113 (1975) ).

In the case before this Court, the delay in prosecuting

petitioner was more than 60 months before the first trial

and seven years before his secoud trial. The prejudice

suffered falls exactly in the category outlined in United

States v. Golden, supra: defense witnesses had died, de-

fense evidence in possession of the police had been lost,

defense witnesses could not be located, and the recollec-

tion of those witnesses who did remain was severely im-

paired.

Petitioner's testimony was impeached by comparing his

unaided recollection with the written notes made by the

police on the day of the crime. The loss of the police tape

recording of the interrogation prevented petitioner from

showing that the notes were slanted and biased to serve

the purposes of an interrogator. Petitioner's testimony was

further impeached by his inability to recall details of rele-

vant events, all of which materially aided the State in its

efforts to destroy petitioner’s credibility and gain a con-

viction.

The location of Mr. Harmon, whom petitioner sought

to show may have been the murderer, on the day of the

murders could not be established because of lost records.

14

Harmon's testimony could not be impeached because the

police lost the letter written by Harmon in which Harmon

recanted his Coroner's inquest testimony. An attack on the

very motives for the crime could not be effectively mounted

because the doctors who would have testified that there

was no doubt about the paternity of the murdered child

were dead, and the family priest and neighbor who would

have testified to the reconciliation between petitioner and

his wife could not be located or had died. Petitioner's re-

buttal of the State’s claim that petitioner had originated

life insurance on his murdered wife and child in order to

gain enough money from the murders to purchase a par-

ticular car could not be substantiated because of the im-

paired recollection of the insurance agent.

And, as a final example from the many which exist from

the trial record, petitioner's ability to establish the time of

death as being approximately 6:30 a.m.—rather than be-

tween midnight and 2 a.m. as the prosecution contended—

was drastically impaired by the poor memory of the doctor

who examined the body. The time of death was critical

because if it occurred as early as the prosecution contended

the only person who could have been seen in the Haga

house by a neighbor at 6:45 a.m. would have been the

petitioner rather than the murderer. This would have

meant that petitioner lied when he testified that he im-

mediately reported the disaster when he discovered it. And

if petitioner had delayed in reporting the crime, the delay

would have dramatically pointed to the petitioner as the

murderer.

Finally, it is ironic that the court below further in-

creased the petitioner's burden for establishing actual pre-

judice by not only balancing the actual prejudice he

15

established against the absence of a statute of limitations,

but also balancing the actual prejudice which petitioner

established against a possibly weakened State's case due

to the passage of time:

“Because of her unique opportunity to judge witness

credibility and sense the atmosphcre of the trial, the

the trial judge could best estimate the probable effect

of possible evidence lost to Haga by reason of the

passage of time. This is especially true in this case

because the State's evidence was essentially circum-

stantial as was the evidence assertedly lost to Haga.

As pointed out in United States v. Marion at page 322,

‘Possible prejudice is inherent in any delay, however

short; it may also weaken the governments case. Ju-

dicial assessment of the “relative interest” of the State

and Haga necessarily involve a delicate judgment.

(Appendix B-5)

In the briefs submitted by the State to the court below,

the State did not for the most part even attempt to argue

that petitioner was not prejudiced, but rather conceded

this prejudice by arguing that the State had been preju-

diced as badly if not worse than petitioner by the delay.

There is no authority for the proposition that a trial

which is constitutionally infirm die to the actual prejudice

suffered by the defendant is somehow healed by being

doubly infirm. On the contrary, Robinson v. United States,

supra, 459 F.2d at 452, 453, carefully analyzed the cases

which at that time had applied the Due Process test of

prejudice and divided the types of actual prejudice found

into two categories. The first category is the impaired

ability of the accused to defend himself. This category is

amply demonstrated in the case before this court. The

second category, however, relates to the quality of the

government's proof and the reliability of the techniques

16

utilized to identify the criminal. The more unreliable the

government's proof due to the delay of which the de-

fendant complains, the greater is this category of actual

prejudice to the defendant. In short, the Due Process test

must be approached mindful of the risk that a conviction

of an innocent person may result both because of the im-

paired ability of the accused to defend himself and the

impaired quality of the government’s evidence. Robinson

v. United States, supra, 459 F.2d at 851.

Applying these categories of actual prejudice to the pe-

titioner's case, it is evident on the record that petitioner’s

ability to defend himself has been actually impaired by the

loss of witnesses, recollection, and evidence. This cate-

gory of actual prejudice is evident even though the essence

of the prejudice which petitioner has suffered is the very

lack of evidence which would have been available, the

content of which petitioner cannot unequivocally demon-

strate because of the very fact that the evidence is missing.

Petitioner does not claim to have proven that Harmon or

any other individual committed the crimes. It was imposs-

ible to know by the time the charges were actually brought

what evidence of other suspects might have been produced

had the charges been timely. What petitioner has estab-

lished is the substantial likelihood that the five year delay

before his first trial and the seven year delay before his

second trial has sealed the doors of knowledge and recol-

lection that would have been available to him but for the

delayed prosecution.

The second category of actual prejudice to petitioner

is evident from the very reason for the delay in prosecu-

tion. The State’s case was tenuous and circumstantial at

17

best. What was tenuous five years before the first trial and

seven years before the second trial has become more

tenuous and more unreliable due to the same losses of

evidence and memory which have impaired the petitioner's

defense.

The state appellate court below has improperly balanced

the absence of a statute of limitations and the prejudice

suffered by the prosecution against the actual prejudice

suffered by the petitioner. Even in doing this, the court

below failed to make an independent examination of the

evidence of actual prejudice presented by petitioner. In so

doing, the Washington Court of Appeals has corrupted

and misapplied the protection against unreasonable pre-

indictment delay afforded the petitioner by the Due Proc-

ess Clause of the Fourteenth Amendment.

Vil.

CONCLUSION

For the foregoing reasons, this petition for Writ of

Certiorari should be granted and the decision of the court

below should be reversed and the prosecution of this case

dismissed.

March 1, 1976.

Respectfully submitted by:

Law Offices of Epwaros,

WETHERALL & BARBIERI

By: Matcoim L, Epwarps

RicHaArp L. BARBIERI

Counsel for Petitioner

Of Counsel:

Jack A. RICHEY

Murray B. GUTERSON

APPENDIX A

THe SUPRIEME COURT OF WASHINGTON

° >

é ‘

THE STATE OF WASHINGTON, : No. 43987

(2762-1)

Respondent,

Vv.

ORDER

ERIC L. HAGA,

° DENYING PETITION FOR REVIEN ,

Petitioner.

a. The Court having considered the petition for review of the

decision of the Court of Appeals in this cause, together with the

answer thereto,

It is ordered that the petition be and it is hereby denied.

Dated this ,«'' day of December, 1975.

By the Court:

a

*

qg~ (fr,

Lm +. Lele’:

a

fe i ‘ a

“ee

oo:

Chief Just+/

* 13 Wn. App. 630 | °

°

APPENDIX B

(No. 2762=1. Division One. June 9, 1975.)

Tne State Or Wasuincton, Respondent, v. Eric L. Haca,

[1]

{2]

[3]

6)

Appellant..

Criminal Law—Trial—Time of Trial— Delay [rior te Arrest and

Charge—Absence of Limitation—Effect. The absence of a statute of

limitation as to a particular crime reficcis a State interest that

prosccution of such crime be barred for detay only upen a special

showing of actual prejudice. Such a requirement is consistent with

due process concepts when the showing of prejudice is evaluated

by the trial judge in the light of the facts and circumstances of the

particular case.

Criminal Law—Trial—Opening Statement—Evidentiary Support—

Sufficiency. An opening statement need not be limited to an outline

of direct evidence, but may include matters supported by rcason-

able inferences from circumstantial evidence.

Evidence—Iiearsay—State of Mind—In General. Evidence of out-

of-court statements is not hearsay when admitted for the limited

purpose of showing the state of mind of the maker of the state-

ment or of someone who hears it.

Jury—Pere:nptory Challenges—Capital Cases—What Constitutes.

First-degree murder is not a capital offense, for purposes of CrR

6.4(e¢)(1) which allows 12 peremptory challenges in a prosccution

for such an offense, unless the punishment of death may be validly

imposed.

Jury—Veremptory Challenges—Constitutional Requirements. The

constitutional right to an impartial jury does not require peremp-

tory challenges in any criminal trial.

Greenwood, contrary to the meaning of the word “additional” in the

statutc, declincd to submit to the breathalyzer until the arresting officer

had acceded to his request for a blood test, and not upon the fact that

Greenwood was not willing to take the breathalyzer until 1:10 a.m.,

some 2 to 3 hours after his initial refusal to do so.

June 1975) STATE v. HAGA 631

Appeal from a judgment of the Superior Court for King

County, No. 58185, Janice Niemi, J., entered January 21,

1974. Ajjirmed.

Prosecution for murder. The defendant appeals from a

conviction and sentence.

Murray B. Guterson, Edwards & Wetherall, Malcolm L.

Edwards, Richard L. Barbieri, Richey & Hohlbein, and .

Jack A. Richey, for appellant.

Christopher T. Bayley, Prosecuting Attorney, and Tho-

mas H. Wolfendale, Deputy, for respondent.

James, J.—By jury verdicts, defendant Eric L. Haga has

twice been found guilty of the premeditated murders of his

wife and infant daughter. His first conviction was reversed

because of trial error not relevant to this appeal. State v.

Haga, 8 Wn. App. 481, 507 P.2d 159 (1973). The evidence

introduced at each trial was substantially the same and ‘is

summarized in the first appeal opinion.

In his first appeal and again in this appeal, Haga has

assigned as error the trial judge’s refusal to dismiss the

charges against him on the ground that preaccusation delay

denied him constitutionally guaranteed rights to due proc-

ess of law. The homicides occurred on July 6, 1966, but

Haga was not charged until August 30, 1971. The State

asserts no justification for the 5-year delay.

Haga’s claim was rejected in his first appeal. He contends

that in rejecting his claim, this court recognized, but failed

to apply, the “rule” that “a criminal prosecution must be

dismissed when actual prejudice from the delay is shown

and the prosecutor had no reasonable justification. for the

delay.” Ii Haga’s first appeal, it is stated that:

The justification for the delay must be balanced against

prejudice to the defendant’s ability to offer such evidence

as there is in his defense.

State v. Haga, supra at 487. The court found, however, that

while there was, in fact, no prosecutorial justification for

- delay. Haga’s claims of prejudice did not “overcome the

B-2

632 STATE v. HAGA [June 1975

legislative intent expressed by the absence of a limitation

on prosecution” for the crime of murder in the first degree.

State v. Haga, supra at 489.

Haga argues that the court “misconceived the role of the

lack of a statute of limitations for murder” and

erred in its application of the due process guarantee to

the extent that this court balanced the prejudice to the

defendant against whatever legislative intent might be

gleaned from the absence of a statute of limitations for

murder.

Haga asserts that “[t]he only proper factor to balance

against prejudice to the defendant from delay is any rea-

sonable prosecutorial justification that might exist for that

delay.”

We do not agree.

1] In United States v. Marion, 404 U.S. 307, 321, 30 L.

Ed. 2d 468, 92 S. Ct. 455 (1971), the United States Supreme

Court declined to “extend the reach” of the Sixth Amend-

ment’s guaranty of a speedy trial “to the period prior to

arrest” but left open the Fifth Amendment “due process”

question of “when and in what circumstances actual preju-

dice resulting from pre-accusation delays requires the dis-

missal of the prosecution.” United States v. Marion, supra

at 324.

The court pointed out that statutes of limitations specify

the “limit beyond which there is an irrebuttable presump-

tion that a defendant’s right to a fair trial would be prej-

udiced” and that “[sjuch statutes represent legislative

assessments of relative interests of the State and the de-

fendant in administering and receiving justice.” (footnote

omitted.) United States v. Marion, supra at 322.

We do not read the opinion in the first Haga appeal to

require a “balancing” of Haga’s claims of prejudice against

“the legislative intent expressed by the absence of a limita-

tion on prosecution” for the crime of murder. State v.

Haga, supra at 489. When read in its entirety, it is clear

that the holding is that the “interests of the State,” United

States v. Marion, supra at 322, as reflected by the absence

B-3

June 1975] STATE v. HAGA 633

of a statute of limitations, require that proof of “actual”

prejudice be “specially demonstrated” and not “be based

upon speculation.” State v. Haga, supra at 489. Signifi-

cantly, Washington’s criminal limitation of actions statute

affirmatively provides that prosecutions for murder “may

be commenced at any period after the commission of the

offense.” RCW 10.01.020.

In the first appeal, 10 “instances” relied upon by Haga to

demonstrate “actual prejudice” were considered. The court

concluded that “upon an evaluation of the entire proceed-

ings the showing is short of actual prejudice.” State v.

Haga, supra at 489. We adopt the first appeal analysis of

Haya’s claims and its conclusion that Haga did not demon-

strate actual prejudice.

At the second trial, Haga asserted three additional claiins

of prejudice related to the unavailability of witnesses. The

trial judge considered the additional claims together with

the 10 instances discussed in the first appeal. She first ob-

served that she was satisfied that the further delay occa-

sioned by the necessity for a second trial did not prejudice

Haga. She pointed out that Haga’s additional claims were

similar to those considered in his first appeal and concluded

that his claim of actual prejudice was not justified. We

agree.

The administration of criminal justice is not susceptible

of scientific methodization. “Due process” is an abstract con-

cept. In the absence of a limitation statute to provide

“predictability by specifying a limit beyond which there is

an irrebuttable presumption that a defendant's right to a

fair trial would be prejudiced,” (Footnote omitted.) United

States v. Marion, supra at 322, a criminal defendant's

claimed deprivation of due process because of “actual prej-

udice” can best be evaluated by the trial judge.

To accommodate the sound administration of justice to

the rights of the defendant to a fair trial will necessarily

involve a delicate judgment based on the circumstances

of each case. :

United States v. Marion, supra at 325.

B-4

634 STATE v. HAGA (June 1975

Because of her unique opportunity to judge witr oss cred-

ibility and to sense the atmosphere of the trial, the trial

judge could besf estimate the probable effect of possible

evidence lost to Ilaga by reason of the passage of time. This

is especially true in this case because the State's evidence

was essentially circumstantial as was the evidence asscrt-

edly lost to Haga. As pointed out in United States v. Mar-

ion at page 322, “[p]Jossible prejudice is ini: rent in any

delay, however short; it may also weaken the Government's

case.” Judicial assessment of the “relative interests” of the

State and Haga necessarily involved a “delicate judgment.”

Our review of the record of the trial persuades us that the

trial judge did not err in concluding that Haga failed to

demonstrate that he was actually prejudiced by the preac-

cusation delay.

Haga also assigns as error the trial judge's refusal to

declare a mistrial “on the grounds of prosecutorial miscon-

duct in the prosecution’s opening statement.” Ile asserts

that the statement was argumentative and inflammatory;

was replete with intentional misstatements of the evidence;

and that it improperly contained expressions of personal

belief of the prosecutor concerning evidence offered.

As was pointed out in the first appeal opinion, “No evi-

dence linked the defendant directly to the murders al-

though it is undisputed that he was in the house during the

night of the crimes.” State v. Haga, supra at 463. The State,

however, produced evidence of circumstances that arguably

demonstrates both a motive and a plan to manufacture

false evidence of an unknown prowler who committed the

murders. At the point in the prosecutor's opening statement

where he first spoke of a “plan” to “mislead the police,”

Haga’s counsel objected that “[T]here is no witness that is

going to say this. This is fine for him to argue some time

next week but this is not—unless he can say somebody ts

going to say this.” In the absence of the jury, the prose u-

tor contended that his legitimate purpose was to outline for

the jury the matters which the State expected to prove hy

either direct or circumstantial evidence. The trial judge

B-5

June 1975) STATE v. HAGA 635

cautioned the prosecutor that his statement should be lim-

ited to an outline of what the State intended to prove. The

jury was recalled.

Subsequently, the prosecutor reached a point.in his open-

ing statement where he asserted that the State’s evidence

would establish that Haga strangled his wife with a neck-

lie. At this point, IHlaga’s counsel objected, and the trial

judge again excused the jury. Haga’s counsel then moved

for a mistrial arguing that, “There is nobody that is going

to come in and say that I saw Erie put a necktie around her

neck or that she was putting up her hair.” Haga’s counscl

stated that he moved for a mistrial “on the basis of the

prosecutor's conduct in disregarding what I think every

lawyer responsibly knows is the purpose of an opening

statement.” He further asserted that the prosecutor was

making an argument rather than an opening statement.

The motion for a mistrial was denied at this point and was

not again renewed.

12] In State v. Aiken, 72 Wn.2d 306, 434 P.2d 10 (1967),

our Supreme Court considered a similar claim of error. It

was contended on page 351 that the prosectilor’s opening

statement description of

the manner in which the shots were fired at the time one

of the victims was attempting to rise from the floor;

was highly inflammatory and prejudicial, result-

ing in a denial of a fair trial to the defendants.

As in this case, the prosecution’s evidence concerning the

homicides was entirely circumstantial. In rejecting the

claim, the court said at page 351:

The prosecuting attorney was entitled to make such

statements as long as they were supported hy evidence or

reasonable inferences therefrom, and were material to

the issues of the case. The record discloses that evicence

was introduced which, with the reasonable inferences

therefrom, supported these statements by the prosecutor.

The court also noted that the prosecutor's statements “were

prefaced with the warning that they were not evidence but

B-6

636 STATE v. HAGA {June 1975

an outline of what the state intended to prove at the trial.”

State v. Aiken, supra at 351.

In concluding his opening statement in this case, the

prosecutor said:

Now, those are the facts as I expect to be able to prove

them to you. What I say is not evidence and if the facts

come out different, and there is going to be disputes

about these facts, if the witnesses tell vou something that

is not borne out by what I say or if they contradict what

I say, well you disregard what I say completely because

I’m not a witness and I’m not here to give evidence. The

evidence will come from the witness chair and the wit-

nesses will give the evidence. So, if I can’t prove ‘every-

thing I have said, you just disregard it completely.

Based upon our review of the record of the trial, we do

not find the opening statement to be argumentative, inflam- |

matory, replete with misstatements, or to contain expres-

sions of the personal belief of the prosecution. The trial

judge did not err.

Haga further assigns error to the admission of “the hear-

say testimony of a prosecution witness (Velma Peterson)

and then allowing another prosecution witness to contra-

dict the content of that hearsay testimony.” Haga states his

contention as follows:

Velma Peterson's testimony must be divided into two

parts, “simple hearsay” and “double hearsay.” In the

simple hearsay part, the trial court allowed Mrs. Peter-

son to testify to what Eric purportedly told her of his

direct knowledge about Judy's association with Mr. Har-

mon. In the double hearsay part, the trial court allowed

Mrs. Peterson to testify concerning what Fric allegedly

told her about what Mrs. Matuska allegedly told him.

After Mrs. Peterson testified, the prosecution then had

Mrs. Matuska testify that none of the events described by

Mrs. Peterson had ever occurred and that she had never

told Eric that they had occurred. We are here concerned

only with the double hearsay portion of Mrs. Peterson's

testimony and the testimony of Mrs. Matuska. Mrs. Pe-

terson’s and Mrs. Matuska's testimony was admitted over

the continuing objection of the defense.

Mrs. Peterson testified that Eric told her that Mrs. Ma-

B-7

June 1975) STATE v. HAGA 637

tuska had told him of an occasion when she (Mrs. Ma-

tuska) and Judy (Haga’s wife) “had gone to a few bars or

taverns and that Judy had met somebody and taken off and

they had chased her all over until they caught up with her.

on her way to a hotel room.” Mrs. Matuska testi-

fied that the incident related in Mrs. Peterson's testimony

had not occurred and that she had not told Eric of any such

occurrence.

13) The State’s contention at trial was that the testi-

mony was offered, not to prove the truth of the content of

Mrs. Matuska’s purported tattling about Judy, but that the

testimony was relevant and, therefore, admissible as evi-

dence of Haga’s state of mind. Mrs. Peterson's testimony

that Haga had made a statement to her was, of course, not

hearsay. Evidence is inadmissible as hearsay only if the

testimony in court of a statement made out of court is

offered to prove the truth of the matter asserted in the

out-of-court statement. 5 R. Meisenholder, Wash. Prac. §

381, at 374 (1965).

Motive is a relevant issue in a homicide prosecution. As a

part of its case, the State presented evidence that Haga

knew that his wife had been unfaithful and that he ques-

tioned the paternity of his murdered daughter. His state of

mind was relevant and material to the issue of motive.

Evidence of out-of-court statements may also be perti-

nent to prove mental or emotional states or conditions of

persons who heard them. For this purpose the evidence is

not hearsay. The statement is not introduced to prove its

truth but to support an inference concerning its effect on

the hearer regardless of its truth. The truth of the state-

ment should then be immaterial.

(Footnotes omitted.) 5 R. Meisenholder, Wash. Prac. § 383,

at 389 (1965). The trial judge did not err in admitting the

testimony of Mrs. Peterson and Mrs. Matuska.

Haga’s fnal contention is that the trial court erred by

limiting him to six peremptory challenges when the jury

was selected. He first contends that CrR 6.4(e) (1) “pro-

vides on its face” that he was entitled to 12 peremptory

challenges.

B-8

638 STATE v. HAGA {June 1975

Without change significant to Haga’s contention, CrR

6.4(e) (1) superseded RCW 10.49.0600. The relevant portion

of the rule is as follows:

In prosecutions for capital offenses the defense and the

state may challenge peremptorily twelve jurors each; in

prosecution for oflenses punishable by imprisonment ina

penitentiary six jurors each; in all other prosecutions,

three jurors each.

Haga asserts that by charging him with first-degree mur-

der, the State undertook to prosecute him for a “capital

offense.”

[4] Haga recognizes that subsequent to his first trial

and prior to his second trial, our Supreme Court in State v.

Baker, 81 Wn.2d 281, 282, 501 P.2d 284 (1972) held that

RCW 9.48.030, “which sets forth the circumstances and pro-

eedures hy which the death penalty may be imposed in

Washington” for premeditated murder, is unconstitutional

as a result of the holding of the United States Supreme

Court in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 546,

92 S. Ct. 2726 (1972). Haga also acknowledges that in State

v. Johnston, 83 Wash. 1, 144 P. 944 (1914),.it is squarely

held that a defendant charged with first-degree murder was

entitled to only six peremptory challenges under Rem. &

Bal. Code, § 2138' because, at the time of trial, capital

punishment had been abolished by this stale.

The rationale of State v. Johnston, supra at 2-3 is:

It is clear that the twelve challenges are only allowed

-in prosecutions for capitol offerses. A canital offense is

one which may be punishable with death. Black's Law

Dictionary (2d ed.), p. 167. Ex parte Walker, 28 Tex.

App. 246, 13S. W. 861; Ex parte McCrary, 22 Ala. 65: Ex

parte Dusenberry, 97 Mo. 504, 11 S. W. 217. The statute

above quoted obviously uses the term “capital offenses”

as so defined. The second clause, by allowing only six

peremptory challenges in prosecutions for offenses pun-

‘Rem. & Bal. Code. § 2138 is the progenitor of RCW 10.49.9090 and

crr 6.4(c) (1). It provided: “In prosecution for capital offenses, the

defendant may challenge peremptorily twelve jurors; in prosecution for

offenses punishable by imprisonment in the penitentiary, six jurors; in

all other prosecutions, three jurors.”

B-9

June 1975} STATE v. IAGA 639

ishable by imprisonment in. the penitentiary, in clfect

defines such offenses as not capital. . . . Since there

is now no capital punishment in this state, there are no

capital offenses, hence no offense in prosecution for

Which the provision for twelve peremptory challenges

can be invoked. No amount of argument could add to the

clear sequence of this conclusion.

Haga contends, however, that the definition of “capital

offense” was “substantially altered” in State v. Ilaga, 81

Wn.2d 704, 504 P.2d 787 (1972).? The issue in the case is

stated at page 706:

The sole question in this case is whether the legislature

intended a limitation on a defendant's right to heil, upon

his conviction of first-degree murder, by reason of the

nature ef the crime and seriousness of the olfense for

which he has been convicted, or by reason of it being a

capitol case in which the death penalty could be inflicted.

(Italics ours.)

The court reasoned at page 707

that the removal of the death penalty in no way afiected

the nature of the crime or the seriousness of the ollense.

It was the nature of the crime and seriousness of the

offense which, we believe. the legislature had in mind

when bail was limited on appeal in capital cases.

The court concluded that RCW 10.73.0402 which governs

the right to bail pending appeal, requires the trial court,

following a first-degree murder conviction, to determine

whether “the proof of guilt is clear or the presumption

great” for the purpose of deciding whether the appeliant

should be released on bail. The court determined that State

v. Johnston, supra, was “distinguishable” because

*State v. Haga, 81 Wn.2d 704 is not a Supreme Court review of the

opinion in State v. Haga, 8 Wn. App. 481. Review of Haga’s first trial

was denied by the Supreme Court on June 20, 1973.

In all criminal actions, except capital cases in which the proof of

puilt is clear or the presumption great, upon an appeal being taken

from a judgment of conviction, the court in which the judgment was

rendered, or a judge thercof, must, by an order entered in the journal

‘or filed with the clerk, fix and determine the amount of bail to be

required of the appellant; . .

B-10

640 STATE v. HAGA (June 1975

the concern of the legislature, in granting the defendant

12 peremptory challenges in a capital case, was directly

related to the seriousness of the penalty with which the

defendant was confronted, rather than the seriousness of

the crime with which she was charged.

(Italics ours.) State v. Haga, 81 Wn.2d at 708. ©

15} Haga further contends that “protection of the right

to an impartial jury trial requires twelve peremptory chal-

lenges.” He reasons that because Const. art 1, § 21 and

Const. art. 1, § 22 (amendment 10) of Washington’s consti-

tution guarantee an “inviolate right” to trial by an impar-

tial jury, and because CrR 1.1 provides in part that

“(tlhese rules shall not be construed to affect or derogate

from the constitutional rights of any defendant,” he should

have been afforded 12 peremptory challenges as he was in

his first trial.

In State v. Persinger, 62 Wn.2d 362, 365-66, 382 P.2d 497

(1963), it is pointed out that neither the United States

Constitution nor the Washington Constitution

requires congress or a state legislature to grant peremp-

tory challenges to an accused. Nor does either constitu-

tion provide for any particular method of securing to an

accused the right to exercise the peremptory challenges

which a legislative body grants him. [Holmes v. United

States, 134 F. (2d) 125 (1943); Philbrook v. United

' States, 117 F. (2d) 632 (1941); 31 Am. Jur. Jury § 230.

The matter of peremptory challenges rests entirely with

the legislature. People v. Kassis, 145 Misc. 493, 259 N.Y-S.

339 (1931); People v. Doran, 246 N. Y. 409, 159 N. E. 37!

(1927); 31 Am. Jur., Jury § 230. It is limited only by the

a of having an impartial jury. 31 Am. Jur., Jury §

Consistently, Washington’s legislature has provided that

only an accused who faces a possible death penalty is to be

afforded 12 peremptory challenges. The trial judge did not

err in holding that first-degree murder was not a capital

offense at the time of Haga’s second trial and that he was,

therefore, entitled to only six peremptory challenges.

Affirmed. » '

WILLIAMS, C.J., and ANDERSEN, J., concur.

B-11

APPENDIX C

Mar. 1973] STATE v. ITAGA | 481

8 Wn. App. 481, 507 P.2d 159

{No. 1477-1. Division One—Pancl 1. March 5, 1973.}

Tue STATE OF WASHINGTON,: Respondent, v. Eric. L. Haca,

Appellant.

{1} Criminal Law—Trial—Time of Trial—Delay Prior to Arrest and

Charge—Constitutional Standards. Delay prior to the arrest of and

accusation against an accused, whether intentional or merely net

justified, may be grounds for dismissal of the charge if it actually

prejudices the defendant. The constitutional guarantee involved is

that of due process, rather than speedy trial, and while the length

of the delay and reasons therefor are significant, no question of the

defendant asserting his right is involyed, and consideration of the

question of prejudice is substantially limited to impairment of his

ability to defend.

{[Sce 21 Am. Jur. 2d, Criminal Law § 248.]

[2] Criminal Law—Trial—Time of Trial—Delay Yrior to Arrest and

Charge—Justification. Delay in the arrest of a person suspected of

a crime may be justified by the complexity of the casc, its effect on

further law enforcement, or the initial lack of sufficient evidence;

whatever justification is offered, however, must be balanced against

the prejudice to the defendant's ability to defend.

{3} Criminal Law—Triali—Time of Trial—Delay Prior to Arrest and

Charge—Prejudice—Evidence. An accused must specitically demon-

strate actual prejudice to his defense resulting from pre-accusa-

tional delay in order to obtain dismissal of criminal charges for

denial of his rights to constitutional due proccss.

{4] HMomicide—Criminal Law—Tria'—Time of Trial—Declay Prior to

Arrest and Charge—Prejudice—Degree. Any showing of actual

prejudice to an accused's defense resulting from pre-accusational

delay in a prosecution for murder must be sufficient to overcome

the legislative intent respecting prosecution for such crimes as

evidenced by the absence of a statute of limitations.

{5] Criminal Law—Evidence—Opinion as to Guilt—Propriety. Testi-

mony by a witness in a criminal trial which, directly or inferen-

tially, communicates the witness’ opinion as to the guilt of an

accused intrudes into the province of the trier of fact and is

erronucous.

{6} Criminal Law—Appeal and Error—Harmiess Error—Test. A preju-

dicial crror is one which affects or presumptively affects the final

resu'ts of the trial. Error cannot be deemed harmicss when the

appellate court is unable to determine whether the accused would

or would not have been convicted but for the error committed,

{7] Criminal Law—Trial—Conduct of Counsel—lrosecutor’s Duty—

Disclosure of Facts to Defendant. The prosecutor in a criminal

action, as a part of his affirmative duty to assure that an accused is

C-l

482 STATE v. HAGA (Mar. 1973

8 Wn. App. 481, 507 P.2d 159

afforded a fair trial, is responsible for disclosing to the accused

material evidence favorable to him when the prosccution has rea-

son to believe such evidence is unknown to the accused. Failure to

so clisclose is error.

{8} Criminal Law—Evidence—Photographs—Admissibilitv—Test. Pho-

tographs are tested for admissibility by exercise of the trial court's

diserction in determining whether their probative value oulweighs

their probable prejudicial effect.

19} Fvidence—llicarsay—Admissions—Self-serving Admissions. Oul-of-

court admissions of a party are not admissible as an exception to

the hearsay rule when they are self-serving.

Appeal from a judgment of the Superior Court for King

County, No. 58185, Howard J. Thompson, J., entered Febru-

ary 10, 1972. Reversed and remanded.

Prosecution for murder. The defendant appeals from a

conviction and sentence.

Barokas, Martin & Richey, Jack A. Richey, and Larry L.

Barokas, for appellant.

Christopher T. Bayley, Prosecuting Attorney, and Lee D.

Yates, Deputy, for respondent.

CatLow, J.—Defendant appeals from a jury conviction of

the first-degree murders of his wife and infant daughter.

The deaths occurred in the ear!y morning of Julv 6, 1966.

The defendant has maintained since that date that he was

asleep in the bedroom of their rented home and awoke in

the morning to find his wife and the youngest of two

daughters strangled. A neighbor testified that the defend-

ant appeared at his door on the morning in question and

said, “there was something wrong with Judy.” The neigh-

bor accompanied the defendant into the house and found

the wife’s body in the living room, where, according to the

defendant’s testimony, she had slept that night because

neither was feeling well. The body of the infant girl was

found in a bedroom.

The state introduced evidence that the Hagas had been

separated in the summer of 1965 and that Mrs. Haga had

lived with another man for a short period of time prior to

C-2

Mar. 1973] STA'E v. HAGA 483

8 Wn. App. 481, 507 P.2d 159

their reconciliation: Evidence was introduced concerning

the issuance of life insurance on the family. and other

evidence was admitted showing that the defendant had lied

on a loan application in an attempt to secure extra money

for the purchase of a sports car. There was testimony that

there had been several instances of prowlers in the neigh-

borhood, and a prowler had been seen the afternoon of the

crimes. A neighbor testified that he saw a man in the Haga

living room about 6:40 a.m. wearing what appeared to be a

coat. No evidence linked the defendant directly to the mur-

ders although it is undisputed that he was in the house

during the night of the crimes. The time of the deaths was

approximated as between midnight and 4 a.m.

DELAY IN PROSECUTION

The defendant contends that the delay from the commis-

sion of the crimes to the commencement of prosecution, a

period of over 5 years, amounted to a denial to him of due

process of law under the federal and state constitutions.

Any inquiry into delay in criminal prosecutions must

begin with the relevant statute of limitations. “{T]he appli-

cable statute of limitations . . . is . . .. the primary

guarantee against bringing overly stale criminal charges.”

United States v. Ewell, 383 U.S. 116, 122, 15 L. Ed. 2d 627,

86 S. Ct. 773 (1966). There is no statute of limitations on

murder in Washington. RCW 10.01.020.

The problem of “pre-arrest” or “pre-accusation” delay of’

a duration less than the relevant statute of limitations as

potentially violative of constitutional safeguards is one

with which the Supreme Court has only recently been con-

cerned.

In United States v. Marion, 404 U.S. 307, 322, 30 L. Ed. 2c

468, 92 S. Ct. 455 (1971), the majority held that the Sixth

Amendment guarantee of a speedy trial did not apply to

delavs prior to indictment or arrest. In a concurring opin-

ion, three justices argued that the speedy trial guarantce

should apply. The opinion of the majority said:

The law has provided other mechanisms to guard

against possible as distinguished from actual prejudice

C-3

484 STATE v. HAGA {[Mar. 1973

8 Wn. App. 481, 507 P.2d 159

resulting from the passage of time belween crime and

arrest orcharge. . . . [Statute of limitations] repre-

sent legislative assessments of relative interests of the

State and the defendant in administering and receiving

justice; they “are made for the repose of society and the

protection of those who may [during the limitation]

have lost their means of defence.” Publie Schools

». Waller. 9 Wall. 232. 288 (1879). These statutes provide

predictability by specifving a limit bevond which there is

an irrebuttable presumption that a defendant's right to a

fair trial would be prejudiced.

it is appropriate to note here thet the statute of

limitations docs not fully define the appellees’ rights with

respect to the erents occurring prior to indictment. Thus,

the Government concedes that the Due Process Cleuse of

the Fifth Amendment would require dismissal of the in-

diciment if it were shown at trial that the pre-indictment!

delay in this case caused substantial prejudice to appel-

lees’ rights to a fair trial and that the delay was an

intentional device to gain tactical adrantage orer the

accused, Cf. Brady v. Maryland, 375 U.S. &3 (1963);

Napue ». Illinois, 360 U.S. 264 (1959). However. we need

not, and could not now, determine when and in what

circumstances actual prejudice resulting from pre-accu-

sation delays requires the dismissal of the prosecution.

(Footnotes omitted. Italics ours.) The majority opinion

concludes that, “Events of the trial may demonstrate actual

prejudice, but at the present time appellees’ due process

claims are speculative and premature.” (Italics ours.) In a

footnote. the court observed that most courts of appeal

which have considered pre-indictment delay as a ground

for dismissal have treated the question as one of due proc-

ess and required a showing of actual prejudice.

[1] Although the Marion case has been cited for the

proposition that due process will require dismissal only

when a pre-indictment delay is both actually prejudicial

and intentionally caused by the prosecutor (LU wted Stries

v. Beitscher. 467 F.2d 269 (10th Cir. 1972): United States rv.

Dalcy, 454 F.2d 505 (1st Cir. 1972)), the more prevalent

view would dismiss a criminal prosecution when actual

prejudice is shown, and the prosecutor had no reasonable

C4

Mar. 1973] STATE v. HAGA 485

8 Wn. App. 481, 507 P.2d 159

justification for the delay. See United States r. Hauff, 461

F.2d 1061 (7th Cir. 1972); United States v. lannelli, 461

F.2d 483 (2d Cir. 1972); United States v. Mones, 336 F.

Supp. 1322 (S.D. Fla. 1972).

While intentional pre-indictment delay which actually

prejudices a defendant would be grounds for dismissal of a

charge (see Stuart v. Craven. 456 F.2d 913 (9th Cir. 1972);

Hanrahan v. United States, 343 F.2d 363 (D.C. Cir. 1965)),

there may be circumstances short of purposeful cclay

which, if actually prejudicial to a defendant, would require

dismissal.

The factors relevant to a determination of the defend-

ant’s contention, which is based upon the due process

clause, are similar to the factors delineated in Barker v.

Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972),

concerning the guarantce of a speedy trial. The court iden-

tified four factors which must be considered in determining

whether the right to a speedy trial had been denied. These

factors are: (1) the length of the delay; (2) the reason for

the delay; (3) the defendant's assertion of his right: and

(4) the prejudice to the defendant. See also State v. Rock, &

Wn. App. 116, 504 P.2d 331 (1972).

Distinctions must be made between the speedy trial anal-

ysis applicable to post-accusation delays and the due proc-

ess analysis relevant to pre-accusation delays. First, citizens.

cannot be expecied to periodically search their consciences

and demand that the state grant them exculpation. “There

fs no constitutional right to be arrested.” Hoffa v. United

States, 385 U.S. 293, 310, 17 L. Ed. 2d 374, 8&7 S. Ct. 408

(1966).

Second. the sort of prejudice likely to result from pre-ac-

cusation delays dilfers from that caused by post-accusation

delays. The Barker case identifies three ramifications ‘of

post-accusation delay which may prejudice a defendant:

(1) pretrial incarceration, (2) anxiety and concern of the

accused and (3) impairment of the defense. Only the im-

pairment of the defense seems relevant to this case. Impair-

ment of an ability to offer a defense is the impairment of a

C-5

486 STATE v. HAGA { Mar. 1972

8 Wn. App. 481, 507 P.2d 159

vital interest. Barker v. Wingo, supra; Tacoma v. Heater, 67

Wn.2d 733, 409 P.2d 867 (1966).

With these considerations in mind, we turn to a discus-

sion and weighing of the factors determinative of the de-

fendant’s contention.

The length of the delay between the crimes and initiation

of formal accusation. was over 5 years. In Dickey 7. Florida,

298 U.S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564 (1970), Justice

Brenne_ in a concurring opinion suggested that once delay

reached a certain point substantia! pzejudice should be pre-

sumed. However, he did not specify at what point such a

presumption would arise. The delay in this case is long

enough to cause concern about the dimming of memories

and lost eviclence.

The sole reason for the delay was an apparent difference

of opinion between the prosecuting attorney in office at the

time of the crime and his successor, who took office in

January 1971, as to whether there was sufficient evidence

on which to prosecute. No other reason was offered at trial

or on appeal. In pretrial proceedings, the prosecutor said:

“(T}here has been a five year delay. I don’t know why.”

During oral argument on appeal, the following colloquy

occurred:

Tue Court: What was there available to a prosecutor

in 1971 that was not available to a prosecutor in 1965? |

Prosecutor: I would have to say that either the evi-

dence was the same or that the people who reviewed the

case in 1966 weren't as thorough as the people who re-

viewed the case in 1971.

[2] Three reasons are considered by courts as suflicient

justification for delay:

1. The case may be of such a complex nature that consid-

erable time was necessary to prepare the case for prosecu-

tion. United States v. Marion, supra.

2. It would hinder effective law enforcement operations

to charge the defendant immediately after the commission

of the crime. This justification sometimes is tendered in

cases involving organized crime. United States v. Russo,

C-6

Mar. 1973) STATE v. HAGA 487

8 Wn. App. 481, 507 P.2d 159

442 F.2d 498 (2d Cir. 1971); DuFrane v. Sherif], Washoe

County, 88 Nev. 52,495 P.2d 611 (1972).

3. There was insufficient evidence available to prosecute

the defendant up until the time he was actually charged.

Harlow v. United States, 301 F.2d 361 (5th Cir. 1962);

Foley v. United States, 290 F.2d 562 (8th Cir. 1961).

The ahsence of the usual reasons for delay is not, of

itself, fatal to the state’s right to proceed. The justification

for the delay must be balanced against prejudice to the

defendant's ability to offer such evidence as there is in his

defense. |

The defendant alleges he was prejudiced by the delay in

the following instances:

1. The ability to defend on the ground of mental irrespon-

sibility was diminished since a psychiatrist's current exam-

ination could not reveal clearly the defendant’s mental con-

dition in 1966.

2. Certain potential defense witnesses had become una-

vailable. The family doctor had died, and the family priest

could not be locatec. The defense asserts that these wit-

nesses “may have been able” to indicate that Mr. and Mrs.

Haga were compatible and past marital problems had been

cured. We note that no offer of proof as to their testimony

was possible, and there is no reflection concerning the ad-

missibility of such testimony in any event.

3. A major portion of the tape recording of the defend-

ant’s statement made in 1966 was lost by the police. We

observe that the defendant objected to admission of the

remaining portion of the tape at all times during the trial.

4. A letter from the man with whom Mrs. Haga had

lived prior to the reconciliation sent to Mrs. Haga’s mother

was unavailable. Mrs. Haga’s mother testified in a pretrial

hearing that she received the letter after the deaths and

‘ sent it to the police. No mention of the letter was allowed

at trial, and its contents are not mentioned in the record

‘other than that the decedent wife’s mother felt it impor-

tant.

5. Several witnesses showed poor memories:

C-7

488 STATE v. HAGA [Mar. 1973

8 Wn. App. 481, 507 P.2d 159

a. An ex-police oflicer who had investigated the crime

had since lost his memory duc to an accident. He was called

as a prosecution witness but had no memory of the events.

His report was excluded on the defendant's motion.

b. Dr. Dona was the first doctor on the scene. He was

unable at the trial to recall his actions or remember the

extent of rigor mortis when he first saw the body. This

evidence would be important to show the time of death. He

was unable to recall whether he checked the victim's finger-

nails, an important item since the prosecution claimed that

the defendant had been scratched by the victim in resisting

the attack. |

ce. A neighbor could not remember whether Mrs. Hagia

mentioned a prowler the night of her murder. In 1966, he

said she did. Evidence of his prior statement was adinitted

for impeachment purposes.

d. Another neighbor could not recall where he heard a

loud car stop at 12:40 a.m. the night of the murder. In 1966

in a statement, he said that it had stopped at the Haga

house.

e. An insurance agent was unsure whether Mrs. Haga

or Mr. Haga asked about insuring the entire family. The

prosecution argued that part of defendant’s motive could

have been insurance money.

f. The defendant was unable to remember many de-

tails concerning the day of the crime.

These cumulative contentions have caused us to carefully

evaluate the position of the defendant at the time of trial.

The defense counsel presented a vigorous defense. The

mother and aunt of the deceased wife were called and

testified that they had seen the Hagas the day before the

murders and that they seemed happy together. The motirer,

grandmother and stepfather of the defendant also testified

that they had seen the couple shortly before the crime and

that they seemed to be happy. The grandmother and

mother of the defendant both testified that the defendant

had not been feeling well the day before the crimes.

The first doctor to arrive at the scene of the crime had

C-8

Mar. 1973] STATE v. HAGA 4289

8 Wn. App. 481, 507 P.2d 159

difficulty recalling the circumstances of his investigation.

His statement, taken the night of the murders, was admit-

ted into evidence and was arguably helpful to the defense

in that it included observations tending: to place the time of

death up to 2 hours later than the time estimated by the

state’s witnesses. Two neighbors testified concerning a car

that they heard in the area during the early morning of

July 6; a neighbor testified that the deceased wife had

complained of prowlers prior to July 1966; and a voung

man testified to an encounter with a prowler while babysit-

ting for a neighbor of the Hagas. Finally, the defendant

testified at length during the trial and denied any participa-

tion in the murders.

13, 4] We conclude that upon an evaluation of the en-

tire proceedings the showing is short of actual prejuclice.

Only where actual prejudice is shown is reversal justified.

United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92

S. Ct. 455 (1971); United States v. lannelli, 461 F.2d 483

(2d Cir. 1972); United States v. Capaldo, 402 F.2d 221 (2d

Cir. 1968). Prejudice, whenever it is alleged, must be spe-

cially demonstrated and cannot be based upon speculation.

United States v. Marion, supra: State v. Christensen. 75

Wn.2d 678, 453 P.2d 644 (1969); State v. Rolex, 3 Wn. App.

653, 479 P.2d 158 (1970). The allegations of prejudice in

this case do not overcome the absence of any statute of

limitations concerning the crime of murder in the first de-

gree. We hold that the showing of actual prejudice must be

sufficient to overcome the legislative intent expressed by

the absence of a limitation on prosecution for such a crime,

before the prosecution should be forbidden. The showing of

actual prejudice is insufficient to amount to a denial of due

process when subjected to that criterion.

OPINION EVIDENCE INFERRING GUILT

The ambulance driver who responded to a call to the

Haga residence on the morning of the murders was called

by the state. He testified as to the general scene anc stated

that he observed the demeanor of the defendant. Over the

C-9

490 STATE v. HAGA | Mar. 1973

8 Wn. App. 481, 507 P.2d 159

repeated objections of the defendant, the following testi-

mony was admitted:

Q Did he show any signs of grief? A No. Q Did vou find

that unusual? Mr. Ricury: Object. Tie Court: Lay

some foundation. Q How long did you inelicate that vou

had been with the mortuary? A I have had my own

place for fifteen years. Q During that time have you had

occasion to go to scenes where people had died? A Yes.

I was a deputy coroner for approximately twelve years. I

also operated the ambulance service where [T encountered

this several times a month—death. Q Based upon vour

experience did vou find the demeanor of the defendant to

be unusual? Mr. Ricney: Objection. Tue Courr: Over-

ruled.

In argument out o. ‘ie presence of the jury, defense

counsel renewed his objection stating:

If the Court please, what the prosecutor is attempting

to do is have this witness say that the way this defendant

acted is unusual, which is a conclusion in relation to

other husbands whose wives he has investigated in the

past. That is a conclusion on the part of this witness. Te

has already testified that the defendant showed no grief.

That should suffice. That should be sufficient. And then to

g9 ahead and compare it to other persons and other sittua-

tions goes beyond his realm as a witness in this matter.

That goes to what the jury should do. If the jury wants

to decide the fact that he showed no gricf, and it was

unusual that is the jury’s prerogative; but it is not the

prerogative of this witness.

After the argument, the jury was readmitted and the

following testimony admitted:

Q What was vour reason for that? Mr. Richey: Object,

your Honor. He has already indicated that it was unusual

and that should be sufficient. THe Court: Overruled.

A For someone whose wife had just heen strang!ed

usually the husband or the wife will attempt to assist, if

it is a heart attack or something. He was very calm and

cool about it. And he didn’t attempt to assist us. Usually

a husband or wife usually is in the way when vou are

trying to revive them. And he offered no assistance in

helping me whatsoever.

C-10 4

Mar. 1973) STATE v. HAGA 491

8 Wn. App. 481, 507 P.2d 159

{5} As a general rule, witnesses are to state facts and

not to express inferences or opinions. State v. Diweich, 131

Wash. 50, 228 P. 1019 (1924); State v. Wigley, 5 Wn. App.

465, 483 P.2d 766 (1971). The difficulty in limiting testi-

mony to “facts” and excluding all “opinion” was noted in

Wigley where the court quoted 32 C.J.S. Evidence § 459

(1964) as follows:

The modern tendency is to regard it as more important

to get to the truth of the matter than to quibble over

distinctions which are in many cases impracticable,

and a witness is permitted to state a fact known to or

observed by him. even though his statement involves a

certain element of inference.

State »v. Wigley, supra at 467. See also Model Code of

Evidence rule 401 (1942).

However, within the context of this view, certain testi-

mony remains inadmissible as an expression of an opinion.

In [Harrelson v. State, 217 Miss. 887, 891, 65 So. 2d 237

(1953), the conviction of a defendant accused of the mur-

der of his wife was reversed because the testimony of po-

lice officers indicating the defendant did not exhibit the

expected signs of grief the day of the murder was deemed

prejudicial error. The basis of the court's holding was as

follows:

The evidences of lack of grief are not stated. The opin-

ion of the officers, we assume, was based on the fact that

the appellant was not visibly manifesting what the wit-

nesses considered signs of grief. The reactions of a person

10 sorrow or grief vary with the individual. It is a matter

of common knowledge that some people undergo sorrow

or bereavement with composure. Opinions as to what

constitute evidences of grief also vary with the individ-

ual.

The general rule is that opinion evidence is not admis-

sible except that of an expert. The demeanor. acts and

conduct of an accused, at the time and subsequent to the

crime are admissible. Hlowever. this should be limited to

a statement of the facts by the witness or witnesses,

leaving the jury free to form its own conclusions. The

adimission of the opinion of the officers who investigated

C-11

492 STATE v. HAGA [| Mar. 1973

8 Wn. App. 481, 507 P.2d 159

the killing that the appellant showed no signs of gricf,

over the objection of the appellant, was improper and

highly prejudicial. The opinion of the sheriff. a promi-

nent oflicial of the county, that the appellant showed no

signs of grief conveved to the jury the impression that

the sheriff thought the appellant was guilty, and it was

calculated to, and undoubtedly did, influence the jury in

reaching its verdict. We are unable to say that the appel-

lant in this case received a fair and impartial trial.

A witness may not testify to his opinion as to the guilt of

a defendant. State v. Garrison, 71 Wn.2d 312, 427 P.2d 1012

(1967), said at page 315:

Finally, it is contended that the trial court erred in

refusing to permit the proprietor of the burglarized tay-

ern to give his opinion as to whether or not appellant

was one of the parties who participated in the burglary.

The proprictor of the tavern was in no better position

than any other person who investigated the crime to give

such an opinion. The question literally asked the witness

to express an opinion on whether or not the aprecllant

was guilty of the crime charged. Obviously this question

was solely for the jury and was not the proper subject of

either lay or expert opinion. :

This recognized the impropriety of admitting the opinion of

any witness as to guilt by direct statement or by infcrence

as Ifarrelson likewise clearly points out. See also State v.

Norris, 27 Wash. 453, 67 P. 983 (1902); 5 R. Meisenholder,

Wash. Prac. § 342 (1965).

The testimony of the ambulance driver was wrongfully

adimitted. It inferred his opinion that the defendant was

guilty, an intrusion into the function of the jury.

{6] Error which affects or presumptively affects the

final results of a trial is deemed prejudicial. We are mnabie

to say whether the defendant would or would not have

been convicted but for this error. This testimony, erro-

neously admitted, could have been a contributing facter in

ty verdict of the jury. ° heey be cleemed harmless. State

. Mack, 80 Wn.2d 19, 22, 490 P.2d 1308 (1971); State v.

pcg 73 Wn.2d 616, 440 P.2d 429 (1968). The conviction

must be reversed, and the cause remanded for a new trial.

;

C-12

Mar. 1973] STATE v. HAGA 493

8 Wn. App. 481, 507 P.2d 159

We turn to other issues raised on this appeal which

might arise upon a second trial in order to put them at rest.

In July of 1971, a deputy prosecuting attorney traveled

to Oregon to interview the man with whom Mrs. Haga had

lived in 1966 while separated from the defendant. The pros-

ecuting attorney learned of this man’s history of medical

and mental clisorders, including tendencies to violence and

amnesia, and told him that he need not volunteer this in-

formation to defense counsel but that, if asked, he should

tell the truth. The state concedes this conduct was im-

proper but argues that the error was harmless.

17] The state has an aflirmative duty to disclose mate-

rial evidence which may negate guilt or mitigate the cle-

gree of the offense where there is reason to believe the

evidence is unknown to the defendant. State v. Finnegan, 6

Wn. App. 612, 495 P.2d 674 (1972). See yenerally Brady v.

Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194

(1963); ABA standards relating to The Prosecution Funce-

tion and the Defense Function § 3.11 (1971).

The basis for the rule is the due process clause of the

Fourteenth Amendment and supression of such evidence,

irrespective of the good faith of the prosecution. violates

that constitutional provision. Brady v. Maryland, supra;

State v. Temple, 5 Wn. App. 1. 485 P.2d 93 (1971). Prose-

cuting attorneys are quasi-judicial officers with an aflirma-

tive duty to help assure that an accused is aftorded a fair

trial. State v. Gibson, 75 Wn.2d 174, 449 P.2d 692 (1969):

State v. Lluson, 73 Wn.2d 660, 440 P.2d 192 (1968). How-

ever. not every failure to disclose evidence warrants rever-

sal of a conviction. It is only where the failure to disclose

has caused prejudice to the defendant and may have had an

effect upon the outcome of the trial that a new trial should

be granted. Rhinehart v. Rhay, 440 F.2d 718 (9th Cir.

1971); United States v. Bonanno, 430 F.2d 1060 (2d Cir.

1970).

The defendant states that there is no way of knowing

what evidence the prosecution requested ITarman to refrain

from volunteering and that we should assume the evidence

C-13

494 STATE v. HAGA {Mar. 1973

8 Wn. App. 481, 507 P.2d 159

would have been helpful to the defendant. The deputy

prosecutor who interviewed Harman has filed an affidavit

stating that he told the witness only that he need not

volunteer information concerning his medical history, but

that if he did he should tell the truth. The witness, how-

ever, did clisclose his medical history to the defense prior to

trial and allowed defense counsel to examine his medical

records. The witness was cross-examined concerning his

medical problems and his medical records were offered

(but refused) as evidence. Under these circumstances, the

misconduct did not prejudice the defendant. The error was

harmless. |

[8] During the trial, photographs of the deceased wife

and child were admitted. The admission of photographs is

in the discretion of the trial court and will not be disturbed

unless there was an abuse thereof. State v. Adams, 76

Wn.2d 650, 458 P.2d 558 (1969); State v. Newman, 4 Wn.

App. 588, 484 P.2d 473 (1971). Photographs are not inad-

missible merely because they are gruesome or inflamma-

tory. State v. Griffith, 52 Wn.2d 721, 328 P.2d 897 (1958).

The test for admissibility of such photographs is whether

their probative value outweighs their probable prejudicial

effect. State v. Adams, supra. There was no abuse of disere-

tion. Proof of a fact should not be impeded because the

process is disturbing. The photographs were properly ad-

mitted.

Error is assigned to the refusal to admit statements made

by the defendant in 1966. During the CrR 101.20W hearing,

the defendant's wriiten statement was considered to cieter-

mine its admissibility at trial. It was not offered during the

trial. The statement was signed by the defendant the day

after the homicide and contained a denial of any invcive-

ment in the crimes. The state did introduce certain state-

ments made by the defendant to a detective during the

same time period in which the other statement was pre-

pared.

19] Evidence of out-of-court statements offered for the

C-14

Mar. 1973) STATE v. THOMAS 495

8 Wn. App. 495, 507 P.2d 153

proof of the matters asserted therein is hearsay. See gener-

ally 5 R. Meisenholder, Wash. Prac. ch. 20 (1965). State 1.

Huff, 3 Wn. App. 632, 636, 477 P.2d 22 (1970), said the

following:

Out-of-court admissions by a party, although hearsay,

may be admissible against the party if they are relevant.

9 R. Meisenholder, Wash. Prac. § 421 et seq. (1965): C.

McCormick. Evidence § 259 (1954). However, if an out-

of-court admission by a party is self-serving, and in the

sense that it tends to aid his case, and is oflered for the

truth of the matter asserted, then such statement is not

admissible under the admission exception to the hearsay

rule. State wv. King, 71 Wn.2d 575, 577, 429 P.2d O14

(1967); State +. Johnson, 60 Wn.2d 21, 31, 371 P.2d G1I

(1962); 5 R. Meisenholder, Wash Prac. § 381 at 380

(1965).

The statement was properly excluded.

The judgment is reversed and remanded for a new trial.

Horow17Tz, C. J.,and W1itLIAMs, J., concur.

Petition for rehearing denied April 19, 1978.

Review denied by Supreme Court June 20, 1973.

C-15