# Petition — Haga v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 959

## Text

; 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1848%3A1. Public record. Not legal advice.