State v. Allen, 38885

Decision Date07 September 1967
Docket NumberNo. 38885,38885
Citation72 Wn.2d 42,431 P.2d 593
PartiesThe STATE of Washington, Respondent, v. Gordon Michael ALLEN, Appellant, LeRoy Burr, Jr., Defendant.
CourtWashington Supreme Court

Muscek, Adams, Peterson & Peterson, Robert H. Peterson, Tacoma, for appellant.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty. of Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., and Eugene G. Olson, Chief Crim. Deputy of Pierce County, Tacoma, with him on the brief), for the State.

LANGENBACH, Judge. *

This is a companion case to State v. Allen, Wash., 431 P.2d 590 (1967), where the facts are recited in more detail. Appellant Allen and LeRoy Burr were convicted of armed robbery after a joint trial. Each has separately appealed.

Two men, later identified as appellant and Burr, held up the bartender of a tavern. Appellant carried a .22 pistol and, while Burr controlled the patrons, defendant took a large sum of money from the bartender. The culprits then fled.

The next day police received a report of shooting in a quarry. On going to investigate, an officer found a .22 pistol on the hood of an automobile near which the appellant (then known under an assumed name) was standing. The officer took the serial number of the weapon. At a subsequent time the weapon was taken into police custody.

When appellant and Burr were identified by eyewitnesses as the two who held up the tavern, a joint information was filed against them. At trial the state sought to have the .22 pistol identified for 'illustrative purposes.'

The rule in such cases is that stated in State v. Gray, 64 Wash.2d 979, 983, 395 P.2d 490, 492 (1964):

Thus, models, samples and objects offered in evidence for purely illustrative purposes must not only be relevant and material in character to the ultimate fact sought to be demonstrated by their use, but, additionally, must be supported by proof showing such evidence to be substantially like the real thing and substantially similar in operation and function to the object or contrivance in issue. If the proffered evidence does not meet this test it should be rejected.

In the case at bar, when the matter of the gun's introduction was raised, the court said:

I would not let it in unless the foundation was laid by the witness who is going to identify it that he saw a similar weapon in the hand of either one or both of the defendants at the time, present at the scene of the robbery. If he testifies first that they were armed, and describes generally the pistol to such an extent so that it could be compared to it as being reasonably similar, for that limited purpose I will allow it.

After testimony by an eyewitness that appellant was armed with a gun similar to one owned by the witness and that the .22 pistol offered in evidence resembled the one held by the robbery who stood by the tavern bar, the court addressed the jury as follows:

Very well. Ladies and Gentlemen, so that you will understand--this last Exhibit which was shown to the witness, it is being--was introduced at this time purely as a demonstrative piece of evidence. It's (sic) introduction is not to be considered by you as showing that this gun had any connection with the robbery alleged to have occurred in the Green Pup Tavern on June 29th, Nor are you to infer from its use in...

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7 cases
  • State v. Gebhardt
    • United States
    • Washington Court of Appeals
    • April 9, 2013
    ... ... We review a trial court's ... decision to admit evidence for illustrative purposes for ... abuse of discretion. State v. Allen, 72 Wn.2d 42, ... 44-45, 431 P.2d 593 (1967). Here, the trial court reasoned ... that the State laid a proper foundation for the ... ...
  • State v. Gebhardt
    • United States
    • Washington Court of Appeals
    • April 9, 2013
    ...reading aid. We review a trial court's decision to admit evidence for illustrative purposes for abuse of discretion. State v. Allen, 72 Wn.2d 42, 44-45, 431 P.2d 593 (1967). Here, the trial court reasoned that the State laid a proper foundation for thetranscripts and their accuracy through ......
  • Allen v. Rhay
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 22, 1970
    ...of robbery, petitions for his release by habeas corpus. The Supreme Court of Washington affirmed the conviction in State v. Allen (1967) 72 Wash.2d 42, 431 P.2d 593. Following an escape and conviction therefor he was adjudged an habitual criminal. Again the conviction was affirmed on appeal......
  • State v. Sutherland
    • United States
    • Washington Court of Appeals
    • October 15, 1979
    ...cases is within the discretion of the trial court, and has been previously approved by the courts of this state. See State v. Allen, 72 Wash.2d 42, 431 P.2d 593 (1967). In the subject case, although the State was not able to place the defendant in possession of a weapon matching the rifling......
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