State v. Bergen

• Decision Date: 21 July 1975
• Docket Number: Nos. 3030--,3386--I,s. 3030--
• Citation: 538 P.2d 533,13 Wn.App. 974
• Parties: STATE of Washington, Respondent, v. Robert S. BERGEN, Appellant. Robert S. BERGEN, Petitioner, v. Harold B. BRADLEY, Director of Adult Corrections Division, Department of Social and Health Services of the State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 974

13 Wn.App. 974

538 P.2d 533

STATE of Washington, Respondent, v. Robert S. BERGEN, Appellant.

Robert S. BERGEN, Petitioner, v. Harold B. BRADLEY, Director of Adult Corrections Division,

Department of Social and Health Services of the

State of Washington, Respondent.

Nos. 3030--I, 3386--I.

Court of Appeals of Washington, Division 1.

July 21, 1975.

Rehearing Denied Sept. 30, 1975.

Hunter, Gates & Patterson, Mark T. Patterson (Court-appointed), Everett, for appellant.

Robert E. Schillberg, Snohomish County Pros. Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for respondents.

JAMES, Judge.

The defendant, Robert S. Bergen, was charged with the crimes of indecent liberties, contrary to RCW 9.79.080, and second degree assault, contrary to RCW 9.11.020. The indecent liberties count alleged that, on November 7, 1973, Bergen took indecent liberties with a 13-year-old male. The second degree assault count alleged that, on November 27, 1973, Bergen assaulted a 14-year-old male with a weapon likely to produce bodily harm. The State also filed a petition alleging Bergen's sexual psychopathy.

Bergen was found guilty of both charges.

Bergen was sentenced to 10 years' imprisonment for each felony. Execution of the sentence, however, was suspended and Bergen was committed to Western State Hospital for a 90-day observation period to determine sexual psychopathy. Following the commitment, the trial court found that Bergen was not a sexual psychopath, revoked the prior suspension, and ordered imposition of the two concurrent 10-year sentences.

Bergen now both petitions for a writ of habeas corpus and appeals from the convictions.

Bergen claims that the trial judge erred in allowing a police officer to testify that both of the victims made out-of-court identifications of certain items of clothing taken from Bergen's home.

During a search of Bergen's home, pursuant to a warrant, the police seized, among other items, one pair of sunglasses, two stocking caps, and a stocking ski mask. At trial, a police officer testified that the two victims had made out-of-court identifications of the items. Bergen objected to the testimony on the ground that the officer's testimony constituted inadmissible hearsay.

We agree that, insofar as the testimony inferred that the victims said that Bergen wore any of the items on the occasions of the offenses, it was hearsay. But our Supreme Court, in State v. Simmons, 63 Wash.2d 17, 20, 385 P.2d 389, 391 (1963), quoting with approval from July v. State, 218 Md. 168, 146 A.2d 29 (1958), aligned itself with those jurisdictions that, as an exception to the hearsay rule, admit evidence of extrajudicial identification "both as substantive and corroborative evidence," In State v. Wilson, 38 Wash.2d 593, 231 P.2d 288 (1951), the issue was whether the testimony of a police officer regarding an extrajudicial identification of the defendant made by another witness was admissible evidence. The court conceded that there is a marked division of authority concerning 'the admissibility of evidence of extrajudicial identification in a trial in which the identity of the accused as the person guilty of a crime is in dispute,' State v. Wilson, supra at 617, 231 P.2d at 300, 301, but the court firmly decided that:

We prefer the reasoning of those courts which favor admissibility. . . .

. . . we choose to align ourselves with those courts which hold that such identifications are admissible; . . .

State v. Wilson, supra at 617--18, 231 P.2d at 301.

Bergen also assigns error to the admission into evidence of certain items of clothing.

The 13-year-old victim testified that his attacker wore a stocking cap ski mask. The 14-year-old victim testified that his attacker wore wire-rimmed sunglasses and a blue stocking cap. The two stocking caps, the ski mask, and the sunglasses seized from Bergen's home were offered into evidence, but only the two stocking caps and the ski mask were admitted. The sunglasses were ruled inadmissible due to the lack of a sufficiently specific identification.

Bergen contends that the caps and mask also should have been excluded, for the items were not sufficiently identified as those worn by the attacker. Bergen argues that the absence of a proper identification rendered the evidence inadmissible.

The trial judge has a wide latitude of discretion to determine the admissibility of demonstrative evidence, and an appellate court will not interfere with the discretion absent manifest abuse. State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974); State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968).

Furthermore, a positive identification is not required. An identification of demonstrative evidence may be qualified and need not be made with complete certainty. Varying degrees of uncertainty do not affect admissibility. A qualified identification of an exhibit affects only the weight of the evidence. State v. Smith, supra; State v. Jackson, 1 Wash.App. 90, 459 P.2d 414 (1969).

The caps and mask were admitted into evidence only after the victims testified that the items were the same or about the same as those worn by their attacker. An adequate foundation was laid, and the evidence was properly admitted.

Bergen further contends that evidence of his prior convictions should have been excluded. In response to the prosecutor's cross-examination, Bergen admitted being convicted of the crime of indecent liberties on two prior occasions. One conviction was in 1947 and the other was in 1950. Bergen argues that the prejudice of showing the convictions for impeachment outweighs any relevancy to present veracity.

RCW 10.52.030 expressly provides that prior convictions of a witness may be shown in order to affect the weight of the testimony. Neither the remoteness in time nor the nature of the crimes prohibit the use of prior convictions to impeach the credibility of a witness. State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969); State v. Hinton, 12 Wash.App. 267, 529 P.2d 843 (1974). The trial judge did not err in admitting evidence of Bergen's prior convictions.

Bergen asserts that the prosecutor violated the trial judge's pretrial order excluding all witnesses from the courtroom and that the court erred in later admitting rebuttal testimony of the two victims.

During Bergen's testimony, the prosecutor asked the two complaining witnesses to return to the courtroom to hear Bergen's voice. Later, the two victims both testified in rebuttal that Bergen's voice was the voice of their assailant.

The exclusion of witnesses from the courtroom is a matter within the discretion of the trial court, and any decision to exclude witnesses will not be disturbed absent a manifest abuse of discretion. State v. Johnson, 77 Wash.2d 423, 462 P.2d 933 (1969); State v. Adams, 76 Wash.2d 650,...