State v. Boast

• Citation: 87 Wn.2d 447,553 P.2d 1322
• Decision Date: 26 August 1976
• Docket Number: No. 44100,44100
• Parties: The STATE of Washington, Respondent, v. Edward Orville BOAST, Petitioner.
• Court: United States State Supreme Court of Washington

Page 447

87 Wn.2d 447

553 P.2d 1322

The STATE of Washington, Respondent, v. Edward Orville BOAST, Petitioner.

No. 44100.

Supreme Court of Washington, En Banc.

Aug. 26, 1976.

Baker & Palmer, Lawrence F. Baker, Seattle, for petitioner.

Christopher T. Bayley, Pros. Atty., Corydon J. Nelsen, Deputy Pros. Atty., Seattle, for respondent.

UTTER, Associate Justice.

This court granted appellant's petition to review an unpublished decision of the Court of Appeals affirming his conviction for armed robbery following a jury trial. Appellant seeks reversal of his conviction on the grounds (1) that the trial court erred in admitting hearsay evidence, (2) that the admission of such evidence violated his Sixth Amendment right to confront the witnesses against him, and (3) that the trial court erred in failing to give a cautionary instruction as to the testimony of an asserted accomplice. Finding appellant's objection to the challenged evidence inadequate to preserve the matter for appellate review and finding no constitutional or other error, we affirm the judgment below.

In the early morning hours of March 8, 1972, three masked men robbed a Seattle restaurant and its patrons. Appellant Boast, Herman Don Hartzog and Stephen Warren Barr were charged with the crime. Barr was not joined with the others for trial. Hartzog was convicted along with Boast, but appealed separately. State v. Barr, 9 Wash.App. 896, 515 P.2d 843 (1973).

At the trial of Boast and Hartzog, persons present at the restaurant during the robbery testified that two of the robbers carried automatic pistols and the third was armed with a revolver. They stated that money from the cash register and safe as well as money and personal property of customers were taken. These witnesses could not describe or identify the robbers, who wore ski masks and nylon stockings pulled down over their faces.

The only testimony linking appellant to the crime was that of Rosemary Swartz, the then girlfriend of Barr. She testified she was present on the evening of March 7, 1972, when appellant, Hartzog and Barr met at a tavern. Ms. Swartz observed that appellant and Barr were each armed with an automatic pistol and stated that the three men left together to 'check out some place.' At approximately 2 a.m. on March 8, according to Ms. Swartz, she and a female companion were taken by Hartzog to the apartment where she resided with Barr. She testified that on her arrival Barr and appellant were sitting at a table counting and dividing up money, purses, identification cards and other items of personal property. She also testified that she saw ski masks and nylon stockings in the room and that each of the men was armed.

Over objection, Ms. Swartz further testified as to the contents of the conversation among the men in the apartment that evening. She could not identify which of the men made which statement or even whether all three men participated in the conversation. In her testimony she paraphrased statements indicating that appellant participated in the robbery, that he went into the cafe part of the restaurant and 'took care of one person in there', and that he returned to the cocktail lounge and told everyone to lie down on the floor.

Appellant testified in his own defense, stating that he did not participate in the March 8 robbery and that he was elsewhere at the time. Two witnesses testified in support of his alibi. Hartzog did not testify.

Appellant challenges those portions of the testimony of Rosemary Swartz which described his participation in the robbery as hearsay evidence which is not within any exception to that rule of inadmissibility. Prior to the introduction of such testimony, counsel for co-defendant Hartzog made the following objection:

MR. TOBIN: As far as my other objection is concerned, it is my belief that Rosemary Swartz is going to testify to statements that were made in her apartment early in the morning on the 8th of March. THE COURT: Yes. MR. TOBIN: That she is not going to be able to specify who made the statements and these statements are going to be incriminating to my client. Now, it is my understanding that the rule in Bruton versus United States excludes such admissions when there is no opportunity to cross examine. In other words, if she were to testify to an incriminating statement that Mr. Boast said, she would be incriminating my client and I would not be able to cross examine Mr. Boast as to that statement. I am not going to speak for Counsel for Mr. Boast, but the reverse works for Mr. Boast, and it is my understanding that the rule in Bruton, which is based on the confrontation clause, and the right to cross examine in Pointer versus Texas, would prohibit such testimony and I would like to get it clear before the jury is in here. THE COURT: All right. MR. TOBIN: That I would have an objection to any testimony in which she was not able to specify who was making the statement, and if the statement is the statement of Mr. Barr or Mr. Boast, I would object to it on those grounds.

After further discussion of the same topic by counsel and the prosecuting attorney, the trial court suggested that the testimony of Ms. Swartz was admissible under the rule that 'where the incriminating statements are made in the presence of anybody and there is no objection to that, they're admissible as admissions.' Defense counsel responded that he believed this rule was inapplicable to criminal cases. The trial court then ruled against the objection to the evidence and counsel for both defendants took exception to the ruling.

We recently summarized the thrust of numerous decisions of this court, stating that 'insofar as possible, there shall be one trial on the merits with all issues fully and fairly presented to the trial court at that time so the court may accurately rule on all issues involved and correct errors in time to avoid unnecessary retrials.' Haslund v. Seattle, 86 Wash.2d 607, 614, 547 P.2d 1221, 1226 (1976). With regard to objections to evidence, it has long been the rule in this jurisdiction that an objection which does not specify the particular ground upon which it is based is insufficient to preserve the question for appellate review. See, e.g., Marr v. Cook, 51 Wash.2d 338, 341--42, 318 P.2d 613 (1957); White v. Fenner, 16 Wash.2d 226, 245--46, 133 P.2d 270 (1943). 'Objections must be accompanied by a reasonably definite statement of the grounds therefore so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect.' Presnell v. Safeway Stores, Inc., 60 Wash.2d 671, 675, 374 P.2d 939, 942 (1962). As stated in Kull v. Department of Labor & Indus., 21 Wash.2d 672, 682--83, 152 P.2d 961, 966 (1944):

When an objection is so indefinite as not to call the court's attention to the real reason for the testimony's inadmissibility, error may not be based upon the overruling of the objection. Coleman v. Montgomery, 19 Wash. 610, 53 P. 1102 (1898). An assignment of error as to the admission of evidence upon a certain ground cannot be made where no objection to the testimony was made on that ground. State v. Poole, 42 Wash. 192, 84 P. 727 (1906). Objection to evidence can be made in this court only upon the specific ground of the objection. Bolster v. Stocks, 13 Wash. 460, 43 P. 532, 534, 1099 (1896).

(Italics ours.) The rule set forth in Kull has been applied in several cases. See Sepich v. Department of Labor & Indus., 75 Wash.2d 312, 316, 450 P.2d 940 (1969), State v Roby, 43 Wash.2d 652, 656, 263 P.2d 273 (1953), and Rowe v. Dixon, 31 Wash.2d 173, 180, 196 P.2d 327 (1948).

Appellant's counsel on this appeal, who did not represent appellant at trial, argues that the portion of Ms. Swartz' testimony recounting the conversation in her apartment on March 8 is hearsay evidence ¹ and not within the admission by silence exception. ² This ground for objection, however, was not presented to the trial court. In colloquy with the trial court and prosecuting attorney prior to Ms. Swartz' testimony, defense counsel never used the word 'hearsay' and did not discuss the requirements of the admissions exception. As the trial court held, the hearsay rule and its exceptions are applicable to criminal as well as civil cases. See, e.g., State v. Orcutt, 123 Wash. 651, 212 P. 1066 (1923); State v. McCaughey, 14 Wash.App. 326, 541 P.2d 998 (1975); Cf. Fed.Rule Evidence 101, 1101. The sole remaining ground for objection was the Sixth Amendment right to confrontation, discussed immediately below. Because '(o)bjection to evidence can be made in this court only upon the specific ground of the objection', Kull v. Department of Labor & Indus., supra, 21 Wash.2d at 683, 152 P.2d at 966, we cannot consider appellant's contention challenging the admissibility of Ms. Swartz' testimony on hearsay grounds.

Regardless of whether the challenged portion of Ms. Swartz' testimony was inadmissible hearsay, as appellant contends, or hearsay admissible under an exception to the rule, as the trial court held, an issue as to the right to the accused to confront the witnesses against him is raised. Hoover v. Beto, 467 F.2d 516, 531 (5th Cir. 1972), Cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972). Misapplication of an exception to the hearsay rule which leads to the erroneous admission of evidence in a criminal trial 'does not lead to the automatic conclusion that confrontation rights have been denied.' California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). The protections of the Sixth Amendment extend to criminal defendants in state courts. Pointer v. Texas,380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Implicit in the constitutional right of confrontation is the right to cross-examine witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). While it is "an essential and fundamental requirement . . . of (a) fair trial", the...