State v. Carr, 2794--I

• Decision Date: 23 June 1975
• Docket Number: No. 2794--I,2794--I
• Citation: 537 P.2d 844,13 Wn.App. 704
• Parties: STATE of Washington, Respondent, v. Eddie Leroy CARR, Appellant.
• Court: Washington Court of Appeals

Page 704

13 Wn.App. 704

537 P.2d 844

STATE of Washington, Respondent, v. Eddie Leroy CARR, Appellant.

No. 2794--I.

Court of Appeals of Washington, Division 1.

June 23, 1975.

Maslan & Maslan (court-appointed), Robert G. Maslan, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Richard H. Blacklow, Deputy Pros. Atty., Seattle, for respondent.

JAMES, Judge.

Defendant Eddie Leroy Carr was found guilty of assault in the first degree. The information charged that, with intent to kill, he shot his victim with a .32 caliber pistol. On appeal, Carr assigns ten trial errors.

Carr first asserts that he was denied the opportunity to effectively cross-examine the victim in violation of his constitutionally guaranteed and statutorily confirmed right to confront 'the witnesses produced against him.' RCW 10.52.060.

Carr's counsel sought to discredit the victim by interrogating him concerning his addiction to heroin. Upon advice of his personal counsel, the victim invoked his privilege against self-incrimination and refused to answer questions concerning his addiction. The trial judge honored the victim's claim of privilege and denied Carr's motion to strike all of the victim's direct testimony.

Carr's counsel, however, continued cross-examination with the result that the victim eventually revealed that he had been a heroin addict; that for some time prior to the assault, he had been on a methadon withdrawal program; and that he still used heroin on occasion. He maintained, however, that he had used no heroin at the time of the assault. In fact, although the victim did initially claim privilege, the continued cross-examination fully explored his addiction.

Necessarily, the scope of cross-examination is peculiarly within the province of the trial judge and his judgment will not be disturbed on appeal in the absence of a manifest abuse of discretion. State v. Robinson, 61 Wash.2d 107, 377 P.2d 248 (1962). Any possible error in initially permitting the victim to exercise his privilege was harmless because the victim himself wavied the privilege by answering to the continued cross-examination questioning.

Carr's second assignment of error concerns the admissibility of the results of a polygraph examination of the victim. Prior to trial, the victim submitted to a polygraph examination sought by the prosecutor to '(v)erify or refute the subject's allegation that he was shot by one Eddie Carr.' The fact that the examination had been conducted was revealed to Carr's counsel at the omnibus hearing conducted prior to trial pursuant to CrR 4.5. However, in response to the prosecution's motion in limine, the judge who presided at the omnibus hearing ruled that evidence of the polygraph test would be inadmissible at trial. The trial judge likewise ruled the test inadmissible. Carr contends that he was denied the use of competent evidence to attack the credibility of his accuser. He distinguishes prior cases discussing judicial acceptability of polygraph examinations arguing that, in the present case, the complaining witness, rather than the defendant, was the subject of the test and that the defendant is urging rather than objecting to admissibility.

Washington adheres to the majority rule that the results of a polygraph examination are inadmissible at trial absent a 'stipulation by both the defense and the prosecution.' (Italics in original.) State v. Woo, 84 Wash.2d 472, 473, 527 P.2d 271, 272 (1974). However, in State v. Woo, the court noted that in United States v. Hart, 344 F.Supp. 522 (E.D.N.Y.1971), it is held that the results of a polygraph test of a prosecution Witness were admissible under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady requires the prosecution 'to disclose any evidence which may tend to exculpate a defendant.' United States v. Hart, supra at 523.

The rationale of United States v. Hart is that it is fundamental that a 'government should not obtain a conviction on evidence which it knew was perjurious' and that '(i)t would follow that the defendants are entitled to inquire concerning any investigations made by the government which might have put it on notice that a government witness was untruthful.' United States v. Hart, supra at 523.

In State v. Woo, supra, our Supreme Court indicates that the admissibility of polygraph test results is not a closed question.

If we are to consider a departure from a virtually unanimous rule against the admissibility of polygraph examinations, absent stipulation, we must be furnished with a record sufficiently adequate to permit review of the subject.

State v. Woo, supra 84 Wash.2d at 475, 527 P.2d at 273. The opinion makes clear, however, that the threshold questions will be the 'trustworthiness of the most modern polygraph equipment' and the competence of the 'polygraph operator.' State v. Woo, supra at 474, 527 P.2d at 273.

The polygraph operator who tested the victim concluded that '(d)eception was indicated in his responses to questions relating to who did the shooting, however, due to the aforementioned physical conditions coupled with a suspected anger factor, an opinion cannot be rendered as to truth or deception.' The 'physical conditions' referred to by the 'polygraphist' were that the subject had taken methadon 30 minutes prior to the test, was suffering from a toothache, had a cold and a respiratory disorder from the gunshot wound and discomfort from suspected gonorrhea. He had also taken 15 mg of Valium and appeared to be very lethargic and under the influence of the drugs that he had taken.

As our Supreme Court in State v. Woo, supra, we, in this case, do not reach the ultimate question of whether in all circumstances polygraph testing cannot be used as an aid in judging witness credibility. But, even assuming the validity of polygraph testing for truthfulness, it was not error to exclude the evidence in this case because of the polygraph operator's conclusion that the test which he had given was inconclusive.

Carr further contends that the trial court erred in excluding a statement by the victim regarding his use of Valium on the day of the polygraph test. During cross-examination, the victim denied telling the polygraph examiner that he had used Valium on the day of the exam. Carr's counsel later unsuccessfully sought to introduce the victim's statement to the examiner concerning his use of Valium at the time of the test. Carr argues that a proper foundation was laid for admission of the impeaching prior inconsistent statement.

Impeachment of a witness through use of a prior inconsistent statement is limited by the well-recognized and firmly-established rule that the prior inconsistent statement may not concern matters collateral to the issues at trial. State v. Oswalt, 62 Wash.2d 118, 381 P.2d 617 (1963); State v. Hall, 10 Wash.App. 678, 519 P.2d 1305 (1974). Carr's allegedly inconsistent statement concerned a purely collateral matter. The trial judge did not err. State v. Powers, 155 Wash. 63, 283 P. 439 (1929).

Carr also asserts that three instances of prosecutorial misconduct precluded a fair trial and constituted grounds for a new trial.

First, during cross-examination of a defense witness, the witness referred to Carr's stay in a 'halfway house.' Following defense counsel's objection, the trial judge cautioned the prosecutor to avoid any mention of the term. The prosecutor, however, used the expression in the next question asked of the witness. A second defense objection was sustained. Carr now asserts that the prosecutor's repeated reference to the term constituted inadmissible evidence of a prior conviction and prejudiced his right to a fair trial.

Second, the prosecutor, in closing argument, stated that Carr 'did a terrible, grievous harm to a man.' An objection by the defense was overruled. Carr contends that the statement was an unethical and prejudicial expression of the prosecutor's personal opinion of guilt and an...