State v. Davis, 39376

CourtUnited States State Supreme Court of Washington
Citation438 P.2d 185,73 Wn.2d 271
Decision Date06 March 1968
Docket NumberNo. 39376,39376
PartiesThe STATE of Washington, Respondent, v. Ronald E. DAVIS, whose true name is Duane H. Bellows, Leslie A. Huston and Francis E. Olson, Defendants, James L. Belknap, Appellant.

Page 271

73 Wn.2d 271
438 P.2d 185
The STATE of Washington, Respondent,
v.
Ronald E. DAVIS, whose true name is Duane H. Bellows, Leslie
A. Huston and Francis E. Olson, Defendants, James
L. Belknap, Appellant.
No. 39376.
Supreme Court of Washington, Department 2.
March 6, 1968.
Rehearing Denied May 31, 1968.

Page 274

[438 P.2d 187] Hamblen, Gilbert & Brooke, Wm. F. Nielsen, Spokane, for appellant.

George A. Kain, Pros. Atty., Donald C. Brockett, Deputy Atty. Gen., Spokane, for respondent.

NEILL, Judge.

Defendant Belknap, along with three codefendants, was convicted of attempted escape (RCW 9.31.010). In 1966, the authorities of the Spokane County Jail, in which Belknap was incarcerated, were informed that an attempt to escape was being made. Investigation revealed a partially sawed hole in the metal floor of the common exercise area adjoining the prisoners' cells. Several pieces of hacksaw blade were found on one of Belknap's codefendants. The jail authorities questioned the inmates, including Belknap, some of whom gave oral and written statements.

A pretrial confession hearing, held pursuant to CrR 101.20W, established the following undisputed facts: (1) after discovery of the attempted escape, a sheriff's captain had a conversation with Belknap; (2) an undersheriff was present at, but did not participate in, this conversation; (3) the captain informed Belknap of his constitutional rights as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (4) Belknap understood his rights; and (5) Belknap was requested to give a written statement which he refused to do.

Other material factual details surrounding this conversation are in dispute. The sheriff's captain testified that: (1) after being informed of his rights, Belknap stated that he understood them, that he would waive his rights, would answer questions he felt it was wise to answer and would refuse to answer questions he felt it was unwise to answer, unless his attorney would be present; (2) defendant was told that the authorities knew he had not sawed on the floor but that he had sawed on a table brace; (3) Belknap replied that four men were involved in the attempt and

Page 275

that he had played his part by sawing on the table brace and acting as a lookout; (4) Belknap was requested to give a written statement; (5) he requested time to consider whether he would do so or whether he would consult his attorney first; (6) Belknap later informed the captain that he would not do so; (7) the captain did not know Belknap had an attorney; (8) Belknap did not request an attorney at any time prior to making the oral admissions; (9) Belknap was not told that charges might not be brought if he cooperated. Conversely, Belknap testified that: (1) after being warned of his rights, he told the captain that he would not say anything until he talked with his attorney; (2) he was informed that the captain had learned, from other inmates, of Belknap's part in the escape; (3) the state might not prosecute if Belknap cooperated; (4) the captain asked if it was true that defendant had sawed on a table brace and acted as a lookout; (5) Belknap replied that he would not answer until after consulting his attorney; (6) Belknap informed the captain of the name of his attorney; (7) Belknap informed[438 P.2d 188] the captain that he had no statement to give, written or otherwise. The trial court believed the captain's version of the disputed facts and ruled that Belknap's alleged admissions were voluntary and admissible.

At trial Belknap renewed his objection to the captain's testimony as to the admissions, but it was admitted. Independently of the admissions, testimony of other inmates of the jail was that Belknap: (1) indicated to other inmates his participation in the escape attempt; (2) assisted in camouflaging the hole; (3) acted as a lookout; (4) helped other inmates muffle the noise of sawing the hole; (5) sometimes kept the hacksaw blades; and (6) sawed on a portion of a table used as a brace in the escape hole.

Belknap appeals. He first argues that because he denied the captain's version of the alleged admissions and because an undersheriff who was included in the list of the state's witnesses was neither called by the state nor his absence explained even though the undersheriff was present during the interrogation, the trial court erred in refusing to instruct the jury on the 'missing witness' rule, i.e., the failure

Page 276

of the state to produce the undersheriff as a witness to verify Belknap's waiver of his constitutional rights raised an inference that his testimony would have been unfavorable to the state's case. This rule was defined in Wright v. Safeway Stores, Inc., 7 Wash.2d 341, 346, 109 P.2d 542, 544, 135 A.L.R. 1367 (1941), quoting from 10 R.C.L. 884, § 32, as follows: (cf. 29 Am.Jur.2d Evidence § 178 (1967))

'* * * it has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,--the jury may draw an inference that it would be unfavorable to him * * *'

In answer to this assignment of error, the state first argues that the failure to call the undersheriff was explained to Belknap's counsel during a recess of the trial. However, although the state's explanation appeared in its brief on appeal, there is nothing in the trial record to substantiate this explanation. This court has consistently held that cases on appeal must be decided on the record made in the trial court (Lally v. Graves, 188 Wash. 561, 63 P.2d 361 (1936)) and that we can only consider evidence presented in the record (Falcone v. Perry, 68 Wash.2d 909, 915, 416 P.2d 690 (1966); Tyree v. Gosa, 11 Wash.2d 572, 579, 119 P.2d 926 (1941); Dibble v. Washington Food Co., 57 Wash. 176, 106 P. 760 (1910)). Therefore, for the purpose of considering this issue, we must assume that the state's failure to call the undersheriff was unexplained at the time of trial.

The state next argues that the 'missing witness' rule does not apply in the instant case because the undersheriff was equally available to either party; or stated another way, the rule only applies when the uncalled witness is 'peculiarly available' to one of the parties. A witness, however, is not 'equally available' merely because he was physically present at the time of trial or could have been subpoenaed by either party. As was said in McClanahan v. United States, 230 F.2d 919, 926 (5th Cir.1956):

Page 277

* * * 'the availability of a witness is not to be determined from his mere physical presence at the trial or his accessibility for the service of a subpoena upon him. On the contrary, his availability may well depend, among other things, upon his relationship to one or the other of the parties, and the nature of the testimony that he might be expected to give * * *.' Deaver v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 83, 85.

For a witness to be 'available' to one party to an action, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for [438 P.2d 189] knowledge of a witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that his testimony would have been damaging. The rationale behind this definition of the 'availability' of a witness is aptly summarized in 5 A.L.R.2d 895 (1949), as follows:

If such an inference is to be drawn it becomes necessary to determine which of the parties to the action should have called the witness in order to determine who should bear the onus of the adverse inference or presumption. * * * one of the factors which determines this question is the relationship which the potential witness bears to the parties, the logical inference being that a person will be likely to call as a witness one bound * * * (to) him by ties of interest or affection unless he has reason to believe that the testimony given would be unfavorable, and that a party closely connected with the witness will be More likely to be able to determine in advance what his testimony will be if he is called. On the other hand, a party should not be required to call a witness likely to favor his opponent's case, Since by so doing he must ordinarily vouch for his credibility and lose his opportunity to impeach or cross-examine the witness. (Italics ours.)

We are of the opinion that, under the facts of the case at bar, the uncalled witness was not equally available to either party as argued by the state, but rather was 'peculiarly available' to the prosecution as these words are defined above. The uncalled witness was a member of the

Page 278

same law enforcement agency as the testifying officer. He was the only other witness to the interrogation. The law enforcement agency of which he was a member was responsible for investigating and gathering all the evidence relative to the charges made against Belknap. The uncalled witness worked so closely and continually with the county prosecutor's office with respect to this and other criminal cases as to indicate a community of interest between the prosecutor and the uncalled witness.

The state's next argument is that the missing witness rule does not apply in the instant case because the testimony of the uncalled witness, the undersheriff, would merely have been 'cumulative.' The state relies on Wright, supra, in which we said at 347 of 7 Wash.2d, at 544 of 109 P.2d, quoting from 10 R.C.L. 886 § 33: (cf. 29 Am.Jur.2d Evidence § 186 (1967))

'The presumption arising from a failure to call a witness applies only to witnesses * * * whose testimony would not be trivial, or to be classed as merely cumulative, but important and necessary.'

Similarly, Professor Wigmore has stated in 2...

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