State v. Day

• Decision Date: 26 May 1988
• Docket Number: No. 8321-7-III,8321-7-III
• Citation: 754 P.2d 1021,51 Wn.App. 544
• Parties: STATE of Washington, Respondent, v. Dana Colin DAY, Appellant.
• Court: Washington Court of Appeals

Page 544

51 Wn.App. 544

754 P.2d 1021

STATE of Washington, Respondent, v. Dana Colin DAY, Appellant.

No. 8321-7-III.

Court of Appeals of Washington Division 3, Panel Three.

May 26, 1988.

Paul Wasson, Spokane, for appellant.

Frederick Caruso, Deputy Prosecutor, Spokane, for respondent.

THOMPSON, Judge.

Dana Colin Day appeals his conviction for the first degree murder of his wife, Ramona Day. We affirm.

Ramona Day's body was found on November 2, 1980, on a hillside near the Spokane River. The 22-year-old victim apparently had been strangled with the sash of her blouse.

The victim's marriage to Mr. Day was less than perfect. In the months before his wife's death, Mr. Day had gone out with other women, including Barbara Ruskey, and had told these women he wanted out of the marriage. Ramona Day had told coworkers she was afraid of her husband. In the days before her death, she talked of leaving Mr. Day, taking their baby and moving to Oregon.

The couple's 17-month-old child, Beth Ann, was very important to both Dana and Ramona Day. One coworker testified the baby was Ramona's "entire life". Others agreed Beth Ann meant everything to Ramona Day. Mr. Day appears to have been equally devoted. Witnesses testified he was a "very loving" father. He told coworkers he would do anything, including kill, to prevent his wife from taking the child from him. Two witnesses testified Mr. Day actually made plans to kill his wife. Kraag Carter said Mr. Day discussed at least four scenarios. John Bumpas said Mr. Day discussed similar plans.

On October 31, 1980, the Days went to a restaurant and a nearby coin laundry, where they were seen as late as 5:30 p.m. A neighbor heard Mr. Day's truck leave their home at about 6 p.m. and return about 10 p.m. Mr. Day went to dinner that evening with Barbara Ruskey, who testified she was with him from 7 p.m. until he took her home at approximately 10 p.m. Mr. Day testified when he returned home, he and his wife had a discussion about his extramarital activities. He said his wife then went for a walk, leaving the baby behind, and never returned. The doctor who performed the autopsy testified Mrs. Day died within 2 hours of eating.

Mr. Bumpas said earlier that day, he and Dana Day had rented a motel room, where Mr. Bumpas was to gather sperm in a jar. Mr. Bumpas testified Mr. Day told him he planned to impregnate Ramona Day and use her out-of-wedlock pregnancy against her in divorce proceedings. Mr. Bumpas testified he checked into the motel room with a prostitute at 6 or 6:30 p.m., and Mr. Day came to the room at about 8 p.m. to pick up the jar. According to Mr. Bumpas, Mr. Day returned at 11 p.m. or midnight and requested that he accompany him in his truck. Mr. Bumpas noticed a "bundle" on the floor of the truck, which he later discovered was a female body. Mr. Bumpas said Mr. Day admitted strangling Ramona Day, and promised to pay him $2,000 to keep quiet. Mr. Day denied visiting Mr. Bumpas that night, and denied strangling his wife.

The next morning, November 1, 1980, Mr. Day told Ramona Day's supervisor his wife had not come home. Later that day he bought flowers for Barbara Ruskey, took her to dinner, visited friends, and stayed the night at her apartment with the baby. On November 2, 1980, Mr. Day reported his wife missing. Later, the same afternoon his wife's body was found, Mr. Day took his daughter, a friend, and Barbara Ruskey on an airplane ride over Spokane. Detectives attempted to contact Mr. Day three times that evening at his home, but he was at Barbara Ruskey's apartment again that night.

The next morning, November 3, 1980, Mr. Day went to the police station to inquire about his wife. He was interviewed from 8:30 a.m. until 11:58 a.m., when he was advised of his constitutional rights, which he waived. Officers later conducted a consented search of the Days' home and truck. Mr. Day was not arrested or charged at that time.

Mr. Bumpas gave a statement to police in March 1986, leading to Mr. Day's arrest. On December 15, 1986, a jury found Mr. Day guilty of first degree murder, and he was sentenced to 320 months.

Mr. Day and Barbara Ruskey began living together in 1981, and married in 1983. She filed for dissolution in February 1986. Trial in this case was set for October 27, 1986, but the State requested a continuance, in light of the pending dissolution, to make available the testimony of Barbara (Ruskey) Day, who as a spouse would have been barred from testifying by the spousal testimonial privilege:

A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage.

(Italics ours.) RCW 5.60.060(1).

The dissolution was set for November 17, 1986, and the decree actually was entered November 19, 1986. The court in this case granted the continuance, observing that Barbara Day's potential testimony was material, relevant and crucial, and that an injustice would occur if she were unable to testify. In its oral ruling, the court observed that Barbara Day's testimony would be unavailable on October 27, 1986, but would be available within a reasonable time, in light of the pending dissolution.

Mr. Day assigns error to granting the continuance, claiming violation of his right to a speedy trial.

On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance.

CrR 3.3(h)(2). The grant or denial of a continuance will not be disturbed on appeal absent a showing of manifest abuse of discretion. State v. Campbell, 103 Wash.2d 1, 14, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526, (1985). Unavailability of a material State witness is a valid ground for continuing a criminal trial, where there is a valid reason for the unavailability, State v. Henderson, 26 Wash.App. 187, 191-92, 611 P.2d 1365, review denied, 94 Wash.2d 1008 (1980), where there is reasonable reason to believe the witness will become available within a reasonable time, State v. Lee, 13 Wash.App. 900, 904, 538 P.2d 538, review denied, 85 Wash.2d 1019 (1975), and where there is no substantial prejudice to the defendant. CrR 3.3(h)(2); Henderson, 26 Wash.App. at 192, 611 P.2d 1365.

Here, there is no question that Barbara Day could not have testified before the divorce. Except in limited circumstances not relevant here, RCW 5.60.060(1) bars testimony by the wife of a defendant without the husband's consent. See State v. White, 50 Wash.App. 858, 751 P.2d 1202 (1988); 5 K. Tegland, Wash.Prac., Evidence § 210, at 427-32 (2d ed. 1982). Barbara Day's testimony thus would have been unavailable on October 27, 1986. See ER 804(a)(1) (defining unavailable witness in hearsay context as one who is "exempted ... on the ground of privilege from testifying ...").

However, the testimonial privilege applies only during the marriage. State v. Americk, 42 Wash.2d 504, 256 P.2d 278 (1953); State v. Lammert, 14 Wash.App. 137, 540 P.2d 466 (1975). Mr. Day's privilege to bar his wife's testimony ended when the dissolution decree was entered, and she became an available witness. The court, recognizing that the dissolution was pending, did not abuse its discretion in continuing the trial for a reasonable time.

Mr. Day argues the continuance substantially prejudiced him by permitting the State to present Barbara Day's adverse testimony. "In almost any instance, a defendant can complain that the admission of potentially incriminating evidence is prejudicial in that it may contribute to proving beyond a reasonable doubt he committed the crime with which he is charged." State v. Bernson, 40 Wash.App. 729, 736, 700 P.2d 758, review denied, 104 Wash.2d 1016 (1985). At issue in Bernson was the application of ER 403, which limits the exclusion of prejudicial evidence to those instances where it would be "unfair". A similar limiting construction of CrR 3.3(h)(2) is appropriate. Courts should be allowed the discretion to grant a continuance to make available a material State witness where the defendant's case is not unfairly or unjustly prejudiced. In this case, as the court recognized, it would be unjust to bar Barbara Day's testimony, when she would become available in a reasonable time.

The continuance in this case violated neither Mr. Day's speedy trial rights nor his right to bar a spouse's testimony. Neither does it do violence to the purpose of the testimonial privilege, which is to "foster domestic harmony and prevent discord". State v. Bonaparte, 34 Wash.App. 285, 288, 660 P.2d 334, review denied, 100 Wash.2d 1002 (1983). The testimonial privilege has been severely criticized.

When one spouse is willing to testify against the other in a criminal proceeding--whatever the motivation--their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.

Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). Washington courts have narrowly interpreted the privilege, Bonaparte, 34 Wash.App. at 289, 660 P.2d 334, and the Legislature has acted to avoid its abuse by denying its application when the marriage occurs "subsequent to the filing of formal charges against the defendant". Laws of 1982, ch. 56, § 1. Here,...