State v. Ellison

• Citation: 676 P.2d 531,36 Wn.App. 564
• Decision Date: 25 January 1984
• Docket Number: No. 12236-3-I,12236-3-I
• Parties: STATE of Washington, Respondent, v. Ernest J. ELLISON, Appellant, and George Vaughn, and each of them, Defendant.
• Court: Washington Court of Appeals

Page 564

36 Wn.App. 564

676 P.2d 531

STATE of Washington, Respondent, v. Ernest J. ELLISON, Appellant and George Vaughn, and each of them, Defendant.

No. 12236-3-I.

Court of Appeals of Washington Division 1.

Jan. 25, 1984.

Review Denied April 6, 1984.

Washington Appellate Defender, Julie Kesler (court-appointed) Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Michael Schwartz, Deputy Pros. Atty., Gary White, Legal

Intern, Michael Linnabary, Deputy Pros. Atty., Seattle, for respondent.

DURHAM, Acting Chief Judge.

Ernest J. Ellison, a juvenile, appeals his conviction of first degree murder while armed with a deadly weapon that was also a firearm. We affirm.

On January 7, 1982, Ronald Blaha was shot twice in the head and killed while driving his cab. On January 8, fingerprints were recovered from the cab, and on April 20 and 22, the fingerprints were identified as those of George Vaughn and Ernest Ellison, respectively. On July 20, Ellison was charged with one count of premeditated murder and first degree felony murder, and Vaughn was charged with one count of second degree felony murder, to which he pled guilty.

On April 22, the police arrested Ellison at his home. Ellison was read his Miranda rights, and he stated that he knew nothing in response to police inquiries about the killing. When taken to the King County Youth Service Center, Ellison was again read his rights, and was confronted with an inculpatory statement by Vaughn. Ellison again said he didn't know what the police were talking about. When confronted with the fingerprint report and Vaughn's statement, he replied that they were "very interesting." At the CrR 3.5 hearing, the trial court held that Ellison had waived his Miranda rights and that the statements would be admissible at trial. ¹

At trial, Vaughn testified that he and Ellison were together on January 7, 1982, and discussed robbing a cab driver. Ellison showed Vaughn a gun and indicated that if somebody interfered with him he had "something for all these suckers". Ellison hailed Blaha's cab, and the two agreed to the robbery with Ellison saying he was going to "burn" the cab driver and "ditch" him. Ellison sat behind Blaha, who had to stop the cab because he was unable to negotiate an icy hill. When Blaha turned around to collect his fare, Ellison shot him.

In an earlier statement given to the police on April 21, Vaughn indicated his knowledge of the shooting when the police told him that he would be charged with first degree murder. This statement was inconsistent with his trial testimony in many respects. Most importantly, at trial Vaughn did not mention any discussions with Ellison about committing a robbery. Accordingly, the defense used the prior statement to impeach Vaughn at trial. The prosecution then attempted to rehabilitate Vaughn by introducing a statement he had made to the police on July 14, in which he told them of the planned robbery. This statement was made after Vaughn had been offered a plea bargain, a condition of which was that Vaughn testify against Ellison. Both the April 21 and July 14 statements were admitted.

Ellison first claims that the trial court erred in admitting Vaughn's July 14 statement as a prior consistent statement. He argues that prior consistent statements are admissible to bolster credibility only if the statement was made when the witness had no motive to fabricate. Thus, as the July 14 statement was made only after Vaughn became aware of the possibility of a plea bargain, it was error to admit it.

ER 801(d)(1)(ii) ² states that prior consistent statements are not regarded as hearsay (1) if the declarant testifies at trial and is subject to cross examination; and (2) the statement is offered to rebut an implied or express charge that the declarant's trial testimony is a recent fabrication or is the product of improper influence or motive. No other requirements are mentioned in the rule.

Prior to the adoption of the Rules of Evidence, however, Washington courts consistently held that prior consistent statements were admissible only if they were made at a time the declarant did not have a motive to fabricate. See, e.g., State v. Bray, 23 Wash.App. 117, 125, 594 P.2d 1363 (1979); State v. Epton, 10 Wash.App. 373, 377, 518 P.2d 229 (1974). The rationale for this limitation is that a statement made by a witness when its use to meet a claim of recent fabrication is foreseeable does not tend to disprove the charge of recent fabrication. See Sweazey v. Valley Transport, Inc., 6 Wash.2d 324, 335, 107 P.2d 567, 111 P.2d 1010, 140 A.L.R. 1 (1940).

The State contends that the instant case is governed solely by ER 801(d)(1)(ii), and that the above-described limitation no longer applies. We disagree. Although the rule does not expressly state that prior consistent statements must be made at a time when there is no motive to fabricate, neither does it purport to abolish this requirement. On its face, ER 801(d)(1)(ii) simply renders prior consistent statements used to rehabilitate an impeached witness immune from hearsay challenges. See 5A K. Tegland, Wash.Prac. § 342 (2d ed. 1982). The rule does not state that such statements are inherently reliable.

Several considerations support the argument that evidence of a motive to fabricate should continue to render the prior consistent statement inadmissible. First, the Washington Supreme Court has never indicated that Rule 801(d) either impliedly or expressly overruled prior case law. Indeed, in construing Rule 801(d), the court quite recently cited cases that articulate the motive to fabricate rule. See Thomas v. French, 99 Wash.2d 95, 103, 659 P.2d 1097 (1983) (citing Sweazey and Bray ). Second, the official comments to the Rules of Evidence do not indicate that the drafters intended to eliminate the motive to fabricate rule. ³ Finally most of the federal decisions interpreting Fed.R.Evid. 801(d)(1)(B), which is identical to the Washington rule, have concluded that the motive to fabricate rule continues to apply. See 5A K. Tegland, supra § 342. Thus, we conclude that a prior consistent statement meeting the requirements of ER 801(d)(1)(ii) is nonetheless inadmissible if it is tainted by a motive to fabricate.

The State relies heavily on State v. Smith, 30 Wash.App. 251, 633 P.2d 137 (1981), aff'd, 97 Wash.2d 801, 650 P.2d 201 (1982), to support its position that only the requirements set forth in ER 801(d)(1)(ii) need be met to admit a prior consistent statement. Although the court stated that prior consistent statements were used there "in rebuttal to the charge of fabrication", Smith, at 255, 633 P.2d 137, it did not inquire whether they were tainted by a motive to fabricate, and looked exclusively to Rule 801(d) for guidance. However, there was no indication that the prior consistent statement used in Smith was made at a time when the declarant could foresee its potential usefulness to buttress trial testimony.

The July 14 statement here, however, was made well after the prosecutor had offered Vaughn a plea bargain. The prosecutor apparently offered the plea bargain in order to procure Vaughn's trial testimony. Thus, it cannot be said that the July 14 statement was made at a time when Vaughn had no motive to fabricate. ⁴

However, the error was harmless. Defense cross examination brought out the fact that Vaughn made a statement after learning of a plea bargain before the State even introduced the July 14 statement. Because defense counsel did not allege any contradiction between the July 14 statement and Vaughn's trial testimony, the jury must have become aware that the July 14 statement was roughly consistent with it. Error of non-constitutional magnitude is prejudicial only if, within reasonable probabilities, the outcome of the trial would have been materially affected absent the error. State v. Cunningham, 93 Wash.2d 823, 831, 613 P.2d 1139 (1980). The actual admission of the statement could not have materially affected the trial outcome under these circumstances.

Ellison next contends that the trial court erred by refusing to allow the defense to impeach Vaughn with the results of his polygraph examinations. We disagree. Washington courts have consistently held that polygraph results are inadmissible absent stipulation by the parties. See, e.g., State v. Grisby, 97 Wash.2d 493, 502, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); State v. Young, 87 Wash.2d 129, 131, 550 P.2d 1 (1976). In State v. Woo, 84 Wash.2d 472, 475, 527 P.2d 271 (1974), the Washington Supreme Court suggested that it might ignore this rule if presented with a record sufficient to evaluate the reliability of polygraph tests. Nothing in this record demonstrates the reliability of polygraph tests generally or of Vaughn's in particular.

Appellant appears to contend, however, that the admissibility of polygraph results to impeach key State witnesses is compelled by the confrontation clause. U.S. Const. amend. 6. He argues that the Sixth Amendment entitles criminal defendants to cross-examine adverse witnesses as to all relevant matters, and that the Washington Supreme Court has itself conceded, in State v. Renfro, 96 Wash.2d 902, 906, 639 P.2d 737, cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982), that polygraph results are "reliable enough to be relevant."

Although the appellant's argument has never been addressed in this state, ⁵ the federal courts have almost uniformly held that the exclusion of polygraph evidence favorable to the defendant does not result in the denial of a fair trial. See, e.g., United States v. Black, 684 F.2d 481, 483-84 (7th Cir.1982), cert. denied, 459 U.S. 1043, 103 S.Ct. 463, 74 L.Ed.2d 613 (1982); United States v. Gordon, 688 F.2d 42, 44-45 (8th Cir.1982); Jackson v. Garrison, 677 F.2d 371, 373 (4th Cir.1981). It would be anomalous to conclude that the admission of such evidence for impeachment purposes is...