State v. Kreck, 43704

• Citation: 86 Wn.2d 112,542 P.2d 782
• Decision Date: 20 November 1975
• Docket Number: No. 43704,43704
• Parties: The STATE of Washington, Petitioner, v. Charles KRECK, Respondent.
• Court: United States State Supreme Court of Washington

Page 112

86 Wn.2d 112

542 P.2d 782

The STATE of Washington, Petitioner, v. Charles KRECK, Respondent.

No. 43704.

Supreme Court of Washington, En Banc.

Nov. 20, 1975.

Donald C. Brockett, Pros. Atty., LeRoy C. Kinnie Chief Deputy Pros. Atty., Spokane, for petitioner.

Victor J. Felice, Spokane, for respondent.

HOROWITZ, Associate Justice.

On petition of the state, review was granted of a decision of the Court of Appeals, Division Three (12 Wash.App. 748, 532 P.2d 285 (1975)), which reversed the conviction in the superior court of defendant Charles Kreck for second degree murder, the case being tried to the court. The principal issue is whether admission of a laboratory report of a blood test as evidence under RCW ch. 5.45--the Uniform Business Records as Evidence Act--violates the Sixth Amendment right of confrontation.

On June 14, 1971, defendant, who was living apart from his wife, called the Spokane Police Department to request assistance for his wife, Jocosa, who was then unconscious. Upon arrival, the police found defendant attempting to administer artificial respiration to his wife. It was evident to the police officers, however, that defendant's wife was dead.

Neither police investigation nor autopsy revealed the cause of death. A blood sample from Jocosa Kreck was sent by Dr. Randell E. Davis of the Deaconess Hospital in Spokane, who supervised the autopsy, to Dr. Ted Loomis, the state toxicologist, at the State Toxicological Laboratory at the University of Washington. Subsequently, the police received information the defendant had been planning to rob his wife and had purchased chloroform for this purpose. This information was forwarded to Dr. Loomis by Dr. Davis with the request to test the blood for chloroform. Dr. Loomis then directed Ronald Skinner, a trained chemist on the staff of the toxicological laboratory working under Dr. Loomis's supervision, to test the blood sample for chloroform and ethanol (the ethanol test is made on every blood sample received). Ronald Skinner did so. The laboratory report of these tests, dated June 22, 1971, was signed by him, identifies the person from whom the sample was taken (Jacosa Kreck), the date the sample was received (June 16, 1971), the material submitted for examination (blood). The results of the test for chloroform is shown in the report as follows: 'Test: chloroform; Result: 26.0 mg%.'

During trial Dr. Loomis testified to the way in which the test was conducted, how the report was prepared, and his role as supervisor. He also testified that while he did not personally conduct the test, he did confer with Mr. Skinner in his supervisory capacity and verified the test results. After having been qualified as an expert, Dr. Loomis testified that in his opinion the amount of chloroform found in the decedent's blood, as shown by the report, was the cause of death.

The trial court admitted in evidence both the laboratory report and the testimony of Dr. Loomis, over defendant's objection that he had the right to cross-examine Ronald Skinner before the report could be admitted. Mr. Skinner was not produced as a witness because he was in Germany on business at the time of the trial, and the state made no effort to obtain his testimony. The trial court admitted the report by relying upon RCW ch. 5.45, the Uniform Business Records as Evidence Act, as interpreted in State v. Boehme, 71 Wash.2d 621, 430 P.2d 527 (1967), and State v. Rutherford, 66 Wash.2d 851, 405 P.2d 719 (1965). ¹

RCW 5.45.040 provides:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

In State v. Rutherford, supra, a criminal case, the court held that under RCW 5.45.020, the chief of materials testing for the Air Force could testify as to the results of physical tests conducted by one of his assistants under his supervision, even though he had not personally observed the performance of the tests. The court stated that either the written record of the tests report or testimony as to the contents of the record by the person who made the record was admissible under the Act. In State v. Boehme, supra, also a criminal case, the court relying on Rutherford, permitted a pathologist from the office of the chief medical examiner of the state of Maryland to testify to the results of tests upon blood samples conducted by an assistant under his supervision and control, although he had not personally observed the test.

Cases from other jurisdictions hold that where a foundation has been established that the report and test were made in the regular course of business, and there is no question as to the identity of the material tested, the report is admissible in evidence. Annot., 19 A.L.R.3d 1008, 1021--25 (1968).

The report in the instant case is of a chemical blood sample analysis prepared under the supervision of the Washington State Toxicologist, who conferred with the chemist conducting the tests, and personally verified the results. The tests were clearly made in the course of the business of the Washington State Toxicological Laboratory. No objection was made below to the reliability of the tests, and no attack was made upon the reliability of the tests by testimony offered on defendant's behalf. As later appears in discussing the confrontation clause, the report met the requirements of RCW ch. 5.45.

Defendant contends, however, the report was inadmissible as violative of the Sixth Amendment in that Mr. Skinner was not produced as a witness and the state made no attempt to obtain his testimony. We disagree. ² The purpose of the confrontation clause is stated in Mattox v. United States, 156 U.S. 237, 242--43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895):

The primary object of the constitutional provision in question was to prevent depositions or Ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

See also 5 Wigmore on Evidence § 1395 (3d ed. 1940).

This right of confrontation, however, has always been subject to exceptions:

But this general rule of law embodied in the Constitution . . . intended to secure the right of the accused to meet the witnesses face to face, and to thus sift the testimony produced against him, has always had certain well recognized exceptions. As examples are cases where the notes of testimony of deceased witnesses, of which the accused has had the right of cross-examination in a former trial, have been admitted. Dying declarations, although not made in the presence of the accused, are uniformly recognized as competent testimony. . . . Documentary evidence to establish collateral facts, admissible under the common law, may be admitted in evidence.

Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911). These exceptions are subject to modification and addition, so long as the purpose of the rule is not hindered:

The exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule.

Synder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Accord, State v. Ortego, 22 Wash.2d 552, 563, 157 P.2d 320 (1945). The Massachusetts Supreme Court, admitting in evidence four certificates from the state department of health to prove the alcoholic contents of 'moonshine,' stated:

One of the acknowledged exceptions to the face-to-face rule of evidence is that public records are competent evidence when of probative value respecting an issuable fact. The is an ancient principle of the common law, recognized at the time of the adoption of the Constitution. . . . It cannot be thought that the Constitution was intended to close the door to the legislative department of government to establish new public records with like probative value. Existing public records did not become rigid for all time for evidential purposes. Power to add to the varieties of public records under the principles of law prevailing at the time of the adoption of the Constitution is conferred upon the General Court under the grant to make, ordain, and establish all manner of wholesome and reasonable laws not repugnant to the Constitution. There is analogy in this respect to the trial by jury preserved in all its essentials by the Constitution, which may be regulated by the legislature as to details not impairing its essential integrity.

Commonwealth, v. Slavski, 245 Mass. 405, 140 N.E. 465, 468, 29 A.L.R. 281 (1923); Accord, Kay v. United States, 255 F.2d 476, 480--81 (4th Cir. 1958).

Exactly when a particular exception to the hearsay rule infringes upon the right of confrontation has not been fully explored by the United States Supreme Court. Guidelines exist in Dutton v. Evans, 400 U.S. 74, 86--89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In Dutton the court expressly refused to equate the confrontation clause and the evidentiary hearsay rule. The court's concern was with the reliability of the evidence. As Dutton puts it:

The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact (has) a satisfactory basis for evaluating the truth of the...