State v. Little

• Decision Date: 05 January 1961
• Docket Number: No. 35455,35455
• Citation: 358 P.2d 120,57 Wn.2d 516
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Harry LITTLE, Appellant.

Page 516

57 Wn.2d 516

358 P.2d 120

STATE of Washington, Respondent, v. Harry LITTLE, Appellant.

No. 35455.

Supreme Court of Washington, Department 1.

Jan. 5, 1961.

Arthur R. Eggers, Walla Walla, for appellant.

Arthur L. Hawman, Pros. Atty., Eugene T. Golden, Deputy Pros. Atty., Walla Walla, for respondent.

DONWORTH, Justice.

Appellant was charged with murder in the first degree. His trial resulted in his conviction of murder in the second degree. He has appealed from the judgment and sentence (entered upon the verdict) whereby he was sentenced to life imprisonment.

The pertinent facts which the jury could have found from the evidence may be summarized as follows:

Both appellant and Ross Johnson, the deceased, were inmates in the state penitentiary at Walla Walla on the date when the alleged crime occurred. In the early morning hours of May 25, 1956, a serious altercation took place between the two men in the dormitory of Eight Wing. The testimony is conflicting as to the cause of, and violence involved in, the altercation. In the course of this fight, appellant punched and kicked Johnson several times. As a result, Johnson sustained numerous injuries including extensive facial lacerations and bruises.

A short time thereafter, Johnson, while in a semiconscious condition, was removed by stretcher to the prison hospital. Dr. Jimmie Losey, the prison physician, examined Johnson at about 7:30 a. m. on the same day and diagnosed the injuries as a concussion with the possibility of a skull fracture and perhaps brain damage. Dr. Losey also testified that his examination of Johnson was impeded by the fact that he (Johnson) 'was thrashing around * * * throwing his arms about.' Within the next few days, X rays and a spinal tap were taken. According to state's medical testimony, these tests revealed both a linear skull fracture and a subarachnoid hemorrhage. Johnson was in a semiconscious condition for five days after the fight and on May 30 lapsed into a coma.

In light of these developments, Dr. Losey personally transferred Johnson (via the doctor's own station wagon, as the prison was not equipped with an ambulance) to Western State Hospital at Steilacoom for neurosurgery. Johnson died some twelve hours after his arrival at Steilacoom without any operation having been performed. The clinical cause of death, according to the testimony of Dr. Charles P. Larson (a physician and surgeon who was a consultant pathologist at Western State Hospital), who performed an autopsy on the deceased, was 'cerebral trauma and meningeal hemorrhage, terminating in pulmonary edema.' Of note, also, was the testimony of certain inmate nurses at the prsion hospital indicating that Johnson had fallen from his bed on several occasions during the five days subsequent to his encounter with appellant.

Appellant urges six assignments of error, but we think that they present only three questions of law for our consideration: (1) Was it prejudicial error for the trial court to admit in evidence, over objection, the colored slides and photographs of the corpse taken during the autopsy? (2) Did the court err in allowing witness Claude Kenaston to refer to his notes while testifying--notes not made contemporaneously with the events about which he was called upon to testify? (3) Was there sufficient medical testimony to support the jury's verdict that appellant's act was a proximate cause of the death of Ross Johnson?

Appellant's position with regard to the admission of colored slides and photographs into evidence is that these slides and photographs were not accurate representations of the body of the deceased immediately after the fight took place, since the slides and photographs were taken six days later at the autopsy. Appellant also urges that the trial court's alleged error could have been averted had the state called a third person (other than Dr. Larson who took the pictures), namely Dr. Losey, to point out and explain the differences, if any, between the injuries apparent on the body of Johnson immediately after the encounter and the injuries portrayed in the pictures. It is appellant's contention that the fatal injuries were sustained by Johnson, not in the encounter with Little, but owing to repeated falls in the prison hospital.

Be that as it may, the admission or rejection of slides and photographs as evidence has been held many times by this court to lie within the sound discretion of the trial judge. See State v. Hardamon, 1947, 29 Wash.2d 182, 186 P.2d 634; State v. Nyland, 1955, 47 Wash.2d 240, 287 P.2d 345; State v. Griffith, 1958, 52 Wash.2d 721, 328 P.2d 897.

In the case at bar, the slides and photographs were introduced and used to amplify the relevant medical testimony of Dr. Larson bearing upon the cause of death and not upon the condition of the deceased after the altercation. The cause of death was not only a relevant but a vital issue for the jury's consideration. Appellant's argument properly relates to the weight of this evidence and not to its admissibility. See 73 A.L.R.2d 769 for a thorough analysis of this entire area of the law of evidence.

By way of preface to a discussion (the second question to be answered), a distinction must constantly be borne in mind between (1) refreshing recollection, and (2) a past recollection recorded. In the former situation, with which we are concerned here, the notes or memoranda used by the witness are not placed in evidence, but are used to trigger his psychological mechanisms of recognition and recollection, ¹ enabling the witness to then testify from his own memory. The testimony is the evidence, the writing is not. With respect to past recollection recorded, the notes or memoranda are the evidence, and it is only in this latter case that it is essential that the writing be made contemporaneously with the events described therein. Because the past recollection recorded is the evidence, there must be some assurances of accuracy, not the least of which is that the account be recorded at or near the time of the events descrided. However, as in the case before us, where the notes were used only to refresh the witness' memory, there is far less need (if any at all) to establish or insure the accuracy of the notes. Since the adverse party has the right to inspect the writing and to cross-examine the witness upon it, it is felt that these factors provide adequate safeguards for the prevention of coaching of witnesses--the most significant danger in this whole problem of refreshing recollection. Cf. Rustuen v. Apro, 1952, 40 Wash.2d 395, 243 P.2d 479. And see McCormick, Evidence, § 276; 3 Wigmore on Evidence 65, § 735. The use of notes to refresh the memory of witnesses must be closely supervised by the trial court, for, as in so many other fields of law of evidence, the sound discretion of the trial court is the most effective safeguard.

Appellant cites the case of State v. Jensen, 1938, 194 Wash. 515, 78 P.2d 600, to support the proposition that the notes used by a witness to revive his memory must have been made at or...