State v. McCaughey
| Decision Date | 30 September 1975 |
| Docket Number | No. 1657--II,1657--II |
| Citation | 541 P.2d 998,14 Wn.App. 326 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Steven L. McCAUGHEY, Appellant. |
C. C. Bridgewater, Jr., of Klingberg, Houston, Reitsch, Cross & Frey, Longview, for appellant.
Henry R. Dunn, Pros. Atty., Richard Edie, Robert H. Falkenstein, Deputy Pros. Attys., Kelso, for respondent.
Steven Lee McCaughey appeals from an order denying his motion in arrest of judgment or, in the alternative, for new trial following his conviction of grand larceny (possession of stolen merchandise). He contends (1) the evidence is insufficient to support the jury's verdict, (2) statements made by a co-arrestee should not have been presented to the jury, and (3) testimony of a deputy prosecuting attorney, tending to establish a family relationship between the co-arrestee and the defendant, should not have been allowed. We agree that some of the evidence was improperly presented to the jury. The remainder is insufficient to support the jury's verdict. Accordingly, we reverse with direction to dismiss the charge.
In the early morning hours of September 25, 1974, the defendant and another young man, who identified himself as Michael Orson, were accosted by a deputy sheriff as they lay sleeping 5 to 10 feet from a station wagon that was parked, partially off a side road, 150 yards from Interstate 5, the freeway which joins Portland and Seattle. The deputy aroused them and asked where they had come from. Orson responded, 'California.' Defendant remained silent. Orson identified himself as the owner of the vehicle. A license check indicated the plates had been issued to another vehicle. Both men were arrested. (Defendant does not challenge the validity of that arrest.)
An inventory of the station wagon revealed factory-packaged stereo equipment. The deputy asked the two men where the stereo equipment came from. Orson stated that he purchased it from several locations in Oregon. Upon further inquiry, Orson indicated that it came from their stereo equipment shop in California. Defendant's only response was to nod his head each time Orson spoke. At the pretrial confession hearing the trial court found that the defendant 'nodded his head in apparent agreement' to both of Orson's statements. Subsequent investigation revealed that the stereo equipment had been stolen two days previously from a store in Portland.
At trial the prosecution attempted to establish that Michael Orson is really Patrick McCaughey, the defendant's brother. A deputy prosecuting attorney, whose responsibilities included presentation of the criminal docket to the court, was allowed to testify that when he called the case of State of Washington v. Patrick McCaughey, Michael Orson stood, thus identifying himself as Patrick McCaughey.
We hold first that Orson's prearrest statement should not have been admitted in Steven McCaughey's trial. The deputy sheriff testified: 'I asked them where they had come from, and he (Orson) said 'California." McCaughey was under no obligation to respond to Orson's statement unless it was accusatory or incriminatory. State v. Lounsbery, 74 Wash.2d 659, 445 P.2d 1017 (1968). We find it was neither. Orson's statement did not accuse the defendant of a crime, nor did it purport to involve or inculpate him in the commission of a crime. Orson's statement did not require any counter response from McCaughey. His silence should not be interpreted as a tacit acquiescence in the truth of the statement. The deputy sheriff's recitation of Orson's statement was not admissible in this defendant's trial to prove the statement's truth.
Orson's postarrest statements, however, must be considered in view of the defendant's positive reaction to them. The record amply supports the trial court's determination that McCaughey nodded his head in apparent agreement to Orson's two statements as to the origin of the stereo equipment. Accordingly, the defendant adopted Orson's statements as his own. See State v. Fullen, 7 Wash.App. 369, 499 P.2d 893 (1972); 5 R. Meisenholder, Wash. Prac. § 429 (1965). Those two statements were admissible through the deputy's testimony as though the defendant had uttered them himself.
Michael Orson's act of standing in court, when the case of State v. Patrick McCaughey was called on the docket, constituted assertive conduct. Obviously, it could have been presented to a jury at Orson's trial to prove the truth of the statement: 'I am Patrick...
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State v. Morrill
...(5th Cir.1977) (ban on evidence of post-arrest silence includes ambiguous expression of desire to remain silent); State v. McCaughey, 14 Wash.App. 326, 541 P.2d 998 (1975) (accused nodded head in apparent agreement, statement admissible)." (Emphasis added.) Harrison v. State, 96 Nev. 347, 6......
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State v. McCoy
...in it, there was insufficient evidence to establish that defendant exercised dominion or control over vehicle); State v. McCaughey, 14 Wash.App. 326, 541 P.2d 998 (1975) (defendant did not have actual or constructive possession of stolen property found in car where only evidence was that de......
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State v. Boast
...are applicable to criminal as well as civil cases. See, e.g., State v. Orcutt, 123 Wash. 651, 212 P. 1066 (1923); State v. McCaughey, 14 Wash.App. 326, 541 P.2d 998 (1975); Cf. Fed.Rule Evidence 101, 1101. The sole remaining ground for objection was the Sixth Amendment right to confrontatio......
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Harrison v. State
...(5th Cir. 1977) (ban on evidence of post-arrest silence includes ambiguous expression of desire to remain silent); State v. McCaughey, 14 Wash.App. 326, 541 P.2d 998 (1975) (accused nodded head in apparent agreement, statement admissible). In this case, Harrison's response clearly expressed......