State v. Mesaros

• Decision Date: 25 July 1963
• Docket Number: No. 36351,36351
• Parties: STATE of Washington, Respondent, v. Donaid MESAROS, Appellant.
• Court: Washington Supreme Court

Page 579

62 Wn.2d 579

384 P.2d 372

STATE of Washington, Respondent, v. Donaid MESAROS, Appellant.

No. 36351.

Supreme Court of Washington, Department 1.

July 25, 1963.

James A. Alfieri and Henry Opendack, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Frank Sullivan, Lewis Guterson, Jerry A. Sovereign, Deputy Pros. Attys., Seattle, for respondent.

RYAN, Judge. ^*

This is an appeal from a judgment and sentence for the crime of murder in the first degree.

On December 1, 1961, at approximately 6:50 a. m., a tall, slim man driving a light-colored 1957 Pontiac, with an out-of-state license, drove into a service station on First Avenue South in Seattle, Washington. He parked his car between the plate glass window and the gas pumps at the front of the station. The automobile traffic was exceedingly heavy at that particular time, but six witnesses testified that they heard one or more shots fired. One of the witnesses was alone in his car, and three others were in another car, both traveling in a southerly direction, but momentarily stopped for a traffic light opposite the service station. They testified that they heard three shots fired, saw a man in the station with a gun in his hand, and, although they could not positively identify the defendant, they did say that the man they saw looked like him. The killer walked briskly to his car and drove in a northerly direction. Two other witnesses, who were proceeding north past the station, heard a shot and saw this man get in his car and drive in the same direction. These witnesses followed him for approximately 2 1/2 miles. They positively identified the defendant as the driver, and also identified the car its license number. Later, it was discovered that $35 had been taken from the station cash register. That same day, the defendant departed for his parents' home in Wallace, Idaho, where he was later arrested. He commenced this trip driving the car in question.

The defendant owned a .357 Magnum which he had purchased, with a supply of hand-loaded cartridges, from a Mr. Robinson in Mullen, Idaho. When the victim, who had been found dead on the floor of the service station, was disrobed in the coroner's office, a spent bullet fell from his clothing. This bullet was identified as a .357 Magnum hand-load. The defendant admitted to police officers that he owned a .357 Magnum, and that he had thrown it in a river while driving home the day of the killing. Although he made certain other damaging admissions, he did not at any time confess to the crime, and, in his testimony at the trial, he denied having committed it. The information by which the defendant was charged alleged the crime of murder in the first degree and recited in part as follows:

'He, the said DONALD MESAROS, in the County of King, State of Washington, on or about the 1st day of December, 1961, with a premeditated design to effect the death of one Charles H. Johnson, a human being, and while then and there engaged in committing, attempting to commit, or in withdrawing from the scene of the commission of a felony, to-wit: Robbery, willfully, unlawfully and feloniously did shoot at, toward and into the body of the aforementioned Charles H. Johnson, with a certain deadly weapon, to-wit: a pistol, then and there held by the said DONALD MESAROS, thereby mortally wounding the said Charles H. Johnson, from which mortal wounds the said Charles H. Johnson then and there died;'

Prior to the filing of the information, the defendant retained counsel of his own choosing. He was represented by his attorneys throughout the course of these proceedings, and he also secured the services of a private investigator to assist in the preparation of his defense.

The jury returned a verdict of guilty of the crime of murder in the first degree, but found that the death penalty should not be inflicted. Following entry of judgment and sentence, the defendant gave notice of appeal. He makes five assignments of error.

Appellant's first assignment of error is that the trial court erred in denying his counsel the opportunity to cross-examine expert witnesses from a textbook. Two of the witnesses called by the state were John F. Gallagher and Jay Cochran, Jr., who were special agents of the Federal Bureau of Investigation assigned to the F.B.I. laboratory in Washington, D. C. Agent Gallagher testified as to the metallic content of the bullets in question, his determination being made on the basis of a spectrographic analysis. He testified that, in his opinion, the metal in the bullet which fell from the victim's clothing and metal in bullets made in Mr. Robinson's (Lyman) mold were similar. On cross-examination counsel for the appellant asked this witness if he knew of a Doctor Kirk of the University of California. The witness answered that he had heard of him and knew that he had written many articles on criminology and laboratory examination and that he had heard of a book written by Doctor Kirk, but couldn't recall having read it. He did not testify that this book was authoritative or a standard text.

At this point, the state objected to this line of cross-examination of the witness. Wash.2d 571, 577, 202 P.2d 922, 925 (1949), for the appellant said that he proposed to read from Doctor Kirk's book, which the court refused to permit on respondent's objection. No further attempt was made to pursue this course of cross-examination. A careful review of the testimony, however, indicates that counsel's only purpose was to secure from the witness his opinion that the metal in the bullet which fell from the victim's clothing and that in the bullets from Mr. Robinson's mold were similar, but not necessarily identical. The witness so testified, and the result was that appellant accomplished his apparent purpose without the necessity of using the book.

In such a situation, and even if it is conceded that the court was in error in limiting the cross-examination, such error would be harmless. In State v. Clayton, 32 Wash.2d 571, 577, 202 P.2d 922, 925 (1949). we said:

'It is a familiar rule that a judgment will not be reversed merely because some error has been committed during the trial, but, to constitute reversible error it must appear that the appellant was prejudiced, or could reasonable be presumed to have been prejudiced, thereby.

"The mere fact, however, that error took place is not of itself determinative. To warrant reversal, it must further appear that prejudice resulted, or could reasonably be presumed to have resulted, from such error. [Citing cases]' State v. Levy, 8 Wash.2d 630, 113 P.2d 306.'

To determine whether prejudice has resulted, it is necessary to examine the entire record. State v. Britton, 27 Wash.2d 336, 178 P.2d 341 (1947); 3 Am.Jur., Appeal and Error §§ 949, 1003, 1007, pp. 511, 555, 562. See State v. Gaines, 144 Wash. 446, 258 P. 508 (1927). Examining the record in the instant case, it is clear that no prejudicial error resulted, if it was error for the court to refuse to permit appellant's counsel to cross-examine this state's witness by reading from a textbook.

There is a further reason which impels us to conclude that the court committed no error in this respect. The appellant failed to lay the necessary foundation of showing that the textbook he proposed to use on cross-examination was recognized as authoritative.

The rules governing the use of textbooks on cross-examination of expert witnesses vary in different jurisdictions. 60 A.L.R.2d 77. The rule has been established in this state that an expert witness may be cross-examined from textbooks or treatises which he admits to be authoritative. Cameron v. Benefit Ass'n of Railway Employees, 6 Wash.2d 440, 107 P.2d 1096 (1940). In the instant case, the witness did not admit that the textbook from which appellant's counsel proposed to read was authoritative or a standard text.

The appellant relies on Dinner v. Thorp, 54 Wash.2d 90, 338 P.2d 137 (1959), in support of his contention that the court erred in not permitting cross-examination of an expert from a textbook. It is to be observed that, in that case, the expert being subjected to cross-examination admitted that the text which counsel proposed to use was a standard text. Consequently, unlike the present case, the essential element of proof of the authoritative character of the textbook was presented.

Special Agent Cochran also testified as an expert witness and was cross-examined by appellant, but no attempt whatsoever was made to cross-examine this witness from a textbook. As a consequence, there is no question relative to this witness' cross-examination presented to us here for review.

Appellant's second assignment of error is that the court erred in refusing appellant's demand for a bill of particulars. The appellant was arraigned December 19, 1961, at which time his counsel stated to the court that they were ready to plead, but that he was going to request a bill of particulars as to one item in the information, namely, the make and caliber of the pistol alleged to have been sued in the crime charged. The court denied the request, stating that this was purely evidentiary, but granted counsel permission to file the motion. The oral motion was in violation of Special Rule 15(c) of the Suprior Court for King County, which was promulgated April 29, 1960, pursuant to Rule of Pleading, Practice and Procedure 83.04W, and provides as follows:

'Motions, except those mentioned in these rules as oral motions and those made ex parte, or in the course of the trial, shall be in writing and subscribed by the attorney. * * *'

It was also in violation of Rule 23(b) of the Special Rules which provides as follows:

'All motions, and all pleadings to which the same are directed, shall be filed not later than the second day preceding hearing thereon. * * *'

Nonetheless, the court heard the oral motion and passed upon it, reserving to the appellant the right to renew it by written motion. On...