State v. Parr
| Decision Date | 31 January 1980 |
| Docket Number | No. 46223,46223 |
| Citation | 606 P.2d 263,93 Wn.2d 95 |
| Parties | The STATE of Washington, Respondent, v. Douglas Boyd PARR, Petitioner. |
| Court | Washington Supreme Court |
Francis Conklin, Special Public Defender, Greenacres, for petitioner.
Donald C. Brockett, Pros. Atty., LeRoy C. Kinnie, Chief Deputy Pros. Atty., Spokane, for respondent.
Shortly after midnight on November 28, 1976, police officers were summoned to a rural address in Spokane County, where they found the petitioner standing in the driveway, crying When asked what the trouble was, he pointed toward the house and said, "Inside." They found there the body of a woman, lying in bed, with a bullet hole in her temple. An ashtray and a gun lay beside her, and a cigarette which she had evidently held in her hand or in her mouth at the moment of death was lying on her chest.
The defendant was in an extremely emotional state but he was able to tell the police his story, a story to which he adhered throughout his official interrogations and repeated at the trial. He said that he and the victim, who had lived with him for about 2 years, had returned home shortly before the shooting, which had occurred in the midst of an argument about her brother. The victim, who had already gone to bed, reached for the gun, the petitioner said, and he likewise grabbed for it. It went off, evidently while pointed in the direction of the victim's head. The petitioner manifested great distress at having killed "the one person in the world (he) loved," and testified at the trial that he had never intended to do so.
The jury found the petitioner guilty of second-degree murder, and the Court of Appeals affirmed. Two questions are raised on this petition for discretionary review. It is first urged that RCW 9A.32.050 and .060 are in violation of the equal protection clauses of the state and federal constitutions, the claim being that they give the prosecutor discretion to charge either second-degree murder or manslaughter and prove identical facts in either case. State v. Wanrow, 91 Wash.2d 301, 588 P.2d 1320 (1979), is cited.
Under RCW 9A.32.050, a homicide is murder in the second degree if the defendant caused the death while committing or attempting to commit any felony other than those enumerated in RCW 9A.32.030(1)(c). Assault in the second degree (defined in RCW 9A.36.020) is such a felony, and the trial court here instructed the jury that such an assault occurs when a person Knowingly inflicts grievous bodily harm upon another.
The argument of the petitioner is that manslaughter in the first degree, as defined in RCW 9A.32.060, requires the same proof. RCW 9A.32.060(1)(a) declares that a person commits the crime of manslaughter in the first degree if he recklessly causes the death of another person. According to RCW 9A.08.010, recklessness occurs when a person knows of or disregards a substantial risk that a wrongful act may occur and his disregard of such risk is a gross deviation from the conduct of a reasonable man in the same situation.
The petitioner's argument equates knowledge of a risk with knowledge of the infliction of harm. There is a distinction between these two, which the petitioner evidently fails to perceive. A person who knows that he is inflicting grievous harm is aware that a result is being achieved; whereas one who knows of a substantial risk knows only that the forbidden result is likely to happen.
There is a significant difference in the state of mind involved in the two situations. Since the two crimes have different elements, there is no violation of equal protection requirements. State v. Wanrow, supra.
The petitioner's second contention has greater merit. It concerns the admission of certain rebuttal evidence offered to prove that the victim did not reach for the gun or threaten the petitioner; in other words, to rebut the claim that the shooting was accidental, occurring while the petitioner was attempting to defend himself.
For a period of time petitioner and the victim had lived with her brother. Over the petitioner's objection, the trial court permitted the brother to testify that on one occasion, 6 months earlier, he had been away for a weekend. On the morning after he returned the victim told him that she and the petitioner had had an argument; that she had gone to the bathroom; that the petitioner had come to the door and told her that he had a gun and to come out of the bathroom. She had told him that she wouldn't come out until he put the gun away. A little later, he said he had put the gun away. She came out of the bathroom and found him apologetic. She said she nevertheless was afraid of him. This witness was also permitted to testify that on other occasions, his sister had told him that she wanted to leave the petitioner, but that she was afraid of what he might do to her or the witness.
The court instructed the jury that the evidence was to be considered only as it bore on the state of mind of the victim, and that it was not to be taken as evidence of the truth of the facts about which the statements were made.
The objection is that this testimony was hearsay, that the statements of the victim could not be tested by cross-examination, that the petitioner was denied the right to confront the witnesses against him, and that no limiting instruction could cure the prejudicial effect of this testimony.
It has long been established in this jurisdiction that an exception is made to the rule excluding hearsay when the state of mind or intention of a person is in question, if the court finds that two circumstances concur: (1) if there is some degree of necessity to use out-of-court uncrossexamined declarations, and (2) if there is circumstantial probability of the trustworthiness of the out-of-court, uncrossexamined declarations. Raborn v. Hayton, 34 Wash.2d 105, 208 P.2d 133 (1949), and cases cited therein. As indicated in that case, if the circumstances do not import trustworthiness, such evidence may be inadmissible unless there is some other corroborating evidence. This court has been mindful that evidence of this type may be misused by the jury and is easily fabricated. In an effort to curtail abuse, limiting instructions are usually required. See the cases cited for this point in Raborn v. Hayton, supra. Whether such instructions can be expected to accomplish their purpose is a question open to debate. See Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); People v. Hamilton, 55 Cal.2d 881, 13 Cal.Rptr. 649, 362 P.2d 473 (1961), and United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (D.C.Cir.1973).
The trustworthiness of the declarant, as well as that of the witness who testifies to the declaration, is often difficult to fathom. Nevertheless, because such evidence, where it is relevant to an issue, has considerable probative value and because it may be unobtainable except through the avenues of hearsay, courts have generally approved its admission, surrounding it with such safeguards as they are able to provide and trusting in the exercise of a sound discretion on the part of the trial courts.
The testimony that the victim had told the witness that she feared the defendant was admissible under this exception, provided it was relevant and met the test of trustworthiness. But the testimony concerning a threat and other conduct of the petitioner was not properly admissible under that rule and was highly prejudicial. While this court has, in at least one case, approved the admission of similar testimony, the weight of authority is against it, and the prejudicial effect of such evidence is generally recognized. The subject is dealt with at length in many cases gathered in a scholarly opinion by Judge MacKinnon in United States v Brown, supra. The conclusion of that opinion is stated at 205-206 of 160 U.S.App.D.C., at 733-74 of 490 F.2d:
The rule then to be distilled from the better reasoned decisions is that a victim's extra-judicial declarations of fear of the defendant are admissible under the state of mind exception to the hearsay rule with a limiting instruction only if there is a manifest need for such evidence, I. e., if it is relevant to a material issue in the case. Where there is a substantial likelihood of prejudice to the defendant's case in the admission of such testimony, it is inadmissible if it bears only a remote or artificial relationship to the legal or factual issues raised in the case. Even where there is substantial relevance, the additional factual matters in the statement may simply be too explosive to be contained by the limiting instruction, in which case exclusion of the testimony is also necessitated.
The United States Supreme Court, in Shepard v. United States, supra, considered a case in which the defendant was accused of murdering his wife by administering poison to her. The defense was suicide. A nurse was allowed to testify that more than 2 weeks before her death, the wife had stated, "Dr. Shepard has poisoned me." Holding this evidence improperly admitted, the court said that the declarations of deceased persons (short of dying declarations) which may be used to show their intentions for the future must be sharply distinguished from declarations of memory merely and from those that recite the past conduct of other persons.
There, the government had argued that the statement by the dying woman, if not admissible as a dying declaration, was admissible to show her state of mind that she was not in a suicidal mood. Justice Cardozo, speaking for the court, said:
It will not do to say that the jury might accept the declarations for any light that they cast upon the existence of a vital urge, and reject them to the extent that they charged the death to some one else. Discrimination so subtle is a feat beyond the compass of ordinary minds.
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