State v. Stamm

• Decision Date: 28 December 1976
• Docket Number: No. 4010--I,4010--I
• Parties: STATE of Washington, Respondent, v. Barbara STAMM, Appellant.
• Court: Washington Court of Appeals

Page 603

16 Wn.App. 603

559 P.2d 1

STATE of Washington, Respondent, v. Barbara STAMM, Appellant.

No. 4010--I.

Court of Appeals of Washington, Division 1.

Dec. 28, 1976.

Rehearing Denied March 29, 1977.

Bangs & Castle, Gerald L. Bangs, Seattle, for appellant.

Christopher T. Bayley, King County Prosecuting Atty., Lee D. Yates, Roy N. Howson, Deputy Pros. Attys., Seattle, for respondent.

CALLOW, Judge.

The defendant Barbara Stamm appeals from a conviction of attempted murder in the first degree, committed with a deadly weapon. We affirm the conviction, but remand the cause for resentencing.

During the evening of November 5, 1974, Christopher Fisher attempted to kill Ralph Beuter. Beuter was shot but not killed. Fisher subsequently entered a plea of guilty to a charge of first-degree assault. During the trial of Barbara Stamm, Fisher testified that Stamm had hired him to kill Beuter. The jury returned a verdict finding the defendant Stamm guilty of attempted murder in the first degree, and returned a special verdict that the crime was committed with a deadly weapon, a firearm. A sentence of life imprisonment was imposed upon the defendant Barbara Stamm under RCW 9.01.080, and she appeals.

She asserts assignments of error that challenge the scope of discovery, the admission and exclusion of evidence, the conduct of the trial judge, and the sentence imposed.

The first claim of error concerns the pretrial order appointing a psychiatrist and directing a psychiatric examination of Fisher, the chief witness for the prosecution, to determine his competency to testify. See CrR 6.12. The defendant argues that the trial court erred in refusing to permit the defendant to select the psychiatrist to perform the examination and in limiting the scope of the examination to a determination of whether Fisher was competent to testify. The defendant asserts that a psychiatrist chosen by her should have been appointed to conduct an extensive psychiatric examination of Fisher to facilitate his impeachment at trial.

The competency of a witness to testify is for the trial court within the exercise of sound discretion. RCW 5.60.050; State v. Pethoud, 53 Wash.2d 276, 332 P.2d 1092 (1958), Cert. denied, 359 U.S. 949, 79 S.Ct. 734, 3 L.Ed.2d 682 (1959); State v. Bishop, 51 Wash.2d 884, 322 P.2d 883 (1958); State v. Moorison, 43 Wash.2d 23, 259 P.2d 1105 (1953). The trial court is cloaked with this control so that the collateral issue of each witness' ability to understand the nature of the oath and give a correct account of what has been seen and heard does not engulf the prime inquiry of the trial. Whether a prosecution witness should be compelled to submit to a psychiatric examination, and by whom, is likewise within the trial court's judgment. United States v. Pacelli, 521 F.2d 135 (2d Cir. 1975), Cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Ledbetter v. United States, 350 A.2d 379 (D.C.App.1976); Borosh v. State, Ind.App., 336 N.E.2d 409 (1975); State v. Klueber, 81 S.D. 223, 132 N.W.2d 847 (1965). See also Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Calif.L.Rev. 648 (1960); C. McCormick, Evidence § 45 (2d ed. E. Cleary 1972).

We recognize that expert testimony as to the credibility of a witness is admissible if the mental condition of a prospective witness is questioned. However, the management of this field of inquiry is for the trial court, who must decide if expert testimony will help cast light on whether the particular mental disorder would affect credibility. State v. Smythe, 148 Wash. 65, 268 P. 133 (1928); State v. Smith, 103 Wash. 267, 174 P. 9 (1918); State v. Schuman, 89 Wash. 9, 153 P. 1084 (1915); Annot., 20 A.L.R.2d 687 (1968). Here, there was no abuse of discretion. ¹ The trial judge appointed an independent psychiatrist, an examination was conducted, and the defendant was permitted to employ the psychiatrist's testimony in an attempt to impeach the credibility of the witness. It was not error to refuse to appoint a psychiatrist of the defendant's choosing, or to limit the scope of the examination of such an impeachment witness. This aspect of the impeachment inquiry was conducted fairly and reasonably. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950); C. McCormick, Evidence § 45 (2d ed. E. Cleary 1972).

The defendant next assigns error to the exclusion of the testimony of the Seattle police detective who administered a polygraph examination to the witness Fisher. The defendant offered to prove through the detective that Fisher was 'an unfit subject for testing.' The purpose of presenting this testimony was to show that Fisher was mentally ill and therefore incompetent to testify. The issue thereby presented is whether the polygraph examiner, who concludes that a person cannot react to a polygraph examination in such a way that the examiner can interpret the reactions, can testify to that conclusion and it can be inferred therefrom that the subject does not have the capacity to be a witness. Posing the issue thusly reveals that the proposition it proposes does not follow. The criteria for evaluating testability by a polygraph is very different from the capacities required of a witness. The polygraph examiner wishes to discover whether the person to be tested is so psychologically, emotionally, and physiologically constituted that his reactions will indicate to the examiner whether true or false answers are being given. The judge inquiring into the capacity of a person to be a witness wishes to ascertain whether the proffered witness can understand the nature of the oath and recount what he or she has seen or heard. One inquiry is not probative or relevant to the other. The trial court acted within its discretion in cutting off this line of questioning. Chase v. Beard, 55 Wash.2d 58, 346 P.2d 315 (1959). See also State v. Carter, 5 Wash.App. 802, 490 P.2d 1346 (1971); 5 R. Meisenholder, Wash.Prac. §§ 2, 162, 302 (1965).

The third assignment challenges the exclusion of certain statements made by the witness Fisher to the polygraph examiner. The statements were made in response to standard questions asked preliminarily to a polygraph examination to determine Fisher's suitability for the test. The answers concerned the witness' prior nervous disorder, medical problems, memory loss, heart ailment, and his successful evasion of a prior polygraph test. The defendant contends that the responses made in an offer of proof should have been admitted to impeach Fisher's credibility. The connection between these proffered facts and the witness' credibility is conjectural only. ² The statements properly were refused as an attempt to impeach credibility on matters that were immaterial and collateral to the principal issues presented. The responsesgiven to the polygraph examiner could not have been admitted into evidence for any other independent purpose, and did not pertain to whether the defendant hired Fisher to kill Beuter or to any other issue in the case. They were properly excluded. State v. Oswalt, 62 Wash.2d 118, 381 P.2d 617 (1963); State v. Hall, 10 Wash.App. 678, 519 P.2d 1305 (1974).

The fourth asserted error is the trial court's permitting the witness Fisher's mother to relate statements made by Fisher to her during a telephone conversation on the day following the shooting. During cross-examination of fisher's mother, the defense counsel queried her as follows:

Q (Defense counsel) All right now, did you also call Chris on that day?

A Yes.

Q Okay, did you think you got any facts from Chris?

A He told me things.

Q Okay, and did you think you got the name Kruse or Butler from Chris?

A I don't know. He didn't mention any name whatever.

Q Then you don't think you got the name Kruse or Butler from Chris?

A I am positive.

On redirect examination, the prosecutor questioned Fisher's mother as follows:

Q When Chris talked to you from the hospital, did he tell you why he had done the shooting?

A I guess if you--

THE COURT: Did he tell you why he did or didn't, yes or no. You don't have to go into explanation, just say yes or no.

A Yes.

THE COURT: He did; all right.

Q (Prosecutor) What did he tell you in that regard?

A That I would understand all about it later on and that he had done it for a friend of mine.

Q Did you question him about that?

A I said, I don't have any friend in Seattle. The only friend I had in Seattle is living with me now, meaning Donna.

Q And what did you tell him at that point?

A That was my response to him and his response to me was, you're not thinking hard enough and I; then I mentioned a name to him--

(Defense counsel): Objection to any further testimony along this line, your Honor. It has never been brought up before and never been provided to us in any statement. I have no idea where it is going.

(Prosecutor): He has opened up the whole line.

THE COURT: Objection overruled.

Q (Prosecutor) You may answer the question. What did you say at that time?

A I mentioned a name to him and he said, no. He said to me he couldn't mention any names to me when I said, who, because there were policemen in the room. And I mentioned a name to him and he said, you're right.

Q What name did you mention to him?

A Stamm.

The defendant argues that this testimony on redirect examination should have been excluded as hearsay, as testimony not included in the witness summary given to the defense prior to trial pursuant to the omnibus order and CrR 4.7, and testimony that exceeded the scope of cross-examination.

The testimony was hearsay, but could be admitted to bring out the remaining portion of the conversation opened up on cross-examination. The witness had been asked about a telephone conversation with her son and had stated that he did not mention any names in that conversation. When such an inquiry was made, the opposing party could question the witness...