State v. Thompson

• Decision Date: 23 April 1959
• Docket Number: No. 34904,34904
• Parties: STATE of Washington, Plaintiff and Relator, v. Henry L. THOMPSON, Defendant, The Superior Court for Whatcom County, Bert Kale, Judge, Respondent.
• Court: Washington Supreme Court

Page 100

54 Wn.2d 100

338 P.2d 319

STATE of Washington, Plaintiff and Relator, v. Henry L. THOMPSON, Defendant, The Superior Court for Whatcom

County, Bert Kale, Judge, Respondent.

No. 34904.

Supreme Court of Washington, En Banc.

April 23, 1959.

Tom A. Durham, Dan R. Olson, Bellingham, for relator.

LeCocq, Simonarson & Durnan, Lynden, Livesey, Kingsbury & Livesey, Bellingham, for respondent.

Robert L. Fletcher, Associate Professor of Law, School of Law, University of Washington, Seattle, Johnston & Raley, Port Angeles, Charles O. Carroll, Pros. Atty., Charles Z. Smith, James D. Burns, Robert E. Dixon, Seattle, amici curiae.

HUNTER, Judge.

This is a review by writ of certiorari of an order entered by the superior court of Whatcom county requiring the prosecuting attorney of Whatcom county to produce certain evidence in his possession for defendant's counsel to examine in preparation for their defense to a first-degree murder charge against the defendant.

Henry L. Thompson, Jr., an eighteen-year-old Indian boy from Deroche, Canada, was charged with the crime of murder in the first degree. He was arrested June 14, 1958 and arraigned on June 20, 1958, during which time he was without the benefit of counsel. Since the defendant wished to have counsel and was without funds, the court appointed counsel. During the time the defendant was under arrest and without benefit of counsel, he signed certain statements which were prepared by law enforcement authorities. August 28, 1958, the defendant moved the superior court for an order requiring the prosecuting attorney to deliver to defendant's counsel these statements or copies thereof, the autopsy reports, and other evidence in the possession of the prosecution. The affidavit in support of this motion stated that inspection of the documents was necessary to the proper preparation for trial of the cause and essential to cross-examination, and for possible impeachment purposes.

September 16, 1958, the trial court advised counsel for the state and the defendant, by letter, as follows:

'Gentlemen:

'The defense moved in this matter for a production of documents and transcripts of expected testimony from witnesses to be called by the prosecution. The prosecution has resisted this motion and both parties have provided the Court with their memorandums of authorities in support of their positions.

'The matter was argued before the Court on the 8th day of September and thereafter taken under advisement.

'After considering all of the authorities involved, the Court is of the opinion that in the state of Washington a demand of this nature by the defendant in a criminal case places the entire matter at the discretion of the trial court. In this case we have a Canadian Indian boy of the age of 18 years charged with first degree murder. He had no money and the Court appointed counsel to defend him.

'It is the opinion of the Court that justice would best be served in this cause if the defendant were permitted to examine the statements given by him in response to the questioning of officers and the prosecution, which statements apparently are now in the possession of the prosecutor. In addition to the permitted inspection of these documents, the prosecution should supply copies thereof to the defense. Likewise, the defense should be permitted to inspect and to receive a copy of any and all autopsy reports in the possession of the prosecuting attorney.

'The Court denies the balance of defendant's motion for production of instruments and summations of testimony. * * *'

In pursuance thereof, the court entered an order on September 22, 1958, directing the state to produce for inspection, together with copies, (1) all statements given by defendant; (2) all autopsy reports in its possession; with the further direction, not included in the foregoing letter, that the state produce any written statements or reports made by the Federal Bureau of Investigation, as the result of any examination made of the clothing and/or personal effects and of and/or blood samples of the defendant and Ethel Tussing, deceased, the alleged victim.

The state was thereafter granted a hearing by this court upon its application for a writ of prohibition, which we are now considering as a review by writ of certiorari, it having been so agreed by counsel upon written stipulation.

There is a dispute of authority in other jurisdictions as to the extent the prosecution is required to make evidence available which may be in its possession for examination by the defense in criminal cases. However, the rule has been well established in this state since the early case of State v. Payne, 1895, 10 Wash. 545, 39 P. 157, wherein we held this is a matter within the discretion of the trial court which we will not disturb unless there is a manifest abuse of discretion. State v. Allen, 1924, 128 Wash. 217, 222 P. 502; State v. Morrison, 1933, 175 Wash. 656, 27 P.2d 1065; State v. Ingels, 1940, 4 Wash.2d 676, 104 P.2d 944; State v. Clark, 1944, 21 Wash.2d 774, 153 P.2d 297; State v. Payne, 1946, 25 Wash.2d 407, 171 P.2d 227, 175 P.2d 494; State v. Petersen, 1955, 47 Wash.2d 836, 289 P.2d 1013.

In State v. Payne, 25 Wash.2d 407, 171 P.2d 227, 230, 175 P.2d 494, citing State v. Clark, supra, we affirmed the rule of all our prior decisions. We said:

"A prosecuting attorney is under no obligation to submit any evidence he has in his possession to counsel for a person charged with a crime. State v. Payne, 10 Wash. 545, 39 P. 157. The state is not required to submit its evidence to counsel for the accused. The accused is not, as a matter of right, entitled to have for inspection before trial evidence which is in possession of the prosecution. Such matter is peculiarly within the trial court's discretion, with which we will interfere only when there has been a manifest abuse of discretion. State v. Allen, 128 Wash. 217, 222 P. 502; State v. Morrison, 175 Wash. 656, 27 P.2d 1065; State v. Ingels, 4 Wash.2d 676, 104 P.2d 944." (Italics ours.)

In all the cases cited, except the Petersen case which we will comment upon later in this opinion, the trial court denied the requests made by the defese to examine certain evidence in possession of the prosecution. In each instance, we held this was not an abuse of discretion.

In applying the rule to the present case, we have the converse situation. Did the trial court manifestly abuse its discretion in granting the defendant's request to examine certain evidence of the prosecution under the facts presented?

The trial court's reasons for exercising its discretion as it did are succinctly stated in the letter addressed to counsel heretofore set out. The defendant was from a foreign country; he was scarcely above juvenile court age; he was indigent and without funds to assist in the conduct of his own investigation; he was charged with a capital offense. In view of these circumstances, we cannot say the trial court's conclusions that justice would be best served by permitting defendant's counsel to examine the evidence in the hands of the prosecution, as limited by the order, amounted to a manifest abuse of discretion. That this is an area in which there is room for an exercise of discretion, is demonstrated by decisions from other jurisdictions. The annotation in 156 A.L.R. 345, on the subject of the 'right of defendant in criminal case to inspection or production of contradictory statement or document of prosecution's witness for purpose of impeaching him' covers many of the earlier decisions where the defendant has been granted or denied this information. The annotation is entitled 'discretion of court' and states in part:

'The granting or refusal of the accused's request for the production or inspection of a writing in the prosecution's possession contradicting the testimony of its witness lies in the discretion of the trial court.'

Relator further contends, however, that the discretion of the trial court has been limited by statute in so far as requiring the prosecution to produce the report of the autopsy performed upon the alleged deceased victim. Laws of 1953, chapter 188, § 9, p. 404 (RCW 68.08.105) provide as follows:

'Reports and records of autopsies or post mortems shall be confidential, except to the prosecuting attorney or law enforcement agencies having jurisdiction, or to the department of labor and industries in cases in which it has requested the autopsy.' (Italics ours.)

Relator argues that, by this section, the autopsy report is privileged and beyond the process of the court.

It does not necessarily follow from the use of the word 'confidential,' that it was the legislative intention that this word have the same import as the word 'privileged.' In 1 Bouv. Law Dict. Rawle's Third Revision, p. 592, under heading of 'confidential communication,' it is stated:

'At law, certain classes of such communications are held not to be proper subjects of inquiry in courts of justice, * * *.'

The intention of the lawmaking body to place the autopsy report in a class which is not subject to judicial inquiry or process cannot be determined by the word 'confidential' as used alone in the cited section of the statute. The legislative intent must be gleaned from an examination of the enactment in its entirety. State v. Houck, 1949, 32 Wash.2d 681, 203 P.2d 693, and cases cited.

Section 12 of the enactment (RCW 68.08.102) provides:

'Any party by showing just cause may petition the court to have autopsy made and results thereof made known to said party at his own expense.'

The right to an autopsy is here lodged within the discretion of the court. The confidential nature of the autopsy related to in § 9 (RCW 68.08.105) when read with § 12 (RCW 68.08.102), does not indicate the condition of the body of a deceased person is to be free from judicial inquiry.

A construction of 'privileged' placed on the word 'confidential' could well defeat the exercise of the court's...