State v. Young

• Citation: 550 P.2d 1,87 Wn.2d 129
• Decision Date: 20 May 1976
• Docket Number: No. 43950,43950
• Parties: STATE of Washington, Respondent, v. Ricky A. YOUNG, a/k/a Rick T. Young, Appellant.
• Court: United States State Supreme Court of Washington

Page 129

87 Wn.2d 129

550 P.2d 1

STATE of Washington, Respondent, v. Ricky A. YOUNG, a/k/a Rick T. Young, Appellant.

No. 43950.

Supreme Court of Washington, En Banc.

May 20, 1976.

Rehearing Denied Aug. 10, 1976.

G. Perrin Walker, Tacoma, for appellant.

Curtis Ludwig, Pros. Atty., John Crawford, Dennis D. Yule, Deputy Pros. Attys., Prosser, for respondent.

ROSELLINI, Associate Justice.

The appellant was found guilty of one count of arson in the first degree (in setting fire to the house in which he lived with his wife) and one of arson in the second degree (in setting fire to a church). Both fires occurred in the nighttime in the city of Prosser, and both buildings were unoccupied. However, the house, which was an old, frame dwelling, was located about 13 feet from another frame house in which an elderly lady lived in an upstairs apartment. Both houses belonged to the parents of the appellant's wife.

Before the trial, the appellant took a polygraph test which was administered to him by a private operator without the knowledge of the prosecutor. One Pursell, a friend of the defendant, took two such tests which were administered by postal authorities. Pursell's first test indicated that he was practicing deception with respect to statements which he had made accusing the appellant of having attempted to bribe him to provide an alibi and to set fires to divert attention from himself. The polygraph examiner noted on the report that, in his opinion, the act of informing on the appellant was extraordinarily traumatic to Pursell and suggested another polygraph examination, if it was contemplated that Pursell would be used as a witness against the appellant in the arson trial. A second test was administered about 3 weeks later by a different examiner, who gave his opinion that Pursell was telling substantially the truth concerning the appellant's attempts to induce him to set fires and provide the appellant an alibi.

The appellant wished to offer his own polygraph test result in evidence and cross-examine Pursell with respect to the tests which he took.

The lower court ruled that the evidence concerning the polygraph tests was inadmissible.

The State's evidence (except for that of Pursell) was entirely circumstantial. The circumstances raised compelling inferences that the appellant set both fires. He took the stand and gave a dubious account of his actions and an explanation for burns which he exhibited the day following the church fire which the jury evidently found implausible.

After entry of judgment on the verdict, the case was appealed to the Court of Appeals, Division Two, which certified it to this court for consideration of the question whether results of a polygraph test should be admissible in evidence without the stipulation of the parties if an adequate foundation is laid. We indicated in State v. Woo, 84 Wash.2d 472, 527 P.2d 271 (1974), that, if at some future time we were presented with a case in which a record had been made disclosing sufficient information about the polygraph test in general, and the one administered in particular, to enable the court to reevaluate its position with regard to the admission of such tests, we might be inclined to reconsider the rule which was adhered to in that case. That rule is that, absent stipulation of the parties, the results of polygraph tests are inadmissible.

Upon examining the record made by the appellant in the case before us, we find it insufficient to support a reconsideration of the rule. Those factors which were mentioned a significant in State v. Woo, supra, were not covered in the appellant's offer of proof. We are not shown what the tests consisted of, what the qualifications of the examiners were what the standards were which they followed, and what evidence there is of reliability.

Furthermore, the tests given to the appellant and Pursell could only be viewed by the jury as inconclusive, since they were in conflict with each other. To have advised the jury of the results of these tests would have served mainly to divert its attention to a collateral question, namely, the reliability of such tests, instead of focusing it upon the material issues in the case. The court did not err in excluding evidence of results of the polygraph tests.

Error is assigned to the giving of instructions setting forth the prosecutor's accusations under the two counts. While admitting that he did not challenge joinder of the two counts of arson prior to trial nor except to the instructions complained of, the appellant now maintains that he should have been tried separately on each count. This court is not in a position to consider this assignment, the question having been raised for the first time on appeal. State v. O'Connell, 83 Wash.2d 797, 523 P.2d 872 (1974).

The appellant contends that the joinder of these counts denied him his constitutional right to a fair trial. However, no authority is cited supporting that proposition. In the absence of such citations, we decline to so hold. Wyatt v. University of Washington, 84 Wash.2d 1, 523 P.2d 910 (1974). Under RCW 10.37.060 and Superior Court Criminal Rule 4.3(a)(1), joinder of counts is expressly authorized where the acts or transactions are of the same or similar character. CrR 4.4(a)(2) provides that severance is waived if no timely request is made, and CrR 4.4(b)(1) makes the granting of the severance discretionary with the trial court.

Error is assigned to the denial of a motion for a continuance, which the appellant based upon a claim that he was caught by surprise when he was informed that Pursell would be called to testify against him. It appears that the appellant's counsel was advised of this fact before the trial and did interview the witness and examine his statements several days prior to the trial.

The appellant contends here that he was not given time to prepare a defense against this witness. However, he does not claim that there was evidence available to discredit the witness, other than that which was presented at the trial. Absent such a showing we cannot say that the denial of the motion for continuance constituted prejudicial error.

RCW 9.09.010, defining first-degree arson, provides that any person who sets any fire manifestly dangerous to any human life shall be guilty of that crime. The appellant contends there was no evidence that either of the fires involved in this case was manifestly dangerous to human life. We think, however, that the jury could reasonably find, as it did, that the combustibility of the frame house and its proximity to another dwelling, the second floor of which was occupied by an elderly woman whom it was thought necessary to assist from the premises during the fire, made that fire manifestly dangerous. The evidence showed that flames enveloped the structure very quickly after it was ignited. True, the fire was extinguished before it had consumed the structure or spread to the adjoining building; but this does not mean that the danger did not exist. It was for the jury to decide whether the fire was manifestly dangerous to human life, there being evidence from which that inference could be drawn. The jury found that the church fire was not manifestly dangerous to human life, a finding which is likewise in accord with the evidence. The church was a brick building and was not located close to an inhabited dwelling.

Error is assigned to the admission of testimony of two experts, one, a fire inspector who testified on the basis of his inspection that in his opinion both fires were set, and the other, a person who was shown to be qualified to make microscopic analyses of hair samples. The latter testified that singed hair found in the house to which the appellant returned during the fire was of the same type as the appellant's. The appellant's objection to the testimony of both of these witnesses is that there were material matters to which they could not attest. His objection in each case goes to the weight, rather than the admissibility of the evidence, and the weight is a matter to be determined by the jury.

Several witnesses testified that they heard or observed a man running past their residences shortly after the fire alarm started to sound on the night of the church fire. When the testimony of all of these witnesses was taken together, it showed that the running man followed a path which led from the scene of the fire to the door of the home where the appellant was staying. None of the witnesses identified the man, and it is contended that this fact rendered their evidence inadmissible.

While the evidence did not conclusively implicate the appellant, when considered in conjunction with the testimony of his wife's parents, showing that he arrived home at just the time the running man was seen at the door--and that no one else came to the door--it gave rise to a reasonable inference that the appellant fled from the scene of the fire. It showed some of the circumstances tending to link the appellant with the crime. All competent evidence is admissible if it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. State v. Gersvold, 66 Wash.2d 900, 406 P.2d 318 (1965). Relevancy lies within the discretion of the trial court. State v. Cerny, 78 Wash.2d 845, 480 P.2d 199 (1971). We find no error in the admission of this testimony.

The appellant also complains of the admission of snapshots showing the areas through which the running man was observed to pass. The snapshots were taken in the daytime while the fire occurred in the middle of the night. This fact did not render them irrelevant. The snapshots were merely illustrative of the witness's testimony, and in no way...