State v. Ziegler
| Citation | 114 Wn.2d 533,789 P.2d 79 |
| Decision Date | 12 April 1990 |
| Docket Number | No. 56509-1,56509-1 |
| Parties | STATE of Washington, Respondent, v. Ernest H. ZIEGLER, Petitioner. |
| Court | United States State Supreme Court of Washington |
Seth R. Dawson, Snohomish County Prosecutor, Kevin M. Korsmo, Deputy, Everett, for respondent.
Ernest Ziegler appeals his conviction for first degree statutory rape alleging, inter alia, that the trial court erred in admitting laboratory tests as business records. We hold that laboratory reports contained in the medical files of a physician, when the physician ordered the laboratory test and relied upon the test results in treating the patient, constitute part of the business records of the physician admissible into evidence under the Uniform Business Records as Evidence Act (hereinafter UBRA), RCW 5.45.020. We affirm and remand for resentencing.
In April 1983, Ernest Ziegler and his wife, Rebecca, experienced marital problems and began to sleep apart. Subsequently, their 4-year-old daughter, J, occasionally The following Monday, Rebecca went to work and left J at home in the care of Ziegler. When Rebecca returned home, Ziegler was working outside and J was alone in the house. Rebecca asked J how her day went and J replied, " 'It happened again.' " Report of Proceedings, at 106. Immediately thereafter Ziegler came to the window and asked J if she wanted to help him outside in the barn. J asked her mother to accompany her to the barn. While at the barn, J got in Ziegler's way and he yelled at her. J walked over to Rebecca and said, " 'Mama, he's the one that hurts me like that.' " Report of Proceedings, at 108. Later that week, Rebecca and J moved out of the house. Shortly thereafter, Dr. Bishop of Snohomish Family Medical Center examined J. In January 1985, Rebecca filed for divorce. The divorce was final in December 1985.
slept with her father. In November 1984, J told her mother that someone had been touching her "private place." When Rebecca asked J who had touched her, J initially refused to say stating, " 'No, I can't. I can't tell because,' she said, 'I promised dad. I can't.' " Report of Proceedings, at 35. Rebecca then asked J who she had promised. J replied, " 'I don't know, Scotty or Jason.' " Report of Proceedings, at 101. Scotty (5 years old) and Jason (13 years old) were neighborhood children. Rebecca did not press J for further details
On August 4, 1986, the State charged Ziegler with first degree statutory rape occurring sometime between July 1983 and November 1984. Clerk's Papers, at 268. During trial, J testified to six identifiable sexual encounters with her father and discussed others in more general terms. J testified that these encounters occurred between her fourth and fifth birthdays (February 1983 and February 1984). She also testified to one identifiable event which occurred when she was 5 years old and attending kindergarten, which would place the event sometime after September 1984. J further testified to sexual contact during a hunting trip with Ziegler. Other testimony established that the Prior to sending the case to the jury, the State amended the information to include a charge of indecent liberties. Report of Proceedings, at 364-65. The jury convicted Ziegler of first degree statutory rape and indecent liberties. The trial court sentenced Ziegler to 42 months. On appeal, the Court of Appeals, Division One, affirmed the statutory rape conviction, but reversed and dismissed the indecent liberties conviction. The case was remanded for resentencing. The State conceded that its midtrial amendment of the information was error. See State v. Pelkey, 109 Wash.2d 484, 745 P.2d 854 (1987).
hunting trip took place in October 1984. Dr. Bradley Gerrish, a partner of Dr. Bishop's at Snohomish Family Medical Center, testified from J's medical file that a laboratory report showed that J had contracted Chlamydia, a sexually transmitted disease. The trial court, over defense counsel's objection, admitted the test results into evidence
Ziegler appealed his statutory rape conviction alleging that the trial court erred in admitting the laboratory results as business records, prosecutorial misconduct, and error by the Court of Appeals in refusing to consider additional evidence under RAP 9.11(a).
At the time of trial, Dr. Bishop was unavailable to testify. The State called Dr. Gerrish, Dr. Bishop's partner at Snohomish Family Medical Center. The doctors maintained common medical files for patients of the partnership. Dr. Gerrish testified that he had examined J in May 1983 and diagnosed her as having vaginitis. Thereafter Dr. Bishop served as the child's treating physician. Using the common medical file, Dr. Gerrish testified regarding Dr. Bishop's examinations of J. The medical record indicated that on November 16, 1984, Dr. Bishop diagnosed J as having vaginitis. A vaginal smear was taken, and a gonorrhea culture was prepared. The gonorrhea culture was analyzed by Dr. Bishop in his office, and the vaginal smear was transferred Laying a foundation for the admission of the test results from the lab, Dr. Gerrish testified that his clinic consistently used the lab, that the clinic routinely relied upon test results obtained from the lab, and he explained the lab's method of testing for Chlamydia. Dr. Gerrish testified that the lab found that J tested positive for Chlamydia. The medical record indicated that Dr. Bishop took a second smear for Chlamydia testing during a February 1985 examination of the child. Dr. Gerrish testified that the latest lab report was negative as to Chlamydia.
to a prepared slide and sent to Cooperative Medical Laboratory to be analyzed for Chlamydia.
Following Dr. Gerrish's testimony, the State moved to admit the lab reports into evidence under the UBRA, RCW 5.45.020, and State v. Sellers, 39 Wash.App. 799, 695 [789 P.2d 82] P.2d 1014, review denied, 103 Wash.2d 1036 (1985). Defense counsel objected on the grounds that the reports did not fall under the business records exception to the hearsay rule and that no one from Cooperative Medical Laboratory testified regarding the lab's testing procedures and handling of the particular slide. The trial court, noting that Dr. Gerrish was familiar with the lab and his clinic regularly relied upon the lab's work when treating patients, admitted the lab reports into evidence.
On appeal, Ziegler asserts that the trial court erred in permitting Dr. Gerrish to testify regarding the Chlamydia test results and in admitting the reports into evidence as part of the business records of Snohomish Family Medical Center. According to Ziegler, the lab reports constitute the business records of Cooperative Medical Laboratory, and the State failed to lay a proper foundation for their admission. We reject defendant's contentions.
As applied to hospital records, compliance with the act obviates the necessity, expense, inconvenience, and sometimes impossibility of calling as witnesses the attendants, nurses, physicians, X ray technicians, laboratory and other hospital employees who collaborated to make the hospital record of the patient. It is not necessary to examine the person who actually created the record so long as it is produced by one who has the custody of the record as a regular part of his work or has supervision of its creation.
(Citation omitted.) Cantrill v. American Mail Line, Ltd., 42 Wash.2d 590, 608, 257 P.2d 179 (1953). The trial judge's decision to admit or exclude business records is given great weight and will not be reversed unless there has been a manifest abuse of discretion. Cantrill, 42 Wash.2d at 608, 257 P.2d 179; State v. Barringer, 32 Wash.App. 882, 885, 650 P.2d 1129 (1982).
The trial court did not err in finding that the lab reports met the requirements for admissibility under the UBRA. "A practicing physician's records, made in the regular In Sellers, a person was shot but no body was found. Sellers, 39 Wash.App. at 800, 695 P.2d 1014. The police suspected that the defendant had killed his wife and charged him with second degree murder. The police obtained a bloodstained shirt worn by the defendant on the day of the shooting. Sellers, 39 Wash.App. at 801, 695 P.2d 1014. The blood type of defendant's wife matched that of the blood found on the defendant's shirt. Sellers, 39 Wash.App. at 805-06, 695 P.2d 1014. The defendant was convicted of second degree murder.
course of
...To continue reading
Request your trial
-
State v. Elmore, 64085-8.
...held new evidence may be accepted by an appellate court only if all six criteria of RAP 9.11(a)24 are met. See also State v. Ziegler, 114 Wash.2d 533, 541, 789 P.2d 79 (1990) (same), and Washington Fed'n of State Employees, Council 28, AFL-CIO v. State, 99 Wash.2d 878, 884-85, 665 P.2d 1337......
-
Satomi Owners Ass'n v. Satomi, LLC
...... Adler v. Fred Lind Manor, 153 Wash.2d 331, 342, 103 P.3d 773 (2004). The trial court's determination of whether a state statute is preempted by federal law is also reviewed de novo. Robertson v. Wash. State Liquor Control Bd., 102 Wash.App. 848, 853, 10 P.3d 1079 ...the R. at 5; RAP 9.11. Additional evidence may be taken on review only if all six criteria set forth in RAP 9.11 are met. State v. Ziegler, 114 Wash.2d 533, 541, 789 P.2d 79 (1990). The evidence Blakeley Association seeks to introduce does not meet the six criteria and, accordingly, we ......
-
State v. Gentry
......995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F.Supp. 1490 (W.D.Wash.1991), aff'd, 970 F.2d 614 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993). . 116 See also State v. Ziegler, 114 Wash.2d 533, 540, 789 P.2d 79 (1990); State v. McFarland, 73 Wash.App. 57, 62, 867 P.2d 660 (1994). . 117 State v. Mak, 105 Wash.2d 692, 698, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, ......
-
State v. Hurtado
......at 607–08, 132 P.3d 743; Moses, 129 Wash.App. at 728–29, 119 P.3d 906; Sims, 77 Wash.App. at 239–40, 890 P.2d 521. 66. RCW 5.45.020. 67. Doerflinger, 170 Wash.App. at 662, 285 P.3d 217. 68. State v. Ziegler, 114 Wash.2d 533, 538–39, 789 P.2d 79 (1990). 69. State v. White, 72 Wash.2d 524, 530, 433 P.2d 682 (1967). 70. See ER 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an ......
-
Chapter §51.7 Significant Authorities
...that no curative instructions could have obviated the prejudice engendered by the misconduct." Id. at 743 (quoting State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990)). Ajury verdict must be reversed only if there is substantial likelihood that the alleged misconduct affected the verdi......