Watson v. State

• Decision Date: 02 December 1963
• Docket Number: No. 251,251
• Citation: 387 P.2d 289
• Parties: Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 289

387 P.2d 289

Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.

No. 251.

Supreme Court of Alaska.

Dec. 2, 1963.

Joseph P. Josephson, Anchorage, for appellant.

James C. Merbs, Dist. Atty., and Dorothy Awes Haaland, Asst. Dist. Atty., Anchorage, for appellee.

Before NESBITT, C.J., and DIMOND and AREND, JJ.

DIMOND, Justice.

A jury found Watson guilty of second degree murder. His principal contention on this appeal is that reversible error was committed by the admission of certain incompetent and prejudicial testimony.

The decedent, Marion Grissom, an acquaintance of Watson and his wife, was a visitor in their home during the late afternoon of December 18, 1961. There was evidence that the parties were drinking alcoholic beverages. Watson testified that at about 6:00 p. m. he left his wife and Grissom at his home while he went to have his truck fixed. When he returned at about 8:00 p. m., he discovered his wife lying on the floor with her face bloody. As he leaned down to pick her up Grissom assaulted him. The two men struggled until Watson was able to get a knife from the kitchen drainboard. Using the knife as a weapon he managed to get Grissom to start to leave the house. When Grissom started to walk away, Watson put the knife down and went to look after his wife. He heard a noise, turned around and saw Grissom returning from the front door. Watson picked up a rifle, levered a cartridge into the chamber, pointed the rifle at Grissom and told him to get out. Grissom continued to advance and Watson shot and killed him. He then notified the police.

At the trial Mrs. Watson testified that she remembered Grissom and her husband being at the house at the time her husband left to get his truck fixed, but that she had no recollection of anything else that took place until a doctor arrived some time after the shooting. A state police officer testified that Mrs. Watson was in bed when he arrived at the scene. Approximately two hours later, near the end of the police investigation, she came into the living room, saw blood on the floor and asked what it was. When told that it was blood, she asked, 'From what?' She was informed that her husband had shot Grissom. The police officer testified that she then exclaimed, 'Oh, no', and turning to her husband said, 'It's your temper, your temper has done it again.' Another police officer also testified to essentially the same thing.

Watson contends that it was error to admit the police officers' testimony regarding Mrs. Watson's statement because it was hearsay evidence. ¹ The state argues that the statement Mrs. Watson is reported to have made was part of the res gestae and therefore admissible as an exception to the hearsay rule.

The Latin phrase 'res gestae' means literally 'things done' or 'the transactions'. It is frequently applied to spontaneous statements made contemporaneously with or immediately after an unusual event by a person who is under the influence of the excitement or shock caused by witnessing or participating in the event. Such spontaneous statements are admissible in evidence and form one of the important exceptions to the hearsay rule. ²

In order for a spontaneous statement to be admissible under this exception to the hearsay rule it must appear that the person who made the statement perceived the event which the statement explains or describes. The statement must be the spontaneous result of an occurrence operating upon the perceptive senses of the speaker, rather than the result of inference or surmise. ³

Mrs. Watson's statement, as it would be generally understood, purported to explain the shooting--that it had occurred because Watson had lost his temper. But there is no evidence from which it could be inferred that Mrs. Watson heard or saw what took place. She said that she had no recollection of the event, and when she was informed by the police two or three hours after the shooting that her husband had shot Grissom, her reaction was that of one who had no previous knowledge of what had occurred. Since evidence was lacking from which the essential element of perception could be inferred, evidence of Mrs. Watson's statement regarding her husband's temper did not come within the res gestae exception to the hearsay rule, and the admission of such evidence was error.

The state argues that Mrs. Watson's statement regarding her husband's temper was admissible because there was no evidence that he made any reply. Here the state invokes the rule that when an accused is silent in the face of an accusatory or inculpatory statement, both the statement and the accused's failure to deny its truth are admissible in a criminal action as evidence of acquiescence by the accused in the truth of the statement or as indicative of a consciousness of guilt. ⁴

We limit the application of this rule. It will come into play only when the circumstances are such that the accused's silence makes it more probable than not that he knew or believed the statement to be true. The rule is not applicable in circumstances where a reply is not called for, or where silence is equally consistent with a state of mind other than acquiescence in the truth of what was said. ⁵

The circumstances in this case do not call for application of the rule of admission by silence. It is true, as the state points out, that there was no evidence that Watson made any reply to his wife's statement. But there is also no evidence that he did not make any reply. A police officer testified only that Mrs. Watson 'turned' to her husband as she made the statement regarding his temper. He did not describe Watson's reaction to the statement, whatever it may have been. Nor was there any other evidence from which it could be determined whether Watson said anything or reacted in some other manner to the words spoken by his wife. In order for the state to count upon Mrs. Watson's statement as admissible evidence, it was necessary for the state to have established the essential element of silence on Watson's part. ⁶ This it failed to do. Her statement was therefore not competent evidence on the basis of any implied admission on Watson's part of the truth of what she said.

Assuming, however, that there was proof of silence on Watson's part in the face of the statement made by his wife, the circumstances do not justify using her words and Watson's failure to deny or reply to them as evidence of his acquiescence in their truth. Watson had admittedly shot and killed a man, and at the time his wife spoke he had been under police interrogation for approximately two hours. He had explained in detail to the police officers the circumstances of his fight with Grissom and his claim that he was finally obliged to shoot Grissom in self-defense. When following this his wife made the statement 'It's your temper, your temper has done it again', Watson's failure to comment is entirely consistent with an understandable weariness and a reluctance to explain once again the events that he had already explained to the police, and a reluctance also to engage in a controversy with his wife who at the time was in a state of stock and not very coherent. In these circumstances we believe that the failure by Watson to reply to his wife's statement does not give rise to any inference that he thereby impliedly acknowledged that he had shot Grissom in a fit of temper rather than, as he claimed, in self-defense.

The remaining question is whether the error in admitting the statement was prejudicial. We believe it was. A jury would naturally assume that a wife, more than anyone else, would have a special familiarity with her husband's character and temperament. The purport of Mrs. Watson's statement was that she believed that Grissom had been killed because her husband had lost control of his temper. This aspect was emphasized by the district attorney in his argument to the jury. We cannot say with any degree of assurance that this expression of belief, coming from the lips of Watson's wife, did not cause the jury to entertain grave doubts that Watson was speaking the truth when he said that he had shot Grissom in self-defense. There must be a new trial.

Watson contends that other errors took place at the trial. Some involve points which, if disposed of here, may prove helpful on a retrial of the case.

Prejudicial error is claimed in the admission of evidence of a prior incident where Watson allegedly shot at another person. On cross-examination of Morgan, a state police officer, defense counsel brought out the fact that in June 1961, six months before Watson had shot Grissom, Watson had reported an incident where he and Grissom had struggled over a rifle, and that Watson had requested Morgan to tell Grissom to stay away from him and not to trouble him when Grissom was drinking. The purpose of this evidence apparently was to show that Watson was afraid of Grissom when the latter was drinking. On redirect examination by the district attorney Morgan was permitted to testify, over objections by the defense, that the occasion of...