State v. Terry, 10 Wash. App. 874 (Wash. 1974)

Swanson, C.J.

Kennard Calvin Terry appeals from his jury trial conviction and sentence for second-degree murder in connection with the death of 3-year-old Phillip An-holt.

The facts necessary to an understanding of this appeal are as follows: On September 11, 1972, King County police detectives, acting pursuant to a search warrant, unearthed the partially decomposed body of Phillip Anholt which had been buried under a patio in the backyard of appellant Terry’s residence. Terry, who had been arrested earlier, was advised of his rights and then gave a statement to police which admitted the burial of Phillip Anholt’s body but denied the intentional killing of the child. Terry’s description of the circumstances of the child’s death remained substantially unchanged at the time of his trial. Terry testified that in August 1972, he was living at a B.urien residence with William Brown and Carol Anholt and her two children, Guy and Phillip. He indicated that he helped Carol Anholt in the care and discipline of the two boys. Terry described an incident in mid-August 1972, when Phillip wet his pants but told Terry he had not. Terry stated that he spanked the child on that occasion and confined him to his room until Phillip admitted to his mother that he had wet his pants. Terry testified that several days later, in the latter part of August, he encountered Phillip in the basement of the home and that the child again had wet his pants, and again denied doing so. Terry indicated that he was very exasperated by the child’s behavior and picked him up and spanked him, and then decided to take the boy

upstairs to see his mother. Terry testified that he carried the child up the basement stairs, but set him down in order to open the door, whereupon the child fell down the stairs.

Terry stated that there was no response from the child following the fall, and described various futile efforts to revive the child. He stated that he first took the child to the garage area adjoining the basement and attempted to revive him by sprinkling water from a garden hose on him, but that had no effect, so he returned the child to the basement and laid him on a couch. He stated that at that point he heard William Brown starting to come down the stairs, and shouted to him, “Don’t come down. Send Carol down.” Terry said that Carol Anholt then came down to the basement and the two of them attempted artificial respiration. Terry described other unsuccessful efforts to revive the child which apparently continued for some time into the night until he realized that the child was dead. He stated that he and Mrs. Anholt discussed reporting the death to police, but both feared he would be jailed because he was in violation of the terms of his probation arising out of a prior drug charge. He testified that after another 24 hours passed, he and Carol Anholt determined that the child’s body should be hidden. Terry said that he then removed several blocks from the patio back of the residence and buried the child.

The members of the jury apparently disbelieved Terry’s account of the circumstances of Phillip Anholt’s death because they returned a verdict finding Terry guilty of second-degree murder. On appeal, Terry assigns error first to the admission of testimony relating to certain incidents taking place prior and subsequent to Phillip Anholt’s death and, second, to the admission of certain medical testimony.

The following is a summary of testimony allowed by the trial judge over the objection of appellant’s counsel which forms the basis of the first assignment of error: Penelope Todd testified that in the first or second week of August 1972, at a time when she was living in a motel with the appellant’s sister, Nina Cox, she saw Terry put a knife to

the throat of Nina Cox’s daughter, Leah, saying that he would cut her up. She also testified that on September 9, 1972, 1 week after the time interval in which Phillip Anholt died, she was then living at a residence on Palatine Avenue North in Seattle and Terry visited her and expressed anger over the fact that Carol Anholt was showing her other son, Guy, in public the day after Terry had beaten him. William Brown testified that on several occasions he had heard Terry spanking Guy and Phillip Anholt, and afterwards had observed the children to be in a bruised condition. Brown also testified that some time after the death of Phillip Anholt he heard Carol Anholt hollering at Terry to stop choking the baby, Guy Anholt.

We direct our attention first to the admissibility of the hearsay testimony of the witness Brown to the effect that he overheard Carol Anholt shout at the appellant to stop choking Guy Anholt. Brown testified as follows on direct examination:

It is apparent from the record that the trial judge at first refused to allow any hearsay testimony by the witness Brown, but then apparently concluded that the testimony as to the choking incident was admissible under some exception to the hearsay rule.

The state argues that Brown’s hearsay testimony is admissible under the so-called res gestae rule relating to spontaneous or excited utterances. As the state points out, the leading Washington case in this area of the law remains Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 127 A.L.R. 1022 (1939), in which our state Supreme Court stated at page 9:

Assuming arguendo that elements (2) through (6) are satisfied by the statement here in question, the state suggests that the “main event” referred to in the first element need not be limited to the event which is the subject matter of the lawsuit, and therefore Brown’s testimony could be admitted under the rule even though it related to an “event” —the alleged choking incident — other than the crime for

which the appellant was being tried. In support of this proposition, the state relies upon certain language in J. Wigmore, Evidence §§ 1752-53 (1940),1 and in State v. Can-aday, 79 Wn.2d 647, 488 P.2d 1064 (1971).

We are unable to accept the state’s contention. The rule in Washington is that to be admissible in evidence, a spontaneous declaration or excited utterance offered through hearsay testimony must relate to the main event, meaning the subject of the lawsuit. See generally 5 Meisenholder, Wash. Prac. §§ 491-92 (1965), and cases cited therein. State v. Canaday, supra, is not to the contrary. In Canaday, our state Supreme Court determined that a witness’ testimony that the deceased had remarked just prior to her disappearance and subsequent murder that a husky young man in a blue navy pea coat had visited her and would return, was admissible under the standards set forth in Beck. The state argues such testimony did not relate to the “main event,” namely, the murder of the deceased; however, the court stated at page 674:

event or occurrence for which the defendant was standing trial. Her casual offhand comments made at a time when and under such circumstances that she could not have anticipated their significance belied the idea of deliberation, design or fabrication.

(Italics ours.) Thus, there was no intention expressed by the court in Canaday to make admissible spontaneous statements not related to the subject of the lawsuit. See State v. Daba, 75 Wn.2d 234, 450 P.2d 183 (1969).

Under the circumstances of this case where the offered testimony not only fails to relate to the main event as defined in Beck and subsequent cases, but also relates merely to an event which is not established except by the hearsay testimony itself, we decline to expand the excited utterance exception to the Washington hearsay rule in the manner urged by the state. Therefore, we hold that the trial court erred in allowing the witness Brown to give hearsay testimony relating to the alleged choking of Guy Anholt by the appellant. As the court stated in State v. Miles, 73 Wn.2d 67, 69, 436 P.2d 198 (1968):

In the case at bar, it cannot be supposed that the jury was unimpressed by the hearsay testimony in question and thus we are unable to conclude that its admission constituted harmless error. As our state Supreme Court stated in State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968):

See Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969), applying the rule of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967). Therefore, the appellant was denied a fair trial and a new trial must be ordered.

Appellant also assigns error to the trial court’s admission of Brown’s hearsay testimony about the alleged choking incident on the ground that it was not relevant and necessary to the state’s case but, at the same time, it was highly prejudicial to the appellant, and therefore the trial court erred in failing to exclude such testimony under the rules set forth in State v. Goebel, 40 Wn.2d 18, 240 P.2d 251 (1952); State v. Goebel, 36 Wn.2d 367, 218 P.2d 300 (1950); State v. Folsom, 28 Wn.2d 421, 183 P.2d 510 (1947). In view of our holding that such hearsay testimony is not admissible under the excited utterance or any other exception to the hearsay rule, we do not reach this question; however, we must resolve this question in the context of the other testimony of the witness Brown and that of the witness Todd to which appellant’s counsel assigns error, because we anticipate that the admissibility of such testimony will be an issue in the new trial which we have ordered.

The rule of exclusion relied upon by the appellant is that a defendant has the right to be tried only for the offenses charged in the indictment or information and therefore evidence of other crimes or misconduct may not be admitted. A number of exceptions to this general rule have been recognized. As our state Supreme Court said in the later Goebel opinion at page 21:

Thus, evidence of other crimes or misconduct has been admitted where it reveals acts which constitute an insepar

able part of the crime charged, State v. Jordan, 79 Wn.2d 480, 487 P.2d 617 (1971); State v. Robinson, 4 Wn. App. 515, 483 P.2d 144 (1971), or to impeach a defendant’s character when he had made it an issue, State v. Gregory, 79 Wn.2d 637, 488 P.2d 757 (1971), or to demonstrate a defendant’s “consciousness of guilt” and thereby establish his identity, State v. Messinger, 8 Wn. App. 829, 509 P.2d 382 (1973).

The true test of admissibility, however, is twofold: (1) The evidence of other offenses sought to be admitted must be relevant and necessary to prove an essential element of the crime charged, that is, as the court stated in Messinger at page 837, “[T]here must be a logical relationship between the . . . misconduct and the question of defendant’s guilt,” and (2) the relevance and necessity of the evidence must not be outweighed by its prejudice to the defendant because as was stated in State v. Golladay, 78 Wn.2d 121, 143, 470 P.2d 191 (1970), “[Ejvidence, however competent, is rarely admissible when its relevancy is entirely engulfed by the prejudice which it may engender.” Thus, it has been held to be reversible error for a trial court to admit evidence of an abortion performed by the defendant some 3 months after the abortion offense charged, State v. Folsom, supra; or to allow testimony concerning defendant’s participation in an alleged burglary during a narcotics prosecution, State v. Dinges, 48 Wn.2d 152, 292 P.2d 361 (1956); or to permit a police officer to testify concerning the alleged plan of the defendants to commit a robbery similar to the one with which they were charged, State v. Miles, supra; or to allow the state to devote 40 percent of its evidence to establishing defendant’s possession of marijuana and amphetamines in a prosecution for possession of LSD, State v. Portrey, 6 Wn. App. 380, 492 P.2d 1050 (1972).

In applying the foregoing principles to the case at bar, we note that the record indicates that the trial judge allowed all of the testimony here in question on the basis of

the “absence of accident or mistake” exception;2 thus, after the state’s offer of proof as to the testimony of the witness Todd, the court ruled, “This comes in on the issue of whether or not it was accidental. That is the only thing we are talking about.” Moreover, it is apparent that the trial judge considered, but rejected, the argument of appellant’s counsel that the relevancy of such testimony, if any, is outweighed by its inflammatory nature and the resulting prejudice to the defendant. In a case of this nature, where the defendant asserts that a child has died as a result of an accident in the absence of any intent on his part to harm the child, evidence of prior and subsequent incidents involving the defendant’s treatment of children, including the deceased, may be relevant and necessary to prove an essential ingredient of the state’s case. This is particularly true in the case at bar where the defendant maintained in his own testimony that his physical actions toward children, including the deceased, were limited to occasional spankings. Under such conditions, the trial court properly could find that the relevance of the testimony to the contrary outweighed any possible prejudice to the defendant.

The testimony in question was not unduly emphasized by the prosecution and therefore may not be condemned under the rule in State v. Portrey, supra. At the same time, the testimony did not involve incidents of misconduct patently irrelevant or remote in time to the crime charged such as

those deemed prejudicial in Folsom, Dinges and Miles. All of the incidents in question occurred within a 3- or 4-week period which included the death of Phillip Anholt. Although part of the testimony of witness Todd related to an incident which occurred subsequent in time to the crime charged, there is, just as in the cases of the prior incidents, a logical relationship between the misconduct and the appellant’s guilt which the trial judge, in his discretion, properly could permit the jury to consider. State v. Passa-fero, 79 Wn.2d 495, 487 P.2d 774 (1971); State v. Scherer, 77 Wn.2d 345, 462 P.2d 549 (1969); State v. Hames, 74 Wn.2d 721, 446 P.2d 344 (1968); State v. Murray, 10 Wn. App. 23, 516 P.2d 517 (1973); State v. Messinger, supra; State v. Sims, 4 Wn. App. 188, 480 P.2d 228 (1971); State v. Hennings, 3 Wn. App. 483, 475 P.2d 926 (1970). Under the circumstances of this case, we are unable to conclude that the trial judge abused his discretion in allowing the jury to consider the complained of testimony; however, we do not necessarily suggest that we would have exercised such discretion in the same way were we the trial court. The question of whether the relevance of the testimony in question outweighed any prejudice to the appellant is a close one and must be answered in the context of the whole of the testimony presented at trial; where the call is close, however, we shall not second-guess the trial judge.

Appellant’s second assignment of error is directed to the admissibility of certain expert testimony offered by Dr. Lovell, a pathologist called by the state. During the course of his testimony, Dr. Lovell stated on three occasions that he could not give his opinion as to the cause of Phillip Anholt’s death with “reasonable medical certainty” but that he could indicate a cause of death that was “more probable than not.” Despite some ambiguity in Dr. Lovell’s testimony indicating that he may have been uncertain about the meaning of “reasonable medical certainty” as a legal term of art, it appears from the record that the trial court properly could conclude that the testimony offered by Dr. Lovell did, in fact, meet that standard. See O’Donoghue

v. Riggs, 73 Wn.2d 814, 440 P.2d 823 (1968); Glazer v. Adams, 64 Wn.2d 144, 391 P.2d 195 (1964); Orcutt v. Spokane County, 58 Wn.2d 846, 364 P.2d 1102 (1961); Carpenter v. Best’s Apparel, Inc., 4 Wn. App. 439, 481 P.2d 924 (1971). We need not resolve this question, however, because of our determination that appellant is entitled to a new trial and because we do not anticipate that the issue will arise at that trial.

The judgment of the trial court on the verdict is reversed and the cause is remanded for a new trial.

Williams and Callow, JJ., concur.