State v. Huelett

603 P.2d 1258, 92 Wash. 2d 967, 1979 Wash. LEXIS 1465

• Court: Washington Supreme Court
• Decided: December 13, 1979
• Docket: 46165
• Status: Published

Opinions

Brachtenbach, J.

Petitioner appeals a second-degree burglary conviction. The Court of Appeals affirmed. We granted review on a single issue, i.e., the propriety of admitting testimony as a recollection refreshed. We affirm.

An essential element of the State's burglary case was the testimony of a former police officer who investigated that burglary. A fingerprint expert identified a print lifted from the burglarized premises as that of the defendant. The testimony of the former police officer was essential to connect the fingerprint with the burglarized premises and the defendant.

On direct examination the former police officer, apparently using his written police report, testified that in response to a reported burglary he had gone to the premises and lifted the fingerprint from an object in the apartment. The entire cross-examination was as follows:

Q. You are using something to refresh your memory?

A. Yes, sir, I am.

Q. Do you have an independent recollection of this investigation?

A. No, I don't.

Q. So beyond what you have in front of you, you have no recollection of this?

A. That's correct.

We are concerned here with the recollection refreshed as distinguished from a recollection recorded. That distinction was explained in State v. Little, 57 Wn.2d 516, 520-21, 358 P.2d 120 (1961), where we said:

[A] distinction must constantly be borne in mind between (1) refreshing recollection, and (2) a past recollection recorded. In the former situation, with which we are concerned here, the notes or memoranda used by the witness are not placed in evidence, but are used to trigger his psychological mechanisms of recognition and recollection, enabling the witness to then testify from his own memory. The testimony is the evidence, the writing is not. With respect to past recollection recorded, the notes or memoranda are the evidence . . .

In short then, the criteria for the use of notes or other memoranda to refresh a witness' recollection are (1) that the witness' memory needs refreshing, (2) that opposing counsel have the right to examine the writing, and (3) that the trial court be satisfied that the witness is not being coached — that the witness is using the notes to aid, and not to supplant, his own memory.

(Footnote omitted.)

As stated in State v. Little, supra, allowing the use of notes to refresh the memory of a witness lies within the discretion of the trial court. This is the general rule.

The extent to which the witness may use such a memorandum is for the trial judge in his discretion to determine, and his ruling will not be disturbed unless there has been an abuse of such discretion.

2 C. Torcia, Wharton's Criminal Evidence § 415 (13th ed. 1972).

Our function is thus limited. The sole issue is whether the trial judge abused his discretion. Such abuse occurs only if no reasonable person would take the view adopted by the trial court. State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977).

The challenged testimony consisted of three questions and three answers. What was the essence of that cross-examination testimony which led an able, experienced trial judge to admit it as a recollection refreshed? Examining that testimony, it encompasses three items. First, the witness was using something to refresh his memory. Second, the witness had no independent recollection of his investigation of the burglary. So far that is a classic instance of a recollection refreshed. Only the third element of the question and answer on cross-examination raises any issue. The single question and answer was: "So beyond what you have in front of you, you have no recollection of this? A. That's correct. ” At best this one question and answer is ambiguous but certainly it implies that with what he had in front of him the witness did have a recollection. The witness had already stated that he was using his police report to refresh his memory. It is a fair and reasonable interpretation of the question and answer that the witness had refreshed his memory as to the matters in his report and that he had no independent recollection as to other matters. The question and answer can and should be read in that manner, especially in view of the earlier question and answer that he was refreshing his memory. It is clear that the trial court viewed it as a showing of a recollection refreshed.

Given the fact that the cross-examination reveals a very brief line of questioning that at best is ambiguous, we cannot and should not substitute our judgment for the exercise of discretion by an experienced and highly able trial judge.

It is true that in oral argument before this court the deputy prosecutor speculated that the witness had no recollection at all and was not refreshing his memory. However, it is not the impression of the prosecutor made 2 years after the event that is determinative. It is the testimony before the trial court which must control.

In summary, the witness stated that he was refreshing his memory to the extent of his written police report. Beyond that he had no independent recollection of other events connected with his investigation. That is enough. The discretion and interpretation of the trial court should not be cast aside under such circumstances.

The judgment of conviction is affirmed.

Rosellini, Dolliver, and Williams, JJ., and Patrick, J. Pro Tern., concur.