State v. Mathes

737 P.2d 700, 47 Wash. App. 863, 1987 Wash. App. LEXIS 3659
CourtCourt of Appeals of Washington
DecidedMay 28, 1987
Docket18255-2-I
StatusPublished
Cited by12 cases

This text of 737 P.2d 700 (State v. Mathes) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mathes, 737 P.2d 700, 47 Wash. App. 863, 1987 Wash. App. LEXIS 3659 (Wash. Ct. App. 1987).

Opinions

Coleman, J.

Donald L. Mathes appeals his conviction for second degree burglary. We affirm.

On August 21, 1985, two apartments in the Clubhouse apartment complex were burglarized. Dusting of the doors through which the burglar gained entry produced prints of Donald Mathes. Mathes was also seen in the area about the time of the burglary. On September 9, 1985, a police report was made in which Kerry Paro stated that she found credit cards and other items taken in the burglary. The report stated that when Paro confronted Mathes with these items, he admitted ripping off the apartments.

On February 3, 1986, Mathes was tried in juvenile court and convicted of second degree burglary. Mathes filed a timely appeal.

The sole issue presented is whether the trial court erred in admitting a portion of the police report as a recorded recollection under ER 803(a)(5).

On direct examination, Paro stated that appellant told her he had ripped off an apartment and gotten $26.

Q. [Direct examination of Kerry Paro by Ms. Bremner] Was he a friend of yours?
A. Yes, he was.
Q. Did he ever tell you about anything that he had done illegal in the apartments?
A. Once, he told me about it. He said he ripped off somebody's apartment.
Q. When abouts did he tell you that?
A. It was before I went to school. I started school September 4. So, it was before I went to school.
Q. Long before that?
A. No, not long before that, probably, within two weeks before.
Q. And when he said he ripped off one of the apartments, was he talking about one of the apartments in the Club House buildings?
A. Yes, he was.
[865]*865Q. What did he say he got out of ripping-off the apartment?
A. He didn't. He just said he ripped-off an apartment. Q. He didn't say anything about cash?
A. $26.00, that's it.
Q. Is what he got?
A. Yeah.

When asked if Paro had told appellant about the credit cards she found, she could not remember what he said about them.

Q. [Direct examination of Paro by Ms. Bremner] Did you ever talk to Donald Mathes about these cards, that you guys had found them?
^ Ones
Q. What did he say?
A. I just told him that I had seen some property from somebody's purse or something that I had found with Danielle and that's all I mentioned to him.
Q. What did he say about that?
A. Nothing, really.
Q. Did he say he knew those—
Ms. Garberding: Objection, asked and answered.
Q. Did he say anything—you said, nothing really; did he say anything about it?
A. I don't remember, really.
On cross examination, Paro was asked about the statement she had given in the police report.
Q. [Cross examination of Paro by Ms. Garberding] Now, Kerry, you gave a statement to the police on September 9, is that right?
A. Yes.
Q. In that statement, you indicate that, and I'll quote, "About three weeks ago, Donald Mathes told me that he 'ripped somebody off in the D buil[d]ing.'" Is that right? A. Yes.
Q. And you told the police that, is that right?
A. Yes, I did.
On redirect, the police report was admitted into evidence as a recorded recollection under ER 803(a)(5).
Q. [Redirect of Paro by Ms. Bremner] When you gave this, do you remember telling the police officer—
[866]*866Ms. Garberding: Objection; I think this goes beyond the scope of cross.
The Court: You may ask your question. She may ask her question; it's within the cross.
Q. When you gave your statement—you remember being asked about it just now, about the statement you made?
A. Yes.
Q. And when you gave it things were fresh in your mind, right?
A. Uh huh.
Q. Do you remember telling the officer about—right here in the statement that you told Donald about this property you found; he told you he threw it out in the woods after ripping off the apartment. Do you remember saying that now?
A. I remember telling Don about some property that I've seen.
Q. Okay. Do you remember when you gave your statement, you told your officer that Don said that's the property he took?
A. I don't remember that.
Q. But at the time you gave your statement, this was fresh in your mind?
A. Yes.
Ms. Bremner: Your Honor, I ask that, if I could—have this read into the record under 803 as a recorded recollection. She's stated that she recalled things at the time and at the time of her statement gave—told the officer that Donald had identified that property as what he took in the burglary.
The Court: Any response from defense?
Ms. Garberding: Yes, I don't believe the part of the statement that the State is trying to enter is properly authenticated, because this witness has no independent recollection of it at this point. I think that throws doubt on whether or not it was true at the time it was made.
The Court: You're offering it on the—
Ms. Bremner: 803(a)(5).
The Court: It may be admitted under that evidence rule.
[867]*867Ms. Bremner: Thank you, your Honor. I have no further questions.
Ms. Garberding: I've nothing further.
The Court: Very well, the witness may be excused.

(Italics ours.)

It is apparent from this colloquy that appellant's sole basis for objection was that the statement was not authenticated because the witness had no independent recollection of it. ER 803(a)(5) provides:

Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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State v. Mathes
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Cite This Page — Counsel Stack

Bluebook (online)
737 P.2d 700, 47 Wash. App. 863, 1987 Wash. App. LEXIS 3659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mathes-washctapp-1987.