State v. BergenState v. Bergen
- Reporters:
- , ,
- Before:
- James
The defendant, Robert S. Bergen, was charged with the crimes of indecent liberties, contrary to
Bergen was found guilty of both charges.
Bergen was sentenced to 10 years’ imprisonment for each felony. Execution of the sentence, however, was suspended and Bergen was committed to Western State Hospital for a 90-day observation period to determine sexual psychopathy. Following the commitment, the trial court found that Bergen was not a sexual psychopath, revoked the prior suspension, and ordered imposition of the two concurrent 10-year sentences.
Bergen now both petitiоns for a writ of habeas corpus and appeals from the convictions.
Bergen claims that the trial judge erred in allowing a police officer to testify that both of the victims madе out-of-court identifications of certain items of clothing taken from Bergen’s home.
During a search of Bergen’s home, pursuant to a warrant, the police seized, among other itеms, one pair of sunglasses, two stocking caps, and a stocking ski mask. At trial, a police officer testified that the two victims had made out-of-court identifications of the items. Bergen objected to the testimony on the ground that the officer’s testimony constituted inadmissible hearsay.
We agree that, insofar as the testimony inferred that the victims said that Bergen wore any of thе items on the occasions of the offenses, it was hearsay. But our Supreme Court, in
State v.
Simmons, 63 Wn.2d 17, 20, 385 P.2d 389 (1963), quoting with approval from
Judy v. State,
218 Md. 168, 146 A.2d 29 (1958), aligned itself with those
We prefer the reasoning of those courts which favor admissibility. . . .
. . . we choose to align ourselvеs with those courts which hold that such identifications are admissible;
State v. Wilson, supra at 617-18.
Bergen also assigns error to the admission into evidence of certain items of clothing.
The 13-year-old victim testified that his attacker wore a stocking cap ski mask. The 14-year-old victim testified that his attacker wore wire-rimmed sunglasses and a blue stocking cap. The two stocking caps, the ski mask, and the sunglasses seized from Bergen’s home were offered into evidence, but only the two stocking caps and the ski mask were admitted. The sunglasses were ruled inadmissible due to the lack of a sufficiently sрecific identification.
Bergen contends that the caps and mask also should have been excluded, for the items were not sufficiently identified as those worn by the attacker. Bergen argues that the absence of a proper identification rendered the evidence inadmissible.
The trial judge has a wide latitude of discretion to determine the admissibility of demonstrative evidence, and an appellate court will not interfere with the discretion absent manifest abuse.
State v. Chapman,
84 Wn.2d 373, 526
Furthermore, a positive identification is not required. An identification of demоnstrative evidence may be qualified and need not be made with complete certainty. Varying degrees of uncertainty do not affect admissibility. A qualified identification of an exhibit affеcts only the weight of the evidence. State v. Smith, supra; State v. Jackson, 1 Wn. App. 90, 459 P.2d 414 (1969).
The caps and mask were admitted into evidence only after the victims testified that the items were the same or about the same as those worn by their attacker. An adequate foundation was laid, and the evidence was properly admitted.
Bergen further contends that evidence of his prior convictions should have beеn excluded. In response to the prosecutor’s cross-examination, Bergen admitted being convicted of the crime of indecent liberties on two prior occasions. One сonviction was in 1947 and the other was in 1950. Bergen argues that the prejudice of showing the convictions for impeachment outweighs any relevancy to present veracity.
Bergen asserts that the prosecutor violated the trial judge’s pretrial order excluding all witnesses from the courtroom and that the court erred in later admitting rebuttal testimony of the two victims.
During Bergen’s testimony, the prosecutor asked the two сomplaining witnesses to return to the courtroom tb hear Bergen’s voice. Later, the two victims both testified in re
The exclusiоn of witnesses from the courtroom is a matter within the discretion of the trial court, and any decision to exclude witnesses will not be disturbed absent a manifest abuse of discretion. State v. Johnson, 77 Wn.2d 423, 462 P.2d 933 (1969); State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969). Specifiсally, the exemption of certain witnesses from the exclusion, State v. Weaver, 60 Wn.2d 87, 371 P.2d 1006 (1962), the decision regarding whether the later testimony of any witnesses allowed to remain in the courtroom will be admitted or excluded, State v. Johnson, supra, and even the determination concerning whether witnesses who violated an exclusionary rule and remained in the courtroom may testify, State v. Grant, 77 Wn.2d 47, 459 P.2d 639 (1969), State v. Fairfax, 42 Wn.2d 777, 258 P.2d 1212 (1953), are all questions within the broad discretion of the trial court.
Furthermore, the admission and determination concerning the propriety of rebuttal testimony is another matter resting entirely within the discretion of the trial court. State v. White, 74 Wn.2d 386, 444 P.2d 661 (1968); State v. Bowen, 12 Wn. App. 604, 531 P.2d 837 (1975).
The cirсumstances of the present case do not demonstrate a manifest abuse of discretion. The violation of the order excluding witnesses was not done in bad faith. The trial judge considеred the violation immaterial, for the witnesses had previously testified, were allowed to remain in the courtroom after their presence was known, and were later permitted to testify in rebuttal solely concerning voice similarity. The necessary discretion of the trial court was not abused and, therefore, will not be disturbed on appeal.
Simultaneous to the аppeal of the conviction, Bergen petitioned for a writ of habeas corpus. In the petition, Bergen asserts that the lower court erred in arbitrarily and capriciously revoking the suspension of his sentence.
The State filed a petition alleging that Bergen was a sexual psychopath. Following the jury verdict of guilty on
Bergen contends that the revocation of the suspendеd sentence was without justification and, therefore, a denial of due process.
Revocation of probationary status is a determination that rests “almost exclusively with the trial judgе.” State v. Riddell, 75 Wn.2d 85, 87, 449 P.2d 97 (1968). Absent an arbitrary and capricious revocation, the decision of the trial judge will not be disturbed on appeal. Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975); State v. Kuhn, 81 Wn.2d 648, 503 P.2d 1061 (1972).
The record in the present case does not reveal аny abuse of discretion. To the contrary, the procedures of the trial judge were in exact compliance with the mandates of
The petition for a writ of habeas corpus is denied, and the judgment is affirmed.
Farris and Swanson, JJ., concur.Petition for rehearing denied September 30, 1975.
Review denied by Supreme Court February 2, 1976.