State v. Mathes

Ringold, J.

(concurring)—I concur in the result, but would hold it was error to admit the statements into evidence. The record does not reflect the witness's "knowledge correctly." ER 803(a)(5). The majority opinion seems to concede this, but asserts that defendant's objection was inadequate to preserve the issue on appeal.

The objection is directed specifically to the requirements *869of ER 803(a)(5). Defense counsel's objections were: (1) "it is not properly authenticated"; and (2) the procedure followed "throws doubt on whether [the statement] was true at the time it was made." The law is not so mechanical that it requires the pronouncement of the magic "sesame" to open the door to appellate consideration. We have long held that '" [objections must be accompanied by a reasonably definite statement of the grounds therefor so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect."' State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976) (quoting Presnell v. Safeway Stores, Inc., 60 Wn.2d 671, 675, 374 P.2d 939 (1962)). Courts have deemed objections to be sufficiently specific so as to allow appellate review even when the objections at trial were not ideal. See State v. Guloy, 104 Wn.2d 412, 423, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1208 (1986).

It is difficult to believe that the trial court was ignorant of the basis of the objection. The police report was not signed by Kerry Paro, she did not remember giving the statement, and the State did not follow the procedure recommended by 5A K. Tegland, Wash. Prac. § 368, at 230 (2d ed. 1982). The prosecutor's answer to the court's inquiry makes it unmistakable that both counsel and the trial judge were considering the requirements of ER 803(a)(5):

The Court: You're offering it on the—

Ms. Bremner: 803(a)(5).

I would, however, affirm. The case sub judice was tried without a jury in juvenile court. The trial judge entered findings of fact supported by substantial evidence. Even though it was error to admit the statements into evidence, an accused cannot avail himself of error as a ground for reversal unless it has been prejudicial. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). As the error is not of constitutional magnitude the nonconstitutional error standard applies. Under that standard the error is *870harmless unless it can be shown that within reasonable probabilities the outcome of the trial would have been materially affected had it not occurred. State v. Crenshaw, 98 Wn.2d 789, 659 P.2d 488 (1983). After reviewing the record, I am convinced the outcome of the trial would not have been different had the statement been excluded. I, therefore, concur in the result reached by the majority and would affirm.