Harvey v. State

McCLINTOCK, Justice,

specially concurring, with whom ROSE, Justice, joins.

I concur with the majority that the evidence was sufficient to sustain the verdict of guilty. While I am of the further opinion that the testimony of the ambulance attendant concerning the statement made to him by appellant’s wife was hearsay of the rankest sort and should not have been admitted, I am also willing to agree that it was not prejudicial. However, I am uncertain of the overall tenor of the majority opinion and wonder if it disposes of the question merely because there was sufficient evidence to sustain the decision. I do not want to be considered as retreating from the position expressed in my dissent in Campbell v. State, Wyo., 589 P.2d 358, 373 (1979):

“The question is not whether the jury has made a sustainable choice but whether the process of making that choice has or could have been affected by improper evidence or some other irregularity in the proceedings.”

I shall not dwell at length upon my reasons for the distinction since I have said about everything I could in that opinion. However, I would again quote from State v. Martin, 73 Wash.2d 616, 440 P.2d 429, 437, reh. den., cert. den. 393 U.S. 1081, 89 S.Ct. 855, 21 L.Ed.2d 773 (1968):

*1391“ * * * When the appellate court is unable to say from the record before it whether the defendant would or would not have been convicted but for the error committed in the trial court, then the error may not be deemed harmless, and the defendant’s right to a fair trial requires that the verdict be set aside and that he be granted a new trial.”

In this case, the majority state that there was “substantial and convincing evidence of guilt, and the error, if one, was not likely to have changed the verdict.” This is not enough for me, but I believe that we can properly say with complete conviction that the defendant would have been convicted on the evidence, absent the wife’s statement. The conviction should therefore be affirmed.