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Washington v. Modesky

March 29, 1976

THE STATE OF WASHINGTON, RESPONDENT,
v.
KURT L. MODESKY, APPELLANT



Appeal from a judgment of the Superior Court for Snohomish County, No. 6738, John E. Rutter, Jr., J., entered December 6, 1974.

Swanson, J. Williams, C.j., and James, J., concur.

Author: Swanson

Kurt L. Modesky appeals from the judgment and sentence entered on a verdict finding him guilty of violating the furlough statute, RCW 72.66.060.*fn1

The information charged that Modesky escaped from the Washington State Reformatory by his willful failure to return from furlough to the reformatory on January 25, 1972. The State presented evidence that Modesky left the prison on January 21, 1972, pursuant to an order of furlough which required that he return January 25, 1972. The prosecution then sought to prove Modesky's failure to return on January 25 by the testimony of Oliver K. Jergensen, Supervisor of Records and Identification at the reformatory. Jergensen was permitted to testify over objection that the reformatory records, consisting of population sheets for January 25, 1972, contained no record of Modesky's having returned to the institution on that date.*fn2 The pertinent portion of his testimony is as follows:

Q Mr. Jergensen, if Mr. Modesky had, in fact, been a resident of the Reformatory on that date, would his name appear in the counts in the population sheets?

A Yes.

Q Okay. Based upon your examination of the population sheets, is there any record of Mr. Modesky being at or having returned to the institution on the 25th of January, 1972?

A There is no indication of his having returned on that date.

Due to illness, Jergensen was not at the reformatory on January 25 and had no personal knowledge of Modesky's presence or absence on the critical date apart from the reformatory records,*fn3 which were compiled under his supervision. Neither the population sheets nor the log kept of persons on escape status was produced, and no showing was made that production of such documents was impractical, difficult, or impossible.*fn4 The State's only other witness, Correctional Sergeant John J. Jamison, testified that he traveled to Austin, Texas, on May 14, 1974, where he placed Modesky in custody and returned him to the Washington Correctional Center at Shelton. On this evidence the case was presented to the jury, a guilty verdict was returned, and judgment and sentence entered. This appeal followed.

[1] The determinative issue on appeal is the admissibility of Jergensen's testimony that his examination of the population sheets disclosed no record of Modesky's presence at the reformatory on January 25, 1972. It is a fundamental principle of the law of evidence that "in proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of

the proponent." C. McCormick, Law of Evidence ยง 196 (1954). As stated in Gordon v. United States, 344 U.S. 414, 421, 97 L. Ed. 447, 73 S. Ct. 369 (1953), the wisdom of the best evidence rule rests on the fact that a document is a more reliable, complete, and accurate source of information as to its contents and meaning than anyone's description. The State seeks to justify its substitution of Jergensen's oral testimony for the reformatory population sheets on the ground that evidence of the ...


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