State v. Hoffman

51 stat- have so held under similar party. that We prevailing UW, v. Soc'y Animal Wn.2d Progressive utes. Welfare WSU, (1990); Blair v. Wn.2d 790 P.2d 604 (1987). trial finding by the That discretion. reversed an abuse of only court will be W.A.S., Inc., v. P.2d 1001 Winans finding of trial court's Because we have reinstated the its hold- CPA, of the there is no reason to disturb violation The State does party. the State was the ing prevailing fees to it. attorney denial of an award of challenge (1) Appeals In the trial court and the Court summary, debtor are reversed as to their holdings judgment sold execu- property is entitled to market value of (2) Court of unsuperseded tion of the judgment; is there was no vio- Appeals holding reversed as to its (3) 19.86; Appeals lation of RCW and the Court of reversed as to its reversal of the trial court's determination of the prevailing party.

Callow, C.J., Durham, Dore, Andersen, Dolliver, Guy, JJ., concur. Smith, January 10, 1991.] 55948-1. En Banc.

[No. Respondent, Washington, Patrick State Appellants. Hoffman, al, et Gene appellant Price, Hoffman. Richard B. for pro Wasson, McGinnis, se, Paul J. Elmer Edward appellant for McGinnis. Prosecuting Attorney, respondent. Burchard, for

Jack

5g on of Confed- Taylor behalf and Michael Bruce Didesch Reservation, amicus Indian Colville Tribes of the erated respondent. curiae

Andersen, J. of Case

Facts father, Elmer Edward his Hoffman and Patrick Gene aggravated of convictions for reversals their McGinnis seek degree. first degree first and assault murder in the filed after charges The were based convictions officer shooting police death of tribal August John of officer wounding tribal Louis Millard Dick. raised the Court of defendants appealing Appeals,

In of challenge jurisdiction to the multiple including issues prosecution. this bring Washington the State Washington, within shootings Nespelem, occurred near Defendants of the Indian Reservation. boundaries Colville of the Colville Hoffman and McGinnis were both members Dick, one of the tribal Tribe as was John Confederated Millard, police officer the tribal who was officers shot. Louis killed, but was not of Colville Indian descent shot and an member the tribe. enrolled the case to this court Appeals certified

The Court accepted issue. We review of jurisdictional of the because carefully entirety. Having its now reviewed the the case in (almost 6,000-page) record and extensive voluminous briefs, have we conclude that trial court did appellate tried, con- fairly the defendants were jurisdiction and that under the law. we affirm Accordingly, victed and sentenced both defendants. the convictions of jury was entitled to reasonably The facts which the case evidence admitted the trial believe from the our subse- detail connection with are set out some sufficiency of the quent challenges of the to the discussion outline, however, are as fol- facts in broader evidence. Such lows.

On 1986, August days before shooting, several police tribal officers arrested McGinnis at the Tribal Coun- headquarters pursuant cil an outstanding to arrest warrant which had been issued the chief judge the Tribal Court. The arrest warrant was issued a trespass-lands on charge. It issued was after a Mr. had Ferguson complained prosecutor to the that McGinnis had trespassed on his land several times and had threatened and intimidated Mr. Fer- wife, guson, his and his daughter. The Tribal Court had a originally mailed criminal summons to McGinnis on trespass but it was charge unopened returned with his refusal thereon. The marked warrant for his arrest then issued from Tribal based upon trespass-lands Court criminal charge judge's and on the determination McGinnis was an threat community. immediate to the

McGinnis physically resisted the and arrest assaulted tribal police officers and the ambulance attendants who were called after complained McGinnis chest pains. McGinnis was taken to the Tribal Clinic Health and the Coulee Community Facility finally Health and to the Okanogan County Jail he where was on the booked Tribal Court trespass-lands placed warrant and a police on tribal resisting hold for arrest assaulting and the tribal police officers and ambulance crew. McGinnis continued to com- and, pain therefore, ultimately was plain taken to the Mid-Valley Hospital. post

The tribal decided not to police guard, apparently personnel shortage of a because McGinnis because was heart monitor if which would sound an alarm attached The hospital's alarm to the sheriff's disconnected. office was hospital tested the officers and the staff instructed notify the when to be medically McGinnis was The tribal discharged. prosecutor informed McGinnis' attorney daughters and his was still McGinnis under permission McGinnis' children gave arrest visit their hospital. father

gl 26, the discharged August unexpectedly McGinnis was real- one the nurses shooting. the When of evening before hold, to attempted she police that was on a tribal ized he the would come police him to wait or him and told detain of his son McGinnis, company in the However, him. after Hoffman) and his four (the Gene Patrick defendant hospital. from the away daughters, drove Hoffman, which McGinnis driven The automobile observed a passengers, were was daughters the and four in a The police chase vehicle. police gave officer who tribal although he accelerated to 75 or testified that officer he was pursu- the vehicle was unable to overtake m.p.h., he rotating red blue He that his and emergency testified ing. the yards and he within 100 lights were on that came driving it eluded him. Hoff- vehicle Hoffman was but car fol- man later admitted to that a knowing police get away him and that he to from it. lowing accelerated After the out eluding police, McGinnis and Hoffman set to through to walk the 6 to 8 miles the mountainous terrain his McGinnis' home. McGinnis stated he did not want fire, daughters to be the line of and that he would rather die than to from go jail. gym bag back Hoffman removed a the trunk a .45 caliber of the car which contained loaded ammunition, pistol a hol- semiautomatic with rounds ster and the a .22 caliber pistol, holster belt for .45 loaded revolver, Interdynamics an 99 9 mm. semiautomatic KG ammunition, least pistol two at one and magazines with rounds, knife, guns Olin flare with flare a a can possibly two a set of nunchucka sticks. Hoffman testified of mace and all carry weapons his these times. it was habit residence, arriving at the McGinnis' McGinnis and Upon coop chicken and armed hid behind a themselves Hoffman police from The gym bag. the Hoffman's had guns with an officer on surveillance the placed earlier McGinnis police An officer also testified that the property. believed weapons arsenal of his and kept large McGinnis house might concerned that McGinnis return home, and harm Mr. his acquire weapons Ferguson

family, complainants trespass on the offi- charge, or cers who had arrested him at headquarters. tribal At approximately 1:30 a.m. August shortly on before the shooting, watching property officer observed two he individuals whom could not identify. Pursuant his orders, officer surveillance radioed police dis- for patcher assistance. Five police marked cars rescue truck arrived at the scene within a short time. The officers patrol headlights used their car and spotlights and the searchlights on the rescue truck illuminate and search property. panned floodlights property approximately being extinguished. 15 minutes before

The officers buildings searched two abandoned and other surrounding areas property while vehicle lights on. Dick remained Officers and Millard crossed a property fence the and surrounding approached McGinnis the chicken coop. By this time the had lights been extin- guished officers, so as light back but Officers and Millard Dick each large mag police carried flashlights. Dick Officer testified that both officers were talking and as joking they climbed the fence. He also that their testified service revolvers as they holstered climbed the fence approached and chicken coop. Officer Dick testified light that he shined his coop, behind the turned to walk in away was shot back. Gunfire continued after Dick fell wounded. Both Officer Officers Dick and Millard The returned fire. other officers at scene testified did not fire their Officer Dick weapons. heard moaning Officer Millard and realized he had been shot. As Dick over attempted drag Officer crawled Officer cover, illuminating flares gun- Millard to coordinated with chicken coop. fire to come from behind the continued Officer had autopsy An confirmed that Millard been chest; mm. in the by upper struck a 9 bullet death ensued within about 15 minutes. bullet which struck Officer body through definitely Dick his and was never passed .22 firing identified. At trial Hoffman admitted to cali- revolver, pistol position ber the .45 and a flare from gun his mm. coop. ejected cartridges behind the chicken Two .22 coop were found the chicken near the revolver behind and a flare gun. police by

McGinnis was discovered next morn- early the shooting. of the He had shot ing near the scene been with a later bullet which identified as with consistent Officer Dick's revolver and ammunition. police escaped, Hoffman later at home of appear days Epperson one Jeff in Keller, Epperson Hoffman told Washington. that McGinnis mm. gun. Epperson had fired the 9 testified trial killed, when told that an officer had been replied Hoffman "good deal".

Both defendants were originally charged federal (first authorities with violations of U.S.C. degree § murder) U.S.C. 1114 (attempted and 18 murder of a fed- § officer). eral Those later charges were dismissed without prejudice in charged Superior and defendants were Court of the of Washington Okanogan State County with the aggravated crimes of murder first degree and assault in the first Defense for dis- degree. motions venue, missal jurisdiction, severance, for lack of change of the appointment of an expert police procedures witness on and for the psychiatric examination of Officer Dick were denied the trial court. trial,

Following both found guilty defendants were aggravated murder the first degree killing for the of a assault officer and the first degree, charged. As provided cases, law of by the this state such defendants to life imprisonment were sentenced possibility without of parole. appealed setting

The defendant Hoffman has forth 14 assignments of error. The defendant McGinnis has also error, appealed of which arguing assignments most are similar substantially to or identical with the defendant arguments. following Hoffman's We have identified the separate relevant to arguments. issues the defendants'

Issues Washington jurisdiction have Issue One. Did the State of alleged prosecute the defendants for crimes to have been to the Colville Indian Reservation? committed on Two. Did the trial court abuse its discretion in Issue change denying motions for a of venue? defendants' denying in Three. Did the trial court err Issue separate motions for trials? defendants' rights speedy Four. Were defendants' to a trial Issue violated? charges the dismissal of the federal

Issue Five. Did proceedings criminal violate the initiation of state protection equal rights? defendants' preju- Issue Six. Have the defendants shown prosecution the failure of the to evidence? diced disclose presented Issue Seven. Was sufficient evidence from jury premeditation kill, which the could find and intent to as it did? presented Eight. Was sufficient evidence from

Issue presence infer, did, which the could as it of a stat- utory aggravating circumstance in to order enhance murder degree aggravated degree? the first to murder the first photo- admitting trial court err in

Issue Nine. Did the graphs shooting Millard taken at the scene of the of Officer after his death? its Ten. Did the trial court abuse discretion

Issue appoint psychiatrist denying motions to defendants' Dick? examine Officer refusing err in Did the trial court

Issue Eleven. police procedures appoint expert witness a defense techniques? admitting court err Did the trial testi- Issue Twelve.

mony regarding guns owned the defendant McGinnis? prosecutorial prejudice misconduct Issue Thirteen. Did rights a fair trial? defendants' trial court's instruction to the Issue Fourteen. Did the officer Officer Millard was a law enforcement con- stitute reversible error? fact-finding Did the trial court invade

Issue Fifteen. August the earlier by instructing it that province jury was a lawful 25, 1986, arrest of the defendant McGinnis 27, 1986, officers' the later August arrest and that property McGinnis' was lawful? entry onto the defendant trial conclusions regard- Sixteen. Were the court's Issue of the defendant McGinnis' arrest and the ing legality entry property officers' onto his correct? lia- accomplice Seventeen. Were the trial court's

Issue bility jury instructions to the erroneous? jury regarding Eighteen. Did the instruction

Issue allow conviction for murder circumstances aggravating or violate statutory aggravating factors solely upon based mandatory presump- rights creating the defendants' tion? regarding Did the instructions self-

Issue Nineteen. correctly defense and defense of others state law theory allow defendants their of the case? argue err in lesser giving Twenty. Did the trial court Issue despite instructions both defendants' included offense to the of such instructions? objections giving

Decision Issue One. lawfully The State of Washington assumed

Conclusion. over the Colville Indian Reservation in jurisdiction criminal authority of Laws of upon chapter 1965 based chapter amended Laws of codified Subsequent retrocession did not affect RCW 37.12. filed before the effective date of retroces- case which was sion. dependent upon analy an question is jurisdictional

The statutes, 37.12, in conjunc RCW construed state sis of our pursuant RCW 37.12.010 was enacted tion federal law. with 83-280, L. authority contained Pub. No. to congressional 280).1 (1953) (hereafter Public Law 6, 67 Stat. 588 § 1State Sohappy, Supreme

United States Court has held that RCW 37.12.010 complies with Law Public 280 and is constitutional.2 by Congress

Public Law 280 was enacted 1953 and gave to five enumerated states an immediate cession of criminal To the jurisdiction country.3 and civil over Indian remaining (including option states it an Washington) gave jurisdiction assume over criminal and civil causes of in action is one of the states country. Washington Indian 280, governed by Public Law section 6 which in provides part hereby that "the consent of the United States is given any amend, necessary, of people to the State where their statutes, be, may constitution or as the case existing State any legal impediment assumption to remove to the of civil provisions criminal in accordance with the jurisdiction in country of this Act" Indians Indian within the state. over 37.12.010, 1963, RCW as enacted binds the State to assume civil and criminal over Indians and jurisdiction tribe, territory request pro- Indian at the of the affected in pertinent part: vided for RCW 37.12.021 which states governor Whenever the of this state shall receive from the any majority governing of tribe or the tribal council or other Affairs, any body, duly recognized Indian the Bureau of Indian tribe, expressing ... its desire that its a resolution people subject jurisdiction lands be to the criminal or civil Washington authorized the state of to the full extent law, sixty days proclamation he shall issue within federal the effect apply shall to all jurisdiction . . . involved to the same extent that that such Indians and territory, Indian all jurisdiction and criminal or both elsewhere exercises civil state . . . the state: within Council 1965, In the Colville Business issued a reso Governor to issue a proclamation requesting lution Washington v. Nation, Bands & Tribes Yakima Indian 439 Confederated denied, reh'g 740, 740, 940, Ed. 2d 99 S. Ct. 440 U.S. 59 L. Ed. 58 L. U.S. (1979); Sohappy, 500, 110 Wn.2d at 909. 2d 99 S. Ct. Bands, 280, 472; Public Law sections 4. 439 U.S. 3Confederated over the Col- criminal jurisdiction state civil and assuming 37.12.021, Pursuant to RCW and reservation.4 ville tribe proclamation Daniel J. Evans issued then Governor State, requested jurisdiction of the assuming, behalf State, Tonasket v. January 29, 1965.5 In effective dismissed, (1974), U.S. appeal (1975), this court held that L. 2d 95 S. Ct. 1108 Ed. validly over the Colville jurisdiction the State had assumed trial court reservation. conclude that tribe and the We this court's rely upon case was entitled to present in Tonasket as the basis for assuming jurisdiction holding Hoffman charges against trial of the defendants over the herein. and McGinnis specific argu number of more

Defendants make a They argue issue. regarding jurisdictional ments copy that a prove jurisdiction the State did not juris State proclamation assuming Governor Evans' 1965 Business Council's diction and evidence of the Colville not nec authority should have been introduced. This was public is a matter of essary. proclamation The Governor's Governor,6 in record the Office of the and therefore proper subject judicial party's notice even without request.7 previously This court has held that it was for Governor to decide whether the resolution was from an body.8 tribal Just as of a appropriate recognition foreign by political accepted the United States is a act government State, appeal 164, 166, (1974), dis 4 Tonasket v. 525 P.2d 744 84 (1975). missed, 387, 915, L. Ed. 2d 95 S. Ct. 1108 420 U.S. 43 5Tonasket, 84 Wn.2d at 166.

6Tonasket, Wn.2d at 167. 84 (c). 201(b),

7 ER Bertrand, P.2d 427 8 State v. 378 61 Wn.2d 68 by courts, conclusive state and federal so is such a proc

lamation binding upon Governor court.8

Defendants argue further that under the Ten Major Act, Crimes 18 U.S.C. which makes it a federal § crimes, offense to commit certain listed jurisdic exclusive tion in is vested courts prosecution federal over of the crimes. In v. Bertrand, enumerated State (1963), explained this court that when the charge purview Act, is within the of the Ten Major Crimes (RCW 37.12) then in the absence the state statutes jurisdiction exclusive be would federal courts. The Ber proceeded trand then court conclude that the State had properly jurisdiction Quinaults assumed criminal over the under Public Law 280 and 37.12 in RCW a situation where the crime was one of those listed Major the Ten Crimes had, Act. State Washington Since the as explained above, jurisdiction assumed over the Colville tribe and res ervation, the State had jurisdiction over offenses which otherwise would have purview been within the Ten Major Crimes Act.10 also argue jurisdiction

Defendants was invalid provides view of 25 U.S.C. 1326 which tribal consent § jurisdiction "acquired pursuant state criminal to this subchapter" shall be vote of majority the adult members special purpose. of the tribe at a election held for this This language part of the Indian statutory Rights Civil Act of repealed 1953 act 1968 which of the and substituted a § new scheme for the extension of state civil regulatory criminal native jurisdiction litigation involving Ameri arising country.11 cans and Indian 9Bertrand, Wn.2d at 341. Bartlett, 10 Bertrand, 334; n.2, Wn.2d at 465 U.S. Solem 79 L. (1984) (indicating may jurisdiction Ed. Ct. 1161 states assume 2d 104 S. over 1153); Eng'g, Three offenses 18 U.S.C. Tribes Wold enumerated § Affiliated

P.C., (1984). 113, L. Ct. 467 U.S. 81 Ed. 2d 104 S. 2267 Court, 423, 507, 11 Kennerly v. District 400 U.S. 27 L. Ed. 2d 91 S. Ct. 480 (1971).

69 is by defendants argument The flaw this repeal of Public Law 280 would provided also Congress not which had been made cession of any jurisdiction affect 1323(b) repeal. its law 25 U.S.C. pursuant prior to that § (1988) provides: specifically 15, (67 588), August Stat. of the Act of 1953 is 7 Section any shall repeal not cession hereby repealed, but such affect of

jurisdiction pursuant prior repeal. to such section to its made (Italics ours.) above, accepted had Washington jurisdic-

As discussed Supreme The States Court has tion in 1965. United ad- issue: dressed this by Act of 1968 Pub. L. 280

Although Rights the Civil amended requirements, requirements those adding tribal consent retroactive; 1968 amendments therefore did made not 280, L. displace jurisdiction previously assumed under Pub. (Footnote omitted.) Three v. Wold Eng'g, Tribes Affiliated P.C., 138, 150-51, L. 467 U.S. Ed. 2d 104 S. Ct. 2267

The defendants no argue Washington longer next had when for jurisdiction responsibility it assumed their prosecutions because had been retroceded to jurisdiction the federal courts. is incorrect. The procedure That for by jurisdiction Congress retrocession established 1323(a) in pertinent provides part: U.S.C. which § accept by The United States is authorized to a retrocession any any jurisdic- all or measure of the criminal or civil State of both, pursuant tion, acquired by provisions State to the or such of of prior 1162 of title section of title or section 7 section (67 588), August Stat. it was effect the Act of (b) repeal subsection this section. to its RCW 37.12- Legislature In enacted Washington procedure juris- retrocession provides .100 which occurring for acts Colville diction over Indians for transfer of procedure jurisdiction reservation. in former RCW 37.12.120: detailed governor receives from the confederated tribes Whenever expressing their Colville a resolution desire reservation any of all measure of retrocession the state or for the jurisdiction acquired by pursuant state criminal 37.12.021 the to RCW reservation, over of the lands Colville Indian the governor may, ninety days, proclamation within issue a retroceding viously acquired by jurisdiction to the United States the criminal pre- However, the state over such reservation. jurisdiction shall Washington provided the state of retain in proclamation RCW 37.12.010. The retrocession shall not of by accepted it is an become until the United effective officer of government (82 accordance States Stat. with U.S.C. Sec. 1323 79) 78, procedures and in accordance with established by acceptance States such jur- United retrocession of isdiction. (Italics ours.) Secretary of by the Interior was vested then Presi B. Lyndon authority

dent Johnson with accept retroces jurisdiction sion of from state. Retrocession is effected by publication Register Federal which specify shall effective date of retrocession.12 Retrocession of criminal jurisdiction exercised State over Washington Colville tribe was accepted at a.m. 12:01 Pacific standard time, day publication following Register, the Federal which was on March 1987.13 18, 1987, Retrocession which was effective March did not state jurisdiction affect over defendants McGinnis and Hoffman for crimes committed where August charging information was filed October and the trial began February 1987. RCW is dispos 37.12.130 itive of this issue: An proceeding action or which been any has filed with court agency government or of the state or local preceding the effec- jurisdiction tive date retrocession of under RCW 37.12.100

through not 37.12.140 shall abate reason of the retrocession jurisdiction. or determination of ours.) (Italics argues

Defendant Hoffman a "de facto" retro- depriving jurisdiction occurred the State of cession had (Nov. 11,435 21, 1968), (1968), Reg. 33 Fed. 12 Exec. No. Order re (1988). printed in 25 U.S.C. 1323 note at 1570 Reg. 13 52Fed. of fed is RCW exclusive under 37.12 jurisdiction

that state by federal collected evidence and therefore jurisdiction eral warrant) should be to a federal search (pursuant authorities is cited to authority court. No relevant excluded state by rel supported support arguments. Arguments these by this be considered authority need not evant citation Furthermore, by the state governed court.14 retrocession herein discussed.15 statutes federal of Wash- from the State foregoing We conclude prose- has, over have, jurisdiction and still ington did in this case and that charged cution of crimes to court of deprive jurisdiction did not the trial retrocession complete impose the trial and sentence.

Issue Two. probability of we prejudice, no Perceiving Conclusion. the trial court did not abuse its discretion conclude change for a of venue. denying defendants' motions granted motion of venue should be change A necessary process a due when to effectuate defendant's a must of a trial but defendant guaranty impartial fair pretrial or from prejudice of unfairness probability show a publicity.16 deny change

The to or a motion for grant decision appellate is within the trial court's discretion and venue ruling such a absent show courts are reluctant disturb This has uti repeatedly of abuse of discretion.17 court ing in State v. Crudup, App. 11 Wn. lized the factors expressed denied, review 583, (1974), to 479, 524 P.2d Wn.2d 1012 84 King, Giffing, v. 451-52, (1986); State 443, v. 796 14 Smith 722 P.2d 106 Wn.2d denied, (1986). 369, 445, 376, review App. 107 Wn.2d 1015 45 Wn. 725 P.2d (1968); 15 See RCW 37.12. 25 U.S.C. 1323 § denied, (1987), Rupe, cert. 486 16 State v. 108 743 210 P.2d denied, 1263, reh'g 934, 108 2834, 1061, L. U.S. 101 L. Ed. Ct. 487 U.S. 2d S. (1988). 976, 109 2d S. Ed. Ct. Stiltner, Rupe, v. (1984); State 17 State 101 Wn.2d P.2d determine whether the trial court has abused its discretion in refusing grant change of venue.18 These factors are as follows: (1) inflamatory the noninflammatory or publicity; nature of the (2) degree the to which publicity was throughout circulated (3) community; the semination exercised and the length elapsed of time from the dis- (4) publicity trial; of the to the date of the care difficulty encountered in the selection of the (5)

jury; familiarity prospective jurors or trial with the publicity (6) them; upon and the resultant effect challenges exercised tory with the release of in selecting jury, peremp- defendant both (7) cause; and for government the connection of officials (8) publicity; severity charge; of the (9) the size of the area from which the venire is drawn. Crudup, 11 App. Wn. at 587.

Applying criteria, facts of this case to Crudup we (1) observe as predominant follows. news coverage factual and even somewhat sympathetic explaining Elmer (2) McGinnis' past physical infirmities. One newspa- per, Tribune, the Tribal which contained some articles to which defendants' arguments addressed, are primarily is a newspaper very limited circulation distributed to tribal (3) members. Although defendants allege articles continued throughout trial, specific articles cite as prejudicial published (4) were all 4 to 6 months before the trial. Defendants provided have not any record of the selec- process tion present substantiate their allegations that difficulty was encountered in fact, a In empaneling jury. the trial allowed judge voir dire to continue days. for 6 or 7 So far as the record before us reflects what occurred the voir dire process, appears it judge trial took care great jury procedure selection and offered defendants opportunity to question individual prospective jurors alone in case any specific publicity may unduly have influenced a particular juror. The trial judge opined publicity had not been so adverse as to empaneling impar- make an unlikely tial jury but the best test of whether an Jeffries, denied, 398, 722, 18 State v. 922, cert. 717 P.2d 479 U.S. 93 301, (1986); Rupe, L. Ed. 2d 107 S. Ct. 328 101 Wn.2d at 675.

73 to attempt was to empaneled could be impartial jury approved postponement have also one. Prior cases empanel until after voir of motions change on venue of the decision if explained, trial court jurors.19 of As the dire prospective a of venue would change not be found then jury a fair could selected, again the trial court After the be allowed. regularly of The trial court a venue. change denied jury throughout the trial emphatically instructed any or conversation seeing hearing publicity avoid or (5) argue that numer regarding the trial. While defendants of knowledge based on prospective jurors ous were excused potential few publicity, prosecution argues pretrial read. Had anything they had could remember jurors detail, a us into this factor more go defendants wanted been pro the voir dire examination should have record of (6) court; provide it no was not. Defendants vided to alleges challenges prosecution on whereas the information granted for cause were all challenges that defendants' any public except as to one who could remember juror we to further consider this ity. Again, are without record (7) nor the news articles factor. Neither the record of information upon improper relies show release defense (8) course, The are by government charges, officials. Rupe, v. cases of State 101 severe as in the above cited ones Brooks, State v. (1984) 20 664, P.2d denied, review 91 Wn.2d 1001 P.2d Wn. App. of venue (1978), changes of motions for wherein denials (9) from Okan was drawn appeal. were upheld County. ogan factors, it is clear to us that the above

Weighing due probability prejudice not shown defendants have motions trial court's denial pretrial publicity; not error. change venue was denied, 583, 588-89, Crudup, review App. 19 State v. 524 P.2d 11 Wn. Brooks, review (1974); App. State 579 P.2d Wn. Wn.2d 1012 denied, 91 Wn.2d 1001 74

Issue Three. The joint defendants failed to show that

Conclusion. them; unfairly trial would prejudice the trial court acted within the ambit of its discretion in the motion for denying severance. granting separate

The or denial of a for motion trials of jointly is to the charged defendants entrusted dis cretion of the trial and not court will be disturbed on appeal Separate absent manifest abuse of discretion.20 trials in Washington are favored and defendants seek have ing joint severance the burden of that a demonstrating manifestly trial be prejudicial outweigh would so as to judicial concern for economy.21 mutually existence of antagonistic defenses is not compel sepa alone sufficient to Rather, rate must trials.22 it be demonstrated that the con flict prejudicial irreconcilable, is so that defenses are and will infer unjustifiably that this conflict alone demonstrates are guilty.23 both The burden on a moving party come forward with sufficient facts to war rant the or her exercise discretion his favor.24 argues reputation

Defendant Hoffman (McGinnis) his quarreling father codefendant with him prejudiced argument tribal officials association. His hostility between tribe and the defendant McGinnis would him somehow taint lacks supporting No is cited authority. authority proposition for the that one objectionable defendant's or background reputation might Grisby, (1982), 20 State v. 97 6 sub 647 P.2d cert. denied nom. Washington, (1983); Philips, Frazier v. 1211 U.S. State 108 Wn.2d 741 P.2d 640; (9th Doe, 21 Philips, John 108 Wn.2d at United States v. 655 F.2d 920 1980). Cir. Davis, (1968); Grisby, 22 State v. 438 P.2d Wn.2d at 507. 23 Grisby, 97 Wn.2d at 508.

24 Grisby, 97 Wn.2d at 507. cause for thereby constitute rub off onto a codefendant argument. merit We no separate perceive trials. was that severance argues Hoffman also The defendant ruling by the court's required prejudiced because he was was Epperson of his statements to the witness that one in chief. The back- in the case prosecution's inadmissible Epper- appeared this is that when Hoffman at ground of him told shooting, home Hoffman son's after gun. Upon 9 mm. the defendants' had fired the McGinnis Epperson trials, the court held that separate motions for it to because tended testify could not to that statement under CrR proper ruling That was a incriminate McGinnis. 4.4(c) in pertinent part: provides which (1) ground motion A defendant's for severance on referring to him is an statement of a codefendant out-of-court granted him unless: against

inadmissible shall be (i) attorney to prosecuting elects not offer the statement chief; in the case in (ii) moving all to defendant will deletion of references any prejudice eliminate to him from the admission statement.

(Italics ours.) case, In prosecuting attorney elected not use to the witness to defendant Hoffman's statement in Epperson the State's case chief. rule, 4.4(c), adopted was

The above court CrR avoid problem dealt with Bruton United constitutional States, 123, 476, 391 U.S. 20 L. Ed. 2d 88 S. Ct. 1620 (1968).25 Bruton, In held Supreme the United States Court deprived his rights that the defendant was confrontation when he incriminated under the Sixth Amendment a who did not take the pretrial statement of codefendant case, however, present trial.26 In the severance was stand at 4.4(c) prosecution by CrR because not mandated to the witness not to use Hoffman's statement elected Samsel, App. 25 State v. 39 Wn. Wheeler, 26 Samsel, App. (citing 95 631 State v. 39 at 567 Wn. (1976), Herd, (1981) App. review P.2d State v. Wn.

P.2d 376 denied, (1977)). Epperson about the defendant McGinnis the State's case Hoffman, however, chief. ultimately testify did elect to at trial doing so potential eliminated the Bruton prob- stand, lem. With Hoffman on the McGinnis had full opportunity to cross-examine him.

Hoffman maintains that he was prejudiced because the prosecution was allowed to him impeach with this state- ment when he testified that he did not know if McGinnis had fired a however, This gun. argument, does with- stand if scrutiny. Only right defendant has the to lie on the stand would such an impeachment effort unfairly him, prejudice but that is not prosecution the law. The had right examination impeach cross the witness with the witness' prior own inconsistent statement. The trial court offered Epperson to allow Hoffman to recall to allow him testify regarding Hoffman's statement that McGin- nis had fired 9 mm. gun, the but Hoffman elected not to Epperson. recall

Mutually antagonistic defenses can be to sup sufficient port severance, a motion for question but this is a factual which proved by must be the In defendant.27 this case the concluded, trial court we agree, and that defenses not inherently antagonistic. Both defendants claimed self- defense and not know that did who was on McGinnis' trial property. The court did not abuse its discretion denying severance.

Issue Four. The do support facts defendants' argu-

Conclusion. a right speedy ments that their to trial was violated. Defendant McGinnis claims that his conviction should be reversed a because State obtained continuance from 11, 29, This February factually December 1986 to 1987. is a inaccurate was October allegation. arraignment 24, during competency hearings 1986. On December on McGinnis, 5-day the State moved for a continuance from 29, 1986 until January upon December 1987 based CrR 27 Grisby, at 508.

3.3(d)(8). granted continuance, due to that court The trial beyond court of the the control circumstances unavoidable parties parties, finding had with all acted or and diligence. neces- stated that the reasons The trial court due sitating judges, delay disqualifications of included three large request, defendants' which were two of required by pretrial hearings vari- that were of number 3.3(d)(8), 5-day pretrial con- CrR motions. Under ous appropriate. tinuance both Then on December defendants agreed trial of Feb to a date for a continuance and

moved opined ruary month The trial solid 1987. court necessary pretrial hearings the trial could would before be hearings on a motion included Pretrial matters commence. comple physical suppress evidence, dismiss, a motion psychiatric evaluation, sever a motion to tion of McGinnis' discovery controversy Thus, con to be and a resolved. proper The trial court tinuance too was under CrR 3.3. granting continu acted well within its discretion these days Trial is not mand ances. within a constitutional rights to a was no defendants' ate.28 There violation speedy trial. motions Had the trial court denied the defense given complexity continuance, of the and the for a repeated case attorneys, opposite substitution defense argument appeal—that been would doubtless have made grant the failure defendants' motions continuance deprived counsel. them of effective assistance of Issue Five. charges The dismissal federal Conclusion. proceedings did not violate of state criminal initiation protection rights. equal defendants' argues court state Defendant Hoffman pros prosecution for a a "sham" and a "cover" federal equal protection. right We his and a violation of ecution denied, (1984), 1, 15, Campbell, cert. 471 28 State v. 103 Wn.2d 498, White, (1985); v. State L. 2d 105 2169 U.S. 85 Ed. S. Ct. (1980). 501, 617 P.2d 998 78 argument

conclude that this is merit. without Hoffman no authority proposition cites the criminal of a charging sovereignty defendant one after dismissal charges by sovereignty any another violates constitu right. contrary, tional To the an act denounced by both sovereignties both, federal and offense against state is an may punished by Nothing prohibits and be each.29 a fed prosecutor deciding eral from to surrender a a suspect for prosecution applicable state under state law.30 upon authority, Defendant Hoffman relies lines of two of which inapplicable. argues each is He first that we should look to involving double cases jeopardy consecutive state prosecutions federal if and to determine the defendant's constitutional have been Such an rights violated. issue can arise when a has been acquitted by defendant one jurisdic jurisdiction tion the other to initiate criminal seeks based on the same In proceedings case, conduct. this how ever, only prosecution by one one is jurisdiction involved. cooperation Mere between different law enforcement agen In cies does not violate a defendant's rights. constitutional fact, cooperation is between state and federal authorities encouraged.31 protection argues equal rights

Hoffman next that his prosecutors' were violated the federal and state com- decision charge bined defendants under state rather than federal law. claims is punishment He that because different under law state than under federal law such decision improper constituted "forum which he shopping", State argues also is unconstitutional under rationale Zornes, (1970). 78 475 P.2d This is not in Zornes principle correct reading of enunciated First, untenable two argument an case for reasons. Tidwell, (1982). 29 State v. App. 651 P.2d Wn.

30 Tidwell, App. 32 Wn. at 976 and cases cited therein. Simon, denied, (7th Cir.), 31 United States v. cert. 409 F.2d 396 U.S.

79 discretion charging not to the apply does Zornes rule federal and be state authorities charging two different Secondly, regardless states. of two different officials or by federal decisionmaking joint or any cooperation violated protection has not been equal prosecutors, state if here even inapplicable the Zornes rule would be because murder charge whether had decided prosecutor one attempted 1111 18 U.S.C. degree first under § 1114, or U.S.C. officer under 18 of a federal murder § 10.95.020 RCW first under degree murder aggravated under RCW 9A.36.010. degree in the first and assault is vio protection equal The Zornes rule holds that be crimes same acts to when two statutes declare the lated the other statute than penalize severely more under one but How unbridled discretion. thereby giving prosecutor contain ever, rule when the two crimes apply does not the state crimes and different elements.32 Here the federal malice The element of crimes contain different elements. from 1111 is different aforethought contained 18 U.S.C. § RCW 10.95.020. required of intent under RCW the element 10.95.020) a 9A.32.030(1)(a) requires in RCW (incorporated person. another intent to cause the death of premeditated killing 1111 as the unlawful 18 U.S.C. defines murder § not Malice does aforethought. with malice being human Rather, established may intent to kill. it be require proof of and a wanton of conduct which is reckless and by evidence One standard of care.33 deviation from a reasonable gross be 1114 the offense requires 18 U.S.C. element of § officer; is not con this element against a federal committed 9A.36.010. under RCW charge in the state assault tained Zornes, Greco, (1990); State v. 196, 203, App. v. P.2d 940 32 State 57 Wn. 787 (1970); Campbell, 552, 103 Wn.2d at 25. 469 P.2d (8th Johnson, 1989); United States 331, v. Cir. 33 United States 879 F.2d 334 denied, 1193, (4th 1984), L. Fleming, cert. 83 469 U.S. 947 Cir. 739 F.2d Shaw, n.20, (1985); States v. F.2d United Ct. 970 Ed. 2d 105 S. denied, denied, (5th 1983), L. Ed. reh'g cert. 465 U.S. Cir. 714 F.2d 544 744, 104 2d S. Ct. Where elements of differ, alternative crimes the exercise of prosecutor's discretion does not equal protection. violate It follows that the Zornes rule does apply not this case and defendants' equal protection rights were violated.

Hoffman further claims that federal authorities sought a prosecution state because the death penalty was unavail in able federal court. prosecution, however, The never sought death penalty event, this In any case. we have held prosecutorial that discretion of whether or not to seek the death penalty does not violate equal protection principles enunciated in Zornes.34

Issue Six. Defendants have they not shown that

Conclusion. prejudiced by any alleged prosecutorial failure to disclose evidence.

As we recently reiterated, have scope of discov ery is within the trial court's discretion and that court's decisions in regard will not be overturned absent a manifest cases, abuse of discretion.35 In criminal the dis covery provisions of CrR 4.7 guide the trial court exercise of this discretion. The record in present case illustrates that the trial judge continually discovery guided and was vigilant insuring provided the defense was with all appropriately discoverable evidence. The trial court repeatedly, and on occasions, different inquired of defend ants as to whether needed assistance on discovery matters.

Defendant Hoffman alleges that although prosecution provide statements, did witness it interfered with the attempt by the defense to interview various witnesses. This claim is not borne out contrary, the record. To the Dictado, 25; 277, 297, 34 Campbell, 103 Wn.2d at State v. 687 P.2d (1984). Yates, Mak, (1988); State v. 35 State Wn.2d denied, cert. 599, 107 718 P.2d 479 U.S. 93 L. Ed. 2d S. Ct. 599 pro- offered prosecution record demonstrates 4.7. by CrR strictly required discovery beyond vided avail- offered to make witnesses repeatedly prosecutor The made its forensic prosecution able to the defense. defense's available to the telephonically expert witness no defense The record reflects expert. appointed forensic 4.6; present to CrR depositions pursuant requests unavailable to the defense witnesses were allegation that unsubstantiated. surprised by he was alleges Hoffman

Defendant may that Hoffman have testimony witness' prosecution coop chicken order cages the chicken behind the stood on prosecution Officer Millard. As is true with other to shoot witnesses, available to the defense. this witness was also Furthermore, authority proposi has been cited for the no all "theories" to be requires prosecution tion that CrR 4.7 nothing disclosed to defendants. We find whatsoever any establish that evidence which should have been dis 4.7(a)(3) closed to CrR pursuant tending negate guilt prosecution. defendants' was withheld attorneys Hoffman asserts five different having appointed prior negative to trial had a effect on his defense. however, provided, why attorneys No record is as to were allowed to least one appears withdraw. It another attorney discharged by Hoffman himself and of potential was allowed to withdraw because of a conflict in this shown. regard interest. Error has not been 17, February alleges 1987. Hoffman Trial commenced on any saw he nor his counsel ever appointed that neither until introduced his trial physical evidence to be Hoffman's day second of trial. Defendant evening of the government actions of the Federal argues brief ''[t]he with Spokane evidence custody in . . . of the retaining such that Patrick Hoffman F.B.I., the exclusion of reviewed physically not even be could the evidence trial, should day of until the second counsel defendant's is a This law scholar." novice constitutional offend even a he and alleges that When Hoffman argument. misleading his attorney were unable to see the physical evidence until day trial, the second he is to a referring viewing by the defendant which occurred in jail pursuant to a request made his attorney until February 1987. The record 17, establishes that the physical evidence had been delivered to expert prior fact, In to trial. the prosecution defendants' sought the trial judge's in getting portion assistance of the physical evidence back expert from the defendants' February 10, 1987. That evidence had been delivered to defendants' expert on January 1987. Much of the physical State's evidence had been delivered to that same defense expert on December and the officer who 22, 1986, testified for prosecution regarding collection and preservation physical evidence had spent most of that day with defendants' forensic expert.

Defendants have made showing no of a violation of the discovery rules and Hoffman's arguments denial regarding of access to physical evidence are not well taken.

Issue Seven. The State produced substantial evidence at

Conclusion. trial showing that the killing officer Millard was both premeditated. intended and

The test for sufficiency of the whether, evidence is after viewing the evidence the light most favorable to the State, any rational trier of fact could have found the essen tial elements of beyond the crime a reasonable doubt.36

Premeditation is an essential element of mur der in the first degree as herein.37 charged Premeditation must involve time;38 more than a moment it is defined as the deliberate formation of and reflection upon the intent to take a human life and involves the mental process of Hughes, 176, 199, (1986); Green, 36 State v. 106 Wn.2d 721 P.2d 902 State v. (1980) (citing Virginia, Jackson v. 443 U.S. (1979)). 61 L. Ed. 2d 99 S. Ct. 2781 RCW 9A.32.030(1)(a).

37 9A.32.020(1).

38 RCW

83 weighing reflection, or thinking deliberation, beforehand, period reasoning Premedita time, short.39 however for a by proved where evidence circumstantial can be tion by jury the evi are reasonable inferences drawn supporting jury's is substantial.40 verdict dence P.2d 984 848, 733 Ollens, Wn.2d

As in State v. 107 (1987) App. P.2d 531, 749 Neslund, v. 50 Wn. and State (1988), the factual denied, 1025 110 Wn.2d review allow which would in this case contains evidence record pre reasonably jury each that the defendants conclude prior killing. threats There was evidence meditated the by regarding officers; a tribal McGinnis the defendant deadly brought weapons of the to the scene number of shooting by multiple Hoffman; shots were the defendant shooting defendant; one of the victims of fired each indicating behind; statements was shot from and several jury premeditation was were made each defendant. testimony pres premeditation find under the entitled to ented.41 just Hoffman noted, evidence showed that

As substantial supply guns transported guns, and a a number of flare planned shootings. The the scene of the ammunition to premeditat weapons supports presence an inference of Hoffman's ion,42 entitled to disbelieve and the weapons. testimony always all these that he carried might evidence from which There is substantial reasonably them- defendants armed have found that both approach then selves, waited for the officers to hid and denied, Neslund, 531, 558, review App. 110 P.2d 39 State v. Wn. 749 (1987). Ollens, 848, 850, (1988); State v. P.2d 984 107 Wn.2d Luoma, 28, 33, 40 Neslund, 558; v. App. 558 P.2d State 88 Wn.2d at 50 Wn. (1977). 559; Ollens, 41 Neslund, App. at 853. 107 Wn.2d 50 Wn. App. 42 Ollens, Giffing, 851; 725 P.2d State 45 Wn. 107 Wn.2d at denied, review

opened a number of wit fire on the officers. Evidence from who were fired nesses indicated that it was the officers upon, way around, rather than the other and that the offi gunfire. Officer cers were not the ones who initiated the corroborated, testified, that he Dick and forensic evidence An victim from behind was shot the back. attack on a may premeditation.43 physical evidence and indicate Both testimony number of shots indicated that a considerable Eight shell cas were fired both defendants. .45 caliber ings, eight casings 9 mm. shell .22 caliber shell and two coop casings behind which were recovered near the chicken expended hiding, shells the defendants were and all of the having guns from owned consistent with been fired Hoffman. pistol. reloading the .45 caliber

Hoffman also admitted multiple supports an Evidence of also acts violence premeditation.44 shot, inference of After both officers were crawling attempting drag to Offi and Officer Dick was cover, to coordi cer Millard to the defendants continued they gunfire with the flares fired to illuminate nate their shooting. Such of cal the scene conduct evidence premeditated culated actions and intent to kill. There was testimony said he was also which indicated McGinnis had declaring again if war on the officers tried to detain may him. The also have believed that McGinnis said daughters out of the line of fire and that he wanted his responded by saying "good he learned Hoffman deal" when an officer had been killed. evidence that one or both of

There was substantial Proof that the defendants shot at officers Dick and Millard. Neslund, 43 Ollens, Giffing, 45 Wn. 560; 853; App. at 50 Wn. at App. at 375. 44 Hughes, 106 Wn.2d at 200. course, is, suffi a victim weapon fired a

a defendant kill.45 of intent to finding justify cient he could not have argues also Hoffman his because he did not know kill Officer Millard intended to Millard know that it was Officer duty shift and did not slayer A This is untenable. coop. chicken approaching the order identity of victim does not to know the have there was sub here that form an kill.46 We hold intent reasonably have could stantial evidence from which kill the dece intended to only found the defendants dent, killing. premeditated but also Eight. Issue evidence there was substantial We conclude Conclusion. that the defendants from which the could have found the homicide reasonably knew or should have known that in engaged victim was a law enforcement officer who was shooting. his official duties at the time of the aggravated Murder in the first can enhanced to degree be aggravating in the first of an degree by finding murder case, In circumstance. circumstance aggravating 10.95.020(1): charged is that found RCW if he or person guilty aggravated degree A first murder by 9A.32- degree she commits first murder as defined RCW .030(l)(a), amended, as or hereafter and one or more now following aggravating circumstances exist: (1) officer, corrections The victim was a law enforcement officer, her official fighter performing or fire was his or who victim resulting the act in death and the duties at the time of reasonably per- was known or should have been known killing; son to be such at the time of the there was insufficient evidence argue The defendants or that he was police show that Officer Millard was a officer should have in official or that defendants engaged duties denied, Gallo, 558, 717, 729, review App. 45 State v. 20 Wn. 582 P.2d denied, Odom, 152, cert. (1978); State v. 520 P.2d 83 Wn.2d (1974). U.S. 42 L. Ed. 2d 95 S. Ct. 333 Hettrick, (1957); Collins, 740, 758, State v. 46 State v. 50 Wn.2d P.2d 150 gg

known he was engaged time of official duties at the killing. We disagree.

Defendants first argue that because Officer Millard's evidence, commission was not introduced into there could be no finding he was a officer. This is not cor- police rect. There was in fact considerable and unrefuted evidence Officer Millard was a law officer at the enforcement time he was shot down. The chairman of the Colville Tribal Council Law and Justice Committee that Millard testified and Dick police were tribal officers. chief police The tribal testified to the Okanogan same effect. The Sheriff of County testified that Millard was a commissioned sheriff's deputy and a tribal policeman deputy and had been a sher- iff from 1979 until the time of his death. Louis Millard and John Dick's certificates appointment deputy sheriffs and their oaths of office were introduced into evidence as State's exhibits and 3.

Defendants argue also there was not substantial evi- support dence to the jury's finding that Officer Millard was engaged his official duties at the time he died. This is also an argument. untenable Officer Millard was dressed uniform, police his an driving police official marked car and accompanied by his superior officer and several other tribal officers while he was for McGinnis and searching Hoffman. He had been called the scene dispatcher and the chief of the tribal police force testified he that was on official business for the Colville Confeder- Department ated Tribal Police during early morning the August hours of when the occurred. shooting trial, Defendants argued throughout the and do so again here, that the chief of the police tribal had called off the That, too, search for the prior defendants to the shooting. is incorrect. An officer had been ordered to maintain sur- veillance throughout night place the at the McGinnis if suspects very to radio for assistance the Thus appeared. presented substantial evidence was from which the jury concluded, did, have could as it that Officer Millard was a at the in his official duties engaged officer law enforcement killed. time he was not substantial evi- there was argue also

Defendants concluded that the could have jury from which the dence Millard known that Officer have knew or should defendants disagree. we Again, officer. was a law enforcement defendants Hoffman and shooting, of the At the time had searching authorities been tribal knew the McGinnis vehicle in a police high speed them; eluded they for had There was evidence from which evening. chase earlier concluded reasonably that both have could hospital left without that McGinnis knew defendants Hoffman himself testified police. tribal the consent of prop- hill the McGinnis overlooking on a they stopped presence before the area. police entering erty to check time of the defendants' arrival on the very short Within a vehicles and an police emergency five marked property, property. lights lights at the and search truck arrived approximately remained illuminated for on the vehicles carrying flashlights openly officers searched minutes while floodlights and fields. Powerful surrounding buildings As property. across the McGinnis emergency rig panned approached coop, Dick the chicken Officers Millard and A Officer Millard photograph of flashlights. each held him be full taken at the scene after his death showed Thus, evi- very there was substantial again, uniform. the defendants which the could find that dence from enforce- were law searching property people knew ment officers. Issue Nine. its discretion not abuse The trial court did Conclusion. body into Millard's of Officer admitting photographs outweighed any value probative

evidence; photographs' effect. prejudicial court abused its discre- the trial claim

Defendants lying of Officer Millard photographs two by admitting tion The trial court shooting. scene of the up face to their admission and prior the photographs reviewed 88 The trial court observed that the

ruled admissible. them attorney prosecuting had not offered into evidence those might photographs have been considered inflamma- tory. admissibility photographs generally

The not sound discretion the trial court and will within the appeal showing absent a abuse be disturbed There was no abuse of discretion this con discretion.47 photographs grue admissible, are if even nection. Accurate probative outweighs prejudicial value their some, if their effect.48 They photographs were relevant to several issues. attempted had show that Officer Millard

tended to dragged, toward cover and that he was crawl, or had been at the time he was in full uniform killed. dressed drag tried to Officer Millard to Dick testified he had Officer gunfire safety from area of the flares and continued coop. issues of This was relevant to the contested chicken hotly premeditation. Furthermore, con kill a intent to knew or issue at trial was whether the defendants tested officer have known the victim was a law enforcement should engaged also adhere duties when he was shot. We official bloody holding that a brutal crime reiterated to our often lily-white explained jury in manner.49 to a cannot be probative photographs value, clear the trial had Since deciding, did, as it discretion not abuse its court did probative outweigh any prejudicial their effect did value. 789, 806, (1983); Adler, Crenshaw, State v. 98 Wn.2d 47 State v. (1976), denied, (1977). App. review 88 Wn.2d 1011 P.2d 817 558

16 Wn. Adler, 465; Tikka, 806; App. 48 Crenshaw, at State v. 16 Wn. 98 Wn.2d at (1973). denied, 736, 739, 82 Wn.2d 1007 App. P.2d review Wn. Bookman, 807; App. 49 Crenshaw, 37 Wn. State denied, Wn.2d 1002 review P.2d Ten. Issue its discretion not abuse court did The trial

Conclusion. psychiatrist declining appoint to examine Officer Dick. appoint trial, moved for the defendants

Prior to arguing psychiatrist Dick to examine Officer a ment of necessary cross examination. The trial for effective it was police in camera review of the officer's an court conducted personnel court held and denied the motion. The trial files requiring showing compelling of a reason had been no there question been raised examination and that no had such an competency a After of Officer Dick as witness. as to the considering reviewing record, court's rea the trial psychiatric soning, of the we concur that a examination police As we have made wounded officer was unwarranted. cases, victim in sexual offense a crime witness or clear psychiatric examination should not be ordered to submit to compelling reason.50We unless a defendant demonstrates a perceive To con no reason for a different rule this case. countenancing prac a would smack of our clude otherwise place placing victims and witnesses on trial of tice of defendants; decline to do. Review of the record this we competency challenge a to Officer Dick's no basis for shows necessity appointment testify whatsoever for the and no to psychiatrist him.51 to examine of a Eleven. Issue refusing The trial court did not err in to

Conclusion. proce- expert subject police appoint witness on the an testimony having been shown to be neces- dures, such sary to the defense. granted that the court should have

Defendants contend appointment police request of a former chief as their Tobias, 733, 738, (1980); Demos, v. 619 P.2d 968 State 50 State App. Wn. 3.1(f). 51 CrR appre- expert proper police during on

defense conduct necessary They argue suspects. hension of that this was determining assist whether tribal officers' responses they might appropriate actions and what expert's have that such an evoked. trial court ruled testimony might prove to be trial in well inadmissible at any opinion expert's case, and, event, this essary an was unnec- arguments sought to the kinds of the defense potential agree. on this issue. This make We personal knowledge expert no events in witness had police night shooting. question or the conduct procedures if were determined to be care- Even techniques, lacking less, in the or best search we do not provided perceive that this would have a defense to the charges of murder and assault of the officers. 3.1(f)

CrR controls the authorization funds rule, than for services other counsel.52Pursuant to this experts appointment defendant is entitled the if to of financially if unable to them and the services are obtain necessary right A to the defense. defendant's constitutional expert of an is no than to the assistance witness broader 3.1(f).53 rights CrR the under Denial of funds defendant's necessity.54 testimony proper the is not is where witness' necessary such of whether services are The determination the court's informed discretion.55 within trial public reflects that funds authorized and The record preliminary expended defense consultations with this judge expert did the trial consider the witness and that prepared. agree We with the trial court the witness affidavit (1984). 188, 200, Kelly, Wn.2d v. 685 P.2d 564 52 State 102 denied, (1983), Mines, review App. 53 State v. Wn. 35 Melos, (1984); Kelly, 201; App. 638, State at 42 Wn. Wn.2d 102 101 Wn.2d 1010 denied, Wn.2d 1021 review 105 713 P.2d Mines, 54 Kelly, 200-01; App. at 935. 35 Wn. 102 at Wn.2d 55 Melos, Mines, 640; App. App. Wn. at 935-36. 42 at 35 Wn. have been inadmis- testimony might well this witness' any event, in the that, facts of this case under the

sible in for the necessary order were not opinions witness' determine, such rele- and the argue, defendants trial not its court did abuse issues as self-defense. vant expert of an witness denying appointment discretion procedures. police Issue Twelve. in admitting The trial court did err evi- Conclusion. it was issues guns directly since relevant regarding dence case. testimony argues regarding Defendant McGinnis in his after his August that were observed truck guns of headquarters, at and the arsenal guns arrest tribal residence, kept he his and the admission believed at (a which a doc- handgun of exhibit 9 small McGinnis asked headquarters) hide he was tor to after arrested tribal (a .22 found at the scene of pistol exhibit caliber shooting) constitutionally behavior penalized protected v. Rupe, in State violation of court's decision (1984) I). (Rupe P.2d 571 above, I, constitutionally protected cited held that Rupe behavior, possession legal cannot intro guns, such be pen an proof aggravating duced as circumstance I, In capital case. had alty phase Rupe State to draw adverse inferences from defendant's attempted legal weapons totally unrelated to the possession mere crime charged.56 argues which defendant McGinnis

Exhibit excluded, pistol .22 caliber car should have been shooting to the scene of the ried the defendant Hoffman fired at admittedly and which was the time officers shot. It relevant and admissible evidence. testimony argues

Defendant McGinnis also his in his truck after observed officers regarding guns headquarters, gun gave 25 he August arrest tribal (1984). 707, 664, Rupe, P.2d 56 State v. 571 Q2 testimony arrest,

a doctor to hide after that and the regarding home, an arsenal believed to be his should suppressed Rupe Again, have been under the rationale of I. disagree. we necessarily

Guns do not have to be used in the commis Although sion of a crime to be admissible.57 constitution ally protected justify behavior alone cannot criminal punishment, corollary proposition to that if evi probative prohibited simply value, dence has its use is not provisions may implicated.58 because constitutional also be testimony guns Here, and these were relevant. tendency Evidence is relevant when it has a to make the any consequence existence of fact that is of to the determi probable probable nation of the action more or less than it police would be without the evidence.59Whether or not the knowledge exigent might had circumstances which have entry property authorized their onto the McGinnis was an issue in the case. The testified that McGinnis' repeated against neighbors, threats his combined with their knowledge possessed guns, together that he carried and imperative with other facts led them to believe it was immediately. he be rearrested determining

The trial court has wide discretion concerning whether evidence a criminal defendant's consti tutionally protected behavior is relevant and admissible.60 admitting The trial court did not err the evidence regarding guns since it was relevant to issues this case. Jeffries, 398, 412, denied, 722, 57 State v. cert. 105 Wn.2d 717 P.2d 479 U.S. Neslund, 301, (1986); State v. App. 531, 93 L. Ed. 2d 107 S. Ct. 328 50 Wn. denied, (1988). review P.2d Kendrick, denied, App. 58 State v. review 47 Wn. 736 P.2d Wn.2d 1024 401; Kendrick, App. at 59 ER 47 Wn. 627.

60 Kendrick, App. at 627. 47 Wn. Thirteen. Issue mis- prosecutorial that showing is no There Conclusion. fair trial. to a rights defendants' prejudiced conduct state- of a number of complains Hoffman The defendant pro- constituted alleges he which prosecutor the ments prosecuting argues He misconduct. secutorial closing argument which during attorney made statements evidence, personal reflected by the unsupported were prejudice. and These conten- passion aroused beliefs and by the record. supported are not tions improper argument charged, Where establishing impropriety bears the burden of defense attorney's comments as well as their prosecuting preju Reversal is not if required dicial effect.61 the error could by a curative have been obviated instruction which request.62 prose The failure to to a object defense did improper remark constitutes a waiver of cuting attorney's the remark is deemed to be so flagrant such error unless resulting ill it evinces an and enduring intentioned that by an that could not have been neutralized prejudice the jury.63 admonition to prosecuting of the transcript

We have reviewed the entire cited attorney's many quotes argument including this level. rising briefs and find no comments defendants' during that no defense were made objections The fact attorney's suggests also prosecuting closing argument same conclusion. prosecuting allege defendants now

Specifically, merely pointing gun pulling attorney argued Mak, 176, 195, Hughes, (1986); State v. v. 721 P.2d 902 61 State 106 Wn.2d denied, 995, 407, 599, cert. 479 U.S. 93 L. Ed. 2d 718 P.2d 105 Wn.2d (1986). 107 S. Ct. 599 York, denied, (1987), review App. v. 62 State 50 Wn. (1988). 110 Wn.2d 1009 Belgarde, 63 York, 458-59; State App. at 50 Wn. P.2d 174 trigger proof premeditation. misrep- was sufficient This prosecuting attorney's argument. Placing resents the question passage in in context demonstrates that it was not improper: Just as the officers coming up to the—to the chicken coop, did the defendants point? deliberate at that When the flashlight was shined behind the coop, chicken did delib- gun erate? When the pointed was raised and at the officer's back, was there deliberation? gun When the pointed trigger pulled, Louis Millard and the was there deliberation thought of premeditated beforehand. That's what is. And as to Millard, the death of Louis that's what prove, we have to that they thought pulled about it—whoever the trigger thought about days, weeks, it Minutes, beforehand more than hours, a moment. proof all that long satisfies the as as it's more than time, a moment in long as as there is some reflection before the trigger pulled. is complicated And that's not as it as sounds you stop it, when and think about 'cause isn't that what proof is and isn't reasonably evidence, that evaluating the how particular defendants acted in this situation. perceive impropriety argument.

We no in this pre- was not instructed that intent to kill is the same as contrary, argued meditation. To the premeditated it was that defendants killing. object argument, Defendants also "Now, to the what happened gun police to this is that Hoffman knew a officer up got had been shot with it and he took in it the hills and nobody rid of it. He hid it where would ever find it." This supported by argument the evidence. Hoffman admit- gun gun scene; ted the was at the was never found after area, an exhaustive search of the and Hoffman admitted Epperson disposed gun. the witness that he had of the object Defendants Hoffman and McGinnis also attorney's prosecuting argument wherein he utilized phrases "I such think" or "I think the evidence shows". objected All of the statements to in this connection con supported by tained which was material the evidence and any none of such nature that were error in the form of the argument could not have been obviated a curative requested. closing argument, instruction, had one been In attorney drawing prosecuting in the expressing has a wide latitude and inferences from reasonable the evidence.64 objects following Defendant Hoffman also to the state- argument: reasonably prudent "Would a ment made person put coop behind have themselves that and chicken reasonably prudent person shoot a would a officer alleges appeals jury's passion He to the back?" Again, disagree. argument prejudice. sup- and we This ported by the evidence and was relevant to defendants' allegations justifiable self-defense, homicide both of which defenses involve the issue of reasonable use of force light circumstances known to the defendants. carefully prosecutor's

We have examined the whole of the argument closing argument and conduct and conclude personal opinions, there was no unfair assertion of appeal passion prejudice to the or of the or misinfor- given jury regarding mation to the the law. argue preju

Defendants further findings diced because the written of fact and conclusions regarding pretrial suppression of law certain motions were actually entered until after trial. This contention has no comprehensive findings merit. The trial court made conclusions on the record at the time of its decision and the trial court that the ordered record thereof be in transcribed preparation order to assist in the of accurate written find ings. findings case, In the that this fact written and conclu until sions were not entered a later date has no effect ability appellate our whatsoever on to conduct review. requirements While careful adherence to the always of CrR 3.6 is purpose course, safest of CrR 3.6 is to have a purpose made and that has record been served here.65 right Defendants also claim that their to cross- improperly scope witnesses was examine curtailed. The 64Mak, Wn.2d at 726. 897, 902, (1987). Koepke, App. 65 State v. 47 Wn. 738 P.2d 295 See also State (1963). Moore,

v. 61 Wn.2d sound discretion of the lies within the cross examination a manifest disturbed absent and will be trial court in review of the record this Our of that discretion.66 abuse very were afforded that the defendants case demonstrates cross-examining in State's wit latitude considerable in no of the trial court's discretion There was abuse nesses. regard. this Fourteen. Issue jury that instruction The trial court's Conclusion. officers Dick law enforcement

Officers Millard and were error. not constitute reversible does argument Millard defendants' that whether Officers It is were in fact law officers was a factual and Dick enforcement jury. to be determined The evidence issue overwhelming, unrefuted law enforcement officers was any regard all, and, at was if error instructional error This issue did not involve an element of harmless. part assault; rather, crime of murder or it a of the was penalty aggravating which, found, if circumstance is provision elevating degree murder the first enhancement degree.67 aggravated Therefore, murder the first any jury this issue to the did not event to submit failure rights of the to have each element the defendants' invade jury. to the crime submitted Eight in connection with Issue

As discussed sufficiency aggrava regarding of the evidence to show evidence, unrefuted, all considerable show tion, there on-duty ing who were shot were law officers that the two Thus, the time. even if assume we officers enforcement the "law to submit enforcement officer" failure rights the defendants' invaded issue to the being harmless, it well determination, such error state even constitutional errors of this law established 710; Campbell, 66 Mak, P.2d 929 State Wn.2d at 526, 105 denied, (1984), L. Ed. 2d S. Ct. 2169 471 U.S. cert. (1985); Irizarry, 304, 312, Kincaid, P.2d State v. 692 823 103 Wn.2d 67 State (1988). 591, 594, 432 763 P.2d 111 Wn.2d

97 may be insignificant so as to be harmless.68 Under Wash law, ington an error in if instructions is likewise harmless it did not affect the final outcome of the case.69 As we recently explained,

A vinced appellate constitutional error is if harmless court is con- beyond any a reasonable doubt that reasonable would have reached the same result in the absence of the error. 412, 425, State v. 104 Guloy, (1985), Wn.2d 705 P.2d 1182 denied, cert. 1020, 475 U.S. 321, 89 L. Ed. 2d 106 S. Ct. (1986). Given the unrefuted evidence this regard, it is clear beyond a reasonable any doubt reasonable would have decided that Louis Millard was a law enforcement death, night officer on the he was shot to the face of the unrefuted and overwhelming effect, evidence to that it reasonably cannot be otherwise. suggested Issue Fifteen. It was within the proper province of the

Conclusion. trial court to determine the lawfulness of the arrest lawfulness of entry onto defendant McGinnis' property on the night of the shooting.

It is established this state validity of an arrest and the lawfulness of a search are determina tions for the court Doe, to make. As State v. John 6 Wn. 978, 982, App. 599, denied, P.2d review 81 Wn.2d 1004 (1972) explains: validity of an arrest is a constitutional issue to be solely province

resolved within the of the court. validity When the constitutional of an arrest challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would "warrant a man of reasonable caution in the belief" that an offense has been committed. Ohio, 89, 96, Beck v. 379 U.S. 13 L. Ed. 2d 85 S. Ct. 223 (1964). Although the issue has never been specifically met in Guloy, (1985), denied, 68 State v. 104 Wn.2d 705 P.2d 1182 cert. (1986). 321, 106 U.S. 89 L. Ed. 2d S. Ct. 1208 Rice, 120, 123, (1984); Caldwell, 69 State v. 683 P.2d 199 State v. jurisdiction, is rule that it clear our courts adhere to the probable of or was cause the determination to whether not there question make a warrant is a factual for an arrest without of substantially similar issue—the lawfulness the court. On a prob- seizure, of dependent on the existence search and able cause for often a deter- turning an arrest—the factual issue on by must decided the court. mination reasonableness be of legality an and the of a search and Probable cause for seizure involve arrest duty and obli- basic constitutional issues. rights constitutional gation rests tion make that protecting of an accused's basic court, appeal, jury. with with a On it is our func- the not independent to insure an review of the evidence safeguards process due have been the of constitutional the defendant. afforded omitted.) (Citations only jury question of an becomes

The lawfulness arrest by the reason of the injected charg if issue is into trial the information,70 as, example, for when a of the ing language charged resisting apprehension. with "lawful" defendant is of part charging The lawfulness of an arrest the in information murder in the first or assault the degree court, in in trial an first this case the degree. Additionally, caution, an arrest outstanding abundance of ruled that (involving an unrelated warrant for Patrick Gene Hoffman matter) probative its value was not admissible because Therefore, prejudice. outweighed by danger the unfair legality entry decide the of the the been left had to do unfairly it have been left so property, the would onto arrest warrant for defendant knowledge without rule in explained the general We conclude Hoffman. Doe constitutionality here and the of the John applies properly by search was determined trial arrest court. Sixteen.

Issue the officers effected arrest When Conclusion. August 25, 1986 at tribal head- defendant McGinnis shot, arresting before the officers were quarters, days outstanding arrest pursuant to a valid acting officers were chief judge issued warrant which had been Hutton, App. 70 State v. Wn.

tribal legality court. The of that is undisputable. warrant Thus, present the trial court case did not err con- cluding the arrest was legal. argue

Defendants the officers were not engaged their performing "official duties" for of the purposes aggra- statute, vated murder in 10.95.020(1), the first RCW degree because, they argue, they were infringing upon defendants' constitutional rights entering property without a search warrant. We disagree.

First, defendant McGinnis has submitted no authority proposition for the that a officer's inadver infringement tent of a defendant's constitutional rights necessarily means that the officer is not engaged his or her official duties purposes 10.95.020(1) (mak of RCW premeditated ing murder "aggravated" if a law enforcement officer is in murdered while the performance of his or her duties). Second, official the trial court correctly determined the officers' entry onto the McGinnis property was a lawful attempt to rearrest McGinnis and to arrest defendant Hoffman. Whether the defendants' constitu tional in rights might some possible fashion have been vio lated is not the determinative factor when deciding whether Officer Millard was "performing his official duties" at the time he was murdered. Legislature has decided that the premeditated first degree murder of a law enforcement officer, who was his performing or her official duties at the time of the act in his resulting death, or her is aggravated in degree murder the first if the slayer knew or reasonably should have known victim to be such.71 By its answer special to a interrogatory, jury unanimously so found in this case. may

Whether an officer have made an incorrect judgment one or of a regarding suspect's myriad more constitutional in rights way no determines whether that officer was killed i.e., while his doing job, or her when "performing his official did, duties". If it anytime then an officer infringed upon a 10.95.020(1). 71RCW

suspect's rights any whatsoever, however in fashion techni- "per- cal, have considered as not the officer would to be forming his official duties". That is the law. probable effecting officer,

An even if arrest without an may provided engaged cause, duties", still in "official be own, is officer not on frolic of his or her and the officer a protected by in to be the law from assault.72Cases entitled upon engaged a which in a crime of violence an officer is distinguishable citizen from situations wherein an offi are may inadvertently infringe upon cer some constitutional rights person. There was no evidence whatsoever of a question present suggest the time case that at frolic were on a of their own unre officers who shot proper their official duties tribal officers. lated to the correctness of the trial We nonetheless have reviewed entry case onto McGinnis' court's decision legal it land was because relates to the issue whether regarding the were entitled to an instruction defendants right illegal trial resist an arrest. We conclude that the lawfully determining officers court was correct property to the McGinnis arrest defendants entered Hoffman. McGinnis and may 10.31.100, officers arrest without

Pursuant RCW suspect they probable cause to warrant if have believe felony. Dick has When Millard and committed Officers property, probable cause to the McGinnis had entered felony and Hoffman had committed the believe McGinnis attempting pursuing police to a The offi elude vehicle.73 probable had com cers also had cause to believe McGinnis attempted injure had mitted a felonious assault when he during police his earlier officers and ambulance crew (2d Martinez, 1972); v. 79, v. United States 72 United States Cir. 465 F.2d 82 Simon, denied, 474, (7th 829, 79, Cir.), 24 L. Ed. 2d cert. 90 F.2d 477 396 U.S. 409 (2d 1970). Beyer, (1969); United States v. Cir. 79 F.2d 774 S. Ct. 426 46.61.024. 73 RCW

101 unnecessary arrest.74 It is therefore the prosecu consider further that there was arguments probable tor's also cause for the crime of escape degree to arrest the second or the argument the arrest warrant for McGinnis was still valid McGinnis had from escaped custody. since Further more, the fact the trial court refused to admit into the outstanding evidence arrest warrant for defendant (because potential Hoffman of its for creating prejudice) prohibit did not the trial court from considering the war rant in making the determination it did regarding the legality of the search for the defendants.

Defendants also that even if argue did have probable arrest, cause to entry their onto McGinnis' Payton York, v. New land violated 445 U.S. 63 L. Ed. (1980). This, 2d 100 S. Ct. Pay- too, 1371 is incorrect. ton established the absence of exigent circum stances, police may not make a warrantless arrest after a entry nonconsensual suspect's First, into a home. no entry into a residence was ever accomplished or attempted here. Second, if even the officers had prohibited searched areas by Payton, entry would not be Payton forbidden exigent because present circumstances were in this case. (1) Federal and state law defines such exigencies: grave offense, particularly violence, (2) crime of involved; is suspect reasonably armed; (3) believed to be there is rea sonably trustworthy information that the suspect is guilty; (4) strong there is reason to believe that suspect is on (5) premises; suspect is likely to if escape (6) swiftly apprehended; the entry peaceably.75 is made All of these elements are present here. This factually case is similar the Court of Appeals State McIn decision tyre, denied, review App. 39 Wn. 691 P.2d (1984), 587 (1985), 1017 Wn.2d which we specifically approved RCW 9A.36.031(1)(a). Terrovona, (1986); 75 State v. Dorman v. P.2d States, (D.C. 1970). United 435 F.2d 385 Cir. Terrovona, State 105 Wn.2d 716 P.2d (1986). show that the defendant

The facts this case McGinnis the police public. and members of dangerous was to the recognized as one factor relevant danger a has been Such justifying circumstances a war exigent a determination arrest.76 rantless search and showed as follows. the evidence McGinnis regard,

In this others, police officers a seri- and was wanted assault police violence. The had reason good involving ous offense The McGinnis was armed. also had police that to believe guilty that McGinnis was of assault and information solid were guilty eluding Hoffman and McGinnis a that both police vehicle. There was also reason to good pursuing suspects prop- the two were on the believe that McGinnis erty since the surveillance officer had seen individuals two disappear. the at property night Escape onto walk also certainly a likelihood here since McGinnis had earlier (with assistance) hospital despite left the Hoffman's an attempt by personnel him; pair to restrain then the hospital speed automobile chase subsequently engaged high Finally, vehicle. there is also the trial pursued peaceable entry officers made a with testimony err The trial court did not service revolvers holstered. entry arrest of McGinnis and the concluding that onto were lawful. property his Issue Seventeen. accomplice given instructions Conclusion. accomplice liability correctly law declared jury unanimity. rights defendants'

did not violate issue, trial liability court accomplice On follows: instructed accomplice whether the commission of a A who is an crime person present scene or not. crime guilty

is denied, (1984), App. 1, 5, McIntyre, review 76 Statev. 39 Wn. if, of a crime accomplice in the commission person A an promote knowledge it will or facilitate commis- with sion of crime, he or she either: (1) solicits, commands, requests per- encourages, or another crime; or son to commit the (2) planning in or com- agrees person aid aids or to another mitting the crime. words, given whether "aid" means all assistance The word A who is acts, encouragement, support presence. person or ready presence assist or her at the scene and to his present However, than in crime. more aiding the commission the is mere activity of knowledge of the criminal presence and person is an present to that a must be shown establish another accomplice. 7. Instruction in you participated If are that defendants convinced both proven crimes crime or crimes and that crime or have been doubt, you

beyond a need determine which reasonable accomplice principal. which was a defendant an 8. Instruction very accomplice

Instruction 7 similar the in State v. given jury, approved to the we instruction which Mak, denied, cert. 692, 726, 742, 407, P.2d 105 Wn.2d 718 995, (1986). 599, L. Ed. 2d S. Ct. 479 U.S. 93 107 599 The portion objection of this instruction to is made is which directly the accomplice Washington drawn from statute. that many proper courts have on occasions declared it is for incorporate an instruction language a statute.77 argues Defendant that must find that Hoffman he had of his father's in order for knowledge premeditation him be of murder in the first Hoffman degree. convicted improperly that argues also these instructions allowed the degree murder first premeditated to convict for without a unanimous decision as to which defendant was accomplice. previously We have principal and which decided both these issues. Guloy, State v. 412, 104 Wn.2d defendant denied, cert. (1985), 1020, 89 L. P.2d 475 705 1182 U.S. denied, Crudup, 583, 591-92, review App. P.2d 77 State 11 Wn. 524 84 Hardwick, (1974); 828, 830, (1968); State v. 447 P.2d 80

Wn.2d 1012 74 Wn.2d Workman, 443, 449, State v. (1986) argued S. Ct. 1208 that order Ed. 2d first aggravated him to be convicted of murder accomplice must intended degree prove the State out, however, As there pointed to murder the victim. we (RCW 9A.08.020(3)(a)) contains no such statute accomplice Bockman, State v. Guloy quoted then from requirement. denied, review App. Wn. 682 P.2d (1984): 9A.08.020(3)(a) accomplice that an is one who RCW states knowledge principal: "[wjith promote it will or aids a (Italics ours.) crime ..." facilitate the commission of the implicitly accomplice The State need not statute demonstrates principal accomplice share prove that the no as to the instruc- the same mental state. There was error accomplice. concerning tion the mental state of the Guloy, similarly 104 Wn.2d at 431. Other decisions have similarly concluded that addressed this issue and have liability on accomplice liability predicates statute criminal specific knowl knowledge of the crime and not on general crime.78 Accom edge participant's of the elements of the that one who plice liability represents legislative decision principal, in crime is as a of participates guilty regardless Additionally, as discussed participation.79 the of the degree above, in from there was substantial evidence this case of the reasonably the could find that each jury which premeditated killing. defendants the officer's above) (quoted 8 argue Defendants that instruction unanimity. We violating right jury is erroneous as their Carothers, in State v. 84 this issue disagree. We addressed (1974) it is not 731 and concluded that Wn.2d 525 P.2d the manner of an necessary that be unanimous as to jurors as as all participation long and a accomplice's principal's in the crime. Carothers held participate that did agree (1984); Davis, v. Caro 654, 657-58, State 78 State v. P.2d 883 101 Wn.2d 682 Peterson, thers, 261-62, (1974); App. State v. 54 Wn. 84 Wn.2d Randle, denied, (1989); State v. 75, 78-79, review Wn.2d 1007 772 P.2d 113 (1988). denied, (1987), 232, 237, review App. 1008 47 Wn. 734 P.2d 79 Randle, App. 237. 47 Wn. have believed jurors may "it matters not that some may have petitioner gun, the fired the while others in abetting his only aiding

believed that role was [the that he did long agreed other so as all twelve participant], viewpoint .".80 in . . This court reaffirmed that participate, Davis, State v. P.2d 883 it in case not have whether The need decided killed Officer actually Hoffman or McGinnis who shot and crime. The long participated Millard so both instructions were not accomplice erroneous. Eighteen.

Issue circumstance aggravating instruction Conclusion. solely upon allow for murder stat- did not conviction based utory mandatory factors and did create a aggravating presumption. object instruction on aggravation

Defendants two grounds.

Defendants first the instruction allowed con- argue murder in first on the degree only viction for based ele- This is Instruction aggravation. ments incorrect. states: Aggravated person A commits crime of Murder he crime commits the Murder in First Degree First if

Degree and if the victim was a law enforcement officer who was performing resulting his official duties at the time of the act reasonably the victim was known or should have death and be the time of known the defendants such at been killing. Aggravation beyond proved must a reasonable doubt be by the state. (Italics ours.) clear that

Thus, entirely itself makes it instruction in the both to find elements murder first had presence an circumstance aggravating and the degree in murder to find the defendants guilty aggravated order the Additionally, provided the trial court degree. the first underscored that jury verdict form to the which following instruction:

80 Carothers, 84 Wn.2d at 265.

We, Defendant, ., jury, the find . . (write Guilty Guilty) in or Not of the crime of MURDER IN THE FIRST DEGREE charged in Count I of the Information. SPECIAL INTERROGATORY following question Answer only you if find Defendant guilty . . . in the Degree: Murder First beyond proven Has the State that a reasonable doubt reasonably Defendant . . . knew or should have known that A. Louis Millard a law per- enforcement officer who was forming killing. his duties at the official time of

(write "no") "yes" in or Presiding Juror The jury special answered the in interrogatory the affirma- as to each tive defendant. allege finding

Defendants also that of an aggravating erroneously circumstance was an accomplice based on the- ory. The record refute this instructions contention. special interrogatory in contained the verdict form jury unanimously demonstrates found presence charged. circumstance aggravating Prosecutorial therewith, closing argument was consistent and the prose- cutor told the only State not had to prove aggravation beyond reasonable but doubt the jury had be unanimous. 11, is instruction,

Instruction the aggravation almost identical wording RCW 10.95.020 and very approved similar to the instruction in State which we (1986). Hughes, 176, 196-97, 106 Wn.2d The method the trial instructing which court used premeditated with the elements of murder in the first jury, degree instruction being aggravating one and the factor being instruction, a separate has been declared "preferred instructing.81 court to be the manner" of Mak, Kincaid, 304, 312-13, (1985); 81 State v. State v. 692 P.2d denied, 599, cert. U.S. 718 P.2d 93 L. Ed. 2d 107 S. Ct. 599

107 11 created instruction also argue Defendants v. of State violation mandatory presumption invalid an (1980). This is incor Shipp, rect. Instruction states: knowledge when person knowingly A knows or acts or with fact, result or circumstances or

he or she is aware of a facts being described law as a crime. which lead a reasonable person If a has information would that facts exist which person in the same situation to believe jury permitted crime, being a are described law as knowledge. that he or she acted with required but not to find ours.) (Italics to consider jury Instruction instructed mandatory presumption the instructions as a whole. No permit it was jury created because the was instructed ted, required, but to make the inference that defend knowledge.82 ants acted with

Issue Nineteen. justifiable The trial court's homicide

Conclusion. correctly self-defense instructions stated the law and the defense theories to the argue allowed defendants jury. self- argue regarding

Defendants the instructions homicide not allow them to justifiable defense and did their defense theories to the and that argue jury pur- instructions not tell that for self-defense did poses they appeared the circumstances should be viewed as to the defendants. court instructions to the gave following trial

on self-defense. in the First To convict a Defendant of the crime of Murder following must be

Degree, each of the proved beyond a reasonable doubt: elements of the crime (1) day August, on or about the 27th That Millard; Defendant shot Louis A. (2) acted with intent to cause the death That the Defendant Millard; A. of Louis (3) premeditated; the death was That the intent to cause Leech, 82 State P.2d 160 (4) That Louis A. Millard died a result of Defendant's acts; and (5) Okanogan County, That the acts occurred in Washington. you If find from the evidence that each of these elements has proved beyond doubt, been ddty your a reasonable it will then be guilty. to return a verdict of hand, if, evidence, you On the other weighing after all of the any elements, have a reasonable doubt as to one of these then your duty guilty. it will be to return a verdict of not Instruction 16. charge It is a defense to a that murder the homicide was

justifiable as defined in this instruction. is in justifiable Homicide when committed the lawful defense slayer any person slayer's presence of a or in company a or slayer reasonably person when a believes that the slain intends personal injury to great inflict death or and there is imminent danger being accomplished. of such harm slayer may employ reasonably A such force and means as a prudent person would use under the same or similar conditions slayer appeared taking as facts and circumstances known to him at the time of and to a into consideration all of the prior to the incident. proving beyond The State has the burden of a reasonable justifiable. doubt that the homicide was not Instruction 17. likely person may, by any reasonably No intentional to act provide belligerent response, necessity acting create in a a use, kill thereupon self-defense or defense of another and offer, or attempt upon person. force or toward another or to use

Therefore, beyond if that you find a reasonable doubt the acts con- aggressor, defendant was the and the defendant's provoked fight, commenced the then self-defense or duct or is not available as a defense. defense of another another, reasonably believing in defense of the One who acts party danger, justified in in innocent is other to be the if, fact, person necessary protect that even the using force person whom the actor is to defending aggressor. is the Instruction 19. Necessary reasonably no effective alternative to means that exist and that the amount of force appeared use force to

the intended, purpose effect the lawful was reasonable to used the they reasonably appeared to circumstances under time. actor at the

Instruction 20. degree first of assault charge to a It is a defense in this instruction. as defined force was lawful is person of another toward the upon force or The use of reasonably that he believes person who when used lawful is about to who he lawfully aiding person by someone injured be or injured preventing reasonably to be believes about person and against attempting prevent an offense or necessary. not more than is the force is when employ force and may such person using the force person would use under reasonably prudent means as a same or similar person, tak- they appeared to the conditions as and circumstances known all of the facts ing into consideration the incident. prior time of and person at the beyond a reasonable proving The State has the burden not lawful. by the defendant was the force used doubt that 25.'

Instruction self- argue defendants

Specifically, of the "to convict" part must be defense instructions the elements of the crime instruction which sets forth emphasized As degree. disagree. murder the first We above, to consider the instructions was instructed jury error occurs when the instruc prejudicial as a whole. No instruct properly taken as a whole tions properly instructions law.83 The self-defense applicable proving the State bore the burden of informed the beyond a reasonable doubt.84 the absence of self-defense self-defense, which In instruction on giving separate self-defense, proof of on included the State's burden rec instructing juries the method for trial court followed Supreme Court Committee Washington ommended Washington Pattern Prac., Instructions, 11 Jury Wash. Instructions 1986); com Jury (Supp. 58-63 WPIC 26.02 comment, 1986); at 119 ment, (Supp. at 111 WPIC 35.02 1986). no error in this instructional (Supp. perceive We mode.

83 Mak, 105 Wn.2d at 733. (1989); Camara, 631, 639, State v. McCul P.2d 113 Wn.2d 781 483 84 State Acosta, lum, (1983); State v. 101 Wn.2d 656 P.2d 1064 98 Wn.2d (1984). P.2d 1069 683

110 that the self-defense instructions argue

Defendants also it must view the sufficiently apprise did not that That is they appeared circumstances as to the defendants. is, course, well the justification not correct. It settled that point must be evaluated from a defendant's self-defense view as conditions to the defendant at the time appeared what the instructions precisely of the act.85 That "A slayer may informed the Instruction 17 stated: jury. case employ reasonably prudent per such force and means as a son would use under the same or similar conditions all slayer taking to the into consideration appeared and and known to him at the time circumstances facts ours.) (Italics This is almost prior to the incident." v. Allery, this court in State precise language suggested by (1984). 591, 595, P.2d 312 Self-defense 101 Wn.2d 682 the person this state includes the essential element is in reasonably believe that he or she the force must using danger.86 the argument

The record herein show briefs and pro- had wanted to make was that defendants therefore the defendants were voked the event and be, Any theory such could shooting the officers. justified was, justifiable self-defense under argued to the given jury. homicide instructions that certain of their argue Defendants also appli erroneously rejected. proposed instructions an required give A court is not law is clear. trial cable Allery, Hughes, 176, 189, (1986); State v. 85 State v. 591, 594, P.2d 312 101 Wn.2d Painter, 86 Hughes, 189; App. P.2d State v. Wn. 9A.16.050(1). denied, (1981); (1980), RCW review 95 Wn.2d 1008

111 any respect;87 not in it is which is erroneous instruction subject give if is ade to to an instruction error refuse given;88 quately is in another instruction which addressed party to is to instruction where there evidence is entitled an give support not is is an instruction which it; and it error by supported the evidence.89 carefully proposed but defendants' reviewed the

We have complained appeal. rejected instructions, of on which are state- either erroneous conclude contained We supported or law, not the evidence ments given trial were redundant because instructions question. court covered the issues refusing trial did not err We conclude that the court proposed and that the instructions defendants' given adequately instructions law both and allowed

stated correct argue of the case. defendants to their theories Twenty. Issue trial No was committed when the

Conclusion. error refuse in the defendants' decisions acquiesced court lesser included offense instructions. argues the trial court

The defendant Hoffman failing to instruct on lesser included offenses erred degree. first We here asked within murder are sponte on all lesser hold that trial courts must sua instruct express objections over the included offenses state, we That law of this is not the defendants. Generally, particular give so rule. the failure to decline to request such when made for error no instruction Robinson, 369, (1965); Camp, State v. 87State v. P.2d 824 67 Wn.2d (1979). 597 P.2d 892 92 Wn.2d denied, Crudup, review 583, 595, App. 524 P.2d 88 State Wn. Passafero, (1974); State v. 89 Hughes, 106 Wn.2d at 191. instruction;90

an nor are lesser offense included instructions required requested.91 when not only any request

Here, not did the fail defendants to they personally, lesser included offense instructions, as but through attorneys, objections as well their stated their to giving any of such court, instructions. The trial on record, instructions, discussed lesser included offense specific penalties informed the defendants of the for such compared charged crimes to the crimes and instructed again on, and ordered defense counsel to discuss the matter their with clients over weekend recess of the trial. When resumed, trial the trial court asked each of the defendants attorney fully each and whether this had been dis- matter they objected giving cussed and whether still to the jury lesser included offense instructions. Each defendant attorney responded they and each not defendant's that did given jury. want such instructions to be closing argument, to the in Then argued defense counsel to the that degree manslaughter in murder the second and not had charged been and that the elements crimes that were charged proved. had not been (as strenuously

Had the decided the defendants prove argued) charges that the evidence did not degree degree murder the first and the first assault beyond doubt, a reasonable then under the instructions given, acquitted. the defendants would have been ways; having defendants cannot have it both to decided they appeal trial, one now follow course at cannot change complain gamble their course and their not that did pay off. decision Defendants' to not have included offense clearly given tac- instructions a calculated defense trial analogous and, situations, not tic as we have held it was Scott, (1988) n.5, 90 State v. (noting P.2d 492 affecting not a manifest failure to instruct on included offense a lesser error right spite object would of a an which allow review in failure to to constitutional Kroll, instruction); State v. P.2d 173 91 Mak, 105 Wn.2d at 747.

H3 give instructions error for the trial court to any waived knowingly to.92 Defendants objected defendant instructions, did so and they to included offense rights had carefully explained clearly after their rights were fully they consulted them the trial court and after had on the matter with defense counsel. defendants permitting

The trial did not err court strategy. pursue their chosen trial remaining defendants' do not reach some of the We by other conclusions they precluded are arguments because of defendants' we have herein. As the rest reached we each them numerous have reviewed arguments, Our review of the are nonmeritorious. conclude and case discloses no lengthy record extensive briefs reversible error.

The defendants' are affirmed. convictions Callow, C.J., Brachtenbach, Dolliver, Durham, and JJ., Pearson, Smith, Tern., and J. Pro concur.

Dore, J. dissent. The defendants did not (dissenting)—I The to the receive a fair trial. trial court's instructions an issue of fact. improperly jury regarding instructed by a defense asserted defend- The instructions undermined 10) (amendment 1, and ants, article section violating 4, The jury 16 of the state constitution. article section on aggravation. instructions also directed a verdict jury question issue of is a instructions aggravation in violation factual issue from the given removed that by the rights process, guaranteed of defendants' due Those constitutional errors Fourteenth Amendment. a new trial. I reverse and remand for would prejudicial.

Facts Hoffman, are son, Patrick and his Elmer McGinnis and, the time of Tribe at Colville Indian members denied, 398, 421-22, Jeffries, cert. State v. 717 P.2d 92 See 301, 107 L. 2d S. Ct. 328 U.S. Ed. herein, the incidents on resided the Colville Indian Reser- vation. had stormy relationship McGinnis a with the tribal management. He believed that the Colville Tribe Business corrupt Council was attempted he document abuses and misuses of tribal often appeared funds. McGinnis community meetings he questioned where tribal business council regarding members their business practices. McGinnis police contacted tribal council members and the on almost a basis. daily disorder,

McGinnis from suffering personality a diagnosed paranoid type. McGinnis became convinced the Tribe was to silence him and trying placed had McGinnis, on him bounty and Hoffman. concerned for his safety, told tribal Harry Chief Smiskin that he knew there were tribal council bounties on himself and Hoffman, begun and that he had himself protec- arm tion.

During the summer of McGinnis became embroiled dispute in a a neighbor, with Don Ferguson, payment over motorcycle by family for a sold Fergu- the McGinnis to the Ferguson sons. complained to tribal concerning authorities he what considered a trespass McGinnis to demand payment. tribal a crimi- Subsequently, prosecutor filed nal complaint Lands, in Tribal Trespass Court alleging class C offense under the Tribal Code. The summons was sent certified mail to McGinnis' post office box and him August 29, 1986, directed a.m. appear at 9:30 On August 1986, the certified marked mailing was returned prosecutor "Refused." The tribal then bench obtained a warrant for McGinnis' arrest based on McGinnis' of refusal summons, alleged McGinnis, the by new threats made and the possession weapons by McGinnis. August appeared

On McGinnis at council tribal member, headquarters Nespelem. Tribal council Dale Kohler, aware the McGinnis, bench warrant issued police alerted Chief Smiskin of presence. McGinnis' Two police uniformed officers arrived to arrest McGinnis the warrant. Shortly thereafter Chief Smiskin arrived the with

H5 which the warrant to see asked warrant. McGinnis actual the asserting that floor to the crumpled he then and tossed out as A scuffle broke him. over police jurisdiction lacked alter- During the McGinnis. attempted to arrest police to began He floor. to the was knocked cation McGinnis called. was an ambulance chest and complain pains Health Tribal at examined initially McGinnis was Community to Coulee transported Clinic and then was examination, his After Hospital diagnosis. for further him to who took police the tribal McGinnis was released to prob- health possible of his County Jail because Okanogan minimum security concerns lems and because of Okanogan booked at security jail. tribal McGinnis was to the warrant in reference County Jail on a "Tribal hold" assaulting and resisting arrest charges and on additional to appeared evening, again Later that McGinnis an officer. taken At 11 he was problems. p.m. medical experiencing be in Omak. Mid-Valley Hospital to ambulance tribal back to At McGinnis was transferred hospital, County personnel did not have the custody because the with place guard did not a police watch him. The tribal a heart monitor which he was attached to McGinnis as also hospital and the if disconnected would sound an alarm sheriff's office. connected to the a alarm separate had attending discharged unexpectedly was McGinnis Hospi- 26. day, August following on the physician p.m. at 7 authorities, but county and tribal contacted personnel tal McGinnis instructions until no received definite company hospital to leave the preparing dressed and Lila, Elsie, daughters, of McGinnis' and four of Hoffman Peterson, Peoples. Susan and Frances Laura McGinnis until hospital McGinnis at nurse, keep attempted his hospital with left arrived. McGinnis police in Lila left driving, family, with Hoffman family. The home Elmer McGinnis' car, and headed McGinnis' Nespelem. after McGinnis hospital at the arrived

Tribal of the description his They departed. obtained children car A carrying McGinnis. police spotted tribal officer car 10 miles Nespelem outside in the traveling opposite direction. police The car turned around and followed them. patrol car, The with its blue and red turned rotating lights on, pursued the coming McGinnis automobile within 100 yards hurt, of it. Concerned that his might children be McGinnis demanded to be let out of the car. Wanting avoid a confrontation with the Hoffman turned off police, the main stopped road and the car.

Hoffman and McGinnis then set out on foot toward home, McGinnis' a distance of 6 to 8 miles in mountainous car, terrain. Before leaving gym Hoffman removed a bag shirt, from the trunk of the car which contained a tee stocking cap, a .45 caliber semiautomatic a .22 handgun, revolver, caliber a 9 mm. handgun, semiautomatic ammuni- kit, knife, handguns, hunting tion for the a marine flare can of mace and a set of nunchucka sticks. Hoffman and others testified that it was his these carry weapons habit at all permit carry times. Hoffman held a a concealed weapon. He also filed Application a State Firearms when he purchased the 9 mm. semiautomatic handgun.

After road, of the McGinnis on the losing sight vehicle the tribal police conducted a search for McGinnis. McGin- daughters, nis' who had returned to main highway, were stopped by police. Discovering that McGinnis and foot, Hoffman were assumed that were headed for home. failing After to locate McGinnis and Hoffman, Chief Smiskin discontinued the search until morning placed and the McGinnis property under surveil- lance.

At a.m., approximately 1:38 Officer August Phillips was conducting surveillance and observed two individuals he could not identify enter the property. Phillips Officer radioed for assistance. Five marked patrol responded cars and arrived at the scene within 15 minutes. The officers did employ emergency lights or sirens as An they arrived. emergency responded. rescue truck also The officers used

\y¡ the three spotlights patrol headlights their open view to conduct an searchlights of the rescue truck employed property. floodlights of the search minutes. approximately that fashion home, and found Upon arriving Hoffman McGinnis in only key the locked out of house the was themselves and daughters. of of McGinnis' Hoffman possession the one McGinnis, shined the noticing floodlights being the on coop hopes the chicken property, retreated behind avoiding confrontation with the officers. a fence and Millard crossed

Officers John Dick Louis the approached the and surrounding property McGinnis coop. headlights, spotlights, main and chicken house and and had been turned off and Officers Dick searchlights no time did police flashlights. Millard At approached using was police the officers announce themselves as officers nor ever an announcement their identification or intention dimmed, officers lights police communicated. Once the were the in total dark- at scene testified that the property ness; terrain; they clearly could the they distinguish not location the distinguish could not officers nor their on other police uni- property; and that it was too dark to see the Dick forms Officer markings police on vehicles. dark, whether, peo- stated that he did not know police on see were offi- ple property could the intruders cers.

Q. you people . if . . it occur to . . . that there were [D]id they you police property would not know that officers? A. I know if in the dark . . .". don't could see (Mar. 1987). The VII, vol. at 93 Report Proceedings visibility poor special police requested was so an officer did property, be to the but night scope brought scope exchange to the site until after the bring occurred. gunfire is disputed,

A the first shot gun ensued. Who fired battle fired, the chicken gunfire first shots were after the but from Jig

coop continued fired, and a series of flares were illuminat- ing the area. Officers Dick and Millard returned fire and attempted to seek cover.

Officer Millard was struck by a 9 mm. bullet in upper left chest and died within 15 minutes. Hoffman admitted the .22 firing revolver and a flare from behind gun chicken coop where the guns themselves were later discov- ered. Two ejected 9 mm. cartridges were found the same vicinity. Officer Dick was wounded the shoulder. The bullet which struck found, Dick was never entry but wound was large, consistent with a .45 round rather than the smaller .22 or 9 mm.

A wounded McGinnis by police was discovered day- break near the scene. One of the shots fired Officer Dick had struck McGinnis in the chest. The took McGin- nis into custody. escaped Hoffman appeared 2 days later at the friend, home of a Epperson, Keller, Jeff near Washington. Hoffman later voluntarily surrendered.

Hoffman and McGinnis were originally charged by fed- eral authorities (first with violations of 18 U.S.C. § murder) degree and 18 U.S.C. 1114 (attempted murder of § official). a federal That indictment was later dismissed prejudice, without and the by defendants were charged information in Okanogan County Superior Court with aggravated first degree murder and degree first assault. Defense motions venue, severance, change appointment expert of an on police procedures and for the appointment psychiatric of a expert to examine Officer Dick were by denied the trial court. Both defendants were jury convicted of aggravated first degree murder and prison sentenced to life in without possibility parole. appealed Defendants their convictions to Division Three of the Court of Appeals. That court certified the case to this court to answer the question of whether the State of Washington has jurisdiction over Indian defendants accused of assault and murder committed on Indian lands. This accepted court certification of the case in entirety. its Improperly Instructed Court

The Trial Regarding Jury Issues of Fact jury for the whether of fact question It is a known the individuals have or should knew defendants The officers. gunfire they exchanged with whom issue from the that factual removed completely trial court instructions: through three jury 26: No.

Instruction 25, August 1986 was a Elmer McGinnis The arrest of lawful arrest. No. 27:

Instruction A. and John Dick were law enforcement offi- Louis Millard August 1986. cers on No. 28: Instruction entry property at by police the McGinnis officers onto August 2:15 a.m. on 1986 was lawful.

about addition, In 1148. instruction Papers, Clerk's told court, regard- your duty accept law is from also [i]t ought or to be. personally the law is you of what believe less You are to way decide the and in this apply the law to facts case. 26, 27 court's instructions Papers, at The trial

Clerk's 1178. existed as matter law those facts and 28 stated those conclusions as the accept bound to and the the case. law of in the trial court's law stated instruc-

The conclusions defendants, forth put the defense tions undermined receiving unfair in the defendants an trial. The resulting justifiable a defense of asserted homicide. defendants 17 stated: Instruction when committed the lawful defense justifiable Homicide any person slayer's company presence or slayer or

of a reasonably person believes that the slain slayer when great personal injury death or is to and there intends inflict accomplished. being harm danger of such imminent (Italics mine.) entering 1159. After the Papers, at Clerk's identify officers did not themselves McGinnis the property police as the defendants officers. The defendants undis- putedly that it argue because was police dark and the never themselves, they identified did not know who these intrud- They ers further were. testified they guns that fired their self-defense after the intruders fired the first shots. There evidence or no inference evidence on this fact the contrary.

The court specifically trial instructed jury that Mil- police lard and Dick were officers and that they were law- McGinnis fully property at the time of the killing. By that those facts directing jury existed as a matter of law, the precluded trial court from finding that the reasonably defendants person could have believed that slain or great bodily intended to inflict death harm upon them. Had been aware the defendants that intruders police officers, then not were defendants could assert that they "reasonably police believed" intended to kill instructions, or them. Absent the court's a reasonable injure juror could have reasonably concluded that the defendants believed unknown intruders to kill or harm intended them and that the defendants in self-defense. acted not defendants' assertion did know that officers is police plausible intruders view of the did police identify fact themselves as they home. The approached the McGinnis incident occurred at approximately 1:38 a.m. what one officer described darkness. total all dark [Ejverything A. total at that time .... I could see twenty, thirty no than feet... it further was all black. XIII, (Mar. Proceedings 1987) vol. at 189 Report Carden). A (testimony Officer reasonable juror could in these have determined that circumstances the defend- ants believed that the intruders were not police officers but individuals, were other attempting inflict harm. bodily precluded The trial instructions court's from con- or sidering accepting that alternative it. rejecting

121 Jury the Instructions Court's The Trial Constitutional Violated Defendants' Rights removed issues improperly trial court's instructions The the and undermined determination jury of fact from resulting in a violation defendants by the defense asserted The court's rights. trial constitutional of defendants' 1, Washington Constitution article violated instructions (amendment 10) a jury guaranteeing right 22 section 4, specifically provides article section 16 which trial and charge respect to matters "Judges juries shall with .''. trial court's legal . The instructions constituted of fact. definitively facts were By stating that those conclusions. its as trier the trial court relieved the of duties proven, of fact. the case theory is his argue

The defendant entitled to evidence Even where the presented. based on evidence 10) (amendment 22 bars is article section overwhelming, been estab- that a fact or element has instructing Primrose, State v. 32 Wn. App. lished as a matter law. stating legal In conclu- simply P.2d 714 645 court sions instructions contained A new function. trial man- jury's wrongly performed alone. this issue dated on Improperly Directed

The Trial Court Aggravation a Verdict directed a verdict which were instructions on issues The rights in violation of the defendants' due jury, for the Amendment. under the Fourteenth guaranteed process question charge aggra- related to the The instructions aggravation with category of circumstances. vating consists of Hoffman and charged McGinnis which the State three elements: per- . . . officer who a law enforcement The victim was resulting act duties at the time

forming his or her official reasonably victim or should have was known and the death the kill- time of person to be such at the known been ing!.] 10.95.020(1). RCW The trial court's instructions directed a verdict on two of three these elements. Instruction explicitly required the jury to find that Millard's status as a law proven. enforcement officer had been Instructions and 28 power further jury's limited the to make an inde- pendent by directing determination a finding against defendants on theories advanced two against the con- tention that Millard was engaged "official duties." The defendants had that Millard argued was not making a valid of arrest Hoffman McGinnis at the time he was and/or killed and that Millard in an engaged illegal was search at the time he was killed.

The legal instructions state conclusions which on the However, seem clear and unambiguous. impor- surface it is keep in mind tant that those conclusions result from facts, the law to applying a function which is for the determine, not important, court. More facts were underlying vigorously disputed. example,

For argued defendants that Millard could not have been engaged official duties because he was making an invalid arrest the time of his In death. order McGinnis, to arrest Hoffman the tribal police and/or or required either a warrant an exception to the warrant requirement. argue Defendants that the officers had neither.

A for the arrest of warrant had been obtained McGinnis. If already executed warrant had been and McGinnis custody, had been from as a result of due process released law, however, authority of not for a provide it could subse- Landon, rearrest. See Carlson v. 524, quent U.S. (1952). 96 L. Ed. 72 Ct. Whether or not McGin- S. custody on nis had turned the nature been released from under hospital stay his which he the circumstances was released. The defendants contended was McGinnis from neither discharged custody County because nor a at his police guard tribal door. The State posted McGinnis from argued custody had been released steps because the took to ensure that received McGinnis' and because hospital his leaving notice of in custody. was still McGinnis had told attorney been so that a warrant was escapee, an Whether McGinnis was duties at the official engaged in force and Millard issues are death, how these factual his on depends time of State, Mo. resolved. Roberts Cf. the defendants substantially prejudiced

The trial court it precluded from the because when it took this issue trier of fact. issues these factual proper resolution have might whether warrantless arrest question scope bringing Millard within again been proper, many purposes, turns aggravation official duties In order make a valid warrant- disputed the same facts. McGinnis, must of either Hoffman or case less arrest terms of That statute fall within the RCW 10.31.100. probable where there is cause authorizes warrantless arrests mis- felony, where a suspect to believe a has committed a and for presence in the officer's demeanor committed and traffic offenses. specified certain other misdemeanors second argues The State that McGinnis committed arrest. Sec escape, felony justifying a warrantless degree however, from escape, escape involves a "deten ond degree "charged" felony. one with a facility" by who has been tion 9A.76.120(1)(a). The State contends that McGinnis RCW formally charged felony, been with a but need not have contention, accepted that whether the if this court even was, present purposes, facility a detention is a hospital prob State also that there was question argues of fact. The that McGinnis third to believe had committed able cause custody. from escape, only escape which involves degree 9A.76.130(1). however, was whether McGinnis Again, RCW Furthermore, in hospital disputed. in while the is custody would escape only is misdemeanor degree gross third a 10.31.100 unless a arrest under RCW justify warrantless physical harm the threat of harm. physical it or involved alleg McGinnis relies on threats previous State family support in of this edly against Ferguson made However, and whether were those threats argument. escape disputed are sufficiently alleged connected with a warrantless question issues.93 The of whether factual and whether Officer Millard was possible, arrest was in his official duties at the time of accordingly engaged therefore, death, questions jury. for the The defend instructions, by the court's which prejudiced ants were issues. foreclosed the deliberations on these jury's engaged that Millard was not argued The defendants also had purposes because he aggravation official duties for property. Payton McGinnis entry onto the illegal made an York, S. Ct. 1371 v. New 63 L. Ed. 2d 445 U.S. (1980) not make a warrantless arrest police may holds that or consent authoriz- without a warrant private property Payton an express exception contains ing presence. their circumstances, under which this exigent for arrests made Terrovona, in State v. court elaborated (D.C. States, 1970)] Cir. Dorman United 435 F.2d 385 [v. determining when a war- enumerates six elements to aid (1) grave police entry justified: into a home is rantless offense, suspect (2) violence, involved; particularly a crime of is (3) armed; reasonably to be there is reason- is believed (4) ably trustworthy suspect guilty; is information that suspect strong is reason to believe that is on there (5) suspect likely escape swiftly if not premises; (6) Dorman, entry peaceably. apprehended; and is made 392-93. operating Millard was under exigent Officer

Arguably, attempting to discover and Hoff- arrest circumstances McGinnis was wanted for assault on McGinnis. man and officers, involving police offense violence. The grave armed, to be well and McGinnis Hoffman suspected their arsenal bulk of was at fact believed that to believe reason that McGinnis There was McGinnis home. and that Hoffman assault degree of third guilty and/or probable arrest argues cause existed to for a violation of 93 The also State Vehicle”, 46.61.024, Pursuing degree "Attempting Police and third Elude RCW (Former 9A.36.030(1)(a), assault, RCW both felonies. 9A.36.030 is former RCW 9A.36.031.) grounds for a warrantless arrest also Both of these now codified at disputed turn on facts.

125 vehicle, those police a since eluding guilty McGinnis was police officers. presence crimes committed were were and McGinnis believe Hoffman There reason to was to men were known be at since the two on the property since to return home and try to expected and could be large onto the McGinnis walking been observed persons two had suspects likely were to Phillips. property by Officer already escaped hospi- from the McGinnis had escape since and Hoffman and McGinnis Hoffman's assistance tal with day. Finally, earlier in the there police a vehicle had eluded peaceable Dick and Millard made a evidence that All of service revolvers holstered. these entry, with their however, questions. are or not factual Whether questions, present case issue circumstances were is the exigent court, must decide. jury, that a not the officer, as a enforcement which Even Millard's status law contested, a factual issue. hotly as was nevertheless was not In State was aggravation, order to meet its burden or of Millard's commissions required present evidence testimony superiors. That evidence was introduced. sufficiency If the before this court were the of the question determination, support evidence to there would jury's by difficulty answering problem be no it. The is that officer, a that Millard was instructing any question sufficiency taking trial court obviated so, altogether. doing In question jury's out of the hands below, the trial court denied the explained defendants process. due here, charged crime an element of the

If aggravation the defendants' difficulty holding I no have would instructions. It is well violated these had been rights an may not direct a verdict on trial cotut established so because do violates the charged, the crime element of trial, a right guaranteed by right defendant's Washington Const. federal constitutions. art. state and § State v. 6; Christian (amend. 10); U.S. Const. amend. 22 States v. sen, United (1931); P. 161 Wash. Co., L. Supply Martin Linen U.S. Ed. 2d (1977). However, 97 S. Ct. 1349 the question actual before us complicated. is somewhat more aggravating not,

The factors of RCW 10.95.020 are prop- erly speaking, elements of explained a crime. As this court Kincaid, in State v. 304, 103 Wn.2d 692 (1985), P.2d 823 they only sentencing, relate to not to the substance of the crime: statutory aggravating A circumstance relates to the crime of premeditated murder in first degree the as a defendant being deadly with a weapon armed relates commission of cer- tain felonies so In statutory while armed. framework in statutory exist, aggravating

which circumstances now "aggravation are not of a but penalty" elements crime are increased provisions provide penalty which an for where the aggravate gravity circumstances of the crime offense. Conceptually, premeditated the crime is murder first degree aggravating however, with Commonly, circumstances. is crime often referred to the courts others "aggravated degree first murder". (Footnote omitted.) Kincaid, Accord, State v. Iri at 312. zarry, 111 Wn.2d 591, (1988). This distinction between the elements of a crime and is penalty factors crit important ically where a defendant claims a to a right jury There determination. is no Sixth right Amendment to a Spaziano Florida, penalty jury trial factors. 468 U.S. 340, (1984). 447, L. Ed. 2d 104 Ct. 82 S. 3154 This court has 1, (amend. 10) Const. 22 also held under art. § right only state extends issues fact which jury deter Price, State v. 788, 59 mine or innocence. guilt 370 (1962). Even if this court so, P.2d 979 were inclined to do not a case in which to proper separate is formulate a Gunwall, rule. See State v. state constitutional 54, 61-62, 808, (1986). 720 P.2d 76 A.L.R.4th 517 The jury here, thus, instructions did not violate issue Hoffman or McGinnis' rights. constitutional

The fact Sixth Amendment Const. art. § (amend. 10) 22 inapplicable inquiry, are does end the provided by state has jury however. Where a statute a issue, sentencing determination it is a on a violation of due statutory jury the defendant of that deprive process Oklahoma, 447 U.S. L. Hicks v. Ed. 2d right. (1980). Hicks, In a trial court instructed the S. 100 Ct. that, impose if it found the defendant it should guilty, law, years' Oklahoma how imprisonment. sentence of ever, punishment shall be fixed provides jury. Supreme Okla. Stat. tit. Court § vacated the Oklahoma sentence on the ground that Fourteenth process Amendment's due clause is violated deprived statutory where a defendant of a to a right determination. argued It is that all that is involved this case is the denial procedural right exclusively Where, of a ever, state concern. how- provided imposition a State has pun- for the of criminal jury,

ishment in the discretion the the of trial in it is not correct to say that defendant's interest the exercise of that discre- merely procedural tion is in he will be by a matter of state law. The defendant legitimate expectation such a case has a substantial and that deprived liberty only of his to the extent determined jury discretion, in statutory the the exercise of its and that liberty interest is one pre- that the Fourteenth Amendment against arbitrary deprivation by serves the State. (Citation omitted.) Hicks, at 346. question, then, is whether the question aggravat- of

ing circumstances under RCW 10.95.020 is for the is, decide. If it then Hoffman and deprived McGinnis were of a statutory jury right violation due I process. of would hold that aggravation jury question is a and that the rights defendants' to a fair trial were violated. question aggravating

There is no is a circumstances even jury question, though RCW 10.95.020 does not it expressly why, helpful state that is. To see it is to view the section the context of RCW 10.95 a whole. As this procedure the in Kincaid: court outlined provides proce- for a The statute bifurcated [RCW 10.95] first, trial, guilt phase it dure. At the of is determined guilty premeditated is whether the defendant of murder in the and, so, degree, if it then determined whether first more of the is one or statutory aggravating circumstances exist. If the (as case), penalty death ant has not asked in this been defend- guilty premeditated who is found of murder the first exist, aggravating or more circumstances is degree where one possibility parole; of imprisonment to life without sentenced but, penalty sought, if is the trial then shifts into the death capital phase where it is separate sentencing determined mitigating circumstances to are sufficient merit whether there not, and, penalty imposed. is if the death leniency Kincaid, omitted.) (Footnote second, In at 310. capital or the issue is whether not sufficient mit- sentencing phase, imposing justify penalty. exist to the death igating facts question jury, is for the and verdict must be This 10.95.060(4). 10.95.050(2); unanimous. RCW scheme, it is clear that In the context of this decision question 10.95.020 on factors under RCW aggravating of the substantive criminal jury. for the Both the elements factors are mitigating or charge presence and absence intended questions. unlikely Legislature It is from the plucked be question aggravating factors to by the trial separately process middle of decided fact, is to be aggravation court. In the statute requires first, This court guilt phase determined at the the trial. of RCW has noted before that this is an unusual feature 10.95, other question aggravating since states decide the second, separately, phase. sentencing circumstances Bartholomew, State v. 98 P.2d 189-90, (Bartholomew (1982) granted, judg State's I), cert. remanded, ment vacated 463 U.S. defendant's denied, cert. conviction aff'd (1983), 463 U.S. (Barthol remand, (1984) omew II). I conclude that included would the Legislature in a reason: aggravation phase the question guilt the wanted be deter aggravating because it circumstances manner, by body, in same the same sub mined is, by the guilt phase; decided at the that questions stantive jury. in language

This is bolstered other by conclusion Bartholomew upheld the rel- I, this court case which constitutional portion evant of RCW 10.95 a against there, In our court challenge.94 summarizing reasoning wrote: sum, principal In features Washington statute shares pre- approved Capital crimes are limited to

of the meditated unless additional schemes: murder; may imposed the death sentence not be by jury; aggravating factors are found separate phase the trial at sentencing is considered at a variety may which the sentencer tion consider a of factors addi- impose determining crime itself in whether or not to to the death; subject to an elaborate auto- and each death sentence is procedure brings scrutiny it matic review this court. The which under the Washington approved procedure therefore conforms broad outline to schemes. (Italics mine.) I, Bartholomew always at 192. It has been understanding aggravating this court's circumstances is I jury question. under RCW 10.95.020 see no reason to from that depart understanding. a statutory right

Given that Hoffman and McGinnis had to have determined it was a viola- aggravation jury, process deprive right. tion of due them of that directly comparable instructions at issue here are to the improper instruction Hicks. Even is though aggravation penalty crime, factor rather than an element of a Hoff- man unconstitutionally deprived and McGinnis have been of a determination. The record demonstrates Hoffman and McGinnis were prejudiced by the instructions since facts of the central case which relate to aggravation A hotly required. contested. new trial argues

The State instructions 27 and 28 were given questions presented because the were too complex. 10.95.060(3), 94Bartholomew I also held that RCW which authorized (not convictions) prior activity sentencing criminal admission of evidence of phase, Bartholomew I Eighth accordingly violated the Amendment. limited the prosecution's 10.95.060(2), opening sentencing, RCW statement at to references to prior pages Bartholomew I at 198 and 199 also convictions. held that evidence mitigating admitted under RCW 10.95.060 and RCW 10.95.070 must be limited to 10.95, here, remaining portions factors. The of RCW which are relevant were sev- erable. RCW 10.95.900. Court, Following Supreme remand the United States case this court in Bartholomew II on state and federal constitutional holdings affirmed these grounds. This has as our own discussion of argument appeal, some disputed question aggravation the facts relation to the of to the may indicate. The search and arrest issues relate scope authority, acting the relates to their of officers' which question the within "official duties" which relates to However, that the com aggravation. it is well established a civil plexity legal deprive issues cannot be used to right jury defendant of his to a determination under Const. Prods., Inc., 21. Peters v. Dulien Steel art. § surely The same conclusion fol is trial guaranteed jury a criminal defendant lows where Amendment. by the Fourteenth questions that these were of a sort

The State argues true, If of the court. ordinarily province which is in the usually arise context only questions it is because the arise, they as questions If same suppression hearings. they here, charge, are aggravation context of an did questions jury. for the court and this could complete in this case is record the evidence on all sufficiency of

make a determination However, support the evidence sufficiency of points. before this court. Given the is not the issue jury's verdict instructions, not permitted was jury trial court's first I instance. questions factual decide critical 26, 27 and 28 violated the instructions would hold process. of due guaranty Fourteenth Amendment's

Conclusion prejudicially in- improperly trial court 1. The factual issues and a matter of law on structed the law; as conclusions of presented issues of fact denied defendants 2. The trial court's instructions from considering precluded it fair trial because they were unaware the defendants' contentions law enforcement offi- in a battle with engaged gun cers; discharged from escape McGinnis did not but preced- events custody hospital; when he left property did entry officers' onto McGinnis' ing circumstances"; "exigent not constitute Const. art. court's instructions violated 3. The trial § (amend. 10) charging which from prohibits judges fact; respect with to matters of juries 4. directed a verdict on two improperly The trial court first aggravating aggravated of the three elements of and, thus, right murder violated defendants' degree process, Fourteenth Amendment. guaranteed due I would remand for a new trial. J. would remand for a new trial (dissenting)—I

Utter, phase. The error to submit sentencing failing officer" issue to the cannot be said to "law enforcement beyond be harmless a reasonable doubt. January 10, 1991.] 54584-7. En Banc.

[No. Respondent, Crosby Hennig, Kirk Group, v. The Appellant. Inc.,

Case Details

Case Name: State v. Hoffman

Court Name: Washington Supreme Court

Date Published: Jan 10, 1991

Citation: 804 P.2d 577

Docket Number: 55948-1

Court Abbreviation: Wash.