State v. JohnsonState v. Johnson
- Reporters:
- , ,
- Before:
- Thompson
Bill Ray Johnson and Russell Lenard McLaws appeal their convictions of first degree murder. We affirm.
In the early morning hours of March 15, 1983, two armed men wearing ski masks, gloves, and heavy coats entered the home of Edward Prather and Julie Klassen. The men awakened the sleeping couple, and demanded drugs and money. Mr. Prather gave the gunmen $20 and marijuana packaged in Mickey Mouse sandwich bags; he was then taken by one of the gunmen into the kitchen where he was bound with wire. Ms. Klassen remained in the bedroom with the other gunman where she was raped. While the rape was being committed, Mr. Prather became partially free and an altercation broke out in the kitchen during which Mr. Prather apparently struck the gunman with a chair. The rapist ran to the kitchen and Ms. Klassen heard him say “get him“, followed by a series of rapid gunshots. When Ms. Klassen later entered the kitchen, she saw Mr. Prather on the floor in a pool of blood; he died of gunshot wounds before the police arrived. The police recovered pry bars from the front porch of the house.
During the course of the investigation, Cindy Whitford, Mr. McLaws’ girl friend, contacted the police, informing them of Mr. McLaws’ participation in the crime. The police obtained statements from other witnesses, including accomplice Jeffery Paradiso, implicating both Mr. Johnson and Mr. McLaws in the murder. On May 1, 1983, an automobile driven by Mr. McLaws was stopped by the police for defective vehicle equipment. Mr. McLaws consented to a search of the vehicle in which the police recovered two ski masks and ammunition similar to that which killed Mr. Prather.
Mr. Johnson and Mr. McLaws were charged with the
Principal among the numerous issues raised by Mr. Johnson and Mr. McLaws is their contention the trial court erred in refusing to suppress certain witness statements. We disagree. Mr. Johnson and Mr. McLaws claim the police violated the privacy act,
Intercepting or recording private communication— Consent required—Exceptions. (1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:
(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;
(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
Any information obtained in violation of this statute is inadmissible.
Mr. Johnson and Mr. McLaws, relying on
State v. Williams, supra,
claim a violation of
All parties stipulated at the pretrial hearing that at the beginning of each contested tape the following information was recorded: “names of the parties, who the statement [was] taken by, the date, the time [including time started and time stopped], and where it [was] being taken . . .“In addition, in denying the defense motion to suppress these recordings, the court noted that in each instance, except for
Although the statements in question do not include conversations of Mr. Johnson or Mr. McLaws, several of the witnesses were being held in custody at the time their conversations were recorded. In
State v. Cunningham,
93 Wn.2d 823, 829, 613 P.2d 1139 (1980), the court noted “[w]hile mere consent may be wholly sufficient to protect members of the general public whose statements have been recorded under noncustodial conditions, ...” the recorded statements of arrested persons are “required to ‘conform strictly’ to rules which ensure that waiver by consent authorized by
In Jones, we found that the statute was not violated even though the tape did not contain the required statement that a recording was being made. In coming to that con-elusion, this court looked to the circumstances surrounding the taping. The evidence there demonstrated that the police officer had made statements regarding the taping of the conversations. In addition, the tape recorder was sitting on the table directly in front of the defendant. Under these facts, we agreed that the defendant knew the statements were being recorded. We concluded, therefore, that the tape recording conformed to the statute.
State v. Rupe, 101 Wn.2d 664, 681, 683 P.2d 571 (1984). Applying the Jones and Rupe holdings to the facts of the present case, we hold “the circumstances surrounding the taping” provided sufficient evidence the participants received effective notice that the conversation was being recorded.
Next, Mr. Johnson and Mr. McLaws claim the trial court improperly instructed the jury on impeachment testimony. We disagree. Impeachment evidence affects a witness’ credibility and is not proof of the substantive facts encompassed in such evidence. In re Noble, 15 Wn. App. 51, 60, 547 P.2d 880 (1976); State v. Fliehman, 35 Wn.2d 243, 212 P.2d 794 (1949). Where such evidence is admitted, an instruction cautioning the jury to limit its consideration of the statement to its intended purpose is both proper and necessary. State v. Pitts, 62 Wn.2d 294, 297, 382 P.2d 508 (1963). During the trial a number of witnesses were impeached by the use of prior inconsistent statements. The trial court gave instruction 14 which reads:
Evidence has been admitted regarding out-of-court statements made by witnesses Julie Klassen, Henry Bronson, Emily Lehinger, and Cindy Whitford. This evidence may be considered by you only as it relates to credibility of these witnesses and for no other purpose.
Mr. Johnson and Mr. McLaws objected to the giving of this instruction declaring it to be an incorrect statement of the law because it precluded the jury from considering any of the out-of-court statements as true. They proposed to replace the court‘s instruction with a limited purpose instruction (based on WPIC 5.30), which reads:
Evidence has been introduced in this case on the subject of alleged statements of Cynthia Whitford to Detective Best for the limited purpose of impeaching her credibility. You must not consider this evidence for the purpose of substantive evidence of guilt of either of the defendants.
The State claims Mr. Johnson and Mr. McLaws were, in effect, attempting to bring in Ms. Klassen‘s prior inconsistent statements as substantive evidence, rather than as an attack on her credibility. While hearsay is generally inadmissible evidence, a prior statement by the witness may not be hearsay if the witness “testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . . . inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition . . .‘’ ER 801(d)(1). Ms. Klassen‘s prior statements were made to the police following the incident. Although the Ninth Circuit has held the phrase “other proceeding” included sworn tape-recorded statements given to agents at a border patrol station, the court also stated not every sworn statement given during a police interrogation would be admissible. United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir.), cert, denied, 429 U.S. 983, 50 L. Ed. 2d 594, 97 S. Ct. 501 (1976), cited in 5A K. Tegland, Wash. Prac., Evidence § 341, at 135 (2d ed. 1982). See also State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982), in which the court held admissible as substantive evidence a complaining witness’ statement, handwritten by her on a police form, signed and sworn to before a notary under penalty of perjury.
Ms. Klassen‘s statements to the police, on the other hand, were either oral or unsigned. Although language appears in a number of Washington cases, including
State v. Smith, supra
at 861, that [i]n many cases, the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates . . .“, the rule still remains that “...
Next, Mr. Johnson and Mr. McLaws contend an accomplice instruction was mandatory since the prosecution relied upon the testimony of Mr. Paradiso, an accomplice. Mr. McLaws proposed an accomplice instruction (based on WPIC 6.05), which reads:
The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.
The law regarding accomplice instructions was recently clarified in State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984). The Harris court, at page 155, enunciated the following 3-part rule:
(1) it is always the better practice for a trial court to give the cautionary instruction whenever accomplice testimony is introduced; (2) failure to give this instruction is always reversible error when the prosecution relies solely on accomplice testimony; and (3) whether failure to give this instruction constitutes reversible error when the accomplice testimony is corroborated by independent evidence depends upon the extent of corroboration. If the accomplice testimony was substantially corroborated by testimonial, documentary or circumstantial evidence, the trial court did not commit reversible error by failing to give the instruction.
Here, the trial court in rejecting the accomplice instruction, determined there was sufficient corroborative testimony to make such an instruction unnecessary. The record includes the following corroborating evidence: testimony of Henry Bronson that he saw Mr. Johnson and Mr. McLaws
Mr. McLaws argues the facts of State v. Calhoun, 13 Wn. App. 644, 536 P.2d 668 (1975) are similar to the evidence connecting him to the crime; thus, his conviction should be reversed. However, in State v. Calhoun, supra at 648, the court noted the only corroborating evidence connecting defendant to the crime consisted of the fact that the defendant “had a gun and holster in a paper sack in the •bedroom of the witness Smith‘s house for a short period of time ...” Applying the Harris rule, we find the accomplice testimony was sufficiently corroborated by independent evidence.
Next, Mr. Johnson and Mr. McLaws claim prosecutorial misconduct prejudiced their right to a fair trial. Specifically, they claim the prosecutor improperly argued Ms. Whitford‘s inconsistent statements could be used by the jury as substantive proof in violation of the court‘s instruction. We disagree.
In order to determine whether prosecutorial misconduct was present, the reviewing court “must determine whether there was substantial likelihood that the misconduct affected the jury‘s verdict, thereby depriving the defendant of his right to a fair trial“.
State v. Evans,
96 Wn.2d 1, 5, 633 P.2d 83 (1981). During closing argument the prosecutor informed the jury that it would be required to consider whether “Cindy Whitford [was] telling us the truth when she was under oath in this chair and testifying“. The prosecutor then stated that in making this determination, the jury should consider “some other things that were admitted in relation to her testimony.” Included in these
The jurors are the judges of the credibility of witnesses, and are entitled to draw reasonable inferences from the evidence before them as to the truthfulness of any particular witness. Therefore counsel, if he deem such a course advisable, may argue as to what inferences may or should be drawn, and thus attempt to demonstrate from the record that a particular witness has wil-fully testified falsely. Such an argument should, however, be conducted calmly and logically and in a manner to direct the attention of the jurors to the logical inferences to be drawn, rather than to incite their prejudices.
Borland v. Pacific Meat & Packing Co., 153 Wash. 14, 19, 279 P. 94 (1929); accord, State v. Gosby, 11 Wn. App. 844, 526 P.2d 70 (1974), affd as modified, 85 Wn.2d 758, 539 P.2d 680 (1975).
Both Mr. Johnson and Mr. McLaws emphasized in closing argument that Ms. Whitford‘s inconsistent statements could only be considered in terms of her credibility. Finally, the court instructed the jury that:
Counsel‘s remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence, however, and you should disregard any remark, statement or argument which is not supported by the evidence or the law as given to you by the court.
Jurors are presumed to follow instructions given by the court. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976); State v. Harvey, 34 Wn. App. 737, 740, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983).
The trial court has wide discretion to determine the admissibility of physical evidence and, absent manifest abuse, an appellate court will not interfere with that decision. State v. Bergen, 13 Wn. App. 974, 976, 538 P.2d 533 (1975), review denied, 86 Wn.2d 1009 (1976); State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984). “Physical evidence is admissible against the accused so long as it is shown to have some bearing upon the facts at issue.” State v. Smith, 74 Wn.2d 744, 769, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934, 33 L. Ed. 2d 747, 92 S. Ct. 2852 (1972), overruled on other grounds in State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975); State v. Spadoni, 137 Wash. 684, 243 P. 854 (1926). The fact that witnesses do not positively identify evidence does not diminish its admissibility. See State v. Smith, supra at 768 (statement by the witness that “the coat looked like the jacket the shorter man was wearing on the night of the . . . murder” was sufficient); State v. Bergen, supra at 977 (caps and ski masks admitted into evidence after the victims testified the items were similar to those worn by their attacker). Here, Ms. Klassen testified the ski masks were similar to those worn by the assailants, and the pry bars found on her front porch by the police had not been placed there by the occupants of the house. The ammunition recovered from Mr. McLaws at the time of his arrest was identical to that used in the killing. We find no error.
Next, Mr. Johnson and Mr. McLaws challenge the constitutionality of the May 1, 1983, search of Mr. McLaws’ vehicle. They claim evidence seized during the search should have been suppressed.
At trial, the State presented evidence that Mr. McLaws consented to the search. A consent form signed by Mr. McLaws was admitted into evidence without defense objection. Voluntary consent to a search acts as a waiver of
Next, Mr. Johnson and Mr. McLaws contend the information charged first degree felony murder while in the commission of first degree robbery; yet, during trial the prosecutor referred to a burglary and a rape. They claim they were, in effect, placed on trial for a crime for which they were never charged.
Generally, evidence of the commission of other crimes may not be admitted into evidence in a criminal prosecution. However, collateral crimes are admissible for certain specific limited purposes. State v. Tharp, 96 Wn.2d 591, 637 P.2d 961 (1981). The Tharp court noted that where uncharged crimes are part of an unbroken sequence of incidents tied to the defendant, “[e]ach offense [becomes] a piece in the mosaic necessarily admitted in order that a complete picture be depicted for the jury.” State v. Tharp, supra at 594. We find no error.
Next, Mr. Johnson and Mr. McLaws contend, pro se, a new trial should be granted on the ground of newly discovered evidence because Mr. Paradiso has advised them of his wish to recant earlier testimony. Resolution of this matter cannot be resolved by resort to the record.
See State v. King,
24 Wn. App. 495, 504, 601 P.2d 982 (1979). Generally,
Since Mr. Johnson and Mr. McLaws failed to move for a new trial under CrR 7.6, or for relief from judgment under CR 60(b)(3), 3 the trial court had no opportunity to consider Mr. Paradiso‘s affidavit. State v. Owen, 24 Wn. App. 130, 135, 600 P.2d 625 (1979). Mr. Johnson‘s and Mr. McLaws’ failure to exhaust their posttrial remedies precludes appellate review. The proper procedure now is to bring an independent proceeding by way of personal restraint petition under RAP 16.3, so the matter may be remanded to the Superior Court for an evidentiary hearing. RAP 16.11(b); State v. Davis, 25 Wn. App. 134, 137, 605 P.2d 359 (1980); State v. Rolax, supra.
Finally, Mr. Johnson and Mr. McLaws claim the State‘s failure to preserve the victim‘s blood sample makes it impossible to determine if an actual rape occurred. We disagree.
The State‘s duty to preserve material evidence is derived from the duty to disclose exculpatory evidence.
State v. Laureano,
101 Wn.2d 745, 759, 682 P.2d 889 (1984);
Brady v. Maryland,
373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The Supreme Court extended the application of the
Brady
rule,
i.e.,
the duty to preserve material evidence, to governmental loss or destruction of such evidence in
State v. Wright,
87 Wn.2d 783, 557 P.2d 1 (1976).
State v. Lau-
Although Mr. Johnson and Mr. McLaws rely on State v. Wright, supra, the Laureano court noted that ‘“[i]n Wright the evidence which was destroyed was the totality of the direct evidence in the case.‘” State v. Laureano, supra at 760 (quoting State v. Canaday, 90 Wn.2d 808, 816-17, 585 P.2d 1185 (1978)). Here, the loss of evidence complained of consists of blood samples from the victim, Edward Prather, and lack of lab reports on all the cigarette butts taken from the bedroom.
The police are not required to search for exculpatory evidence, conduct tests, or exhaustively pursue every angle on a case. State v. Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984). Here, the State was not obligated to develop the defense theory that proof of Mr. Prather‘s blood type may have served to impeach Ms. Klassen. The State expert tested a sample of the cigarette butts. Defense counsel could have retained an expert to test the remaining butts. Accord, State v. Judge, supra. Thus, we find no error.
Judgment of the trial court is affirmed.
McInturff, A.C.J., and Munson, J., concur.
Notes
“(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: Provided, That if the conversation is to be recorded that said announcement shall also be recorded.”
Ms. Whitford, however, was informed the conversation was being recorded, and she reluctantly consented as long as the recording was not played in court. Her later consent to the recording of her face-to-face conversation with Detective Best complied with
See Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975), for the procedure under former CrR 7.7 for granting postconviction relief.