State v. TharpState v. Tharp
Jo Elliott Tharp appeals from the judgment entered on a jury verdict finding him guilty of second degree felony murder.
During the evening and early morning hours of March 30 and March 31, 1978, a neighborhood in Bellingham was the scene of extensive criminal activity which culminated in the murder of William Bond. A chronology of the events pertinent to this appeal is as follows:
At about 6:30 p.m. on March 30, Jo Elliott Tharp was given a ride to the area near Yeager's Shopping Center in Bellingham.
Sometime after 5 p.m. that evening, someone broke into the automobile belonging to Judith Larrieux who lived a short distance from the shopping center. Taken was her purse, which contained the certificate of title to her car, a key ring and a bottle of prescription pills.
Sometime after 6:30 p.m. someone broke into the residence of William Tooker located a short distance from the Larrieux residence. The bottle of pills and certificate of title from Larrieux' vehicle were discovered in the Tooker bedroom. The following items were taken from Tooker: a
On that same evening, at 8 p.m., Michael Hoaglund drove his pickup truck to St. Joseph's Hospital in Belling-ham to attend a meeting. The hospital parking lot is connected to the back of Tooker's property. When Hoaglund left the meeting, he discovered his truck had been stolen. The truck was subsequently discovered two blocks away from the home of the murder victim, William Bond.
At about 11 p.m. that evening, Chad Bond heard what sounded like his Porsche automobile being started and driven away. After confirming that his car was gone, Chad awakened his parents and called the police. Chad's father, William Bond, immediately got up and left in the family automobile to search for his son's Porsche. A neighbor subsequently discovered the Porsche on a road about a mile from the Bond residence. The Bond family car was parked directly in front of the Porsche, blocking its exit. William Bond's body was found nearby. He had been shot twice, and two .380 cartridges were recovered from the scene. Also found were the knife, leather gloves, bottle of rum, and the camper key taken from the Tooker house.
The next morning, March 31, Carolyn Hanson, of Bellingham, discovered that her 1975 Chevrolet Monte Carlo had been stolen.
On April 4, 1978, Jo Elliott Tharp was arrested driving Carolyn Hanson's Monte Carlo in Deer Lodge, Montana. In his possession was the .380 automatic pistol taken in the Tooker burglary. This gun was established to be the murder weapon. Tharp also had in his possession Judith Larrieux' key ring and Tooker's commemorative dollar.
Tharp was returned to Washington and charged with the felony murder of William Bond. At trial, the State was permitted to present, over defense objections, evidence of the Tooker burglary, the Larrieux vehicle prowl, and the theft of the Hoaglund pickup truck, as well as evidence that Tharp was on furlough from Monroe Reformatory at the
Collateral Criminal Activity
Tharp relies on the fundamental rule frequently expressed by our courts that evidence of other criminal activity is generally inadmissible in a criminal prosecution except for limited purposes, such as showing motive or intent, plan, identity, or absence of accident or mistake.
E.g., State v. Dinges,
Tharp initially challenges admission of evidence of the collateral crimes on the ground that the State is required to prove—and is here unable to prove—that he, in fact, committed the collateral crimes. He cites no authority, however, which holds that the State must prove the existence of the other crimes and Tharp's connection with them beyond a reasonable doubt. Our inquiry convinces us that the nearly universally followed rule is otherwise. That is, assuming evidence of other criminal activity is admissible under one of the exceptions to the general rule of exclusion, the State's burden is to present substantial evidence or clear evidence that the collateral crimes occurred and were committed by the accused. A leading text expresses the rule this way:
[I]t is clear that the other crime, when it is found to be independently relevant and admissible, need not beestablished beyond a reasonable doubt, either as to its commission or as to defendant's connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these facts, and some courts have used the formula that it must be "clear and convincing."
(Footnotes omitted.) E. Cleary, McCormick's Evidence § 190, at 451-52 (2d ed. 1972).
The rule as expressed by California courts requires that other uncharged offenses "only be proved by a preponderance of substantial evidence",
People v. Durham,
We see no problem in this regard with admission of evidence of the burglary of the Tooker residence and the Larrieux vehicle prowl. Tharp was apprehended in Montana with items taken in both crimes. His connection with those crimes was clearly established, and he admits as much in his brief.
Although no direct evidence tied Tharp to the theft of the Hoaglund pickup, we think commission of the crime and Tharp's connection therewith was established by substantial and clear evidence. Substantial evidence is defined as evidence of a kind and quantity that will persuade an unprejudiced, thinking mind of the existence of the fact to which the evidence is directed.
State v. Hall,
We are therefore presented with the issue of whether the evidence complained of was properly admitted under recognized exceptions to the general rule of exclusion. As noted previously, evidence of other criminal activity may be admitted to show motive or intent, the absence of accident or mistake, a common scheme or plan, or identity. This list, however, is not exclusive.
State v. Dinges, supra.
Our courts have previously recognized the so-called "handiwork" exception,
State v. Irving,
Thus, in State v. Jordan, supra, the court found no error in admission of evidence that when the defendant was apprehended for unlawful possession of a narcotic, he was found with needle marks on his arms and drug paraphernalia nearby. Rejected was his argument that such testimony and exhibits placed him on trial for crimes not charged. The court held that evidence of criminal acts which are inseparable parts of the whole deed is admissible.
Similarly, in
State v. Battle,
Mere similarity between other criminal misconduct and the crimes charged would not in itself have justified the admission of this evidence. . . . But where, as here, a distinctive means was employed in committing the other offenses and the crimes charged, ... or where the criminal acts were inseparable from a whole criminal scheme, . . . evidence of the other criminal misconduct is relevant and admissible.
(Citations omitted. Italics ours.) State v. Battle, supra at 69-70.
Under the res gestae, or same transaction, analysis, the evidence of the three collateral crimes was admissible in the instant case. The evidence substantially connected Tharp to all three crimes, as well as the murder of William Bond. The jury was entitled to know the whole story. The defendant may not insulate himself by committing a string of connected offenses and thereafter force the prosecution to present a truncated or fragmentary version of the transaction by arguing that evidence of other crimes is inadmissible because it only tends to show the defendant's bad character. "[A] party cannot, by multiplying his crimes, diminish the volume of competent testimony against him."
State v. King,
Determining that the evidence complained of fits into an exception to the rule of exclusion does not end the inquiry. The ultimate test of admissibility is whether the relevance and necessity of the evidence outweighs its prejudice to the defendant.
State v. Goebel,
Furlough Status and Prior Conviction
Tharp raises the same issues in his contention that the trial court erred in admitting testimony regarding his being on furlough status from Monroe Reformatory for commission of a previous crime. The State argues that that evidence was relevant to show Tharp's motive for killing Bond; that is, that at the time Bond confronted him, Tharp knew his status on furlough would be an aggravating factor if he were apprehended and convicted for stealing the Bond Porsche.
Although prejudicial to Tharp, we agree that the evidence of his prior conviction and furlough status was relevant and admissible to shed light on his motive for committing murder. We are unaware of a similar situation having been the subject of a prior appellate decision in this state, but we believe analogous cases from other jurisdictions illustrate the correctness of our conclusion.
In
People v. Delorio,
33 App. Div. 2d 350, 354,
When a person is charged with one crime, evidence that he committed other crimes is inadmissible if such evidence is offered solely to establish a criminal disposition, but this rule does not prohibit the admission of competent proof relative to criminal acts by defendant when that proof has substantial probative value to establish some other material fact, such as motive or intent, in the case at hand . . .
(Italics ours.) People v. Delorio, supra at 135.
Similarly, in a prosecution for murder of two FBI agents, evidence that the defendant had recently escaped from prison and had committed a bank robbery shortly before the killings was admitted to prove intent, despite its highly prejudicial nature.
United States v. Bryant,
In
People v. Powell,
The admission of other crimes is always a sensitive subject. Such unattractive history hardly enhances a defendant's position before the trier of fact. However, where the evidence is material and relevant it is not automatically excluded. The circumstance of Powell's parole status could reasonably tend to prove that he killed Campbell to avoid revocation of his parole and return to prison. Balancing values as to whether or not such evidence should be admitted is left to the discretion of the trial judge. We cannot say that the trial judge did not strike this balance with great care comparing the probative value to the prejudicial effect.
People v. Powell, supra at 155.
Tharp argues, however, that motive and intent are essentially indistinguishable, and that because intent is not an element of felony murder, evidence of intent
and
motive was irrelevant. We do not agree with this contention. Although it is true that proof of intent to kill is not an element of felony murder, we must point out that motive and
Tharp next argues that the trial court erred in failing to give an instruction informing the jury that evidence of the collateral crimes was admitted for the limited purpose of showing motive or intent, identity, common scheme or plan, or absence of accident or mistake. This contention is answered by pointing out that Tharp never requested such a limiting instruction. Therefore, no error was committed.
State v. Hess,
Photographs of Victim
Tharp argues that the court erred in admitting five photographs and a video tape of the victim, contending that in addition to being gruesome, the evidence was unnecessary as he was willing to stipulate that the victim died of gunshot wounds. This court rejected a similar contention in
State v. Adler,
In addition, admissibility of gruesome photographs is within the discretion of the trial court.
State v. Griffith,
We decline to accept Tharp's invitation to adopt a rule excluding photographs whenever the defendant manifests a willingness to "stipulate" to a fact at issue in the trial. Competent evidence is not inadmissible solely because it is gruesome.
State v. Griffith, supra.
Nor can a brutal crime "be explained to a jury in a lily-white manner to save the members of the jury the discomfiture of hearing and seeing the results of such criminal activity."
State v. Adams,
Refused Exculpating Testimony
Tharp contends that he should have been permitted to put on evidence that one Wade Catlin, who had been a suspect in the crime, had made the statement during a psychiatric examination that "Jo didn't do it but Jo knows who did it and Jo's too dumb to open his mouth so he's going to take the rap." This statement was related by the psychiatrist to the court in chambers but was ruled inadmissible on the ground that it violated the hearsay rule. Tharp argues that the statement was admissible as a declaration against penal interest under Washington Rules of Evidence 804(b)(3). Aside from the fact that the Rules of Evidence were not in effect at the time of Tharp's trial, we fail to see how Catlin's statement tended to expose him to criminal liability, and we find no error in the trial court's ruling.
Admission of Motel Registration
The State presented, over defense objection, a motel registration slip allegedly filled out by Tharp when he checked into a Seattle motel on the night of the murder. The slip showed the name of the motel guest to be "Jay Elliot T." and indicated that he was driving a vehicle matching the
In a separate prosecution for theft of the Hanson vehicle and an adjudication that Tharp was a habitual criminal, this court held that the motel registration was hearsay and concluded that its admission into evidence was reversible error because it went to the very heart of the issue of whether Tharp possessed the automobile shortly after it was stolen.
State v. Tharp,
On the subject of harmless error, our Supreme Court has made these observations:
An accused cannot avail himself of error as a ground for reversal where the error has not been prejudicial to him. State v. White,72 Wn.2d 524 ,433 P.2d 682 (1967). Error cannot be regarded as harmful so as to require reversal unless, within reasonable probabilities, had the error not occurred, the result might have been materially more favorable to the one complaining of it. United States v. Walton,411 F.2d 283 (9th Cir. 1969). We do not believe the average juror would have found the prosecutor's case significantly less persuasive had the jury not been instructed on the statutory presumption of thedefendant's specific intent to kill. The error was harmless. Schneble v. Florida, 405 U.S. 427 ,31 L. Ed. 2d 340 ,92 S. Ct. 1056 (1972).
State v. Rogers,
Applying those principles here, we do not believe that the jury would have found the State's case significantly less persuasive had the motel registration not been introduced into evidence; and it cannot be said that, within reasonable probabilities, the result of the trial would have been materially more favorable to Tharp had his objection been sustained. We therefore conclude that the error was harmless.
Jury Instruction
Tharp assigns error to the giving of instruction No. 17 relating to the presumption of innocence:
A defendant is presumed innocent. This presumption continues throughout the entire trial unless you find it has been overcome by the evidence beyond a reasonable doubt.
(Italics ours.) Instruction No. 17, in part.
Tharp's argument is that the instruction states incorrectly that the presumption of innocence may be overcome at some point during the trial. To bolster his argument, he points out that in the judge's opening remarks to the jury panel, prior to voir dire by counsel, an instruction nearly identical to instruction No. 17 was given. Thus, Tharp argues, prior to hearing any evidence, the jury was told that the presumption of innocence could be overcome during the trial, thus effectively shifting the burden of proof to the defendant.
There is no dispute regarding the applicable principles of law. The prosecution must prove every element of the crime charged beyond a reasonable doubt.
In re Winship,
Instruction No. 17 in its entirety 1 made clear that the defendant's plea of not guilty put at issue every element of the crime charged and that the burden of proof rested on the State. In addition, when the judge initially addressed the jury panel prior to counsel's voir dire, he stated, "This presumption continues throughout the entire trial unless you find during the deliberations that it has been overcome by the evidence beyond a reasonable doubt." Moreover, instruction No. 3 stated in part,
In determining whether any proposition has been proved you should consider all of the evidence introduced by all parties bearing on the question.
(Italics ours.) Instruction No. 3 also told the jurors to consider the instructions as a whole. Instruction No. 5 regarding the elements of the crime stated,
[I]f, after weighing all of the evidence, you have a reasonable doubt as to anyone [sic] of these elements, then it will be your duty to return a verdict of not guilty.
(Italics ours.) Instruction No. 5 also made clear that each element of the crime charged had to be proved beyond a
[I]t is the duty of the jury to determine its verdict herein upon a consideration of all the evidence before them.
(Italics ours.)
Reading the instructions as a whole, it is clear that the jury was instructed to consider all of the evidence and make no determinations until all the evidence was received. We fail to see how the jury could have concluded that the presumption of innocence could be overcome prior to entering upon its deliberations. Moreover, the State's burden of proof was emphasized during the course of the instruction. Cf. Cupp v. Naughten, supra. Under these circumstances, there was no shifting of the burden of proof. 2
Our review of the record convinces us that Tharp had a fair trial, if not a perfect one. For the foregoing reasons, the judgment of the Superior Court is affirmed.
Callow, C.J., and Andersen, J., concur.
Reconsideration denied October 2, 1980.
Review granted by Supreme Court January 30, 1981.
Notes
"The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The plaintiff has the burden of proving each element of the crime beyond a reasonable doubt.
"A defendant is presumed innocent. This presumption continues throughout the entire trial unless you find it has been overcome by the evidence beyond a reasonable doubt.
"A reasonable doubt is one for which a reason can be given and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt." Instruction No. 17.
We are aware of the Wisconsin authority to the contrary,
Roen v. State,