State v. WoodState v. Wood
- Reporters:
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- Before:
- Worswick
Yvonne Wood appeals convictions and sentences for murder in the first degree (
Wood‘s husband, Richard, a 26-year-old Army lieutenant, was shot and killed at his home early on the morning of May 21, 1987. Sheriffs deputies were summoned at 2:05 a.m. by Wood, who said that she and her husband awoke to “prowler noise.” According to Wood, her husband got up to investigate, she then heard “popping noises,” and when her husband failed to respond to her call, she telephoned 911.
The officers found Richard Wood lying face up on the floor of the bedroom, naked, with bullet holes in his chest and neck and no pulse. Blood spatters on the floor and bed had already dried. The medical examiner later confirmed five entrance and four exit gunshot wounds, and he opined that it would have taken 30 minutes to an hour for the victim to die from bleeding. Investigators found no signs of forced entry. No weapon was discovered at the scene, and tests done on hand swabbings from Wood revealed nothing to indicate that she had fired a weapon.
Wood was the beneficiary of two life insurance policies on the victim‘s life, the total value of which was around $150,000. Wood had once commented to her husband, as he worked on the roof of their home with a friend, “I wish you‘d fall off the roof and I can collect your life insurance money.” Testimony at trial also revealed that Wood had been involved with several other men about the time of the murder, including one Joseph Tigano, an Army Ranger. Robert Poli and Shane Kretsinger, fellow Army Rangers, testified that Tigano enlisted them to help in killing Richard. Tigano told them that he and Wood would get $150,000 insurance money on Richard‘s death, and payment for the killing would be $15,000. Kretsinger testified to a
On May 21, 1987, a few hours after Richard was killed, Tigano told Poli that Wood had left the back door unlocked for him and, “I got him five or six times. I unloaded my weapon into him.” Tigano told Poli about a “groan” or “gurgling sound” that the victim made when a bullet hit him in the neck. Tigano also told Poli that he threw the gun from the Narrows Bridge. Kretsinger testified that Tigano described the same events to him. Further, the man who had been on desk duty at the Ranger barracks the night of the killing testified that Tigano took a call from his “girlfriend” about 10:30 or 11 p.m., left and then returned sometime between 1:30 and 3 a.m., “distressed,” “flushed,” and “worried.”
Two more of Wood‘s paramours testified concerning her preoccupation with getting rid of her husband and pursuing other relationships. Matthew Gillen said that in the spring of 1987, he and Wood discussed possible ways of killing Richard Wood during telephone conversations from his post in the Pacific. John Gottfried testified that Wood had introduced herself to him in early 1987 as a general‘s daughter, that they had an affair, and that about 10 days after Richard was killed, he and Wood traveled to Missouri together so she could meet his family.
About 3 weeks after the murder, Tigano and Wood moved into a house in Spanaway together. According to Gottfried, Wood showed no remorse at the death of her husband. Kretsinger said that Wood often showed just the opposite, taunting Tigano with his sensitivity to the sound Wood made as he died, saying, “Hey, Joe. Gurgle, gurgle.”
Tigano and Wood were both charged with aggravated first degree murder and conspiracy to commit murder in
The jury acquitted Wood of aggravated first degree murder but convicted her of the lesser included offense of first degree murder and also of conspiracy to commit first degree murder. The court imposed an exceptional sentence.
Wood first asserts that the trial court erred in admitting Joseph Tigano‘s out-of-court statements to witnesses Kretsinger and Poli. She concedes that the statements met the requirements for admissibility under state law. See State v. St. Pierre, 111 Wn.2d 105, 759 P.2d 383 (1988); State v. Anderson, 107 Wn.2d 745, 733 P.2d 517 (1987); State v. Edmondson, 43 Wn. App. 443, 717 P.2d 784, review denied, 106 Wn.2d 1016 (1986). She contends, however, that Coy v. Iowa, 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988), a more recent decision, bars such out-of-court statements for failure literally to comply with the face-to-face confrontation required by the Sixth Amendment. She is mistaken.
In
Coy,
the United States Supreme Court held that a statute permitting a screen to be erected between a defendant and a child sex-abuse witness violated the defendant‘s confrontation clause protections. The Court referred to “the irreducible literal meaning of the [confrontation] Clause: ‘a right to
meet face to face
all those who appear and give evidence
at trial.“’
(Citations omitted).
Coy,
at 1021. The Court, however, distinguished this narrow literal right from rights that are “reasonably implicit” in the clause, such as the “right to exclude out-of-court statements“,
Coy,
at 1020, stating that it will not make exceptions to the
literal
right but does recognize exceptions to the
implied
rights if the exceptions are “firmly . . . rooted in our jurisprudence.”
Coy,
at 1021 (citing
Bourjaily v. United States,
483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct.
We also find no error in the trial court‘s refusal to order a psychiatric evaluation of Robert Poli to determine whether prior drug use affected his competency to testify. Witness competency is to be determined by the trial court within the framework of
Here, the trial court entertained a lengthy voir dire on Poli‘s prior drug use. Then, by hearing all of Poli‘s testimony, the court had ample opportunity to observe Poli‘s perception, recall, demeanor, and ability to communicate. The court also permitted an offer of proof by the defense expert concerning possible effects of drug use such as Poli‘s.
Finally, Wood challenges her exceptional sentence. 3 The trial court imposed concurrent terms of 552 months for the murder conviction and 480 months for the conspiracy conviction. The standard range for first degree murder is 240 to 320 months, and for the conspiracy conviction, 120 to 240 months.
Wood‘s first contention, that her federal and state constitutional due process guaranties were violated because she had no notice that the State would support an exceptional sentence, is quickly dispatched. No such notice is required. State v. Falling, 50 Wn. App. 47, 50, 747 P.2d 1119 (1987). See also D. Boerner, Sentencing in Washington § 9.19, at 9-58 (1985).
Wood also challenges the court‘s findings and conclusions supporting the exceptional sentences. She contends, essentially, that the facts were disputed, constituted elements of the crimes charged, or were unsupported by the record. We disagree. The findings are supported by the record, they, in turn, support the conclusions, and the conclusions support the sentences.
The court may impose a sentence outside the standard range for the offense if, considering the purpose of the sentencing reform act, there are substantial and compelling reasons justifying an exceptional sentence.
Appellate review of an exceptional sentence is governed by
To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
The sufficiency of the evidence, the sufficiency of the reasons, and the excessiveness or leniency of the exceptional sentence are measured by the clearly erroneous, matter of law, and abuse of discretion standards, respectively. State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987); State v. Creekmore, 55 Wn. App. 852, 860, 783 P.2d 1068 (1989), review denied, 114 Wn.2d 1020 (1990).
Here, the trial court expressed the following reasons for the exceptional sentence in its conclusions of law: (1) Wood‘s total indifference and lack of remorse at the death of her husband as expressed by her traveling to Missouri with Gottfried just 1 week after the murder and her establishing a residence with Tigano just three weeks after the murder; (2) her sophistication and planning as evidenced by the fact that she discussed plans to kill her husband over a long period of time (about a year), and that she discussed the plans with several people other than Tigano; (3) future dangerousness because of her ability to manipulate people. 4
Lack of remorse has been recognized as an aggravating circumstance justifying an exceptional sentence. Creekmore, 55 Wn. App. at 860-62; State v. Ratliff, 46 Wn. App. 466, 470, 731 P.2d 1114 (1987). We associate ourselves in general with the courts that have so held, but we do not believe that the mundane lack of remorse found in run-of-the-mill criminals is sufficient to aggravate an offense. Therefore, we add the qualification that lack of remorse, to be an aggravating circumstance, must be of an aggravated or egregious character. Whether this quality is present in a given case will depend on the facts; it certainly was present here, as it was, for example, in Creekmore.
Wood contends that her lack of remorse was disputed by testimony on her behalf at the sentencing hearing, so the court was precluded by
Sophistication justifies an exceptional sentence only if it is “of a kind not usually associated with the commission of the offense[s] in question.” Dunaway, 109 Wn.2d at 219. The degree to which Wood maneuvered and manipulated to convince others to commit crimes on her behalf shows a level of sophistication beyond that necessary to the offense; it also supports the exceptional sentence.
Future dangerousness is recognized as an aggravating circumstance justifying an exceptional sentence.
State v. Edwards,
53 Wn. App. 907, 914, 771 P.2d 755,
review denied,
113 Wn.2d 1002 (1989). Generally, however, the factor is considered when the defendant has a long history of similar conduct and shows no amenability to treatment.
See State v. Shephard,
53 Wn. App. 194, 200-02, 776 P.2d
Affirmed.
Alexander, C.J., and Faris, J. Pro Tern., concur.
Review denied at 115 Wn.2d 1015 (1990).
Notes
“(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
“(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.”
CrR 6.12(c) states in part: “Persons Incompetent to Testify. ... (1) Those who are of unsound mind, or intoxicated at the time of their production for examination;”
We have considered other issues raised by Wood concerning Poli‘s testimony and find them without merit.
Wood does not claim that the sentence is clearly excessive, and we do not consider that possibility. See State v. Nordby, 106 Wn.2d 514, 517, 723 P.2d 1117 (1986).
This “future dangerousness” reason is a finding of fact that is erroneously denominated a conclusion of law. Conclusion of law 6 reads: “The defendant poses a danger to society because of her manipulation of many people, and if released to society with her current mental state, she would be a menace to society.” A finding erroneously labeled a conclusion of law is reviewed as a finding of fact. Willener v. Sweeting, 107 Wn.2d 388, 730 P.2d 45 (1986).
The presentence report notes that the defense had a psychological evaluation done but that the report was not presented to the investigating officer for the purpose of the report.