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Washington v. Pleasant

August 22, 1978

THE STATE OF WASHINGTON, RESPONDENT,
v.
ANGELO DENNY PLEASANT, APPELLANT



McInturff, J. Munson, C.j., concurs. Green, J., concurs by separate opinion.

Author: Mcinturff

Angelo Denny Pleasant appeals convictions of first-degree murder and manslaughter in the shooting deaths of two Yakima teachers.

Mr. Pleasant, a stellar high school wrestler, was befriended by Glynn Moore, a teacher and coach at a Yakima high school who persuaded Mr. Pleasant to attend that school to participate in its wrestling program. Following a divorce from his wife, Dee Ann, Mr. Moore became depressed and obsessed with the idea of reuniting with his former wife. However, she was living with Morris Blankenbaker, another Yakima high school teacher, to whom she had been married for several years prior to her marriage with Mr. Moore.

Believing that Mr. Blankenbaker was the sole obstacle to regaining favor with his ex-wife, Mr. Moore allegedly asked Mr. Pleasant, who was then a college student in Ellensburg, to kill Mr. Blankenbaker to clear the path to Dee Ann. In November 1975 Mr. Blankenbaker was killed outside his home after returning from work as a bouncer at a local tavern. Mr. Pleasant admits being at the scene of the shooting but claims it was done by his brother, Anthony, who also was a friend of Mr. Moore.

In December 1975 Mr. Moore sought to allay suspicion that he had a part in the Blankenbaker slaying. He also

desired to gain the sympathy of Dee Ann. Therefore, he allegedly asked Mr. Pleasant to wound him with the same weapon involved in the Blankenbaker death. Again, Mr. Pleasant admits being at the scene but blames the death of Mr. Moore on a Larry Lovato.

Following his arrest and after having been fully advised of his rights, Mr. Pleasant confessed to both killings. Tape recordings of both statements were played to the jury. Mr. Pleasant later recanted his stories of both slayings, testifying his brother shot Mr. Blankenbaker and Mr. Lovato killed Mr. Moore. Mr. Pleasant was given polygraph examinations regarding the homicides on three occasions, and his brother was tested once.

Counsel attempted to admit the results of the polygraph examinations given to Mr. Pleasant and his brother. Two polygraph experts agreed that the first two tests given to Mr. Pleasant were inconclusive. On the third, the Yakima police polygrapher, Sgt. Richard Nesary who administered all of the tests in question, admitted that it was not one of the best tests he had run, but he opined that Mr. Pleasant was not being deceptive when he said his brother killed Mr. Blankenbaker. The other witness, Dr. Stanley Abrams, a nationally recognized polygraphy expert, said the same third examination "was leaning very slightly in the truthful direction but only slightly as far as I was concerned, only slightly." He considered the results inconclusive.

On the test given to Anthony Pleasant, Sgt. Nesary said he was being deceptive when he denied shooting (and shooting at) Mr. Blankenbaker. Dr. Abrams said the test "was certainly in the direction of deceptive. It wasn't as high as I would like it to be to be quite sure of it but it was certainly in that direction." He added that he would want to perform a test on Mr. Pleasant's brother or see one run on him before he could give a definite opinion.

Feeling bound by precedent, the court refused to admit the results of the examinations because the State and Mr.

Pleasant had not stipulated to their admissibility.*fn1 Nonetheless, the court allowed Mr. Pleasant's counsel to make a lengthy offer of proof concerning polygraphy generally and the tests given to the Pleasant brothers specifically.

Mr. Pleasant's co-counsel have presented 20 assignments of error, 17 of which are argued in the spirit of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and State v. Koehler, 73 Wash. 2d 145, 436 P.2d 773 (1968). In a pro se supplemental brief Mr. Pleasant raises six alleged errors.

The first question is whether the court erred in failing to sever the charges and grant separate trials on each slaying. Mr. Pleasant timely moved for severance pursuant to CrR 4.4*fn2 on the grounds joinder of both offenses would (1) require him to refute two sets of alibi witnesses (those of his brother and Mr. Lovato); (2) evidence of two killings

would double the passion engendered by evidence of a single slaying; and (3) joinder required him to limit his explanation of the relationship between himself and Mr. Moore in defending against the Moore shooting because if he showed the depth of his feelings for Mr. Moore, he would be helping the State to prove its theory that he killed Mr. Blankenbaker at Mr. Moore's request.

[1] The rules regarding joinder of offenses are set out in CrR 4.3 and RCW 10.37.060.*fn3 The question of granting separate trials lies within the sound discretion of the trial court and will not be reversed unless there is a manifest abuse of that discretion.*fn4 Joinder will be upheld unless prosecution of all the crimes in a single trial will embarrass or confound the defendant in presenting separate defenses

or the defendant will be erroneously prejudiced by cumulative evidence and hostility engendered by the totality of the evidence presented.*fn5 However, where evidence of one crime would be admissible to prove an element of the second, joinder of the two crimes cannot be said to be prejudicial where the other statutory criteria are met.*fn6 "The test is whether the questioned evidence tends to establish motive, intent, absence of accident or mistake, common scheme or plan, or identity or presence", State v. Kinsey, 7 Wash. App. 773, 778, 502 P.2d 470 (1972).

Since the offenses are of the same or similar character and connected together or constituting parts of a scheme or plan, they are amenable to joinder pursuant to the court rule and statute. The question then is whether trying both in a single trial was unduly prejudicial to Mr. Pleasant.

Evidence of both deaths tends to establish the scheme or plan undertaken by Mr. Moore to eliminate Mr. Blankenbaker and regain the favor of his ex-wife. Evidence of the Blankenbaker death tended to establish a motive for the slaying of Mr. Moore on the theory that Mr. Pleasant shot Mr. Moore to keep him from revealing information concerning his involvement in the Blankenbaker murder. Likewise, evidence of the Moore slaying tended to show the furtherance of his plan to regain favor with Dee Ann. In addition, both were killed by shots fired from the same weapon which was obtained by Mr. Pleasant shortly before each death from his cousin. Since evidence of both slayings would have been admissible in a separate trial for either, there was no error in their joinder.

The second issue is whether the court erred in denying Mr. Pleasant's motion to suppress the taped confessions.

He contends the statements were not voluntarily given because his will to resist and act freely and intelligently was overborne by actions of Yakima policemen. In particular Mr. Pleasant points to numerous contacts with officers prior to his arrest during which he was not advised of his Fifth Amendment rights. He argues that the steady extraction of information from him during those contacts with the police led to his arrest and formed the preliminary basis of his taped statements. He also suggests that the time between his arrest and his later statements was so excessive as to be considered overbearing. Finally, he contends he was induced to make those confessions by promises from two officers that they would escort him to prison if possible and that they would recommend he be allowed to continue his education in prison.

[2] This court recently said in State v. Riley, 17 Wash. App. 732, 735, 565 P.2d 105 (1977):

To be admissible, a confession must be voluntary; and the test is whether the officer's behavior overcame the defendant's will to resist and brought about an admission that was not freely self-determined. The probable truth or falsity of the confession is not to be considered. Whether a confession is free and voluntary is not determined by whether the officer's conduct is shocking or the confession is cruelly extorted, but whether it was extracted by any sort of threats, violence, or direct or implied promises, however slight. A confession that is the product of coercion, physical or psychological, is involuntary and not admissible.

(Citations omitted.)

We note first that none of the statements Mr. Pleasant allegedly made to the officers during their investigation -- other than the confessions -- were admitted against him at trial. Nor were they made under circumstances which could be considered custodial. In regard to the statements admitted at trial -- his taped confessions -- we have thoroughly examined the record of the suppression hearing and have listened to the tapes. Each confession was made after about 2 hours of questioning on successive mornings following Mr.

Pleasant's arrest. Each is preceded by warnings as to the full panoply of Fifth Amendment rights. There is nothing in the statements or in the record of the suppression hearing to suggest the statements made by Mr. Pleasant were anything but freely, intelligently and voluntarily given. In fact, during the hearing he denied the detectives had made promises to him.*fn7 Under those circumstances the court did not err in admitting the taped confessions.

Mr. Pleasant next assigns error to the court's failure to admit the results of the polygraph examinations given to him and his brother.

[3] In State v. Woo, 84 Wash. 2d 472, 475, 527 P.2d 271 (1974), the court said:

If we are to consider a departure from a virtually unanimous rule against the admissibility of polygraph examinations, absent stipulation, we must be furnished with a record ...


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