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Washington v. Cunningham

July 26, 1979

THE STATE OF WASHINGTON, RESPONDENT,
v.
EDWARD LEON CUNNINGHAM, ET AL, APPELLANTS



Roe, J. Munson and McInturff, JJ., concur.

Author: Roe

On September 19, 1976, 3-year-old David Weilbacher was found dead in the back bedroom of the Cunningham home in Yakima, Washington. Until his death, David lived with his mother Debbie Weilbacher, Leon Cunningham and his wife Velma, their daughter Carolyn Cunningham, and a family friend, Lorraine Ann Edwards. In April 1976, Leon, a self-ordained minister and head of the communal household, suspected that David was possessed by the devil. Relying on a biblical aphorism, "You may beat the child and he will not die,"*fn1 the household frequently included a spanking ritual in its daily religious services to rid David of his evil spirit. Wooden boards were sanded and then used to spank David as he was passed from person to person in the room. In addition, Leon and Debbie would "humble" David by repeatedly pushing him down on the floor. There was evidence that on the day he died, David was thrown to the floor. The exorcistic efforts apparently failed: David died on July 22, 1976,

and he was placed in a back bedroom in the belief that God would resurrect him. Velma Cunningham went to the authorities 2 months later. A search warrant was obtained on the basis of her report; a search of the Cunningham residence revealed David's body.

Debbie Weilbacher, Leon, Velma, Carolyn Cunningham, and Lorraine Ann Edwards (hereinafter "defendants"), were arrested and charged with first-degree manslaughter and second-degree assault (by amended information). Following a lengthy trial, the jury found all defendants guilty of second-degree assault. Debbie, Leon, and Carolyn were convicted of first-degree manslaughter; Velma and Lorraine Edwards were convicted of second-degree manslaughter. Judgment and sentences were entered accordingly. Each defendant was sent to prison to serve consecutive terms.

A number of issues are raised on appeal,*fn2 which are discussed seriatim.

Counsel

At the arraignment, defendants were fully and adequately informed of their right to appointed counsel. Each declined representation. At a subsequent hearing on bail, Velma Cunningham accepted Wiley G. Hurst as appointed counsel, but the other defendants insisted on conducting the defense pro sese. The trial court appointed a legal adviser from the Yakima County public defender's office to "stand by" in the event defendants reconsidered.

At the omnibus hearing, defendants informed the court that they wanted the legal adviser, Wade Gano, to represent the remaining four of them at trial. Voicing its concern over the prospect of joint representation, the court stated:

Now, you have this problem: I expect that it will not be possible for one lawyer to represent all of you, because I expect that there will arise a claim of a conflict of interest among the four of you. Now, that -- Lori [Lorraine Edwards] is shaking her head. I'll give you the opportunity, I won't force four lawyers on you, but I will give you the opportunity to discuss that with Mr. Gano, who has

indicated to me his willingness to serve. However, I see the possibility that a conflict may arise so that one attorney cannot represent all of you. That would be in a situation in which I could not force an attorney to compromise his obligation. Do you understand that? I will give you the opportunity to talk to Mr. Gano. I will appoint an attorney for you.

After consulting with Mr. Gano, defendants were adamant about joint representation. The following colloquy took place:

Defendant Carolyn Cunningham: We only agreed to take an attorney if we could have the same attorney represent all four of us, or we don't want one at all.

Defendant Leon Cunningham: Or that we could have a part of the planning, I mean of the defense ourselves with the attorney. Or otherwise, I don't want a [ sic ] attorney at all.

The Court: Mr. Hurst?

Mr. Hurst: May it please the court, I have read these statements and I really, sincerely believe that there is a different defense for different people in here, and I think that at least each one of these persons should be advised individually, from reading the statements what those defenses are from an independent attorney. I don't know whether they want an attorney to do that or not, or whether they want to go into trial totally ignorant of the fact that they might have a legal defense, but from reading the statements there is a definite difference for at least three different individuals here.

The Court: Thank you.

Mr. Gano: Your Honor?

The Court: Mr. Gano?

Mr. Gano: After this weekend I also read the statements, and I have to concur with Mr. Hurst's assessment of the case. There is a defense for each one of these individuals and physical facts relating to it. Although they may have the same philosophy in connection with this matter, the physical facts dictate differing defenses.

The Court: What these attorneys have told us -- Mr. Hurst representing Velma Cunningham, and Mr. Gano being the one that I appointed to advise you, if you requested advice -- is that as attorneys they are able to see that you may have defenses against the State's

charges against you which an attorney would be able to present because he is able to recognize them, being schooled in the law; whereas, you, conducting your own defense, would not. It may be that the possibility exists, for example, that you be tried separately. Each of you will be sitting here alone facing the jury by yourself.

The obligation on the Prosecutor and the court continues to be as I told you before, that your trial be conducted within the standards of constitutional and moral fairness, and it will be. That does not mean that either the Prosecutor or the court can represent you. You must make a decision whether you wish to be represented, and if you do the court will see to it that you can be represented by competent counsel of the court's selection at public cost. You have that constitutional right. You have the constitutional right to represent yourself. To be not represented.

You can't have it both ways, and the burden that you put upon us by asking us to appoint one lawyer to represent all of you, or to dictate the method in which your defense will be presented, makes it impossible for us to anticipate that there will be an orderly trial. You put burdens upon us, because we are obligated to try you within a limited period of time; because if you change your minds later, it makes it necessary that counsel who might be appointed to represent you will need time to become acquainted with the case. It is possible it would even go so far as to require a mistrial, and to start over. The State is not required to do that for you. My advice to you remains the same as it was the first day you were here, that you should each have an attorney --

Ultimately, the four defendants chose to waive counsel. The court appointed a legal adviser for each one of them: the advisers were thereafter present at every stage of the proceedings, ably assisting the defendants both in and out of court within the limits of their advisorial capacity.

Defendants now contend that they were denied the effective assistance of counsel. They maintain that the decision to proceed pro sese was not voluntary, but "forced upon them by the trial judge who imposed improper conditions" on their right to counsel. For the following reasons, we

reject defendants' argument and find that no constitutional violation occurred.

[1] The right to effective assistance of counsel is a fundamental one, guaranteed by the Sixth Amendment. State v. Myers, 86 Wash. 2d 419, 545 P.2d 538 (1976). The State correctly argues, however, that the right is not absolute. Although the trial court has the primary duty to protect the accused's right to counsel, it has the correlative duty to ensure the justice that inheres in orderly judicial proceedings. A defendant does not have unbridled freedom to dictate the terms of his representation; an indigent is given no absolute right to a particular counsel. Reiff v. United States, 299 F.2d 366 (9th Cir. 1962). See also Annot., Indigent Accused's Right to Choose Particular Counsel Appointed to Assist Him, 66 A.L.R.3d 996 (1975), and cases discussed therein.

The choice of appointed counsel wisely rests with the trial court, as the accused is frequently ill equipped to appraise either the competence of an attorney or the merits of his case. Granting a defendant the absolute right to appointed counsel of his choice may promote disruptive and dilatory tactics. This case clearly illustrates these principles.

[2] The court realized that the trial would be both lengthy and difficult. The complexities involved in joint representation would only have served to complicate and prolong the proceedings. Defendants, unschooled in the law, were oblivious to possible differing defenses amongst them. The trial court had no duty to accede to their request for a particular appointed attorney. The demand for joint representation exceeded the scope of the constitutional guaranty. Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), does not help defendants: that case merely decided that there is a constitutional right to proceed pro se.

There is an additional, and more important, reason why the defendants' argument must fail. Defendants do not challenge the competence of their legal advisers; rather,

they claim that their right to counsel was infringed because they were denied joint representation.

A criminal defendant is denied the effective assistance of counsel in violation of the Sixth Amendment when his attorney is required to represent a codefendant whose interests conflict. State v. Alexis, 21 Wash. App. 161, 584 P.2d 963 (1978). In the knowledge that the defendants had possible conflicting interests and differing defenses, the trial court could not constitutionally have allowed the joint representation. Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), supports this view. There, codefendants at trial made timely motions for appointment of separate counsel based on their attorney's advice that he risked representing conflicting interests. The trial court denied the motion and rejected counsel's claim that he could not adequately cross-examine the defendants if all of them decided to testify. The Supreme Court acknowledged that joint representation is not a per se violation of the Sixth Amendment. If, however, conflicting interests are involved, then requiring or permitting one attorney to represent codefendants denies them effective assistance of counsel. In such a case, joint representation offends the constitution, because

the evil -- it bears repeating -- is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.

Holloway v. Arkansas, supra at 490.

Counsel may be precluded from challenging evidence favorable to one client but prejudicial to another, or presenting a closing argument that emphasizes the culpability of one defendant to the benefit of the other.

Of particular pertinence are the following remarks from Judge Lombard's concurring opinion in United States v. Carrigan, 543 F.2d 1053, 1058 (2d Cir. 1976):

It would be a rare defendant who could intelligently decide whether his interests will be properly served by counsel who also represents another defendant. However

parallel his interests may seem to be with those of a codefendant the course of events in the prosecution of the case, the taking of a guilty plea, or the conduct of the trial may radically change the situation so as to impair the ability of counsel to represent the defendant most effectively. Even defense counsel, who all too frequently are not adequately informed regarding the evidence available against their clients, may not be in a position to judge whether a conflict of interest between their clients may develop.

It follows that there will be cases where the court should require separate counsel to represent certain defendants despite the expressed wishes of such defendants. Indeed, failure of the trial court to require separate representation may, in cases such as this, require a new trial, even though the defendants have expressed a desire to continue with the same counsel. The right to effective representation by counsel whose loyalty is undivided is so paramount in the proper administration of criminal justice that it must in some cases take precedence over all other considerations, including the expressed preference of the defendants concerned and their attorney.

Both the prosecutor and the trial judge repeatedly and meticulously advised the defendants of their constitutional rights. When informed that their insistence on joint representation would be deemed a waiver of counsel, the defendants elected to conduct their own defense. We find, as did the trial court, that the defendants made a voluntary and intelligent waiver of the right to counsel and an intelligent and informed decision to proceed pro sese with the aid of legal advisers.

Immunity to Tina

[3] Concetta Marie Cunningham (Tina), the daughter-in-law of Leon and Velma Cunningham, lived with the defendants in Yakima from January 1976 to approximately June of that year. Pursuant to CrR 6.14,*fn3 Tina was given

prosecutorial immunity in exchange for her testimony concerning the defendants' participation in the spanking rituals. Although conceding that the State's practice of granting immunity is "related to the ends of criminal justice," the defendants contend that Tina's immunity order violated the Fourteenth Amendment and denied them "equal enforcement of the laws." Defendants' argument is foreclosed by State v. Rhinehart, 70 Wash. 2d 649, 424 P.2d 906 (1967). Although that case involved selective enforcement of sodomy laws, and not immunity under CrR 6.14, we find the rationale controlling:

[G]uilt or innocence cannot be made to depend on the question of whether other parties have or have not been prosecuted for similar acts. The failure of the state to prosecute others for the same or similar offenses is not a denial of due process or equal protection.

State v. Rhinehart, supra at 654. The prosecutor may elect whether or not to prosecute. State v. Kanistanaux, 68 Wash. 2d 652, 414 P.2d 784 (1966).

The State's practice of granting immunity to one allegedly involved in a criminal act has been both hailed and assailed; however, it can be a necessary tactic of the prosecutor to elicit essential facts in aid of the truth. Better that some of the guilty are prosecuted than all go free. In State v. Johnson, 77 Wash. 2d 423, 437, 462 P.2d 933 (1969), the Supreme Court summed up the grim practicalities:

One of the sordid facts of life is that the most cogent proof of guilt frequently derives from an evil source. Criminals seem to know more about crimes than good people, and the state must get its evidence where it finds it.

There was no error in granting immunity to Tina Cunningham.

Unsequestered Jury

The Cunningham trial was the subject of massive publicity. The intensity of the media coverage peaked after a jury was chosen and the trial began. The Yakima Herald Republic followed the case closely on a daily basis: detailed accounts of the trial, complete with pictures of the defendants, frequently appeared on the front page. Local and regional television stations*fn4 jockeyed for prime positions in the courtroom to facilitate live broadcasts of the trial proceedings. At the omnibus hearing, defendants first moved to sequester the jury. The prosecution joined with the defendants' later motion to sequester when, during trial, the local paper indicated its intent to publish a baby picture of David Weilbacher. Although denying these motions because there was no affirmative showing of prejudice, the trial court did poll the jurors individually to determine whether any had been exposed to publicity. One juror admitted having watched television, but not the news; another juror stated she had seen pictures on the front page of a paper in the courthouse newsstand. Both denied that they had been influenced or that the publicity would affect their verdict. The jury was allowed to separate until the case was submitted to it after the close of all the evidence.

Until 1973, RCW 10.49.110 governed the issue of jury sequestration, providing:

Juries in criminal cases shall not be allowed to separate, except by consent of the defendant and the prosecuting attorney, but shall be kept together, without meat or drink, unless otherwise ordered by the court, to be furnished at the expense of the county.

Separation of the jury required consent of both parties. State ex rel. Superior Court v. Sperry, 79 Wash. 2d 69, 483 P.2d 608 (1971). That statute was superseded by CrR 6.7 which deletes the consent requirement and posits responsibility on the trial court:

The jury may be allowed to separate if the court finds that good reason exists to believe that such would not jeopardize a fair trial. Any motions or proceedings concerning the separation of the jury shall be made out of the presence of the jury. [Amended September 20, 1976.]

[4] The rule does not incorporate any standards to guide the trial court in its decision. The same considerations weighed in ruling on a motion for change of venue provide ample guidelines for a trial court in determining whether sequestration of the jury is mandated in a particular case.

Common criteria or factors generally utilized by courts in determining the propriety of an order granting or denying a motion for change of venue based on alleged prejudicial pretrial publicity are: (1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.

State v. Crudup, 11 Wash. App. 583, 587, 524 P.2d 479 (1974). When, as occurred in this case, publicity intensifies after trial begins, the effect of pretrial publicity on prospective jurors (Nos. 4 and 6 above) is not the major factor to be considered. Rather, the court should concentrate on the nature of the publicity, its scope in both quantity and geographical dissemination, and the sensational aspects of the case.

[5] Relying on State v. Pepoon, 62 Wash. 635, 114 P. 449 (1911), the State argues that jurors are presumed to follow the court's instructions and admonitions, and that the presumption is defeated only by the defendant's proof of actual prejudice. This presumption has dubious validity

in notorious cases such as this. Keeping the jury together during trial serves not only to avoid the jury's deliberate violation of the court's instructions, but to guard against the risk that the jury will be inadvertently exposed to prejudicial publicity.

When prejudicial publicity during trial is massive and so timed as to present a high probability that the jury will encounter it, a presumption arises that actual prejudice has occurred.

State v. Trickel, 16 Wash. App. 18, 29-30, 553 P.2d 139 (1976). We therefore reject the State's contention that the defendant must prove actual prejudice. Adopting the standard applied in cases concerning a motion for change of venue, we hold that when the circumstances involve a probability of prejudice to the defendant, the trial court should order sequestration. State v. Stiltner, 80 Wash. 2d 47, 491 P.2d 1043 (1971); State v. Bonner, 21 Wash. App. 783, 587 P.2d 580 (1978).

It is unnecessary to decide whether the trial judge abused his discretion in allowing the jury to separate. The convictions must be reversed on other grounds and that error, if any, is unlikely to recur on retrial.

Denial of Continuances

[6] The State filed the manslaughter charges on September 21, 1976, and the trial was scheduled to commence on November 8. On November 1, the State filed an amended information adding a charge of second-degree assault, alleging that all defendants

did knowingly assault David Weilbacher, a human being, with an instrument or thing likely to produce bodily harm;

Defendants unsuccessfully moved to separate the two counts for trial, claiming surprise and inadequate preparation to defend the assault charge.

CrR 2.1(d) provides that:

The court may permit any information to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.

When the information is amended, the defense must prove specific prejudice, an essential element of reversible error. State v. Aleshire, 89 Wash. 2d 67, 568 P.2d 799 (1977). Here, the charges were related: both were based upon allegations that defendants repeatedly abused David Weilbacher. The assault charge required no new evidence by the State; hence, it could not constitute surprise to the defendants. We do not find that defendants were prejudiced by the amendment of the information 1 week before trial or that the trial court abused its discretion in denying the motion for severance.

Prosecutorial Misconduct in Opening Statement and Closing Argument

Defendants allege prosecutorial misconduct in the opening and closing remarks to the jury, such as labeling the spankings as strikings, whippings, beatings, etc.

[7] Although we agree that argument, inflammatory remarks, and the injection of the prosecutor's personal opinion of the case have no place in the opening statement, State v. Kroll, 87 Wash. 2d 829, 558 P.2d 173 (1976), we have reviewed the record and find no prejudicial error. The relevant inquiry is whether the remarks

when viewed against the backdrop of all the evidence, so taint[ed] the entire proceedings that the accused did not have a fair trial?

State v. Kraus, 21 Wash. App. 388, 391, 584 P.2d 946 (1978), quoting from State v. Nettleton, 65 Wash. 2d 878, 880, 400 P.2d 301 (1965).

It is unnecessary to discuss at length the various assignments of error concerning the State's closing argument. Although the defendants contend that both the closing and rebuttal arguments were replete with inflammatory and prejudicial remarks, only two objections were interposed.

Unless the misconduct of counsel in his opening statement is so flagrant, persistent and ill-intentioned, or the wrong inflicted thereby so obvious, and the prejudice

resulting therefrom so marked and enduring, that corrective instructions or admonitions clearly could not neutralize their effect, any objection to such misconduct of counsel or error in the opening statement is waived by failure to make adequate timely objection and request for a corrective instruction or admonition. Nelson v. Martinson, 52 Wash. 2d 684, 328 P.2d 703 (1958); Jones v. Hogan, 56 Wash. 2d 23, 351 P.2d 153 (1960).

State v. Morris, 70 Wash. 2d 27, 33, 422 P.2d 27 (1966).

[8] The two objections raised by the defendants were overruled. Both the existence and the prejudicial effect of improper argument are matters most effectively assessed by the trial judge. His judgment will not be disturbed on appeal in the absence of an abuse of discretion. State v. Jefferson, 11 Wash. App. 566, 524 P.2d 248 (1974). We find none.

Taped Statements

RCW 9.73.030(2)*fn5 prohibits recording a private conversation without the consent of all participants. RCW 9.73.050*fn6 generally renders any information acquired in violation of RCW 9.73.030 inadmissible.

RCW 9.73.090 creates an exception to 9.73.030, and provides in pertinent part:

The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:

(2) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following :

(a) the arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording,

(b) the recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof,

(c) at the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording,

(d) the recordings shall only be used for valid police or court activities.

(Italics ours.) A taped statement was taken from each defendant by Sergeant Langdale, a detective in the Yakima County sheriff's office. At trial, the tapes of Leon, Velma, and Carolyn Cunningham were played for the jury which was given transcripts prepared by the prosecutor's office as a listening aid. Although defendant Edwards' tape was not played at trial, Sergeant Langdale testified to its contents and his conversation with her.

Defendants repeatedly object to the admission of these tapes, arguing that the requirements of RCW 9.73.090(2) had not been met: (1) an indication of the starting time, RCW 9.73.090(2)(b), and (2) a full statement of constitutional rights, RCW 9.73.090(2)(c), were omitted from each tape. The trial court overruled the objections, finding in the first instance ...


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