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Washington v. Hoffman

January 10, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
PATRICK GENE HOFFMAN, ET AL, APPELLANTS



En Banc. Andersen, J. Callow, C.j., Brachtenbach, Dolliver, Durham, and Smith, JJ., and Pearson, J. Pro Tem., concur. Dore and Utter, JJ., dissent by separate opinions; Guy, J., did not participate in the disposition of this case.

Author: Andersen

Facts of Case

Patrick Gene Hoffman and his father, Elmer Edward McGinnis seek reversals of their convictions for aggravated murder in the first degree and assault in the first degree. The convictions were based on charges filed after the August 27, 1986, shooting death of tribal police officer Louis Millard and wounding of tribal police officer John Dick.

In appealing to the Court of Appeals, defendants raised multiple issues including a challenge to the jurisdiction of the State of Washington to bring this prosecution. The shootings occurred near Nespelem, Washington, within the boundaries of the Colville Indian Reservation. Defendants Hoffman and McGinnis were both members of the Colville Confederated Tribe as was John Dick, one of the tribal officers shot. Louis Millard, the tribal police officer who was shot and killed, was of Colville Indian descent but was not an enrolled member of the tribe.

The Court of Appeals certified the case to this court because of the jurisdictional issue. We accepted review of the case in its entirety. Having now carefully reviewed the voluminous (almost 6,000-page) record and extensive appellate briefs, we conclude that the trial court did have jurisdiction and that the defendants were fairly tried, convicted and sentenced under the law. Accordingly, we affirm the convictions of both defendants.

The facts which the jury was reasonably entitled to believe from the evidence admitted at the trial of this case are set out in some detail in connection with our subsequent discussion of the challenges to the sufficiency of the evidence. Such facts in broader outline, however, are as follows.

On August 25, 1986, 2 days before the shooting, several tribal police officers arrested McGinnis at the Tribal Council headquarters pursuant to an outstanding arrest warrant which had been issued by the chief judge of the Tribal Court. The arrest warrant was issued on a trespass-lands charge. It was issued after a Mr. Ferguson had complained to the prosecutor that McGinnis had trespassed on his land several times and had threatened and intimidated Mr. Ferguson, his wife, and his daughter. The Tribal Court had originally mailed a criminal summons to McGinnis on the trespass charge but it was returned unopened with his refusal marked thereon. The warrant for his arrest then issued from the Tribal Court based upon the trespass-lands criminal charge and on the judge's determination that McGinnis was an immediate threat to the community.

McGinnis physically resisted the arrest and assaulted tribal police officers and the ambulance attendants who were called after McGinnis complained of chest pains. McGinnis was taken to the Tribal Health Clinic and the Coulee Community Health Facility and finally to the Okanogan County Jail where he was booked on the Tribal Court trespass-lands warrant and placed on a tribal police hold for resisting arrest and assaulting the tribal police officers and ambulance crew. McGinnis continued to complain of pain and, therefore, was ultimately taken to the Mid-Valley Hospital.

The tribal police decided not to post a guard, apparently because of a personnel shortage and because McGinnis was attached to a heart monitor which would sound an alarm if disconnected. The hospital's alarm to the sheriff's office was tested by the officers and the hospital staff was instructed to notify the police when McGinnis was to be medically discharged. The tribal prosecutor informed McGinnis' attorney and his daughters that McGinnis was still under arrest and gave McGinnis' children permission to visit their father in the hospital.

McGinnis was unexpectedly discharged on August 26, the evening before the shooting. When one of the nurses realized that he was on a tribal police hold, she attempted to detain him and told him to wait or the police would come after him. However, McGinnis, in the company of his son (the defendant Patrick Gene Hoffman) and his four daughters, drove away from the hospital.

The automobile driven by Hoffman, in which McGinnis and the four daughters were passengers, was observed by a tribal police officer who gave chase in a police vehicle. The officer testified that although he accelerated to 75 or 80 m.p.h., he was unable to overtake the vehicle he was pursuing. He testified that his emergency red and blue rotating lights were on and that he came within 100 yards of the vehicle Hoffman was driving but that it eluded him. Hoffman later admitted to knowing that a police car was following him and that he accelerated to get away from it.

After eluding the police, McGinnis and Hoffman set out to walk the 6 to 8 miles through the mountainous terrain to McGinnis' home. McGinnis stated he did not want his daughters to be in the line of fire, and that he would rather die than go back to jail. Hoffman removed a gym bag from the trunk of the car which contained a loaded .45 caliber semiautomatic pistol with 40 rounds of ammunition, a holster and holster belt for the .45 pistol, a loaded .22 caliber revolver, an Interdynamics KG 99 9 mm. semiautomatic pistol with two magazines of ammunition, at least one and possibly two Olin flare guns with flare rounds, a knife, a can of mace and a set of nunchucka sticks. Hoffman testified that it was his habit to carry these weapons at all times.

Upon arriving at the McGinnis' residence, McGinnis and Hoffman hid behind a chicken coop and armed themselves with the guns from Hoffman's gym bag. The police had earlier placed an officer on surveillance of the McGinnis property. An officer also testified that the police believed McGinnis kept a large arsenal of weapons in his house and that they were concerned that McGinnis might return home, acquire weapons and harm Mr. Ferguson and his

family, the complainants on the trespass charge, or the officers who had arrested him at tribal headquarters. At approximately 1:30 a.m. on August 27, shortly before the shooting, the officer watching the property observed two individuals whom he could not identify. Pursuant to his orders, the officer on surveillance radioed the police dispatcher for assistance. Five marked police cars and a rescue truck arrived at the scene within a short time. The officers used their patrol car headlights and spotlights and the searchlights on the rescue truck to illuminate and search the property. The floodlights panned the property for approximately 15 minutes before being extinguished.

The officers searched two abandoned buildings and other areas surrounding the property while the police vehicle lights remained on. Officers Dick and Millard crossed a fence surrounding the McGinnis property and approached the chicken coop. By this time the lights had been extinguished so as not to back light the officers, but Officers Millard and Dick each carried large mag police flashlights. Officer Dick testified that both officers were talking and joking as they climbed the fence. He also testified that their service revolvers were holstered as they climbed the fence and approached the chicken coop. Officer Dick testified that he shined his light behind the coop, turned to walk away and was shot in the back. Gunfire continued after Officer Dick fell wounded. Both Officers Dick and Millard returned the fire. The other officers at the scene testified that they did not fire their weapons. Officer Dick heard Officer Millard moaning and realized he had been shot. As Officer Dick crawled over and attempted to drag Officer Millard to cover, illuminating flares coordinated with gunfire continued to come from behind the chicken coop.

An autopsy confirmed that Officer Millard had been struck by a 9 mm. bullet in the upper chest; death ensued within about 15 minutes. The bullet which struck Officer Dick passed through his body and was never definitely identified. At trial Hoffman admitted to firing the .22 caliber revolver, the .45 pistol and a flare gun from his position

behind the chicken coop. Two ejected 9 mm. cartridges were found behind the chicken coop near the .22 revolver and a flare gun.

McGinnis was discovered by police early the next morning near the scene of the shooting. He had been shot with a bullet which was later identified as consistent with Officer Dick's police revolver and ammunition. Hoffman escaped, to appear 2 days later at the home of one Jeff Epperson in Keller, Washington. Hoffman told Epperson that McGinnis had fired the 9 mm. gun. Epperson testified at trial that when told that an officer had been killed, Hoffman replied "good deal".

Both defendants were originally charged by federal authorities with violations of 18 U.S.C. § 1111 (first degree murder) and 18 U.S.C. § 1114 (attempted murder of a federal officer). Those charges were later dismissed without prejudice and defendants were charged in the Superior Court of the State of Washington for Okanogan County with the crimes of aggravated murder in the first degree and assault in the first degree. Defense motions for dismissal for lack of jurisdiction, change of venue, severance, the appointment of an expert witness on police procedures and for the psychiatric examination of Officer Dick were denied by the trial court.

Following a jury trial, both defendants were found guilty of aggravated murder in the first degree for the killing of a police officer and assault in the first degree, as charged. As provided by the law of this state in such cases, defendants were sentenced to life imprisonment without the possibility of parole.

The defendant Hoffman has appealed setting forth 14 assignments of error. The defendant McGinnis has also appealed arguing 19 assignments of error, most of which are similar to or substantially identical with the defendant Hoffman's arguments. We have identified the following 20 separate issues relevant to the defendants' arguments.

Issues

Issue One. Did the State of Washington have jurisdiction to prosecute the defendants for crimes alleged to have been committed on the Colville Indian Reservation?

Issue Two. Did the trial court abuse its discretion in denying defendants' motions for a change of venue?

Issue Three. Did the trial court err in denying the defendants' motions for separate trials?

Issue Four. Were defendants' rights to a speedy trial violated?

Issue Five. Did the dismissal of the federal charges and the initiation of state criminal proceedings violate the defendants' equal protection rights?

Issue Six. Have the defendants shown they were prejudiced by the failure of the prosecution to disclose evidence?

Issue Seven. Was sufficient evidence presented from which the jury could find premeditation and intent to kill, as it did?

Issue Eight. Was sufficient evidence presented from which the jury could infer, as it did, the presence of a statutory aggravating circumstance in order to enhance murder in the first degree to aggravated murder in the first degree?

Issue Nine. Did the trial court err in admitting photographs of Officer Millard taken at the scene of the shooting after his death?

Issue Ten. Did the trial court abuse its discretion in denying defendants' motions to appoint a psychiatrist to examine Officer Dick?

Issue Eleven. Did the trial court err in refusing to appoint a defense expert witness on police procedures and techniques?

Issue Twelve. Did the trial court err in admitting testimony regarding guns owned by the defendant McGinnis?

Issue Thirteen. Did prosecutorial misconduct prejudice defendants' rights to a fair trial?

Issue Fourteen. Did the trial court's instruction to the jury that Officer Millard was a law enforcement officer constitute reversible error?

Issue Fifteen. Did the trial court invade the fact-finding province of the jury by instructing it that the earlier August 25, 1986, arrest of the defendant McGinnis was a lawful arrest and that the later August 27, 1986, police officers' entry onto the defendant McGinnis' property was lawful?

Issue Sixteen. Were the trial court's conclusions regarding the legality of the defendant McGinnis' arrest and the officers' entry onto his property correct?

Issue Seventeen. Were the trial court's accomplice liability instructions to the jury erroneous?

Issue Eighteen. Did the jury instruction regarding aggravating circumstances allow conviction for murder based solely upon statutory aggravating factors or violate the defendants' rights by creating a mandatory presumption?

Issue Nineteen. Did the jury instructions regarding self-defense and defense of others correctly state the law and allow defendants to argue their theory of the case?

Issue Twenty. Did the trial court err in not giving lesser included offense jury instructions despite both defendants' objections to the giving of such instructions?

Decision

Issue One.

Conclusion. The State of Washington lawfully assumed criminal jurisdiction over the Colville Indian Reservation in 1965 based upon the authority of Laws of 1957, chapter 240, as amended by Laws of 1963, chapter 36, codified in RCW 37.12. Subsequent retrocession did not affect this case which was filed before the effective date of retrocession.

The jurisdictional question is dependent upon an analysis of our state statutes, RCW 37.12, construed in conjunction with federal law. RCW 37.12.010 was enacted pursuant to congressional authority contained in Pub. L. No. 83-280, § 6, 67 Stat. 588 (1953) (hereafter Public Law 280).*fn1 The

United States Supreme Court has held that RCW 37.12.010 complies with Public Law 280 and is constitutional.*fn2

Public Law 280 was enacted by Congress in 1953 and gave to five enumerated states an immediate cession of criminal and civil jurisdiction over Indian country.*fn3 To the remaining states (including Washington) it gave an option to assume jurisdiction over criminal and civil causes of action in Indian country. Washington is one of the states governed by Public Law 280, section 6 which provides in part that "the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act" over Indians in Indian country within the state.

RCW 37.12.010, as enacted in 1963, binds the State to assume civil and criminal jurisdiction over Indians and Indian territory at the request of the affected tribe, as provided for in RCW 37.12.021 which states in pertinent part:

Whenever the governor of this state shall receive from the majority of any tribe or the tribal council or other governing body, duly recognized by the Bureau of Indian Affairs, of any Indian tribe, . . . a resolution expressing its desire that its people and lands be subject to the criminal or civil jurisdiction of the state of Washington to the full extent authorized by federal law, he shall issue within sixty days a proclamation to the effect that such jurisdiction shall apply to all Indians and all Indian territory, . . . involved to the same extent that this state exercises civil and criminal jurisdiction or both elsewhere within the state: . . .

[1] In 1965, the Colville Business Council issued a resolution requesting the Governor to issue a proclamation

assuming state civil and criminal jurisdiction over the Colville tribe and reservation.*fn4 Pursuant to RCW 37.12.021, then Governor Daniel J. Evans issued a proclamation assuming, on behalf of the State, the requested jurisdiction effective January 29, 1965.*fn5 In Tonasket v. State, 84 Wash. 2d 164, 525 P.2d 744 (1974), appeal dismissed, 420 U.S. 915, 43 L. Ed. 2d 387, 95 S. Ct. 1108 (1975), this court held that the State had validly assumed jurisdiction over the Colville tribe and the reservation. We conclude that the trial court in the present case was entitled to rely upon this court's holding in Tonasket as the basis for assuming jurisdiction over the trial of the charges against defendants Hoffman and McGinnis herein.

[2] Defendants make a number of more specific arguments regarding the jurisdictional issue. They argue that the State did not prove jurisdiction in that a copy of Governor Evans' 1965 proclamation assuming State jurisdiction and evidence of the Colville Business Council's authority should have been introduced. This was not necessary. The Governor's proclamation is a matter of public record in the Office of the Governor,*fn6 and therefore a proper subject of judicial notice even without a party's request.*fn7 This court has previously held that it was for the Governor to decide whether the resolution was from an appropriate tribal body.*fn8 Just as recognition of a foreign government by the United States is a political act accepted

as conclusive by state and federal courts, so is such a proclamation by the Governor binding upon this court.*fn9

[3] Defendants further argue that under the Ten Major Crimes Act, 18 U.S.C. § 1153, which makes it a federal offense to commit certain listed crimes, exclusive jurisdiction is vested in the federal courts over prosecution of the enumerated crimes. In State v. Bertrand, 61 Wash. 2d 333, 378 P.2d 427 (1963), this court explained that when the charge is within the purview of the Ten Major Crimes Act, then in the absence of the state statutes (RCW 37.12) exclusive jurisdiction would be in federal courts. The Bertrand court then proceeded to conclude that the State had properly assumed criminal jurisdiction over the Quinaults under Public Law 280 and RCW 37.12 in a situation where the crime was one of those listed in the Ten Major Crimes Act. Since the State of Washington had, as explained above, assumed jurisdiction over the Colville tribe and reservation, the State had jurisdiction over offenses which otherwise would have been within the purview of the Ten Major Crimes Act.*fn10

Defendants also argue that jurisdiction was invalid in view of 25 U.S.C. § 1326 which provides that tribal consent to state criminal jurisdiction "acquired pursuant to this subchapter" shall be by majority vote of the adult members of the tribe at a special election held for this purpose. This statutory language is part of the Indian Civil Rights Act of 1968 which repealed § 7 of the 1953 act and substituted a new regulatory scheme for the extension of state civil and criminal jurisdiction to litigation involving native Americans and arising in Indian country.*fn11

[4] The flaw in this argument by the defendants is that Congress also provided that repeal of Public Law 280 would not affect any cession of jurisdiction which had been made pursuant to that law prior to its repeal. 25 U.S.C. § 1323(b) (1988) specifically provides:

Section 7 of the Act of August 15, 1953 (67 Stat. 588), is hereby repealed, but such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal.

(Italics ours.)

As discussed above, Washington had accepted jurisdiction in 1965. The United States Supreme Court has addressed this issue:

Although the Civil Rights Act of 1968 amended Pub. L. 280 by adding tribal consent requirements, those requirements were not made retroactive; the 1968 amendments therefore did not displace jurisdiction previously assumed under Pub. L. 280, . . .

(Footnote omitted.) Three Affiliated Tribes v. Wold Eng'g, P.C., 467 U.S. 138, 150-51, 81 L. Ed. 2d 113, 104 S. Ct. 2267 (1984).

The defendants next argue that Washington no longer had jurisdiction when it assumed responsibility for their prosecutions because jurisdiction had been retroceded to the federal courts. That is incorrect. The procedure for retrocession of jurisdiction was established by Congress in 25 U.S.C. § 1323(a) which provides in pertinent part:

The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of title 18, section 1360 of title 28, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section.

In 1986 the Washington Legislature enacted RCW 37.12.100 which provides a procedure for retrocession of jurisdiction over Indians for acts occurring on the Colville reservation. The procedure for transfer of jurisdiction is detailed in former RCW 37.12.120:

Whenever the governor receives from the confederated tribes of the Colville reservation a resolution expressing their desire for the retrocession by the state of all or any measure of the

criminal jurisdiction acquired by the state pursuant to RCW 37.12.021 over lands of the Colville Indian reservation, the governor may, within ninety days, issue a proclamation retroceding to the United States the criminal jurisdiction previously acquired by the state over such reservation. However, the state of Washington shall retain jurisdiction as provided in RCW 37.12.010. The proclamation of retrocession shall not become effective until it is accepted by an officer of the United States government in accordance with 25 U.S.C. Sec. 1323 (82 Stat. 78, 79) and in accordance with procedures established by the United States for acceptance of such retrocession of jurisdiction.

(Italics ours.)

The Secretary of the Interior was vested by then President Lyndon B. Johnson with authority to accept retrocession of jurisdiction from a state. Retrocession is effected by publication in the Federal Register which shall specify the effective date of retrocession.*fn12 Retrocession of criminal jurisdiction exercised by the State of Washington over the Colville tribe was accepted at 12:01 a.m. Pacific standard time, the day following publication in the Federal Register, which was on March 17, 1987.*fn13

[5] Retrocession which was effective March 18, 1987, did not affect state jurisdiction over defendants McGinnis and Hoffman for crimes committed August 27, 1986, where the charging information was filed October 24, 1986, and the trial began on February 17, 1987. RCW 37.12.130 is dispositive of this issue:

An action or proceeding which has been filed with any court or agency of the state or local government preceding the effective date of retrocession of jurisdiction under RCW 37.12.100 through 37.12.140 shall not abate by reason of the retrocession or determination of jurisdiction.

(Italics ours.)

[6] Defendant Hoffman argues that a "de facto" retrocession had occurred depriving the State of jurisdiction and

that state jurisdiction under RCW 37.12 is exclusive of federal jurisdiction and therefore evidence collected by federal authorities (pursuant to a federal search warrant) should be excluded in state court. No relevant authority is cited to support these arguments. Arguments not supported by relevant citation of authority need not be considered by this court.*fn14 Furthermore, retrocession is governed by the state and federal statutes herein discussed.*fn15

We conclude from the foregoing that the State of Washington did have, and still has, jurisdiction over the prosecution of the crimes charged in this case and that retrocession did not deprive the trial court of jurisdiction to complete the trial and impose sentence.

Issue Two.

Conclusion. Perceiving no probability of prejudice, we conclude that the trial court did not abuse its discretion in denying defendants' motions for a change of venue.

[7] A motion for change of venue should be granted when necessary to effectuate a defendant's due process guaranty of a fair and impartial trial but a defendant must show a probability of unfairness or prejudice from pretrial publicity.*fn16

[8, 9] The decision to grant or deny a motion for change of venue is within the trial court's discretion and appellate courts are reluctant to disturb such a ruling absent a showing of abuse of discretion.*fn17 This court has repeatedly utilized the factors expressed in State v. Crudup, 11 Wash. App. 583, 524 P.2d 479, review denied, 84 Wash. 2d 1012 (1974), to

determine whether the trial court has abused its discretion in refusing to grant a change of venue.*fn18 These factors are as follows:

(1) the inflamatory 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.

Crudup, 11 Wash. App. at 587.

Applying the facts of this case to the Crudup criteria, we observe as follows. (1) The predominant news coverage was factual and even somewhat sympathetic in explaining Elmer McGinnis' past physical infirmities. (2) One newspaper, the Tribal Tribune, which contained some articles to which defendants' arguments are primarily addressed, is a newspaper of very limited circulation distributed to tribal members. (3) Although defendants allege articles continued throughout trial, the specific articles they cite as prejudicial were all published 4 to 6 months before the trial. (4) Defendants have not provided any record of the jury selection process to substantiate their present allegations that difficulty was encountered in empaneling a jury. In fact, the trial judge allowed voir dire to continue for 6 or 7 days. So far as the record before us reflects what occurred in the voir dire process, it appears that the trial judge took great care in the jury selection procedure and offered defendants the opportunity to question individual prospective jurors alone in case any specific publicity may have unduly influenced a particular juror. The trial judge opined that the publicity had not been so adverse as to make empaneling an impartial jury unlikely but that the best test of whether an

impartial jury could be empaneled was to attempt to empanel one. Prior cases have also approved postponement of the decision on change of venue motions until after voir dire of prospective jurors.*fn19 As the trial court explained, if a fair jury could not be found then a change of venue would be allowed. After the jury was selected, the trial court again denied a change of venue. The trial court regularly and emphatically instructed the jury throughout the trial to avoid seeing or hearing any publicity or conversation regarding the trial. (5) While defendants argue that numerous prospective jurors were excused based on knowledge of pretrial publicity, the prosecution argues few potential jurors could remember anything they had read. Had defendants wanted us to go into this factor in more detail, a record of the voir dire examination should have been provided to this court; it was not. (6) Defendants provide no information on challenges whereas the prosecution alleges that defendants' challenges for cause were all granted except as to one juror who could not remember any publicity. Again, we are without a record to further consider this factor. (7) Neither the record nor the news articles the defense relies upon show improper release of information by government officials. (8) The charges, of course, are severe ones as in the above cited cases of State v. Rupe, 101 Wash. 2d 664, 683 P.2d 571 (1984) and State v. Brooks, 20 Wash. App. 52, 579 P.2d 961, review denied, 91 Wash. 2d 1001 (1978), wherein denials of motions for changes of venue were upheld on appeal. (9) The jury was drawn from Okanogan County.

Weighing the above factors, it is clear to us that the defendants have not shown a probability of prejudice due to pretrial publicity; the trial court's denial of the motions for change of venue was not error.

Issue Three.

Conclusion. The defendants failed to show that a joint trial would unfairly prejudice them; the trial court acted within the ambit of its discretion in denying the motion for severance.

[10-12] The granting or denial of a motion for separate trials of jointly charged defendants is entrusted to the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.*fn20 Separate trials are not favored in Washington and defendants seeking severance have the burden of demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy.*fn21 The existence of mutually antagonistic defenses is not alone sufficient to compel separate trials.*fn22 Rather, it must be demonstrated that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.*fn23 The burden is on a moving party to come forward with sufficient facts to warrant the exercise of discretion in his or her favor.*fn24

[13] Defendant Hoffman argues that the reputation of his father and codefendant (McGinnis) for quarreling with tribal officials prejudiced him by association. His argument that the hostility between the tribe and the defendant McGinnis would somehow taint him lacks supporting authority. No authority is cited for the proposition that one defendant's objectionable background or reputation might

rub off onto a codefendant and thereby constitute cause for separate trials. We perceive no merit in this argument.

The defendant Hoffman also argues that severance was required because he was prejudiced by the court's ruling that one of his statements to the witness Epperson was inadmissible in the prosecution's case in chief. The background of this is that when Hoffman appeared at Epperson's home after the shooting, Hoffman told him that McGinnis had fired the 9 mm. gun. Upon the defendants' motions for separate trials, the court held that Epperson could not testify to that statement because it tended to incriminate McGinnis. That was a proper ruling under CrR 4.4(c) which provides in pertinent part:

(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless :

(i) the prosecuting attorney elects not to offer the statement in the case in chief ;

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

(Italics ours.) In this case, the prosecuting attorney elected not to use defendant Hoffman's statement to the witness Epperson in the State's case in chief.

The above court rule, CrR 4.4(c), was adopted to avoid the constitutional problem dealt with in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).*fn25 In Bruton, the United States Supreme Court held that the defendant was deprived of his confrontation rights under the Sixth Amendment when he was incriminated by a pretrial statement of a codefendant who did not take the stand at trial.*fn26 In the present case, however, severance was not mandated by CrR 4.4(c) because the prosecution elected not to use Hoffman's statement to the witness

Epperson about the defendant McGinnis in the State's case in chief. Hoffman, however, ultimately did elect to testify at trial and by so doing eliminated the potential Bruton problem. With Hoffman on the stand, McGinnis had the full opportunity to cross-examine him.

Hoffman maintains that he was prejudiced because the prosecution was allowed to impeach him with this statement when he testified that he did not know if McGinnis had fired a gun. This argument, however, does not withstand scrutiny. Only if a defendant has the right to lie on the stand would such an effort at impeachment unfairly prejudice him, but that is not the law. The prosecution had the right on cross examination to impeach the witness with the witness' own prior inconsistent statement. The trial court offered to allow Hoffman to recall Epperson to allow him to testify regarding Hoffman's statement that McGinnis had fired the 9 mm. gun, but Hoffman elected not to recall Epperson.

Mutually antagonistic defenses can be sufficient to support a motion for severance, but this is a factual question which must be proved by the defendant.*fn27 In this case the trial court concluded, and we agree, that the defenses were not inherently antagonistic. Both defendants claimed self-defense and that they did not know who was on McGinnis' property. The trial court did not abuse its discretion in denying severance.

Issue Four.

Conclusion. The facts do not support defendants' arguments that their right to a speedy trial was violated.

Defendant McGinnis claims that his conviction should be reversed because the State obtained a continuance from December 29, 1986 to February 11, 1987. This is a factually inaccurate allegation. The arraignment was October 30, 1986. On December 24, during the competency hearings on McGinnis, the State moved for a 5-day continuance from December 29, 1986 until January 5, 1987 based upon CrR

3.3(d)(8). The trial court granted that continuance, due to unavoidable circumstances beyond the control of the court or the parties, and finding that all parties had acted with due diligence. The trial court stated that the reasons necessitating the delay included three disqualifications of judges, two of which were at the defendants' request, and a large number of pretrial hearings that were required by the various pretrial motions. Under CrR 3.3(d)(8), that 5-day continuance was appropriate.

[14, 15] Then on December 30, 1986 both defendants moved for a continuance and agreed to a trial date of February 17, 1987. The trial court opined that a solid month of pretrial hearings would be necessary before the trial could commence. Pretrial matters included hearings on a motion to dismiss, a motion to suppress physical evidence, completion of McGinnis' psychiatric evaluation, a motion to sever and a discovery controversy to be resolved. Thus, this continuance too was proper under CrR 3.3. The trial court acted well within its discretion in granting these continuances. Trial within 60 days is not a constitutional mandate.*fn28 There was no violation of defendants' rights to a speedy trial. Had the trial court denied the defense motions for a continuance, given the complexity of the case and the repeated substitution of defense attorneys, the opposite argument would doubtless have been made on appeal -- that the failure to grant defendants' motions for continuance deprived them of effective assistance of counsel.

Issue Five.

Conclusion. The dismissal of federal charges and the initiation of state criminal proceedings did not violate defendants' equal protection rights.

[16] Defendant Hoffman argues that the state court prosecution was a "sham" and a "cover" for a federal prosecution and a violation of his right to equal protection. We

conclude that this argument is without merit. Hoffman cites no authority for the proposition that the criminal charging of a defendant by one sovereignty after dismissal of charges by another sovereignty violates any constitutional right. To the contrary, an act denounced by both federal and state sovereignties is an offense against both, and may be punished by each.*fn29 Nothing prohibits a federal prosecutor from deciding to surrender a suspect to a state for prosecution under applicable state law.*fn30

Defendant Hoffman relies upon two lines of authority, each of which is inapplicable. He first argues that we should look to double jeopardy cases involving consecutive state and federal prosecutions to determine if the defendant's constitutional rights have been violated. Such an issue can arise when a defendant has been acquitted by one jurisdiction and the other jurisdiction seeks to initiate criminal proceedings based on the same conduct. In this case, however, only one prosecution by one jurisdiction is involved. Mere cooperation between different law enforcement agencies does not violate a defendant's constitutional rights. In fact, cooperation between state and federal authorities is encouraged.*fn31

Hoffman next argues that his equal protection rights were violated by the federal and state prosecutors' combined decision to charge the defendants under state rather than federal law. He claims that because the punishment is different under state law than under federal law such a decision constituted improper "forum shopping", which he also argues is unconstitutional under the rationale of State v. Zornes, 78 Wash. 2d 9, 475 P.2d 109 (1970). This is not a correct reading of the principle enunciated in Zornes and is an untenable argument in this case for two reasons. First,

the Zornes rule does not apply to the charging discretion of two different charging authorities be they state and federal or officials of two different states. Secondly, regardless of any cooperation or joint decisionmaking by federal and state prosecutors, equal protection has not been violated because the Zornes rule would be inapplicable here even if one prosecutor had decided whether to charge murder in the first degree under 18 U.S.C. § 1111 and attempted murder of a federal officer under 18 U.S.C. § 1114, or aggravated murder in the first degree under RCW 10.95.020 and assault in the first degree under RCW 9A.36.010.

[17] The Zornes rule holds that equal protection is violated when two statutes declare the same acts to be crimes but penalize more severely under one statute than the other thereby giving the prosecutor unbridled discretion. However, this rule does not apply when the two crimes contain different elements.*fn32 Here the federal crimes and the state crimes contain different elements. The element of malice aforethought contained in 18 U.S.C. § 1111 is different from the element of intent required under RCW 10.95.020. RCW 9A.32.030(1)(a) (incorporated in RCW 10.95.020) requires a premeditated intent to cause the death of another person. 18 U.S.C. § 1111 defines murder as the unlawful killing of a human being with malice aforethought. Malice does not require proof of intent to kill. Rather, it may be established by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of care.*fn33 One element of 18 U.S.C. § 1114 requires that the offense be committed against a federal officer; this element is not contained in the state assault charge under RCW 9A.36.010.

Where elements of alternative crimes differ, the exercise of a prosecutor's discretion does not violate equal protection. It follows that the Zornes rule does not apply in this case and defendants' equal protection rights were not violated.

Hoffman further claims that federal authorities sought a state prosecution because the death penalty was unavailable in federal court. The prosecution, however, never sought the death penalty in this case. In any event, we have held that the prosecutorial discretion of whether or not to seek the death penalty does not violate equal protection principles enunciated in Zornes.*fn34

Issue Six.

Conclusion. Defendants have not shown that they were prejudiced by any alleged prosecutorial failure to disclose evidence.

[18] As we have recently reiterated, the scope of discovery is within the trial court's discretion and that court's decisions in this regard will not be overturned absent a manifest abuse of discretion.*fn35 In criminal cases, the discovery provisions of CrR 4.7 guide the trial court in the exercise of this discretion. The record in the present case illustrates that the trial judge continually guided discovery and was vigilant in insuring that the defense was provided with all appropriately discoverable evidence. The trial court repeatedly, and on different occasions, inquired of defendants as to whether they needed assistance on discovery matters.

Defendant Hoffman alleges that although the prosecution did provide witness statements, it interfered with the attempt by the defense to interview various witnesses. This claim is not borne out by the record. To the contrary, the

record demonstrates that the prosecution offered and provided discovery beyond that strictly required by CrR 4.7. The prosecutor repeatedly offered to make witnesses available to the defense. The prosecution made its forensic expert witness telephonically available to the defense's appointed forensic expert. The record reflects no defense requests for depositions pursuant to CrR 4.6; the present allegation that witnesses were unavailable to the defense is unsubstantiated.

[19] Defendant Hoffman alleges he was surprised by a prosecution witness' testimony that Hoffman may have stood on the chicken cages behind the chicken coop in order to shoot Officer Millard. As is true with other prosecution witnesses, this witness was also available to the defense. Furthermore, no authority has been cited for the proposition that CrR 4.7 requires all prosecution "theories" to be disclosed to defendants. We find nothing whatsoever to establish that any evidence which should have been disclosed pursuant to CrR 4.7(a)(3) as tending to negate defendants' guilt was withheld by the prosecution.

Hoffman asserts that having five different attorneys appointed prior to trial had a negative effect on his defense. No record is provided, however, as to why the attorneys were allowed to withdraw. It appears that at least one attorney was discharged by Hoffman himself and another was allowed to withdraw because of a potential conflict of interest. Error in this regard has not been shown.

Trial commenced on February 17, 1987. Hoffman alleges that neither he nor his appointed counsel ever saw any of the physical evidence to be introduced in his trial until the evening of the second day of trial. Defendant Hoffman's brief argues that "[t]he actions of the Federal government in . . . retaining custody of the evidence in Spokane with the F.B.I., to the exclusion of Patrick Hoffman such that the evidence could not even be physically reviewed by defendant's counsel until the second day of ...


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