Appeal from Superior Court, Spokane County; Honorable Marcus, M. Kelly, Judge. Judgment Date: 2-5-93.
Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Madsen, Alexander, Sanders, J.j., concurring.
TALMADGE, J. -- Thomas Edward Maupin has twice been convicted for the 1988 felony murder of a six-year-old child. His first conviction was overturned by the Court of Appeals because the jury was allowed to speculate that Maupin committed a felony murder predicated upon rape when there was no evidence of sexual intercourse. In the second trial, Maupin sought to introduce the testimony of an alibi witness who would have testified to seeing the child alive and in the hands of persons other than Maupin after the State claims Maupin kidnapped and murdered the child. The trial court's decision excluding that testimony violated Maupin's constitutional right to call witnesses for his defense and requires a reversal of Maupin's conviction and a remand of his case for yet another trial.
1. Did the trial court violate Maupin's Sixth Amendment and art. I, § 22 (amend. 10) right to call witnesses in his defense when it excluded the testimony of a witness who claimed to have seen the victim with persons other than the defendant after the time the State claims she was abducted and murdered?
2. If the exclusion of the witness was error, was the error harmless under the facts of this case?
On January 25, 1988, the Spokane Police Department received a call that Tricna Dawn Cloy, the six-year-old daughter of Christine Fraijo, had disappeared during the night from the family home at 319 S. Ralph in Spokane. The previous evening, Ms. Fraijo, accompanied by her four-year-old son Elston and Tricna, attended a birthday party at the home of a neighbor. Thomas Edward Maupin was also a guest at the party. The subsequent facts, involving the late night abduction of Tricna and her disappearance until her body was found in a gravel pit nearly six months later, are set forth in detail in State v. Maupin, 63 Wash. App. 887, 889-92, 822 P.2d 355, review denied, 119 Wash. 2d 1003, 832 P.2d 487 (1992). There is no need to repeat those facts.
In February 1989, Maupin waived extradition from Ohio in order to stand trial in Spokane County on the charge of felony murder predicated on the underlying crimes of second degree kidnapping and first degree rape or attempted rape. Maupin was convicted by a jury of first degree felony murder and sentenced to an exceptional term of 480 months.
On appeal, the Court of Appeals, Division III, held there was no evidence of sexual intercourse. Maupin, 63 Wash. App. at 893. Thus, the trial court had erred in instructing the jury on rape and attempted rape. Although the jury might have found that the kidnapping charge supplied the predicate offense to the felony murder charge, the court did not provide the jury with a special verdict form to indicate on which offense -- rape or kidnapping -- it had based the conviction. In the absence of a finding by the jury as to which predicate offense was the basis for the conviction, the Court of Appeals had no choice but to set aside the verdict. Maupin, 63 Wash. App. at 893-94.
In accordance with instructions from the Court of Appeals, the State on remand filed an amended information charging Maupin with first degree felony murder based on the predicate crime of kidnapping. As in the first trial, the State's chief witness was Tricna's brother, Elston Cloy, who testified that he saw Maupin carrying Tricna off in the middle of the night. Elston was four years old at the time of the kidnapping, and ten years old at the time of his testimony in Maupin's second trial.
During the trial, Maupin wanted to have James Brittain testify. Brittain claimed to have seen Tricna Cloy, the day after she was kidnapped, being carried wrapped in a blanket by a Daniel McIntosh. Brittain claimed that McIntosh and another individual kept Tricna in a room in a house where Brittain was staying. According to Brittain, McIntosh and the other man took the girl away early the following morning. Brittain first told this story to Detective James Peterson on September 12, 1991. A defense investigator subsequently interviewed Brittain on September 24, 1991.
The State filed a motion to exclude Brittain's testimony. The State based its motion on purported inconsistencies, and on the inability of that testimony to connect McIntosh or anyone else with the crime, citing State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932) (exclusion of evidence that does not connect another with a crime is proper because of lack of foundation). The State appended to its motion Detective Peterson's report, the defense investigator's verbatim interview with Brittain, and the affidavit of Detective Peterson,*fn1 purporting to contain the statements of Daniel McIntosh denying Brittain's story. Detective Peterson in his report said he did not believe Brittain because Brittain said he saw Tricna with McIntosh the day and evening before she was kidnapped. There is nothing in Peterson's report, however, that identifies exactly when Brittain saw Tricna in relation to the time of the abduction. In his interview with the defense investigator 12 days later, Brittain was explicit that he saw Tricna the day after the kidnapping.
The parties argued the State's motion to exclude Brittain's testimony during the trial. Pursuant to the judge's request, Maupin made an offer of proof consisting of the transcript of the defense investigator's interview with Maupin on September 24, 1991. The State made no counteroffer of proof. The trial court rendered a lengthy oral decision on December 14, 1992. In granting the motion to exclude Brittain's testimony, the court appeared to be persuaded that even if Brittain were believed, his testimony would not exculpate Maupin:
We have potentially a 24-hour period after the noticing of the absence of Tricna, in which she may very well have been alive. Part of the State's burden, of course, is to prove death by criminal means or by a criminal agency. That is a matter that will have to be argued to the jury. But if in fact [Brittain's testimony] would show that she was alive, I would not find that relevant to the charge in this particular case. It still, in the Court's judgment, would be evidence upon which the jury would be asked to speculate.
Report of Proceedings at 1904-05.
The trial proceeded without Brittain's testimony, and the jury found Maupin guilty of first degree murder while committing and attempting the crime of second degree kidnapping. The court again imposed an exceptional sentence of 480 months (the standard range was 240 to 320 months). Maupin again appealed his conviction, making 12 assignments of error, including the trial court's exclusion of Brittain's testimony. The Court ...