Appeal from Superior Court of King County. Docket No: 93-1-04722-0. Date filed: 12/09/93. Judge signing: Hon. Frank L. Sullivan.
Petition for Review Denied February 4, 1997,
Authored by Faye C. Kennedy. Concurring: C. Kenneth Grosse, Ronald E. Cox
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J.-- John Turner and Samuel Hawkins appeal their convictions of first degree murder. In this consolidated appeal, Turner contends that the trial court erred in refusing to admit a portion of another participant's confession and in allowing a redacted version of Turner's confession to be admitted, and that the prosecutor misstated the burden of proof during closing argument. Hawkins contends that his speedy trial rights were violated, that he was illegally seized, and that the court erred in refusing to suppress his confession. We affirm both convictions. FACTS
Around 1 a.m. on a June morning in 1993, John Turner, Samuel Hawkins, Anthony Johnson, Jose Mancilla, and Lavarr Robinson decided to rob Keith ("Koolaid") Ford, who was known to carry money and drugs with him. The five men located Ford sitting in his car in a parking lot in the High Point area of Seattle. Two of the participants pulled Ford from his car, and Hawkins proceeded to beat Ford with a gun. Meanwhile, two or three of the participants ransacked Ford's car until one of them said, "We found it." Ford's passenger Sharon Monroe testified that while this was occurring, one man stood outside the car, silently watching the beating take place. Another eyewitness from farther away testified that all of the men participated in the attack. After the group found what they were looking for, Hawkins shot Ford at close range in the back and the men all ran off in the same direction.
Two hours later, Seattle Police Officer Molly Tritle observed a blue Catalina and another automobile driving very fast next to each other in the middle of the road. She believed the cars to be racing or chasing each other. She gave chase and watched as one of the cars skidded into the oncoming lane, narrowly missing a telephone pole. Officer Tritle reached the Catalina first and pulled it over; the other car sped away. Upon being pulled over, all of the car's five passengers immediately put their hands in the air. Tritle recognized one of the passengers, Lavarr Robinson, as a gang member who was suspected in some shootings. Knowing that the cars were in a high narcotics area where shots had been reported earlier in the evening, knowing that she was outnumbered, and believing that there was more than just racing or reckless driving going on, Officer Tritle feared for her safety. She treated the stop as a felony stop, called for backup, and approached the car with her gun drawn. When a backup officer arrived, she removed the driver from the car, and was told that he had been shot. She noticed multiple bullet holes in the side of the car, and believed that the men had been the victims of a drive-by shooting, or that the two cars' occupants had exchanged gunfire.
While Officer Tritle tended to the wounded driver, backup Officer Frank Clark shone his flashlight into the car. He recognized Turner and Robinson from prior contacts, and recognized Turner as a gang member. The occupants were directed to get out of the car, and were frisked. While searching the interior of the passenger compartment, Clark found a loaded gun tucked behind the right rear seat, the place where Hawkins had been sitting. The gun turned out to be stolen. Hawkins was arrested for possession of stolen property. The other four occupants were released.
Approximately one month later, Detective Mooney, while investigating the Keith Ford homicide, discovered that the gun retrieved from the Catalina was the same gun used to shoot Ford. Mancilla and Turner were called in for questioning and both identified Hawkins as the shooter.
Hawkins was arrested the same day by Bellevue Police Officer John Jesson, who recognized Hawkins from previous contacts. Jesson informed Hawkins of his Miranda *fn1 rights, and Hawkins stated that he understood his rights. Hawkins then told Officer Jesson, whom he knew from other contacts, "I have nothing to say to you," which Jesson took to mean that Hawkins would not talk to him personally. Jesson transported Hawkins to the Bellevue Police station for fingerprinting, and instructed the other officers present not to ask Hawkins any questions. Jesson then transported Hawkins to the Seattle Police Department without questioning him, and informed Seattle Police that Hawkins had been given his Miranda rights when arrested.
Hawkins was questioned by Seattle Police detectives Mooney and Ninomiya, neither of whom re-advised Hawkins of his Miranda rights before questioning him. After being told that tests revealed that the gun seized in the car a month earlier was the one used to kill Ford, and that "witnesses" had identified him as the shooter (but not being told that the witnesses were Turner and Mancilla), Hawkins confessed his involvement. He then signed a waiver of rights, but refused to sign the statement prepared by Detective Ninomiya.
Turner was arrested the same day, and gave an incriminating statement after being advised of his Miranda rights. Turner, unlike Hawkins, signed the statement prepared by Detective Mooney.
Turner, Hawkins, Mancilla, and Robinson were each charged by amended information with one count of first degree (felony) murder in violation of RCW 9A.32.030(1)(C). Turner and Hawkins were tried together. The trial was continued once with the defendants' consent, and was re-set for September 30, 1993, with an expiration date of October 4, 1993. The trial then was continued, over Hawkins' objection, until October 5, one day past the speedy trial expiration period, because one of the two prosecutors on the case was in another trial. Hawkins' motion to dismiss for violation of his speedy trial rights was denied. The case proceeded to trial on October 5, 1993.
During pretrial motions, the court denied Turner's motion to admit a portion of Lavarr Robinson's confession at trial and Hawkins' motion to suppress evidence and statements. Neither Turner nor Hawkins testified at trial. A jury found Turner and Hawkins guilty as charged. Both were sentenced within the standard range. Both appeal. Issues Raised by Turner I
Turner contends that it was an abuse of discretion for the Judge to have refused to admit two sentences from Lavarr Robinson's confession as exculpatory evidence in Turner's defense. The portion of Robinson's statement which Turner sought to admit indicated that Hawkins pulled Ford out of the car and shot him, and that Robinson and Johnson ransacked the car. *fn2 Turner contends that this statement was exculpatory as to him, because it omitted him from the ransacking and the shooting.
A declarant's out-of-court statement may be admissible under the "declaration against penal interest" exception to the hearsay rule if: (1) the declarant is unavailable to testify; (2) the statement exposed the declarant to civil or criminal liability such that a reasonable person would not have made the statement unless it were true; and (3) corroborating circumstances indicate that the statement is trustworthy. ER 804(b)(3); see also State v. Whelchel, 115 Wash. 2d 708, 715-16, 801 P.2d 948 (1990), holding limited on other grounds by Dickerson v. Chadwell, Inc., 62 Wash. App. 426, 431, 814 P.2d 687 (1991), review denied, 118 Wash. 2d 1011, 824 P.2d 490 (1992). The decision to admit evidence lies within the sound discretion of the trial court and will not be overturned on appeal absent a manifest abuse of that discretion. State v. Crenshaw, 98 Wash. 2d 789, 806, 659 P.2d 488 (1983).
The State does not dispute that Robinson was "unavailable" to testify because he would have invoked his privilege against self-incrimination if called to testify. A witness who refuses to testify on this basis is "unavailable" for purposes of this inquiry. See Whelchel, 115 Wash. 2d at 717. Therefore, the first prong of the three-part test is met. In addition, in his confession, Robinson admitted searching the car after the victim was forcibly removed from the car, which could, in some contexts, satisfy the second prong, "exposure to criminal liability."
We are not, however, persuaded that Robinson's statement was necessarily inculpatory as to Robinson or that it had the necessary indicia of reliability. Neither are we persuaded that the excerpt was necessarily exculpatory of Turner. Turner's defense was that he was the person seen standing off to the side, not taking part in the beating, robbing, or shooting. The shortened version of Robinson's statement only accounted for the action of three of the five men. Either Turner or Mancilla, the two men who were unaccounted for, could have been the actor who did not take part in the attack but stood by and watched. Therefore, while the statement did exclude Turner from the acts described, it still allowed the possibility that Mancilla, and not Turner, was the person seen standing off to the side. Because the statement does not, by omission, necessarily point to Turner as the suspect who was "merely present," it is not exculpatory. In addition, it was reasonable for the court to conclude that Robinson's statement was an unreliable attempt to exculpate himself in part by only admitting searching the victim's car and not admitting taking part in the beating or shooting. See Whelchel, 115 Wash. 2d at 717 ("Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence") (quoting Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986)).
We are satisfied that court's decision was not so manifestly unreasonable as to have been an abuse of discretion. II
Over Turner's objection, the Judge admitted a redacted version of Turner's original confession. The redacted confession replaced with "I" most of the references in the original confession to "we," and removed the original version's specific references to the other suspects. Turner contends that the admission of the ...