Appeal from Superior Court of King County. Docket No: 94-1-00154-6. Date filed: 05/16/94. Judge signing: Hon. Deborah D. Fleck.
Petition for Review Denied July 8, 1997,
Authored by Faye C. Kennedy. Concurring: William W. Baker, Mary K. Becker.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Clayton Holt appeals his conviction of one count of first degree murder, arguing that: (1) the trial court erred in denying his motion to dismiss for violation of his speedy trial rights; (2) the trial court abused its discretion in admitting the hearsay statements of his unavailable codefendant as statements against penal interest; (3) there was insufficient evidence to support both alternative means of committing first degree murder with which he was charged; (4) the trial court erred in failing to instruct the jury that it had to be unanimous as to the means by which he committed first degree murder; and (5) the trial court abused its discretion in denying his motion for a new trial. Finding no error, we affirm.
On April 13, 1990, Tony Rinaldi was shot and killed in his apartment near the Woodland Park Zoo. The police had few leads following the crime and it remained unsolved for almost four years. The victim's father, Al Rinaldi, participated actively in the investigation. In an attempt to develop leads, Rinaldi approached local newspapers and television stations with details about the crime. Among other things, Rinaldi showed the media crime-scene photographs of a small crucifix attached to a beaded leather strap that was found near Tony's head. The crucifix did not belong to Tony.
In November of 1993, Marsha Simmons was watching a local television program called "Town Meeting" when she recognized the crucifix found at the crime scene as one she had made when she was a teenager. The crucifix had been among items stolen from her home in April of 1990 when her daughter, Jennifer Morris, ran away from home with her boyfriend, Jonathan Havekost, and with her acquaintance, Clayton Holt. Simmons confronted her daughter about the crucifix. Morris told her mother that when she ran away to Seattle with Havekost and Holt, the two boys left her alone one evening. When they returned, Havekost told her: "We have to get out of here. Clayton just shot a person." Report of Proceedings, vol. 5 at 570. When Simmons told Morris she had to go to the police, Morris responded that she felt she needed to speak to a lawyer.
Morris subsequently spoke with a lawyer who helped her contact the Seattle Police. Morris told the police and later testified at trial about the events that transpired after she ran away from home with Havekost and Holt. Morris testified that when she arrived in Seattle with Havekost and Holt, they met a group of street kids in the downtown area. Some of the street kids were involved in prostitution, while others tried to exploit those who sought the services of underage prostitutes. Many in the group preyed upon gay men. A street person named Ernie approached Havekost and Holt and told them about a man named Tony with whom he could "hook them up." Report of Proceedings, vol. 6 at 637. Ernie stated that Tony had a lot of money and a nice car.
On the evening of April 12, 1990, Ernie and his brother took Havekost to meet Tony. Holt remained with Morris. When Havekost returned a couple of hours later, he told Morris and Holt that Tony was "a real cool guy" who had offered him beer and gotten him "high." Report of Proceedings, vol. 2 at 85. A short time later, Havekost and Holt left together to go back to Tony's apartment. Morris remained with a group of street kids. It was almost dawn when Havekost and Holt returned. Morris testified that they looked nervous and that Havekost's pants were cut off above the knee. When she questioned them, Havekost told her that they had shot Tony. Havekost explained that they had tied Tony up with the phone cord, and because he was yelling and struggling, Havekost started kicking him. When Tony's dog began barking and biting at their legs, one of them picked the dog up and threw him across the room. Havekost stated that during the commotion, Tony reached for the gun and Holt shot him. According to Havekost, Holt "just kept shooting. He didn't stop until there was nothing left to shoot." Report of Proceedings, vol. 6 at 650. Havekost and Holt then left Tony's apartment, taking nothing with them.
Morris testified that Holt was present while Havekost told her of the shooting. He disputed none of Havekost's account of the incident, and said that he had "opened the beer can with one hand and taken the gun out from behind his back with the other." Report of Proceedings, vol. 6 at 648-49.
After Morris revealed her knowledge of the shooting to the police, the police ran Havekost's and Holt's fingerprints against those found at the crime scene. Havekost's prints were found on Tony's phone as well as on a beer can inside the apartment. No physical evidence linked Holt to the crime scene. The police also discovered that both Morris's mother, Simmons, and Havekost's parents had reported the theft of guns from their respective homes in the spring of 1990.
On January 4, 1994, Holt and Havekost were charged with first degree felony murder in violation of RCW 9A.32.030(1)(C). The information alleged that Tony Rinaldi's death occurred during the commission or attempted commission of the crime of first or second degree robbery. The codefendants' cases were severed when Havekost's case was continued beyond Holt's speedy trial expiration date.
Holt's trial was set for March 7, 1994, with a speedy trial expiration date of March 11, 1994. On March 11, 1994, the trial court ordered the first of six extensions of Holt's speedy trial expiration date because the deputy prosecuting attorney assigned to the case was in trial on another matter and was unavailable to prosecute Holt's case. Holt timely objected to each of the extensions. The case was eventually called for trial on March 22, 1994. On March 23, 1994, Holt filed a motion to dismiss for violation of his CrR 3.3 speedy trial rights. The trial court denied the motion, holding that the reason for the delay in calling Holt's case for trial was unavoidable and unforeseen.
On March 28, 1994, over defense objection, the trial court permitted the State to amend the information. The amended information added the alternative means of premeditated first degree murder.
Holt did not testify at trial. Havekost exercised his Fifth Amendment right against self-incrimination. The court held that Havekost's statements to Morris regarding the shooting were admissible as statements against penal interest.
Holt's trial counsel argued that there was no physical evidence linking his client to the crime scene, and that, in fact, Holt had not gone to Tony Rinaldi's apartment on April 13, 1990. Counsel attacked Morris's credibility, arguing that Morris and Havekost had conspired to falsely convict Holt to cover up Havekost's crime.
Following deliberations, the jury found Holt guilty of first degree murder. In answers to special interrogatories, the jury revealed that it was not unanimous with respect to either premeditation or felony-murder. The trial court sentenced Holt within the standard range, and a timely appeal followed.
On April 11, 1995, Holt moved for a new trial based on newly discovered evidence and ineffective assistance of counsel. The trial court denied the motion, holding: (1) that Holt failed to establish that the newly discovered evidence would probably have changed the result of the trial; and (2) that Holt failed to prove that his trial counsel's performance was deficient, or that he suffered prejudice. A second timely appeal was filed and consolidated with the first.
Holt first contends that the trial court erred in denying his motion to dismiss for violation of his speedy trial rights because the delay in calling his case for trial was not caused by an unforeseen or unavoidable circumstance within the meaning of CrR 3.3(d)(8), but instead was caused by a self-created hardship of the prosecutor's office.
The speedy trial rule, CrR 3.3, provides time limits within which criminal defendants must be brought to trial. State v. Hudson, 130 Wash. 2d 48, 53, 921 P.2d 538 (1996). CrR 3.3(c)(1) provides in pertinent part that "[a] defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of the arraignment." CrR 3.3 defines a judicially created procedural right to a speedy trial. It does not define the limits of a defendant's constitutional right to a speedy trial. State v. Mack, 89 Wash. 2d 788, 793, 576 P.2d 44 (1978); State v. Andrews, 66 Wash. App. 804, 809, 832 ...