Appeal from Superior Court of King County. Docket No: 93-1-00955-7. Date filed: 12/06/93. Judge signing: Hon. Deborah D. Fleck.
Authored by Mary K. Becker. Concurring: William W. Baker, Faye C. Kennedy.
The opinion of the court was delivered by: Becker
BECKER, J. -- Jessica du Mas appeals her conviction for first degree premeditated murder and second degree felony murder. We find manifest constitutional error in admission of Kelly Beard's unreliable statements describing the appellant's role in the murder, and in the instructions inaccurately defining the elements of felony murder. We also find both errors to be harmless; there was overwhelming untainted evidence that duMas was liable as an accomplice, and the jury necessarily found the correct elements of felony murder. Accordingly, we affirm the conviction.
On the night of January 20, 1993, Jessica du Mas, Kelly Beard, and Cory Flowers drove from Seattle to a remote area near Snoqualmie Falls. Du Mas and Beard returned to Seattle; Flowers did not.
At about 3 a.m. on February 4, 1993, du Mas walked into a police station in Nampa, Idaho and told authorities that Beard had murdered Flowers. Following her directions to the murder site, police found Flowers' body lying under some brush. He had been strangled to death with a three-foot length of rope.
The State ultimately charged both du Mas and Beard with premeditated first degree murder and second degree felony murder based on second degree assault. Du Mas proceeded to trial in late August, 1993.
At du Mas' trial, the jury was informed by stipulation that Beard had pleaded guilty to first degree premeditated murder. Du Mas did not testify. Her statements to the police were admitted. Du Mas first told the police she was not with Beard and Flowers at the time of the murder.
Later, she told them she was present, but she maintained in these statements that she did not plan to kill Flowers and did not participate in killing him.
The State's witnesses told the story of the relationship between du Mas, Flowers, and Beard. In December 1992, du Mas, Flowers and several others rented a large house in the Fremont neighborhood of Seattle. Du Mas was 21 years old at the time; Flowers was 17. Because du Mas was responsible for the lease, and because she was the only one in the house who was working, du Mas was continually stressed about paying the rent. Du Mas and several others decided to sell drugs in order to raise the rent money. Du Mas was mainly unsuccessful as a drug dealer; a roommate recalled that she was "constantly stolen from, being given false products, not being given money."
On Christmas Eve, 1992, du Mas and Flowers drove to Nampa, Idaho, to visit Flowers' grandparents. While in Idaho, du Mas gave Flowers money to buy drugs for resale. Flowers failed in this mission. Du Mas felt that Flowers had used and betrayed her. Angry about the loss of her money and about Flowers' behavior in general, du Mas decided to leave Flowers in Idaho. At a party, du Mas asked if anyone else wanted to accompany her back to Seattle. Kelly Beard volunteered.
When du Mas and Beard arrived in Seattle, du Mas discovered that Flowers had taken and sold stereo equipment belonging to another resident of the house. Du Mas was furious. By this time, du Mas and Beard were having an affair. Together with Beard, du Mas began telling others she would lure Flowers back to Seattle and "teach him a lesson" by beating him up. One roommate recalled her saying "they wanted to take him out onto the county line and leave him out there naked with a tattooed 'thief' across his forehead." Another roommate testified: "She wanted to take him out to a wooded . . . area, so he would be disoriented, so he wouldn't know where he was at, and beat him up, and make sure it was somewhere away just in case they accidentally did kill him." Beard and du Mas asked various people to help with their plan, but none volunteered.
Du Mas telephoned Flowers and asked him to come back to Seattle.
Flowers agreed, and he arrived on January 17, 1993. Du Mas, Flowers, and Beard spent the next few days together. Friends observed that the three seemed to be getting along well.
January 20 was the day of the Inauguration Day storm which caused power outages in King County. Sometime that afternoon, du Mas told a friend, "we are going to do it tonight". At about dusk, du Mas, Beard, and Flowers left the house together.
When du Mas and Beard returned to the house late that evening, they seemed excited. Roommates heard them arguing loudly in an upstairs room ("we shouldn't be talking about this"). When asked what happened to Flowers, the two said "that they dropped Cory off by the side of the road in Issaquah and told him never to come back."
Several days later, Beard called Kelley Parris, his girlfriend in Idaho. Crying, Beard told her that he and du Mas had driven up to the woods, and that "he did something that he was going to go to hell for, and he wanted to commit suicide. . . . he said that she killed someone."
On January 29, du Mas gave Beard bus fare to travel to Idaho. Beard was to sell a quantity of LSD and return to Seattle with money for rent.
Once in Idaho, however, Beard decided to stay with Parris and keep the LSD.
While "frying" on five "hits" of LSD, Beard told Parris the story of the killing. Parris testified:
The original plan was to go up there to beat [Flowers] up, just to make him realize that they are sick of him. I guess they had talked about it in the car on the way up. That's what they decided, that they were going to go kill him when they got up there.
There was a time when Kelly [Beard] said Jessica was screaming at him. Kelly got the rope and put it around Cory's neck, and Jessica was screaming. And Kelly pulled on it, he said he pulled on it for four or five seconds and said I can't do it.
Cory wasn't fighting him at all. And he let go of the rope, he let go for about five seconds, and Cory took a breath. And . . .
Jessica said she would do it, and she finished, I guess.
When Parris asked Beard why he had participated, he told her du Mas "was really persistent and insisted that this be dealt with, and he said that he just did it because . . . basically was because she wanted him to do it."
Du Mas tried for several days to contact Beard in Idaho. When she finally reached Beard at Parris' house, Beard hung up on her. Symone Barr was with du Mas in Seattle at the time. Barr attempted to call Beard to find out why he would not speak to du Mas. Barr testified that when Beard answered the telephone, he yelled, "Jessica, you made me kill the guy. You made me kill the guy." When Beard learned the caller was Barr, rather than du Mas, he hung up.
On February 1, du Mas and Barr took a train to Idaho to look for Beard. Barr first assumed that du Mas simply "couldn't accept that Kelly [Beard] was . . . not coming back to her." But when Barr pressed du Mas to explain why she was being so persistent about finding Beard, du Mas eventually confided that she and Beard had killed Flowers.
When Barr refused to assist her any longer, du Mas enlisted another acquaintance to drive her around in search of Beard. At around midnight on Wednesday, February 3, they finally found Beard at Parris' house. Du Mas pounded on the door for several minutes before Beard answered. A raucous argument ensued. Beard shouted "this is your deal, Jessica", and said that she would "fry in the electric chair". The two then began to argue about which one of them would "fry in the electric chair." ("No, you are going to fry; no, you are; no, you are"). Du Mas told Beard people would believe her because he had a criminal record. Du Mas referred to Parris in insulting terms. Beard kicked du Mas in the chest and knocked her off the front step. Furious, du Mas returned to the car and told the driver, "Kelly killed Cory." She then asked to go the police station. On the way, she stopped to call two people to discuss her alibi. At about 3:30 a.m., du Mas gave her first statement to the Nampa police.
The evidence presented to the jury, in addition to the above testimony, included a letter Beard wrote to Parris from jail after he had been in custody for about five weeks. He and Parris were planning to get married, and she told him she needed to know exactly what he had done. In the letter, Beard said he was the one who first raised the idea of killing Flowers:
All the way up to Seattle, Jess is saying how she wants to kick Cory's ass. . . . I tell her if she wants to keep getting fucked with by him, then that's how to do it. But if she wanted to not get fucked with then she should kill him.
After this conversation, du Mas became, in Beard's words, "obsessed with knowing about how to kill him." Describing the evening of the murder, Beard wrote:
I thought the day we finally left that it was a joke. Well obviously it wasn't.
We went to some place past the falls, and we started drinking. I took two sips, like always, then since it was me with the rope I stood behind Corey and Jess nodded her head. I
slipped it around his neck like [diagram] no knot, when I let go he was still breathing. She got ahold of it and tied the rope after she shook his head screaming at him "Your not going to burn anyone no more I'm not going to let you do it no more you have burnt 1 too many people." And I figured she would just let him go. Not!! We (after she cleaned out his pockets cuz I wouldn't touch his pants and stuff cuz . . . .) We put him under this brush and left. . . . Before I came back to Idaho that night she said "If you burn me I'll kill you."
Beard told Parris to destroy the letter, but she saved it. Some time later, Beard called Parris from jail and told her he was going to marry someone else. In revenge, Parris turned the letter over to the King County Prosecutor's Office.
The jury returned a verdict of guilty on both counts. On December 3, 1993, the trial court imposed concurrent sentences of 250 months for the first degree murder conviction, and 140 months for the second degree murder conviction.
II. HEARSAY AND CONFRONTATION
Initially, du Mas' motion to have her trial severed from Kelley Beard's was granted. On the first day of du Mas' trial, Beard asserted his Fifth Amendment privilege and refused to testify. The trial court ruled the assertion of privilege was valid because Beard was still awaiting sentencing and declared Beard to be unavailable. The court then ruled admissible certain hearsay statements by Beard which inculpated both himself and du Mas. Du Mas objected to admission of these statements as hearsay and as a violation of her constitutional right to confront each witness against her. Du Mas renewed her objections to Beard's statements in her post-verdict motion for a new trial, and now raises them on appeal.
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
On appeal, du Mas contends that the hearsay exception for statements against penal interest, ER 804(b)(3), requires the trial court to analyze individually each declarative assertion within a narrative, and admit only the assertions that are truly self inculpatory.
Statements inculpating Beard in the murder were relevant because the State was trying du Mas, in part, on the theory that she was an accomplice to Kelly Beard. For example, Beard admitted that the killing was his idea, and admitted that he put the rope around Cory's neck. But du Mas contends that the court should have redacted those portions of Beard's statements that shifted the blame to her. For example, Beard told Parris it was du Mas who was ultimately responsible for the killing. "When I let go he was still breathing. She got ahold of it . . . . And I figured she would just let him go. Not!!"
This court has previously held that the trial courts need not break an extended narrative into its constituent parts:
The better view is that the statements should be viewed as a whole in determining their admissibility; given the broad language of ER 804(b)(3) we do not believe the intent of the rule is to exclude collateral matter which, when viewed out of context, may not be disserving.
State v. Valladares, 31 Wash. App. 63, 70, 639 P.2d 813 (1982), aff'd in part, rev'd in part, 99 Wash. 2d 663 (1983) (quoting State v. Parris, 30 Wash. App. 268, 277 n.9, 633 P.2d 914 (1981), aff'd, 98 Wash. 2d 140, 654 P.2d 77 (1982)); see also 5B Karl B. Tegland, Washington Practice sec. 403, at 268-69 (3d ed. 1989) (admissibility turns on whether self-serving or disserving aspects predominate).
In Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), the United States Supreme Court, interpreting Fed. R. Evid. 804(b)(3), imposed a narrow construction on the term "statement". The Court explained:
Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. This notion simply does not extend to the broader definition of "statement." The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
Williamson, 512 U.S. at 599-600 (citation omitted).
The State contends du Mas waived any argument based on Williamson, a case decided nine months after the completion of her trial, because she did not propose redaction at trial. During the hearing on the motion for a new trial, the court remarked: "There was no motion to redact portions of the letter, which would have been considered had it been raised."
We need not decide whether du Mas adequately preserved for review her objection under ER 804(b)(3). Regardless of whether Beard's statements were inadmissible under the Evidence Rules, we conclude they were unreliable and therefore inadmissible under the Confrontation Clause.
We initially reject the State's suggestion that du Mas, by resisting the State's effort to call Beard as its last witness, waived her objection to the admission of his out-of-court statements. The trial court agreed with the defense that changing the ruling on Beard's availability at the last minute would make the trial unfair. This decision was sound. Du Mas should not have been forced to choose between consenting to the State's attempt to call a crucial new witness on the last day of trial, on the one hand, and waiving her challenge to the violation of her confrontation rights on the other.
The sixth amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him". *fn1 The Confrontation Clause is not an absolute bar to the admission of hearsay incriminating the accused.
State v. Edmondson, 43 Wash. App. 443, 448, 717 P.2d 784 (1986); Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1985). But confrontation rights are "uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination." Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986). Such statements must be "scrutinized intensively to see if they conform to sound hearsay doctrine and confrontation clause requirements." State v. Whelchel, 115 Wash. 2d 708, 716, 801 P.2d 948 (1990) (quoting Beaver & McCleary, Inculpatory Statements Against Penal Interest: State v. Parris Goes Too Far, 8 U. Puget Sound L. Rev. 25, 28 (1984)). A confession that also tends to incriminate the defendant as an accomplice is "presumptively unreliable". Lee, 476 U.S. at 541; accord, State v. Greer, 62 Wash. App. 779, 791, 815 P.2d 295 (1991).
The trial court found the following factors weighed in favor of viewing Beard's statements as reliable: (1) Beard's lack of motive to make false statements to his girlfriend, especially when they put him in a bad light; (2) the general consistency of his various statements; (3) all statements appeared spontaneous except for the letter; (4) except for the letter, the statements were made before others knew the victim had been murdered; (5) because Beard admitted to being present during the murder, cross-examination could not demonstrate that he lacked knowledge; (6) the statements indicated he thought about the murder constantly, thus negating the possibility of faulty recollection; (7) there was no reason to suppose Beard misrepresented du Mas' involvement. "These statements by Mr. Beard clearly implicate himself and do not attempt to minimize his involvement.
They are made to a girlfriend rather than to the police." In making this assessment, the court relied on State v. Rice, 120 Wash. 2d 549, 566, 844 P.2d 416 (1993), a case upholding the admission of a confession made by a non-testifying co-defendant to his girlfriend in a letter from jail.
We do not read Rice as a general endorsement of the reliability of statements made to intimate friends. While the circumstances in Rice suggested that the defendant was spontaneously pouring out the story of the murder to a girlfriend "with little hope that it would benefit himself", Rice, 120 Wash. 2d at 566, the circumstances here suggest Beard had strong motives to minimize his involvement in the killing.
In analogous cases, Washington courts have concluded that hearsay statements of an accomplice were unreliable. State v. Whelchel, 115 Wash. 2d 708, 801 P.2d 948 (1990); State v. St. Pierre, 111 Wash. 2d 105, 117, 759 P.2d 383 (1988). In contrast to the declarants in Whelchel, Beard was not in police custody when he made his initial statements to Parris. Other circumstances surrounding ...