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Winchester v. Stein

May 23, 1997

MARLENE WINCHESTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF THELMA LUND, DECEASED, RESPONDENT,
v.
JOHN KENNETH STEIN, A/K/A JACK STEIN, AND MICHAEL LYNN NORBERG, APPELLANTS. STATE OF WASHINGTON, EX REL. ARTHUR D. CURTIS, RESPONDENTS, V. JOHN KENNETH STEIN, ALSO KNOWN AS JACK STEIN, MICHAEL LYNN NORBERG, APPELLANTS, GORDON WAYNE SMITH, AND RICHARD DOUGLAS BAILEY, DEFENDANTS.



Appeal from Superior Court of Clark County. Docket No: 88-2-03442-1. Date filed: 02/26/91. Judge signing: Hon. H J. Hall.

Petition for Review Granted October 7, 1997,

Authored by Elaine M. Houghton. Concurring: Karen G. Seinfeld, David H. Armstrong.

The opinion of the court was delivered by: Houghton

HOUGHTON, C. J. -- Jack Stein appeals from jury verdicts entered against him based upon wrongful death, survival, and criminal profiteering claims. We affirm all but a $250,000 civil penalty and remand for further proceedings.

INTRODUCTION

Stein, Thelma Lund, and Ned Hall were involved in a dispute regarding the last will and testament of Stein's father. In April 1987, Thelma Lund was strangled to death in her Clark County home. In June 1987, several attempts were made on Ned Hall's life.

Stein and Michael Norberg were charged by information with murder, attempted murder, and conspiracy to commit murder arising out of the 1987 incidents. Stein was found not guilty on all charges relating to Lund's death, but convicted on all counts relating to the attempts on Hall's life.

Lund's estate brought suit against Stein and Norberg based upon wrongful death and survival actions. The State filed a criminal profiteering action against Stein and Norberg, and the trial court granted the State's motion to consolidate the profiteering and civil actions. The trial court refused Stein's demands to be tried separately from Norberg.

At trial, Stein represented himself. Over Stein's objections, the trial court allowed plaintiffs to elicit testimony from Stein's psychologist, Dr. Lusky, about statements Stein made regarding hiring a "hit man" to kill Lund and Hall.

The jury found in favor of the State and Lund's estate. Based upon the verdict, the trial court entered judgment in favor of Lund's estate for $4,000,000 and an additional $8,000,000 to be held in trust by the State for the benefit of Lund's estate. Similarly, the trial court awarded $24,600, three times what the jury determined were Ned Hall's actual damages, to be held in trust by the State for Hall. The damages held in trust by the State for Lund's estate and for Hall were awarded pursuant to RCW 9A.82.100(4)(d). *fn1

The State was awarded $223,894.19 for its costs in investigating and prosecuting Stein pursuant to former RCW 9A.82.100(4)(e). *fn2 Further, the court ordered Stein to pay a civil penalty of $250,000 into the Washington Anti-Criminal Profiteering Revolving Fund and awarded the State $38,301 for its trial costs pursuant to RCW 9A.82.100(1)(d). *fn3

In this appeal, Stein contends that: the State's criminal profiteering action violated double jeopardy; the judgments were excessive; and the trial court erred in denying his request for a separate trial from Norberg, in consolidating the criminal profiteering and civil actions, and in admitting Dr. Lusky's testimony. He also contends that the judgments against him should be reversed if his criminal convictions are vacated in a pending federal habeas corpus proceeding.

ANALYSIS

A. Double ...


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