State v. McKinney, 14551

• Decision Date: 26 July 1984
• Docket Number: No. 14551,14551
• Citation: 107 Idaho 180,687 P.2d 570
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Randy Lynn McKINNEY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 570

687 P.2d 570

107 Idaho 180

STATE of Idaho, Plaintiff-Respondent, v. Randy Lynn McKINNEY, Defendant-Appellant.

No. 14551.

Supreme Court of Idaho.

July 26, 1984.

Rehearing Denied Sept. 25, 1984.

Edward W. Pike, Idaho Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

SHEPARD, Justice.

This is an appeal by McKinney from his convictions of first degree murder, conspiracy to commit murder, robbery, conspiracy to commit robbery, and the sentence of death imposed upon him. We affirm.

The circumstances surrounding the offense are reviewed at length due to the allegations of error and the imposition of the death sentence. McKinney and his female companion, Dovey Small [who was also separately tried and convicted and whose appeal is also pending before this Court] were traveling from California through Idaho, planning to hitchhike to Montana or Canada. McKinney carried with him a .22 caliber revolver. While the pair were in Malad, Idaho, they were joined by Small's sisters, Ada and Kathy, where McKinney showed his gun and indicated he had entered the "big time." The group traveled to Blackfoot, where Ada called Bob Bishop (a stranger to McKinney and Small), who agreed to transport McKinney and Small to the interstate highway where they could continue their hitchhiking journey. McKinney stated to Kathy, "I'm going to blow him [Bishop] away." When Bishop arrived, Kathy warned him about McKinney and his gun, and indicated that he [Bishop] might get hurt. With a group in Bishop's car, McKinney, seated in the rear, pointed his index finger at Bishop as if it were a gun.

At a later time, out of Bishop's hearing, Dovey Small stated that Bishop had a lot of money and that she and McKinney were going to kill him for some money because they had to leave Idaho. At a still later time, Small and McKinney discussed killing Bishop and taking his car, money, and credit cards. Dovey Small attempted to get one Wheeless to kill Bishop, and, when he refused, McKinney asked Wheeless to recommend a good place for the killing, which Wheeless also refused. McKinney then stated that he would "just take him out on the desert and shoot him and throw some bushes over him and just burn him so they can't trace him ...." Dovey Small agreed and urged that they get it over with quickly.

Bishop drove Dovey Small, Ada, and McKinney to Moore, Idaho, where Dovey Small and Ada remained. McKinney and Bishop drove to an abandoned gravel pit, presumably for target practice. While Bishop set up targets, McKinney shot him through the arm and chest. Then McKinney walked to Bishop and placed four more shots in the back of Bishop's head. McKinney then returned to Moore and picked up Ada and Dovey Small. When Ada asked for Bishop, McKinney replied that he had shot him in the stomach and five times in the head. When Ada expressed disbelief, McKinney took them to the site and showed them the body of Bishop. Ada was then taken to her home in Blackfoot. Small and McKinney then drove to Kathy's house, where Dovey Small stated that McKinney had shot Bishop. Small and McKinney next drove to Pocatello, Idaho and bought some gas with Bishop's credit card. They then called Ada to inform her that they were returning to her home, at which point the police were called. When the police arrived at Ada's home indicating they had a report that there had been a shooting, Ada told the officers that she had seen Bishop's body, that she knew where it was, that McKinney had killed him, that there was a weapon, and that the weapon was in the car driven by McKinney.

When Small and McKinney returned to Ada's house, two police cars followed the vehicle. When McKinney exited the car, McKinney was required to raise his arms, and Officer Frew approached McKinney, conducted a weapons search of McKinney's person, and asked him if he had shot anybody. McKinney said he had not, at which point Frew asked McKinney if he had a gun. McKinney answered, "Yes, it's in the car. Go ahead and get it if you want." Frew left the scene momentarily and McKinney entered Ada's trailer house.

McKinney asked Ada, "What did you say?" and Ada's husband replied, "What the hell do you think she said? She told the truth." McKinney responded, "Well, it looks like I'm going for murder." At that point, the officers knocked and were admitted, where they witnessed a heated argument between McKinney and Ada's husband. Ada said, "Randy shot Bob Bishop." McKinney responded, "I didn't shoot anybody." McKinney complied with Frew's request to go outside, where Frew indicated to McKinney the desirability of getting McKinney out of the area and into jail in "protective custody." McKinney agreed that such would be desirable.

The doors of the vehicle driven by McKinney had been left open and the officers looking in the car saw a purse with a handgun sticking out, a light brown wallet, and several other items. Frew inspected the wallet and found Bishop's credit cards and identification. When the handgun was removed from the purse, the smell indicated it had been recently fired. All items were then replaced in the car, which was locked and sealed, and a warrant obtained.

Frew drove McKinney to the Blackfoot jail, and during the trip McKinney was read his rights from a Miranda card, but told that Frew did not want to take any statement from him at that time. The next day shortly after noon, three officers met with McKinney and indicated they were investigating a possible shooting. McKinney was read the Miranda warnings off a Miranda card, at which point it was discovered that the officers did not have the written form for the signature of the person being questioned. In answer to a question, "Having these rights in mind, do you wish to talk to us now," McKinney stated that he did so desire to talk. McKinney was asked what he had done during the preceding day, and he stated that he and some friends had gone to Pocatello. He was asked if he was mistaken and meant Arco, to which McKinney responded, "No, I've never been to Arco."

At this point, a printed waiver form had been found, and it was given to McKinney, who read it, initialed each provision, and then signed the form. McKinney was then confronted with the fact that others had told of the events of the previous day, and he was asked if he would tell the whole truth. McKinney then gave a verbal and a written statement to the officers, which included that the shooting was accidental, that McKinney did not remember many of the events, and that, when McKinney returned to the site of the shooting, neither of the women exited the car.

McKinney was arraigned that afternoon and subsequently tried and convicted of first degree murder, conspiracy to commit murder, robbery, and conspiracy to commit robbery. He was sentenced to death for the first degree murder conviction.

McKinney first argues that the trial court incorrectly failed to suppress the evidence of McKinney's handgun and Bishop's wallet and credit cards. McKinney has no standing to object to the evidence seized in the car of the victim. The car was admittedly the property of the victim Bishop, and the officers had a duty to investigate the murder of Bishop and investigate the victim's property for evidence connected with the crime. Further, the evidence seized "was in the plain view of the officers where they were in a place where they had a right and duty to be." State v. Pontier, 95 Idaho 707, 712, 518 P.2d 969, 974 (1974); see also State v. Smith, 102 Idaho 108, 626 P.2d 206 (1981); State v. Ellis, 99 Idaho 606, 586 P.2d 1050 (1978).

McKinney next asserts error in the admission of oral statements made by him at Ada's home on April 8, 1981. The first statement was in response to the officer's initial contact with McKinney inquiring whether he had shot anyone, to which he answered, "No." At that point, the investigation into Bishop's murder had not yet focused on any suspect, and for that matter the officers had no certain evidence that a crime had been committed. State v. Wyman, 97 Idaho 486, 547 P.2d 531 (1976); State v. McClellan, 96 Idaho 569, 532 P.2d 574 (1975); see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The second statement was made in response to Ada's accusation that "Randy shot Bob Bishop," to which McKinney replied, "I didn't shoot anybody." The second statement was not elicited by any police questioning; it was merely a volunteered response by McKinney to the accusation of Ada. We find no error in the admission of either of the two statements.

It is next asserted that the false oral statement given by McKinney prior to the time that the written Miranda waiver form was produced should have been suppressed. We disagree. There is no argument but that the Miranda warnings were given and McKinney verbally waived them prior to his verbal statement. Hence, that statement was not given in violation of the federal constitution. It is argued, however, that, since the waiver was not signed until after the false verbal statement was given, under I.C. § 19-853, the waiver did not become effective until that moment and any statement given prior thereto was inadmissible. We disagree. There is no argument but that McKinney was read the Miranda rights and verbally agreed to waive them and to voluntarily give statements. There is likewise no question but that shortly thereafter McKinney was furnished a written form of the Miranda rights, which was the same as the form read to him, and he read the written form, initialed each part thereof, and signed that form. We will not hold that a short lapse of time between a verbal reading of the Miranda rights and McKinney's written execution of the Miranda waiver form is such police behavior as to require the exclusion of relevant evidence as a disciplinary measure. See State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983).

McKinney next asserts that the trial court erred...