State v. Harris

• Decision Date: 02 October 1986
• Docket Number: No. 51464-0,51464-0
• Citation: 725 P.2d 975,106 Wn.2d 784
• Parties: The STATE of Washington, Respondent, v. Benjamin James HARRIS, III, Appellant.
• Court: Washington Supreme Court

Page 784

106 Wn.2d 784

725 P.2d 975

The STATE of Washington, Respondent, v. Benjamin James HARRIS, III, Appellant.

No. 51464-0.

Supreme Court of Washington,

En Banc.

Oct. 2, 1986.

Benjamin Harris, pro se.

Anderson, Anderson & Hiblar, Murray Anderson, Tacoma, for appellant.

William Griffies, Pierce County Prosecutor, Chris Quinn-Brintnall, Deputy County Prosecutor, Tacoma, for respondent.

DOLLIVER, Chief Justice.

Defendant was sentenced to death on one count of aggravated first degree murder. The killing occurred pursuant to a contract; both the defendant and the person he offered to pay performed the killing. Defendant challenges the trial court's imposition of the death penalty.

Jimmy Lee Turner was found shot to death outside his home on June 14, 1984, in Tacoma, Washington. He had been shot in the head and the neck. The Tacoma Police Department (TPD) began an immediate investigation into the shooting.

Later, on the same day, defendant Harris called Sergeant Parkhurst of the TPD and asked if Parkhurst had heard rumors of defendant being involved in the homicide. On the same day, the police obtained an oral statement from Raymond E. Meeks who stated he had had conversations with defendant Harris and codefendant Bonds regarding Bonds' acceptance of a contract from defendant Harris to kill certain persons.

Over the next 2 weeks, the investigation continued with the TPD hearing that defendant Harris, among other people, might have been involved in the shooting. On July 2, 1984, Detective Bowen and Sergeant Parkhurst went to Harris' home to talk with him about the homicide. The officers were invited in by defendant who voluntarily talked to them about Turner. Defendant was not advised of his rights but would not have been detained or arrested had he refused to talk to the police.

On July 17, 1984, defendant called Sergeant Parkhurst and said he would give the police the name of a suspect in the Turner homicide. Defendant also asked two favors of the police: (1) to be furnished with two guns for protection; and (2) for a conversation with Meeks, then in the county jail. Defendant came to the county jail on July 18, 1984, and was allowed to talk with Meeks (he was not given any guns).

After defendant's visit with Meeks, he told police he was with codefendant Bonds the evening of the killing. No Miranda warnings were given. The police then talked with Meeks who signed a formal statement implicating defendant in Turner's death. This statement was corroborated by Valerie Stevens.

On July 19, 1984, defendant went to the TPD and was interviewed again. Prior to any questioning, defendant was advised of his Miranda rights. Following the questioning, defendant was allowed to leave. Defendant continued to call Sergeant Parkhurst. Defendant was subsequently arrested as a material witness and released on personal recognizance. On August 8, 1984, defendant was arrested as a suspect in the Turner killing.

On August 10, 1984, defendant was arraigned on charges of aggravated first degree murder. He pleaded not guilty. On September 20, 1984, a CrR 3.5 hearing was held to determine admissibility of defendant's inculpatory statements made to police prior to July 19, 1984. The trial court concluded all statements made by defendant prior to July 19, 1984 were admissible.

An order was entered, at defense counsel's request, on September 28, 1984, enabling defendant to be examined at Western State Hospital. While at Western State Hospital, the examining psychologist, Dr. Kathleen Mayers, performed three psychological tests on the defendant: (1) Minnesota Multiphasic Personality Inventory (MMPI); (2) Rotter Incomplete Sentences Blank; and (3) Rorschach Diagnostic Procedure. In her report dated October 8, 1984, Dr. Mayers stated defendant was competent to stand trial. The MMPI was completed but not scored.

Trial was originally set to begin on October 15, 1984, but defendant obtained a 1-week continuance: (1) because defense counsel was in another trial; and (2) to allow the defendant to be examined by a psychological expert of the defendant's own choosing. Defendant did not, however, retain a private psychological expert. On October 29, 1984, the jury returned a verdict finding defendant guilty of aggravated murder in the first degree. On October 31, 1984, the same jury was convened for the sentencing phase of trial. The prosecutor advised defense counsel about the unscored MMPI just prior to the commencement of the sentencing phase. Discovery of the unscored MMPI had been made by the prosecutor on October 30, 1984. No psychological data was presented to the jury as mitigating circumstances. The jury determined there were not sufficient mitigating circumstances presented to merit leniency.

On November 5, 1984, the trial court granted a continuance of the sentencing date to allow the defense to file a motion for a new trial based on new evidence, including the unscored MMPI. Defendant was allowed access to State and defense psychologists, Kathleen Mayers and Allen Traywick, during this continuance. Both Dr. Mayers and Dr. Traywick diagnosed defendant as having an antisocial personality with paranoid disorder. Dr. Mayers testified that her second evaluation added no additional information to her original evaluation.

The trial court denied the defense motion to arrest judgment or for a new sentencing trial and imposed judgment and the death penalty on defendant on January 14, 1985. The case is before the court on direct review. RAP 4.2(a)(6). We affirm the trial court's decision and, thus, as we are required to do by law, uphold defendant's sentence of death.

Defendant raises several issues regarding his death sentence, each of which we have considered and which we now discuss.

I

Defendant argues the police should have issued Miranda warnings to him for all statements made after July 2, 1984 and prior to July 19, 1984, because their investigation had focused sufficiently on him as a suspect shortly after Turner's death. The State responds that defendant voluntarily gave information to the police and was not the focus of the investigation until the police received sworn written statements from Raymond Meeks and Valerie Stevens.

Miranda warnings were developed to protect a defendant's right not to make incriminating confessions or admissions to police while in the coercive environment of police custody. State v. Dictado, 102 Wash.2d 277, 292, 687 P.2d 172 (1984). If warnings are not given when applicable, the statements made by a suspect may be inadmissible at trial. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

The United States Supreme Court recently has elucidated the test for determining when Miranda safeguards exist. "[T]he safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' " Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct 3138, 3151, 82 L.Ed.2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)). The Berkemer test modifies the "probable cause to arrest" standard used by this court to determine when Miranda safeguards are required. State v. Dictado, supra. Thus, persons voluntarily accompanying police to the police station as material witnesses are not under custodial interrogation if their freedom of action is not curtailed to a degree associated with a formal arrest. See State v. Green, 91 Wash.2d 431, 94 Wash.2d 216, 588 P.2d 1370, 616 P.2d 628 (1980).

Defendant's circumstances regarding his statements at issue do not appear to give rise to Miranda safeguards. Defendant did not challenge any of the trial court's findings of fact at his CrR 3.5 hearing and, therefore, the court's findings are taken as verity. State v. Christian, 95 Wash.2d 655, 628 P.2d 806 (1981). Defendant initiated contact with the TPD after Turner's death. During the few interviews between defendant and the TPD, prior to July 19, 1984, defendant would not have been arrested or curtailed even if he had refused to cooperate. These talks do not appear to have limited defendant's freedom of action to a degree associated with formal arrest, thus Miranda warnings were not required.

II

Defendant next claims that because his alleged aggravating act, RCW 10.95.020(5), requires a contract between two people, codefendant Bonds' subsequent acquittal of the similar aggravating act relieves defendant of his aggravating circumstances. The State argues that defendant's theory is misplaced and inappropriate.

For his argument, defendant relies on the common law rule set out in State v. Henry, 143 Wash. 39, 254 P. 460 (1927). This rule applies to crimes, such as conspiracy, which can be committed only by several persons jointly. Under this rule, if the one defendant is convicted and the other subsequently acquitted, the conviction must be dismissed. State v. Henry, at 42-43, 254 P. 460. The Legislature, however, has spoken to this issue and has specifically exempted its application to the crime of conspiracy. RCW 9A.28.040(2)(d) (1975).

Even more persuasive is RCW 9A.08.020(6) (1975), which would hold defendant Harris legally accountable for the conduct of codefendant Bonds even if Bonds were to be subsequently acquitted:

A person legally accountable for the conduct of another person may be convicted on proof of the commission of the crime and of his complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime or has an immunity to prosecution or conviction or has been acquitted.

(Italics ours.) Where RCW 9A.28.040(2)(d) applies specifically to the former common law rule regarding conspiracy, RCW 9A.08.020(6) signals the Legislature's intent to find a defendant guilty of a crime even if the other person is acquitted. Defendant's contention is without merit.

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