State v. Hoffman

• Citation: 116 Wn.2d 51,804 P.2d 577
• Decision Date: 10 January 1991
• Docket Number: No. 55948-1,55948-1
• Parties: STATE of Washington, Respondent, v. Patrick Gene HOFFMAN and Elmer Edward McGinnis, Appellants. En Banc
• Court: United States State Supreme Court of Washington

Page 51

116 Wn.2d 51

804 P.2d 577

STATE of Washington, Respondent, v. Patrick Gene HOFFMAN and Elmer Edward McGinnis, Appellants.

No. 55948-1.

Supreme Court of Washington,

En Banc.

Jan. 10, 1991.

Richard B. Price, Omak, for appellant Hoffman

Elmer Edward McGinnis, Paul J. Wasson, Spokane, for appellant McGinnis.

Jack Burchard, Okanogan County Prosecutor, Okanogan, for respondent.

Bruce Didesch, Colville Tribal Legal Office, Nespelem, Michael Taylor, Colville Tribal Legal Office, Omak, for amicus curiae, for respondent on behalf of Confederated Tribes of Colville Indian Reservation.

ANDERSEN, Justice.

FACTS OF CASE

Patrick Gene Hoffman and his father, Elmer Edward McGinnis seek reversals of their convictions for aggravated murder in the first degree and assault in the first degree. The convictions were based on charges filed after the August 27, 1986, shooting death of tribal police officer Louis Millard and wounding of tribal police officer John Dick.

In appealing to the Court of Appeals, defendants raised multiple issues including a challenge to the jurisdiction of the State of Washington to bring this prosecution. The shootings occurred near Nespelum, Washington within the boundaries of the Colville Indian Reservation. Defendants Hoffman and McGinnis were both members of the Colville Confederated Tribe as was John Dick, one of the tribal officers shot. Louis Millard, the tribal police officer who was shot and killed, was of Colville Indian descent but was not an enrolled member of the tribe.

The Court of Appeals certified the case to this court because of the jurisdictional issue. We accepted review of the case in its entirety. Having now carefully reviewed the voluminous (almost 6,000-page) record and extensive appellate briefs, we conclude that the trial court did have jurisdiction and that the defendants were fairly tried, convicted and sentenced under the law. Accordingly, we affirm the convictions of both defendants.

The facts which the jury was reasonably entitled to believe from the evidence admitted at the trial of this case are set out in some detail in connection with our subsequent discussion of the challenges to the sufficiency of the evidence. Such facts in broader outline, however, are as follows.

On August 25, 1986, 2 days before the shooting, several tribal police officers arrested McGinnis at the Tribal Council headquarters pursuant to an outstanding arrest warrant which had been issued by the chief judge of the Tribal Court. The arrest warrant was issued on a trespass-lands charge. It was issued after a Mr. Ferguson had complained to the prosecutor that McGinnis had trespassed on his land several times and had threatened and intimidated Mr. Ferguson, his wife, and his daughter. The Tribal Court had originally mailed a criminal summons to McGinnis on the trespass charge but it was returned unopened with his refusal marked thereon. The warrant for his arrest then issued from the Tribal Court based upon the trespass-lands criminal charge and on the judge's determination that McGinnis was an immediate threat to the community.

McGinnis physically resisted the arrest and assaulted tribal police officers and the ambulance attendants who were called after McGinnis complained of chest pains. McGinnis was taken to the Tribal Health Clinic and the Coulee Community Health Facility and finally to the Okanogan County Jail where he was booked on the Tribal Court trespass-lands warrant and placed on a tribal police hold for resisting arrest and assaulting the tribal police officers and ambulance crew. McGinnis continued to complain of pain and, therefore, was ultimately taken to the Mid-Valley Hospital.

The tribal police decided not to post a guard, apparently because of a personnel shortage and because McGinnis was attached to a heart monitor which would sound an alarm if disconnected. The hospital's alarm to the sheriff's office was tested by the officers and the hospital staff was instructed to notify the police when McGinnis was to be medically discharged. The tribal prosecutor informed McGinnis' attorney and his daughters that McGinnis was still under arrest and gave McGinnis' children permission to visit their father in the hospital.

McGinnis was unexpectedly discharged on August 26, the evening before the shooting. When one of the nurses realized that he was on a tribal police hold, she attempted to detain him and told him to wait or the police would come after him. However, McGinnis, in the company of his son (the defendant Patrick Gene Hoffman) and his four daughters, drove away from the hospital.

The automobile driven by Hoffman, in which McGinnis and the four daughters were passengers, was observed by a tribal police officer who gave chase in a police vehicle. The officer testified that although he accelerated to 75 or 80 m.p.h., he was unable to overtake the vehicle he was pursuing. He testified that his emergency red and blue rotating lights were on and that he came within 100 yards of the vehicle Hoffman was driving but that it eluded him. Hoffman later admitted to knowing that a police car was following him and that he accelerated to get away from it.

After eluding the police, McGinnis and Hoffman set out to walk the 6 to 8 miles through the mountainous terrain to McGinnis' home. McGinnis stated he did not want his daughters to be in the line of fire, and that he would rather die than go back to jail. Hoffman removed a gym bag from the trunk of the car which contained a loaded .45 caliber semi-automatic pistol with 40 rounds of ammunition, a holster and holster belt for the .45 pistol, a loaded .22 caliber revolver, an Interdynamics KG 99 9 mm. semi-automatic pistol with two magazines of ammunition, at least one and possibly two Olin flare guns with flare rounds, a knife, a can of mace and a set of nunchucka sticks. Hoffman testified that it was his habit to carry these weapons at all times.

Upon arriving at the McGinnis' residence, McGinnis and Hoffman hid behind a chicken coop and armed themselves with the guns from Hoffman's gym bag. The police had earlier placed an officer on surveillance of the McGinnis property. An officer also testified that the police believed McGinnis kept a large arsenal of weapons in his house and that they were concerned that McGinnis might return home, acquire weapons and harm Mr. Ferguson and his The officers searched two abandoned buildings and other areas surrounding the property while the police vehicle lights remained on. Officers Dick and Millard crossed a fence surrounding the McGinnis property and approached the chicken coop. By this time the lights had been extinguished so as not to back light the officers, but Officers Millard and Dick each carried large mag police flashlights. Officer Dick testified that both officers were talking and joking as they climbed the fence. He also testified that their service revolvers were holstered as they climbed the fence and approached the chicken coop. Officer Dick testified that he shined his light behind the coop, turned to walk away and was shot in the back. Gunfire continued after Officer Dick fell wounded. Both Officers Dick and Millard returned the fire. The other officers at the scene testified that they did not fire their weapons. Officer Dick heard Officer Millard moaning and realized he had been shot. As Officer Dick crawled over and attempted to drag Officer Millard to cover, illuminating flares coordinated with gunfire continued to come from behind the chicken coop.

                family, the complainants on the trespass charge, or the officers who had arrested him at tribal headquarters.   At approximately 1:30 a.m. on August 27, shortly before the shooting, the officer watching the property observed two individuals whom he could not identify.   Pursuant to his orders, the officer on surveillance radioed the police dispatcher for assistance.   Five marked police cars and a rescue truck arrived at the scene within a short time.   The officers used their patrol car headlights and spotlights and the searchlights on the rescue truck to illuminate and search the property.   The floodlights panned the property for approximately 15 minutes before being extinguished
                

An autopsy confirmed that Officer Millard had been struck by a 9 mm. bullet in the upper chest; death ensued within about 15 minutes. The bullet which struck Officer Dick passed through his body and was never definitely identified. At trial Hoffman admitted to firing the .22 caliber revolver, the .45 pistol and a flare gun from his position McGinnis was discovered by police early the next morning near the scene of the shooting. He had been shot with a bullet which was later identified as consistent with Officer Dick's police revolver and ammunition. Hoffman escaped, to appear 2 days later at the home of one Jeff Epperson in Keller, Washington. Hoffman told Epperson that McGinnis had fired the 9 mm. gun. Epperson testified at trial that when told that an officer had been killed, Hoffman replied "good deal".

                behind the chicken coop.   Two ejected 9 mm. cartridges were found behind the chicken coop near the .22 revolver and a flare gun
                

Both defendants were originally charged by federal authorities with violations of 18 U.S.C. § 1111 (first degree murder) and 18 U.S.C. § 1114 (attempted murder of a federal officer). Those charges were later dismissed without prejudice and defendants were charged in the Superior Court of the State of Washington for Okanogan County with the crimes of aggravated murder in the first degree and assault in the first degree. Defense motions for dismissal for lack of jurisdiction, change of venue, severance, the appointment of an expert witness on police procedures and for the psychiatric examination of Officer Dick were denied by the trial court.

Following a jury trial, both defendants were found guilty of aggravated murder in the first degree for the killing of a police officer and assault in the first...