940 P.2d 546 (Wash. 1997), 61320-6, State v. Brown

Docket Nº61320-6.
Citation940 P.2d 546, 132 Wn.2d 529
Opinion JudgeSMITH
Party NameSTATE of Washington, Respondent, v. Cal Coburn BROWN, Appellant.
AttorneyJudith Mandel, Port Orchard, and Cal C. Brown, Walla Walla, for Appellant., Norm Maleng, King County Prosecutor, Theresa Fricke, Cynthia Gannett, and Brenda Pahmeier, Deputy Prosecutors, Seattle, for Respondent.
Judge Panel[132 Wn.2d 633] DURHAM, C.J., and DOLLIVER, GUY, JOHNSON and TALMADGE, JJ., concur. Alexander and Sanders, JJ., concur.
Case DateJuly 24, 1997
CourtSupreme Court of Washington

Page 546

940 P.2d 546 (Wash. 1997)

132 Wn.2d 529

STATE of Washington, Respondent,

v.

Cal Coburn BROWN, Appellant.

No. 61320-6.

Supreme Court of Washington, En Banc.

July 24, 1997

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As Amended August 13, 1997. [132 Wn.2d 539]

Judith Mandel, Port Orchard, and Cal C. Brown, Walla Walla, for Appellant.

Norm Maleng, King County Prosecutor, Theresa Fricke, Cynthia Gannett, and Brenda Pahmeier, Deputy Prosecutors, Seattle, for Respondent.

SMITH, Justice.

Appellant Cal Coburn Brown upon direct review appeals his conviction and sentence for aggravated first degree murder. A jury in the King County Superior Court, after a finding of "guilty," determined he did not merit leniency. The trial court then on January 18, 1994 sentenced Appellant to death as required by statute. We affirm the conviction and sentence.

QUESTIONS PRESENTED

The following questions are presented by this appeal:

(1) Whether, under RCW 10.95, the capital punishment statute, (a) there was sufficient evidence to justify the affirmative finding by the jury that there were not sufficient mitigating circumstances to merit leniency; (b) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the [132 Wn.2d 540] crime and the defendant; (c) the sentence of death was brought about by passion or prejudice; or (d) the defendant was mentally retarded;

(2) Whether the proportionality review mandated by RCW 10.95.130 is void for vagueness under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 14 of the Washington Constitution;

(3) Whether statements made by prosecuting attorneys during the guilt and penalty phases of the trial constituted prosecutorial misconduct which denied Appellant a fair trial;

(4) Whether the trial court erred in admitting the testimony of Ms. Susan J. Schnell, surviving victim in a criminal encounter with Appellant in California;

(5) Whether the trial court erred in admitting the testimony of Ms. Jan M. Gray and Ms. Brieanna C. West, who had noncriminal encounters with Appellant in California and Washington;

(6) Whether Appellant was adequately advised of his Miranda rights Before making statements to Palm Springs, California police detectives;

(7) Whether Appellant's statements to Palm Springs, California police, which were recorded without his knowledge as permitted by California law, violated Washington's Privacy Act, RCW 9.73 et seq., and thus were inadmissible in Washington courts;

(8) Whether there is Before this court a record of "sufficient completeness" for adequate appellate review of the issues presented in Appellant's appeal;

(9) Whether the trial court erred in allowing prospective jurors to be "death qualified" during voir dire examination;

(10) Whether certain prospective jurors were properly excused for cause;

(11) Whether the terms "premeditation" and "intent" were sufficiently explained in the trial court's instructions to the jury; [132 Wn.2d 541]

12) Whether the trial court properly instructed the jury concerning the aggravating factors in the case;

(13) Whether the trial court erred in refusing to give the jury certain instructions proposed by the defense in the penalty phase;

(14) Whether Appellant was properly served with the Notice of Special Sentencing Proceeding required by RCW 10.95.040(2);

(15) Whether Criminal Rule 4.7 (CrR 4.7) mandates reciprocal pretrial discovery of evidence relevant to the penalty phase in a capital case; and

(16) Whether the trial court erred in refusing to admit victim impact evidence in the penalty phase of the trial.

Page 555

STATEMENT OF FACTS

On May 27, 1991, Memorial Day, King County police, following a telephone call from police detectives in Palm Springs, California, discovered the body of a twenty-one-year-old woman, Ms. Holly C. Washa, in the trunk of her 1985 blue Oldsmobile automobile parked in space 266 of a Budget Park and Ride lot near the Seattle-Tacoma Airport. She was wearing a leather jacket covered with blood, and the strap of her purse was tied and knotted tightly around her neck. The strap was sunken into the cavity of a deep slash wound across her neck.

The events surrounding Ms. Washa's death began on May 18, 1991 when the appellant in this case, Cal Coburn Brown, was in La Jolla, California at the Hyatt Regency Hotel. While in the hotel lounge, Appellant met Ms. Jan M. Gray from the Seattle area, who was in La Jolla with her mother on vacation. While socializing with Ms. Gray and her mother, Appellant told them he was an architect who built houses. He also told them he had trouble meeting single women. Ms. Gray mentioned that she had a single friend named Brieanna West who also lived in the Seattle area and who had similar problems meeting single men. After some coaxing by Appellant, Ms. Gray telephoned [132 Wn.2d 542] Ms. West and arranged a blind date for them in Seattle.

On May 20, 1991, Appellant traveled by air to Seattle. En route, there was a scheduled stop in Ontario, California, where Ms. Susan J. Schnell boarded for a business trip to Lewiston, Idaho. Appellant and Ms. Schnell, who were sitting near each other, began talking during the flight. She found him friendly and interesting. He told her he was a "home designer" and spoke with an Australian accent. He also told her he wanted to see her again. She gave him her home and business telephone numbers and the name of the hotel where she would be staying in Lewiston. That same evening Appellant met with Ms. Brieanna C. West for drinks at the Seattle-Tacoma Red Lion Inn. She found him physically unattractive and did not want to see him again. Appellant stayed at the Red Lion Inn that night and Ms. West returned to her apartment.

Appellant telephoned Ms. Susan J. Schnell in Idaho at 9:00 p.m. the next evening and asked her if she could spend some time with him in Seattle. She told him she planned to fly back to California the next day, May 22, 1991, and would be in Seattle on a brief layover. She and Appellant made plans to meet at the Seattle-Tacoma Airport during her layover. Appellant then telephoned the Shadow Motel in the airport area and made arrangements to leave his luggage there. He told an employee of the motel he had met a woman and was going to fly to Palm Springs to meet with her again.

On May 22, 1991, Appellant met with Ms. Schnell at the Seattle-Tacoma Airport for dinner. They discussed getting together in Palm Springs for the upcoming Memorial Day weekend. Without making definite plans, Ms. Schnell took her flight back to Ontario, California. Later that evening, Appellant telephoned Ms. Schnell in California and arranged to spend Memorial Day weekend with her in Palm Springs. [132 Wn.2d 543] Appellant's Statement to Police

On May 27 and 28, 1991, Appellant made statements to police detectives in Palm Springs, California in three interviews which were recorded without his knowledge. In his statements he related in calm, deliberate, clear, graphic and specific detail a narrative of his activities, with few questions from the detectives, who courteously allowed him to relate his story. 1 His statements may fairly be characterized as admissions or confessions. 2

Page 556

On the morning of May 23, 1991, Ms. Holly C. Washa was at the Wyndham Garden Hotel near the Seattle-Tacoma Airport where she had just quit her part-time job. As she was driving out of the parking lot in her 1985 Oldsmobile, Appellant pointed to one of the tires on her automobile suggesting something was wrong. She stopped. Appellant then forced his way into her automobile, stuck a knife 3 in her face, and grabbed her by the hair. He demanded that she "drive or die," and began rummaging through her purse for money. Finding only a small amount of change, he looked at her checkbook. He then forced her to write a check for $350.00, the entire balance in her checking account. They went through the drive-up window at a Seafirst Bank in Federal Way and cashed the check. Then they went to the Seattle waterfront area where Appellant tied Ms. Washa's hands behind her back with her purse strap and forced her into the passenger seat of her automobile. He asked her several questions concerning [132 Wn.2d 544] her schedule on a typical day, who her roommates were and what they did. 4 He then purchased some handcuffs at a gun shop while leaving Ms. Washa tied up in the automobile. 5

After purchasing the handcuffs, Appellant took Ms. Washa back to his room at the Shadow Motel where he paid for an extra night. He demanded that she remove all her clothing, after which he tied her to the bed with his neckties and her purse strap. He cut up her shirt and stuffed it into her mouth for a gag. He then ordered her to get dressed again and took her to get something to eat. While at a Burger King drive-through, he held the knife in a threatening position where she could see he might use it. Upon their return to the motel room, he ordered her to remove her clothing and lie face down on the bed. He also told her not to scream or do anything. Appellant said Ms. Washa began fellating him, which he took as her consent for sexual activity. 6

Appellant then engaged in sexual intercourse with Ms. Washa for about two hours, during which time he noticed she was looking at the door and possibly thinking of escape. Appellant decided it was time "to have a little control, ... make her a little more scared of me, basically." He then tied her in a face up, spread eagle position, with her hands behind her back and her mouth gagged, and whipped her "maybe half a dozen times...." ...

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651 practice notes
  • 10 P.3d 481 (Wash.App. Div. 3 2000), 18261-4, State v. Portrey
    • United States
    • Washington Court of Appeals of Washington
    • October 12, 2000
    ...as the instruction correctly states the law and allows each party to argue its theory of the case. State v. Brown, 132 Wash.2d 529, 618, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998); State v. Mark, 94 Wash.2d 520, 526, 618 P.2d 73 (1980). A specif......
  • 208 P.3d 1136 (Wash.App. Div. 2 2009), 35269-9, State v. Asaeli
    • United States
    • Washington Court of Appeals of Washington
    • March 31, 2009
    ...misconduct affected the jury's verdict.’ " McKenzie, 157 Wash.2d at 52, 134 P.3d 221 (quoting State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997)). We evaluate the prejudicial effect of a prosecutor's improper comments by looking at the comments " in the context of the total......
  • 26 P.3d 1017 (Wash.App. Div. 3 2001), 17721-1, State v. Munguia
    • United States
    • Washington Court of Appeals of Washington
    • July 19, 2001
    ...the issues in the case, the evidence addressed in the argument, and the court's instructions. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997). Here, the context of the questioning was to show Ricardo was frightened of Mr. Munguia. It is permissible for a prosecutor to ask a witnes......
  • 298 P.3d 769 (Wash.App. Div. 1 2012), 67247-9-I, State v. Blake
    • United States
    • Washington Court of Appeals of Washington
    • December 24, 2012
    ...by a curative instruction to the jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). ¶ 59 None of the alleged misconduct of which Blake now complains was objected to at trial. Therefore, if there was any im......
  • Free signup to view additional results
650 cases
  • 10 P.3d 481 (Wash.App. Div. 3 2000), 18261-4, State v. Portrey
    • United States
    • Washington Court of Appeals of Washington
    • October 12, 2000
    ...as the instruction correctly states the law and allows each party to argue its theory of the case. State v. Brown, 132 Wash.2d 529, 618, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998); State v. Mark, 94 Wash.2d 520, 526, 618 P.2d 73 (1980). A specif......
  • 208 P.3d 1136 (Wash.App. Div. 2 2009), 35269-9, State v. Asaeli
    • United States
    • Washington Court of Appeals of Washington
    • March 31, 2009
    ...misconduct affected the jury's verdict.’ " McKenzie, 157 Wash.2d at 52, 134 P.3d 221 (quoting State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997)). We evaluate the prejudicial effect of a prosecutor's improper comments by looking at the comments " in the context of the total......
  • 26 P.3d 1017 (Wash.App. Div. 3 2001), 17721-1, State v. Munguia
    • United States
    • Washington Court of Appeals of Washington
    • July 19, 2001
    ...the issues in the case, the evidence addressed in the argument, and the court's instructions. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997). Here, the context of the questioning was to show Ricardo was frightened of Mr. Munguia. It is permissible for a prosecutor to ask a witnes......
  • 298 P.3d 769 (Wash.App. Div. 1 2012), 67247-9-I, State v. Blake
    • United States
    • Washington Court of Appeals of Washington
    • December 24, 2012
    ...by a curative instruction to the jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). ¶ 59 None of the alleged misconduct of which Blake now complains was objected to at trial. Therefore, if there was any im......
  • Free signup to view additional results
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