State v. Barstad

• Decision Date: 12 January 1999
• Docket Number: No. 16359-8-III,16359-8-III
• Citation: 970 P.2d 324,93 Wn.App. 553
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James Benjamin BARSTAD, Appellant.

Page 553

93 Wn.App. 553

970 P.2d 324

STATE of Washington, Respondent, v. James Benjamin BARSTAD, Appellant.

No. 16359-8-III.

Court of Appeals of Washington,

Division 3,

Panel Five.

Jan. 12, 1999.

Brian C. O'Brien, Charles S. Dorn & Brian O'Brien P.S., Matthew P. Arpin, Spokane, for Appellant

Larry D. Steinmetz, Deputy Prosecuting Attorney, Spokane, for Respondent.

Joanne Farrell, Spokane, pro se.

KURTZ, J.

James B. Barstad killed two young women when he sped through a red light at a busy intersection in Spokane on the evening of May 25, 1996. Other motorists testified that in the moments before the fatal collisions, they witnessed him drive over the lawn of a private business, run another red light, and gesture angrily at them.

Mr. Barstad explained his driving was affected by the emotional state produced by the large amount of alcohol he consumed that day and a fight with a girl friend. The State charged Mr. Barstad with two counts of first degree murder under the part of the statute that punishes conduct manifesting an "extreme indifference" to human life that results in another's death. RCW 9A.32.030(1)(b). The jury convicted him.

In his appeal, Mr. Barstad contends the vehicular homicide statute supersedes the murder statute in circumstances in which the defendant causes the death of another through reckless or drunken driving. Alternatively, he contends the court's instructions that set forth the essential elements of "extreme indifference" murder did not advise the jury of the requisite mens rea for the offense. We affirm Mr. Barstad's convictions.

FACTS

On May 25, 1996, James Barstad was in Spokane visiting his girl friend. He testified they were fighting, and he drank heavily that afternoon. He consumed two to four shots of alcohol in drinks at a restaurant; and later, most of two 48-ounce pitchers of beer at a tavern. They returned to his girl friend's apartment on Upriver Drive around 7:00 p.m., but she soon asked him to leave. He got in his truck and headed toward Mission Park. According to Mr. Barstad, he intended to sleep in the park until the effects of the alcohol dissipated.

Susan and Jeff Ward were driving along North Crescent Drive, when they saw Mr. Barstad walking back and forth in the road ahead of them. His truck was stopped on the side of the road. Mr. Barstad was shouting, and Mr. Ward slowed almost to a stop because he was afraid Mr. Barstad would walk into the path of his vehicle. Mr. Barstad got "something" out of his truck and charged at the Wards. Mrs. Ward told her husband, "just go." As Mr. Ward drove away, he looked in his rearview mirror and saw Mr. Barstad raise his arm in a gesture like he was shooting at them.

David Burgess testified he was driving north on Upriver Drive when he noticed a pickup truck driving south towards him at 40 to 50 miles per hour. Mr. Burgess stopped. The driver of the pickup applied his brakes hard, creating blue smoke from the friction on his tires. He grinned at Mr. Burgess when he went by him. Mr. Burgess watched him jump the curb, and head across the lawn and around a building to Mission Street.

Adam Phillips was driving west on Mission. In his rearview mirror, he saw Mr. Barstad cross the grass and emerge behind him. Alarmed, Mr. Phillips immediately turned right on the next street, and observed Mr. Barstad run a red light at Mission and Perry at 45 to 50 miles per hour. Mr. Phillips testified Mr. Barstad "flipped off" the other motorists.

Marvin Wheeler was driving west on Mission when he saw the light at the Hamilton Street intersection turn yellow. At that time, he was a half block from the intersection. He then heard an engine "rev up rather loud" behind him, and turned his head in time to see Mr. Barstad speed past him. Mr. Wheeler saw the pickup's brake lights come on for a second, but then the engine roared as Mr. Barstad accelerated again. Mr. Wheeler estimated Mr. Barstad entered the intersection at 55 to 60 miles per hour.

Mr. Wheeler saw Mr. Barstad collide first with a car northbound on Hamilton, then with a southbound car. The truck became airborne before landing on top of a third vehicle. Fourteen-year-old Julie Allen, a passenger in the southbound vehicle, died as did Karen Sederholm, the driver of the vehicle on which Mr. Barstad's truck landed. Mr. Barstad later testified he knew he was going too fast to stop for the red light. He accelerated because he thought he could get through the intersection before north-south traffic entered it.

Several of the witnesses at Mr. Barstad's trial testified about his conduct after the collisions. Mr. Phillips stated Mr. Barstad was sitting n his truck, crying, and "being very, very hostile." He smelled of alcohol and was telling Police Officer Robert Boothe contacted Mr. Barstad at the scene. Mr. Barstad was seated on the curb with an angry crowd around him. Officer Boothe conducted field sobriety tests on Mr. Barstad, and concluded he was intoxicated. He asked Mr. Barstad whether he believed his ability to drive was affected by his alcohol consumption. Mr. Barstad answered "No," but that his emotional state was. Another police officer at the scene testified that Mr. Barstad did not appear to have any difficulty answering questions.

                people, "get away from my truck."   Mr. Wheeler thought Mr. Barstad was intoxicated, but not "falling down drunk."   Shelly Tombari said Mr. Barstad was wandering around, yelling, and raising his fists at people.  Richelle Goettel, a nursing student, came to his aid.  He said, "Wow, I did it.... Poor suckers;  shoulda not been in my way, shoulda been able to see me coming, hell, shoulda been able to hear me.  It's not my fault."   When she asked if he was okay, he responded, "Well, f[ ] you[.]"  As Ms. Goettel left him to help the other victims, she heard Mr. Barstad yell, "I don't know what you guys are making such a big deal out of this for.... [T]hey're not all that hurt."   The spectators jeered, and Mr. Barstad raised his fist at a 16-year-old boy who was injured in the second vehicle he hit.  He yelled, "But I can still make it worse than this[.]"  Ms. Goettel inferred he intended to hit the boy
                

According to Officer Boothe, Mr. Barstad showed no sign of remorse until later, when he transported him to the hospital for treatment. At that time, Officer Boothe told him that two people had died. Officer Boothe obtained two vials of blood from Mr. Barstad; later testing established his blood-alcohol level at .16. George Lindholm, the pathologist, stated a person with that level of alcohol can still recognize the dangers of operating a vehicle.

Corporal Harry Kennedy of the Spokane Police Department testified about the timing of the traffic light at the Mission/Hamilton intersection. Various witnesses estimated the light was red for 2 to 5 seconds before Mr. Barstad Police officers at the scene searched Mr. Barstad's truck and found a fanny pack with four one-ounce baggies of a substance later tested and found to contain methamphetamine. Based on that evidence, the State also charged Mr. Barstad with possession of a controlled substance with intent to deliver. Police Officer Michael Yates testified that each ounce of methamphetamine contains 28 grams and that a standard hit is one-tenth of a gram and sells for approximately $15 to $30. However, Arnold Melnikoff, a forensic scientist, admitted the baggies did not contain 100 percent methamphetamine. Rather, the contents were mixtures of 10 percent methamphetamine, 40 to 50 percent nicotinamide, 30 percent amphetamine, and lesser amounts of other ingredients.

entered the intersection. Corporal Kennedy also testified there were no skid marks at the intersection to indicate Mr. Barstad tried to stop.

At the beginning of trial and again at the close of the State's case, Mr. Barstad moved to dismiss the murder charges. He argued that vehicular homicide and murder by extreme indifference are concurrent offenses. He, therefore, reasoned that in cases involving a motor vehicle death, the State can charge only under the more specific vehicular homicide statute. The court denied the motions.

The court also denied Mr. Barstad's motion to dismiss the charge of possession of methamphetamine with intent to deliver. In doing so, the court rejected his argument that the amount of methamphetamine in the mixture seized was too small to establish an intent on his part to deliver the mixture to any other person.

The jury convicted Mr. Barstad of all charges. He appeals.

ANALYSIS

Did the court err in instructing the jury on the charge of

first degree murder by extreme indifference?

There are two questions. First, does the vehicular homicide statute supersede application of the first degree "extreme indifference" murder statute in situations involving a death that is a result of drunk driving? Second, do rules of statutory construction and the legislative history for the "extreme indifference" murder statute, indicate the Legislature did not intend it to apply in situations in which a homicide results from the actor driving a motor vehicle?

Mr. Barstad argues when a general and subservient special statute relate to the same subject, the provisions of the specific statute prevail. For instance, he notes the negligent homicide statute supersedes the general manslaughter statute. State v. Collins, 55 Wash.2d 469, 470, 348 P.2d 214 (1960). Mr. Barstad further asserts the legislative intent here was that extreme indifference murder would not apply to vehicular homicide cases. He relies upon RCW 9A.32.020(2), which states that nothing contained in the homicide statute shall affect the vehicular homicide statute, RCW 46.61.520. Additionally, Mr. Barstad argues the fact the Legislature recently made vehicular homicide a class A felony reflects its intent to include even the most egregious circumstances in the vehicular homicide statute.

Concurrent Statutes.

"[W]here a general and subsequent special statute...