STATE OF WASHINGTON v. MERCIER, 20377-4-II

• Decision Date: 26 February 1999
• Docket Number: No. 20378-2-II,No. 20436-3-II,No. 20377-4-II,No. 20394-4-II,20377-4-II,20378-2-II,20436-3-II,20394-4-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT, v. STEPHEN F. MERCIER, APPELLANT. STATE OF WASHINGTON, RESPONDENT,

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; STEPHEN F. MERCIER, APPELLANT. STATE OF WASHINGTON, RESPONDENT,; v.; DANIEL L. ROUSE, APPELLANT. STATE OF WASHINGTON, RESPONDENT,; v.; MATTHEW L. GILES, APPELLANT. STATE OF WASHINGTON, RESPONDENT,; v.; MICHAEL J. HIGH, APPELLANT.
[3]	No. 20377-4-II No. 20378-2-II Consolidated with No. 20436-3-II No. 20394-4-II
[4]	Washington Court of Appeals
[5]	SOURCE OF APPEAL Appeal from Superior Court of Mason County Docket No: 95-1-00265-0 Judgement or order under review Date filed: 02/01/1996 Judge signing: Hon. James B. Sawyer Ii
[6]	February 26, 1999
[7]	Counsel OF Record Counsel for Appellant(s) Robert M. Quillian Attorney At Law 2633a Parkmont Lane SW Olympia, WA 98502 Thomas E. Doyle Attorney At Law 2633a Parkmont Lane SW Olympia, WA 98502 Suzanne L. Elliott Attorney At Law Suite 1300 Hoge Building 705 Second Avenue Seattle, WA 98104 Rita J. Griffith Griffith & Cole Pllc 1305 NE 45th #205 Seattle, WA 98105 Sheri L. Arnold Attorney At Law 1517 S Fawcett Ste 250 Tacoma, WA 98402 Counsel for Respondent(s) Amber L. Finlay Mason County Deputy Pros Atty PO Box 639 Shelton, WA 98584
[8]	The opinion of the court was delivered by: Morgan, J.
[9]	JUDGES Authored by J. Dean Morgan Concurring: Elaine M. Houghton Carroll C. Bridgewater
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	Daniel Lee Rouse, Stephen F. Mercier, Matthew L. Giles, and Michael J. High appeal convictions for first degree kidnapping. Rouse and Giles also appeal convictions for second degree assault. We affirm.
[12]	On or about September 4, 1995, Dennis McCrandall gave Todd Spalding $6,000 for drugs. Marlene Coleman, McCrandall's girlfriend, loaned Spalding her pickup. A short time later, according to Spalding, he was robbed of both the money and the truck.
[13]	After the alleged robbery, McCrandall, Coleman, Mercier, Spalding and Spalding's girlfriend, Becky Graves, met at Mercier's house. McCrandall, Coleman and Mercier told Spalding that they did not believe he had been robbed. They also told Spalding and Graves to remain at a Super 8 motel while they ascertained what had happened to the money.
[14]	Spalding and Graves stayed at the Super 8 for three days. One night during that time, they went to dinner at a restaurant by themselves. Another night, Graves went to her mother's by herself.
[15]	On the evening of September 7, Mercier phoned the motel and suggested that they "hold court" at his house to determine what had happened to the money and the truck. Hoping to meet in a more public place, Spalding suggested the parking lot of a Red Apple grocery store.
[16]	Spalding, McCrandall, and High arrived at the store in one car. Mercier and Giles arrived in another. McCrandall and High got in with Mercier, while Giles got in with Spalding. Everyone then drove to Mercier's house.
[17]	When Giles and Spalding arrived at Mercier's house, they went into the basement through a separate outside entrance. Mercier, McCrandall, High, Rouse, and others were already there. According to Spalding, McCrandall tied his hands. Giles and Rouse told him he had a couple of minutes to tell where the money was, or he would be dead. Giles and Rouse hung him by his feet and neck from a hook in the ceiling, and he was beaten for the next several hours. Rouse hit him with a mag light, and Giles and Rouse burned him with cigarettes. Rouse shocked him with electricity from an electrical cord, poured lighter fluid on his head and back, and cut off part of his hair. Giles whipped him with a bullwhip or horsewhip. Giles, Rouse, and High forced him to use a cell phone to make ransom calls to his father, and Rouse forced him to write a suicide note explaining his death.
[18]	At about 3:00 a.m., Rouse and Sherill drove Spalding back to the Super 8 motel, where Graves remained. During the next several hours, Rouse and Giles took Graves with them while they drove around, and while Giles spoke of killing both Spalding and Graves.
[19]	About 10:20 a.m., while Giles was on the phone and McCrandall, Coleman and High were packing to leave the motel, Spalding and Graves ran to a nearby Burgermaster. Spalding called 911, the police came, and the situation was brought under control.
[20]	On September 8, 1995, the police executed a search warrant for Mercier's house. They found clumps of hair, an electrical cord, rubber wire insulation, small droplets of blood, a length of rubber hose, a glass coffee table, and a number of beer bottles. The fingerprints of High, Mercier and Sherill were on some of the glass items.
[21]	The State charged, among others, Rouse, Giles, Mercier and High.*fn1 Count I alleged that Rouse, Giles and Mercier had committed second degree assault against Spalding. Count II alleged that the same four had committed first degree kidnapping against Spalding. Each count alleged that each defendant had acted either as a principal or accomplice. Each count also contained a deadly weapon allegation. High moved for a separate trial, which was denied.
[22]	At trial, the State admitted the out-of-court statements of Mercier, High, and Giles, but only after redacting references to non-speaking defendants. No defendant testified, and each defendant was convicted and sentenced as follows:
[23]	Name Charges Verdict Sentence Std. Range Exceptiona
[24]	l? Rouse Kidnap 1 Guilty 110 72-96 Yes
[25]	months months
[26]	Assault 2 Guilty 20 14-20 No
[27]	months months Mercie Kidnap 1 Guilty 53 51-68 No
[28]	months months
[29]	Assault 2 Not
[30]	guilty Giles Kidnap 1 Guilty 96 62-82 Yes
[31]	months months
[32]	Assault 2 Guilty 14 12-14 No
[33]	months months High Kidnap 1 Guilty 36 51-68 Yes
[34]	months months
[35]	Each defendant now appeals, and the four appeals have been consolidated.
[36]	I. ROUSE'S APPEAL
[37]	Rouse makes several claims in his appeal. They relate to (A) his right to confront his co-defendants, (B) the admissibility of domestic violence by Spalding against Graves, (C) prosecutorial misconduct, (D) an alleged comment on the right to remain silent, (E) the trial court's failure to instruct on jury unanimity, and (F) the trial court's imposition of an exceptional sentence.
[38]	A. Confrontation
[39]	At trial, Detective Pfitzer was permitted to testify to certain pre-trial statements made by Mercier. According to Pfitzer, Mercier had said that McCrandall, High and Coleman had asked him to help find the missing money and truck; that he had allowed McCrandall, High and Coleman to use his basement; that he was unaware of what had happened in the basement; but that he had been in the basement a couple of times for the purpose of serving refreshments to those who were there.
[40]	Pfitzer also testified that Mercier led him to a gray tool box in the crawl space under the house. The box contained a red mag light, a spur, and a bullwhip.
[41]	Pfitzer also testified that Mercier called him "almost daily," wanting to talk "mostly about Mr. Rouse."*fn2 When Rouse's counsel objected to the words, "mostly about Mr. Rouse," the trial court sustained the objection, and Rouse did not seek further relief.
[42]	Pfitzer testified to a statement by High, in which High said he had come to Shelton to help McRandall and Coleman recover their money. High denied knowing anything about the charged crimes.
[43]	According to Pfitzer, Giles said he had been in the basement while Spalding was there, and that he had slapped Spalding a couple of times while Spalding's hands were tied. Giles said he left soon thereafter, fearing he would be next to be tortured.
[44]	According to Pfitzer, Giles was the first to say that a mag light had been used to beat Spalding. At trial, the State wanted to show that fact to the jury, and the trial court ruled it could do so. On re-cross, Giles' attorney wanted to show that even though Giles had first disclosed the mag light, he had not been the one who had used it on Spalding. Thus, Giles' attorney questioned Pfitzer as follows:
[45]	Q: ". . . {N}ow {Giles} didn't indicate to you that he had used the mag-light himself; correct?"
[46]	A: "That's correct. He specifically said who did, it was not him."
[47]	Q: "Okay. In fact, he told you in that statement that all he did was slap Mr. Spalding twice as you've already testified to?"
[48]	A: "That's correct."
[49]	Q: "Because his family had been threatened; right?"
[50]	A: "That's correct, yes.*fn3"
[51]	Rouse did not object or request a limiting instruction.
[52]	Relying on Bruton v. United States*fn4 and Gray v. Maryland,*fn5 Rouse now contends that this evidence implicated him in violation of his Sixth Amendment right to confront the witnesses against him. "Even with names deleted," he says, "the statements very directly implied that the other charged co-defendants were involved in committing the crimes, and the statements described the circumstances of the commission of the crimes."*fn6
[53]	In Bruton, A and B were tried jointly for a robbery. The trial court admitted A's confession, which implicated B as well as A. The trial court instructed the jury, however, that it could use A's confession only against A. A did not testify, and both defendants were convicted. B's appeal went to the United State Supreme Court on the question whether B had been denied his right to confront A. Answering yes, the United States Supreme Court held that no reasonable juror would have adhered to the limiting instruction, and that A's statement had been used against B even though B had not been able to confront A.
[54]	Bruton was refined in Richardson v. Marsh*fn7 and Gray v. Maryland.*fn8 The Richardson Court held that the confrontation clause is not violated if A's confession is effectively redacted to eliminate reference to B,*fn9 even though B is linked to the case through other evidence.*fn10 Not surprisingly, the Gray Court held that A's confession is not effectively redacted where the jury receives a written copy on which B's name is whited out, leaving a blank space between two commas.
[55]	Here, the trial court redacted each co-defendant's

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