State v. Allen, No. 29542-3-II (WA 3/8/2005)
| Decision Date | 08 March 2005 |
| Docket Number | No. 29542-3-II,29542-3-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. DONOVAN BEN PATRICK ALLEN, Appellant. |
Appeal from Superior Court of Cowlitz County. Docket No. 00-1-00235-9. Judgment or order under review. Date filed: 10/30/2002. Judge signing: Hon. James Edgar F Xavier Warme.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Susan Irene Baur, Cowlitz Co. Prosecutor's Office, 312 SW 1st Ave, Kelso, WA 98632.
Barbara L. Corey, Attorney at Law, 707 Pacific Ave, Tacoma, WA 98402-5207.
Donovan Allen challenges his aggravated first degree murder conviction for killing his mother, Sharon Cox. He asserts that (1) the evidence was insufficient to show that the murder was premeditated or occurred during the course of a robbery; (2) the trial court committed numerous evidentiary errors and erred when it denied his motions for a mistrial and for a new trial; (3) his right to counsel was violated; and (4) prosecutorial misconduct and cumulative error denied him a fair trial. Finding no error, we affirm.
On February 7, 2000, Donovan Allen called 911 to report that his mother, Sharon Cox, was lying on her bedroom floor, bleeding from her mouth and ears. Allen told the 911 dispatcher that he thought Cox still had a pulse, and that he `heard her breathe.' Report of Proceedings (Trial) at 96.
When Officer Monge arrived at Cox's home, Allen was still talking to the 911 dispatcher. The paramedics arrived immediately after Monge, and Monge escorted Allen out of the bedroom. Allen then walked outside, near the front door.
Monge found signs of a struggle throughout the living room, and noticed that Cox had a broken piece of telephone cord `intertwined between her fingers and her hands.' RP at 122. Police also discovered that a cashbox containing approximately $1,500 was missing from Cox's bedside table.
Officer Rabideau approached Allen, and asked him to sit in the front seat of the patrol car and tell him what happened. Allen told Rabideau that he arrived at Cox's residence to help her with a project. He found the apartment unlocked, entered the apartment, and found Cox lying on the bedroom floor. Rabideau then left Allen with the county chaplin so Rabideau could talk with other officers and determine whether Cox was dead.
Upon returning a few minutes later, Rabideau informed Allen that Cox was dead. Rabideau then asked Allen to go to the police station to provide a written statement. Allen agreed.
At the station, Allen had difficulty writing a statement, so Detective Hartley took him to his office so Hartley could write down the statement as Allen dictated. Allen did not receive Miranda1 warnings at that time because Allen was neither a suspect nor in custody. The officers repeatedly told Allen he was free to leave at any time.
Detectives Hartley and Milosevich then interviewed Allen from approximately 5:10 p.m. to 6:20 p.m. Based on Allen's version of the events leading up to Cox's death, Hartley and Milosevich `started developing suspicions' that Allen was `either involved or knowing more than he was telling {them} about the homicide.' RP (April 9, 2001) at 59-60.
At 6:28 p.m., Milosevich advised Allen of his Miranda rights, which Allen waived. Hartley indicated, however, that Allen was still free to leave, as there was not enough evidence to hold him.
Allen then agreed to take a Computerized Voice Stress Analyzer (CVSA) which police told him would be inadmissible in court. After Allen took the CVSA, he left the police station.
On February 8, Detective Mauck asked Allen if he would take another CVSA. Allen asked if he needed an attorney, and Mauck replied that he was not in the position to give him advice about that. Allen made no further request for an attorney, and arranged to take a second CVSA on February 10, 2000.
Before the second CVSA, police again informed Allen that he was not under arrest. After the second CVSA, officers told Allen that the results indicated deception. Allen stated that he thought he needed a lawyer. Mauck told Allen that if he wanted a lawyer, he would be provided with one but the police would no longer be able to speak with him. Allen responded that he wanted to continue talking to the police, but Mauck ended the interview and took Allen home.
On the evening of March 8, 2000, police arrested Allen for intimidating a witness in relation to the investigation of Cox's murder. While they waited for a patrol car, Allen asked Officer Reeves when he could see an attorney. Reeves did not respond, but he told Detectives Mauck and Davis about Allen's inquiry when they arrived shortly thereafter. Allen then asked Davis if he would be able to contact his attorney. Davis asked Allen if he wanted an attorney right away or if he was asking whether he could contact an attorney in the future. Allen replied that he wanted to know if he would have time later to talk to an attorney. Davis explained that Allen could have `all the time he wanted' to talk to an attorney whenever he wanted, he just needed to ask. RP (Trial) at 151.
Davis again read Allen his Miranda rights, and Allen again signed a waiver form. Throughout the ensuing eight hour interview, Allen stated that he did not want an attorney.
On March 9, 2000, Allen was booked on intimidation and harassment charges.2 He did not ask for an attorney. That afternoon, police resumed interviewing Allen and again advised him of his Miranda rights, which he again waived. He then stated, and `get it over with.' RP (April 10-11, 2001) at 40-41.
Allen then admitted, in detail, to killing Cox and stealing the cashbox. Allen stated that a fight escalated between he and Cox, and he followed her into her bedroom. There he strangled her with a telephone cord until it broke. At that point, `{s}he tried to take off again' but she fell back to the ground. RP at 1039. Allen then retrieved a rifle from the gun cabinet and swung the rifle twice at Cox's head. The rifle broke in two, and he recalled picking up the pieces, washing them in the bathroom, and then hiding them in a box in the garage. He stated that he then returned to the bedroom and took a cashbox from the nightstand. As he walked out of the bedroom he realized he still had part of the telephone cord wrapped in his hand, which he then dropped on the floor on his way out of the house. Allen stated that he took a walk and threw the cash box in a slough. He then returned to the apartment and sat down by the fireplace. After a few minutes he heard a sound from the bedroom. He entered the bedroom, and because he thought Cox could still be alive, he called 911. Allen provided a taped statement describing these events.
On March 10, 2000, the police took Allen out of jail so he could show them where he discarded the cashbox. They again advised him of his Miranda rights. Allen indicated that he had been assigned an attorney who had instructed him not to talk to police. But Allen told Davis, `{F}uck him, I want to talk to you.' RP (April 9, 2001) at 177. Allen then dictated another statement to police in which he admitted killing Cox. The police then allowed Allen to see his fianc`, which Allen had previously requested.
On two other occasions Allen asked to speak with police. On both occasions, the officers obtained Miranda waivers before speaking with Allen.
On March 13, 2000, the State charged Allen with first degree murder.
On March 15, Davis and Mauck took Allen out of jail so he could help locate the cashbox, but police did not find it. Allen again asked to see his fianc`, and was allowed a brief visit.
At the CrR 3.5 hearing, Allen testified that police were unresponsive to his requests for an attorney. Allen also testified that the police told him that if he cooperated in finding the cashbox, they would allow him to see his fianc`. Allen acknowledged signing the rights waiver forms and he admitted that he never told the police that he did not want to talk to them. Allen further testified that he did not feel coerced and that he freely gave the taped confession. The court ruled that Allen's statements to the police were admissible.
Prior to trial, Allen also moved to exclude testimony related to his turbulent relationship with Cox and his prior threats against her. The court ruled that the testimony could come in if the behavior had occurred within a nine-month period before the murder. Allen further moved to suppress testimony from a friend, Christopher Smith, that after the crime Allen told him, `he had killed before and he could kill again.' RP (Trial) at 911. The court granted the motion based on ER 404(b), so long as the defense did not open the door.
V. Trial
The jury did not reach a verdict in the first trial. At the second trial, the court retained its prior evidentiary rulings. But before the second trial, the court ruled on Allen's new motions as follows: (1) Allen's statements to witnesses that he was hostile toward Cox were relevant to motive; (2) the court's ruling on the police officers' testimony about Allen's demeanor was reserved; and (3) Allen could present evidence that Brian Kitts committed the murder, but the State could respond with evidence showing that Kitts and Cox had a good relationship and that Cox got along well with other people.
Contrary to the court's pretrial ruling, Smith testified that Allen said that `he had killed before and he could kill again.' RP at 911. Allen objected and moved for a mistrial. The court agreed that this testimony violated its prior order, but the court also ruled that the statement was admissible as Allen's declaration against penal interest or as an admission.
The trial court admitted both the tape of Allen's 911 call and the...
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