State v. Anderson

• Decision Date: 26 June 1985
• Docket Number: 6316-6-II,Nos. 6309-3-I,s. 6309-3-I
• Citation: 702 P.2d 481,41 Wn.App. 85
• Parties: The STATE of Washington, Respondent, v. John Fredrick ANDERSON, Appellant. The STATE of Washington, Respondent, v. Robert Ross STRATTON, Appellant.
• Court: Washington Court of Appeals

Page 85

41 Wn.App. 85

702 P.2d 481

The STATE of Washington, Respondent, v. John Fredrick ANDERSON, Appellant.

The STATE of Washington, Respondent, v. Robert Ross STRATTON, Appellant.

Nos. 6309-3-II, 6316-6-II.

Court of Appeals of Washington Division 1.

June 26, 1985.

David W. Murdach, Tacoma (Court-appointed), for appellant anderson.

Ronald Culpepper, Tacoma (Court-appointed), for appellant Stratton.

Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

PETRICH, Judge.

In consolidated appeals John Fredrick Anderson and Robert Ross Stratton challenge convictions on multiple counts of aggravated first degree murder and first degree assault after a joint jury trial.

The issues common to both appeals are:

1. Whether the probative value of evidence of unrelated prior offenses was exceeded by its prejudice.

2. Whether the penalty of life without the possibility of parole is constitutionally permissible, and whether the statutory scheme authorized the procedural steps employed by the State in seeking such penalty.

Anderson raises the following issues:

1. Whether pretrial publicity linking Anderson to several violent crimes required a change of venue.

2. Whether the information supporting the issuance of a search warrant was stale; whether a polygraph test result was improperly considered in determining veracity of the informant; and whether the search was extended beyond the limits of the warrant.

3. Whether a prima facie showing of a conspiracy had been established and whether the extrajudicial statements of a nontestifying co-defendant were made during the course of and in furtherance of a conspiracy so as to remove such statements from the ambit of inadmissible hearsay.

4. Closely allied to the issues concerning the co-conspirators' statements is whether a severance of defendants' trials should have been granted.

Stratton's appeal presents the following issues: ¹

1. Whether the prosecutor's questioning of a State's witness concerning a polygraph test requires a mistrial.

2. Whether expert testimony concerning spectrophotometer analysis and shell case markings was so speculative as to require its exclusion.

3. Whether prosecutorial misconduct deprived him of a fair trial because of:

(a) Prosecutor's unsworn statement purporting to explain the source and possession of certain sums of money by one of the defendants;

(b) Prosecutor's questions about a polygraph test administered to one of the State's key witnesses;

(c) Prosecutor's questions of a State's witness as to whether he feared Stratton.

4. Whether the facts justified a jury instruction on a lesser included offense of murder.

We are satisfied that Anderson was entitled to a severance because certain co-conspirators' extrajudicial statements not in furtherance of the conspiracy were improperly admitted in evidence and, despite all other assignments being without merit, we are unable to hold that the error in refusing severance was harmless beyond a reasonable doubt. We therefore affirm Stratton's convictions and sentences but reverse as to Anderson and remand for a new trial.

The genesis of this case was a contract killing in Thurston County on February 19, 1979. Joyce Hernandez agreed to pay Stratton $10,000, later increased to $15,000, to shoot and kill her husband, Jesse Hernandez. Denying involvement to the police, Hernandez eventually confided in Jim Hall, a bartender at the Yorktown Restaurant in Pierce County, detailing her husband's murder as well as a jewelry insurance scheme proposed by Stratton. Believing that Hall had told a third person about the contract murder and insurance scheme, and fearing reprisals, Hernandez approached Stratton and told him of her conversations with Hall.

On December 18, 1979 at approximately 10 p.m., an unidentified lone gunman dressed in black clothing, a ski mask, and gloves entered the lounge of the Yorktown restaurant through a rear door. Without a word, the gunman fired eight rounds from a .45 semi-automatic pistol. When the smoke cleared, three lounge customers lay dead and three seriously wounded. Joyce Hernandez and Jim Hall were in the lounge during the shooting, but were unharmed.

The State contends that Anderson did the shooting at Stratton's request to keep Hernandez quiet and to persuade her to continue paying for Jesse's killing. In support of the State's theory, the prosecution introduced, over objection, evidence of two crimes in King County. On December 13, 1979, Anderson and Larry White robbed the Casa Lupita restaurant in Seattle. White drove the get-away car while Anderson proceeded inside with a black bag in which he carried pistols, gloves, ski mask, wig, and a hat. Anderson's .45 semi-automatic pistol accidentally discharged but no one was hurt. On January 13, 1980, Anderson, Stratton, and White robbed the South China Doll restaurant in South King County. The restaurant manager, Henry Gee, tried to prevent Anderson's escape. A salvo from Anderson's .45 semi-automatic pistol left Gee dead in the parking lot.

White was arrested on January 27, 1980, in connection with a number of King County robberies. In exchange for immunity, White described to the police Anderson's and Stratton's involvement in the South China Doll robbery- homicide, the Yorktown shootings, and the Thurston County contract murder of Jesse Hernandez. Stratton and Anderson were arrested at a Federal Way residence where, at one time, White lived with the two.

Supported by an affidavit, a search warrant was issued on March 11, 1980 to search the Federal Way residence. The search produced numerous bullet casings bearing a red polish mark and several weapon components, including a "slide" to a .45 semi-automatic pistol. A second search warrant issued on March 21, 1980, ostensibly to look for specific clothing used in the King County crimes, revealed a .45 semi-automatic pistol, a .357 pistol, and ammunition stashed in the barrel of a commercial vacuum cleaner. On the same day, a third search warrant was obtained to search the vacuum cleaner.

The prosecution's criminologist testified at trial that the shell casings recovered from the Yorktown and the shell casing recovered from the Casa Lupita had been fired by a weapon utilizing the "slide" retrieved on the first search of the residence. He further testified that the "slide" recovered on the .45 semi-automatic pistol in the vacuum cleaner had fired the shells at the South China Doll. A spectrophotometric analysis revealed that the red polish on the shell casings recovered from the different crimes was chemically identical.

Hernandez and White testified for the State. Although unable to identify Anderson as the masked gunman, Hernandez recalled that the gunman was of a size and build similar to Anderson. White did not witness the carnage at the Yorktown restaurant. However, he testified that on that night at about 9 p.m., Anderson left the house--which was shared by White, Anderson, Stratton and Stratton's girlfriend--carrying the black bag he had used on other occasions to carry pistols, gloves, a ski-mask, wig and hat. Anderson returned shortly after White had heard of the Yorktown shootings on the 11 p.m. news broadcast. Anderson then sat and listened to a police scanner and appeared agitated. White also testified that Anderson owned equipment used to reload expended shell casings, identified the .45 semi-automatic pistol recovered in the search of the premises as the one possessed by Anderson and said that the weapon had interchangeable slides and barrels. Over continuous objections Hernandez and White recounted statements made by Stratton that implicated Anderson as the Yorktown gunman. ²

The jury found each defendant guilty and further found aggravating circumstances. The trial court denied motions for new trials, sentencing each to three life terms without parole (murder) and three life terms (assault) to run consecutively.

I. CHANGE OF VENUE

As the basis for the motion for change of venue, the defense cited the publicity surrounding the Yorktown incident, the Casa Lupita and South China Doll prosecutions of Anderson in King County, and the murder prosecution of Stratton in Thurston County. ³

A motion for a change of venue is directed to the sound discretion of the trial court and the court's decision on such a motion will not be disturbed "absent a convincing showing of an abuse of discretion." State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043 (1971). Publicity alone does not justify a change of venue. To determine whether the trial court abused its discretion in denying the change of venue motion, it must be shown that there exists an apparent probability of prejudice to defendants' right to an impartial jury. State v. Laureano, 101 Wash.2d 745, 682 P.2d 889 (1984).

The record discloses a careful selection of each juror after independent voir dire. Some of the prospective jurors had read something about the incidents, but they could not remember details. Furthermore, the defense accepted the jury panel after calling only 32 prospective jurors and did not utilize all of their peremptory challenges. No prejudice was shown. A change of venue was not necessary.

II. SEARCH WARRANTS

Probable cause to support the issuance of a search warrant by a judicial officer under the Fourth Amendment is determined by a consideration of the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Fourth Amendment decisions are applied retroactively to all cases pending at the time of the new decision. United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); State v. Counts, 99 Wash.2d 54, 659 P.2d 1087 (1983). Our Supreme Court has held that Article 1, Section 7 of the state constitution requires the dual determination of the basis of information and the credibility of the informant as pronounced in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637...