State v. Anderson

• Decision Date: 21 August 1980
• Docket Number: No. 46189,46189
• Citation: 94 Wn.2d 176,616 P.2d 612
• Parties: The STATE of Washington, Respondent, v. Brent R. ANDERSON, Appellant.
• Court: Washington Supreme Court

Page 176

94 Wn.2d 176

616 P.2d 612

The STATE of Washington, Respondent, v. Brent R. ANDERSON, Appellant.

No. 46189.

Supreme Court of Washington, En Banc.

Aug. 21, 1980.

Bantz, Klobucher & Clemons, A. O. Clemons, Jr., Spokane, C. E. Hormel, Ephrata, for appellant.

Richard W. Miller, Pros. Atty., Adams County Superior Court, Ritzville, for respondent.

DOLLIVER, Justice.

Defendant was convicted of first-degree murder under RCW 9A.32.030(1)(b) for the death of his stepdaughter, Tanya Graff.

According to defendant's testimony, on the evening of June 24, 1977, Tanya, about 2 years of age, fell from her high chair. The following morning, defendant remained at home with his two stepchildren while his wife went to work at a beauty salon owned by defendant's cousin. During the morning as defendant and Tanya walked to the mailbox about two and one-half blocks from their home, defendant noticed Tanya limping and on one occasion falling. Defendant carried her the rest of the way to the mailbox, but she walked home.

Mrs. Anderson returned home to have lunch with the family. After lunch, they placed Tanya on the floor and she spit up her lunch. Mrs. Anderson gave her a baby aspirin and then discussed with defendant Tanya's limp and the earlier advice they had received from a clinic in Othello to soak the child's leg in warm water if she was limping. Mrs. Anderson then returned to work and defendant put Tanya down for a nap. After her nap, defendant noticed that Tanya was still limping so he decided to soak her leg in warm water in the bathtub.

Subsequent events during the treatment in the bathtub were testified to by defendant as follows: He drew the water to what he considered to be a normal bathtub temperature and put Tanya into the water which was just above her thigh as she sat in the bathtub. Defendant then added some hot water. He held Tanya with his left arm and she sat with her hands on his arm while defendant circulated the water with his free hand. From time to time he added more hot water and circulated it.

The last time or two that defendant added water, he could not recall whether he circulated it with his hand. At that time, Tanya said, "Brent, hot." He then noticed that the gums around her teeth were white and that there was a bubble rising on her right leg above the knee. He lifted her from the tub and she slumped over and quit breathing. He laid her on the carpet in the hallway and administered mouth-to-mouth resuscitation. Defendant thought for a moment Tanya was dead.

Defendant ran to the front door of the trailer and called for Tanya's older brother who had been playing outside at the time of this occurrence and directed him to call his mother on the telephone. Defendant told his wife that Tanya was burned while he was soaking her leg.

Defendant then opened the drain in the bathtub. At that time there was no skin in the tub. Before the tub had finished draining, defendant started adding cold water. He placed Tanya in the tub lying down but held her head out of the water. He then turned on the cold water and circulated it, hoping to prevent her from going back into shock.

Defendant testified that Tanya did not cry during any of the events and that once in the cold water she revived considerably and talked to him.

After a short time, defendant took Tanya from the bathtub and into the master bedroom and called the Othello Community Hospital. He spoke to Nurse Schreck. Defendant claims he told the nurse what had occurred and was advised to put ice on the burned area. He also testified that he had been told he could put Vaseline on the burned area. On the other hand, Nurse Schreck testified defendant informed her that Tanya's ankle was a little red but that the skin was not broken or blistered. Nurse Schreck denied that she had advised Vaseline application but admitted she had advised other salves or ointments.

After speaking to Nurse Schreck, defendant again called the beauty shop and talked to his cousin. He then called the hospital and talked to Nurse Schreck a second time. Nurse Schreck testified that defendant now advised her the water was too warm and Tanya had been burned all over her legs and there was no skin on her legs. The nurse advised him to bring her to the hospital immediately. Defendant, however, put Tanya back in the tub of cold water and put ice in with her.

Defendant called the beauty shop again and told his cousin to send his wife home and for her to stop for a can of Foille on the way. He then called the hospital again, and was connected with Nurse McCaffee. The nurse testified that, from the telephone discussions with defendant, the hospital staff believed that the injuries to Tanya were not serious. Nevertheless, the nurse advised defendant to bring Tanya to the hospital.

After Mrs. Anderson arrived home, the couple took Tanya to the Othello Community Hospital. The attendants at the hospital noticed Tanya had a distinct line of burns around her body, but that she had no signs of burns to her hands, arms, or face and no evidence of splash burns. Moreover, no burns were noticed on the hands or arms of defendant.

At Othello Community Hospital, it was determined from the extent of Tanya's injuries that her condition was critical and, therefore, she was sent by ambulance to Sacred Heart Hospital in Spokane. She was placed under the care of Dr. Gerald Olmsted who described her injuries as second- and third-degree burns over approximately 60 percent of her body. Her chance of survival was poor. The doctor was aware of the suspicious circumstances of the injury prior to the time Tanya arrived in Spokane. After a few days, additional medical history was obtained, and Dr. Olmsted learned that in September 1976 while defendant and Mrs. Anderson were living together but not married, Tanya had been admitted to the hospital in Moses Lake suffering from a fractured clavicle and a fractured left leg.

Defendant and Mrs. Anderson drove to Spokane, visited the hospital, and then checked into the Clinic Motel. On June 25, 1977, defendant was arrested at the motel and charged with second-degree assault. He was then driven to Ritzville in Adams County and booked into jail on June 26, 1977. Defendant gave the deputies a waiver so that they could enter, search and carry out any investigative activities necessary at his mobile home in Othello. During the investigation, skin was found in the bathtub.

The same day, June 26, defendant was arraigned on the charge of second-degree assault. The court, on behalf of defendant, entered a plea of not guilty. The next day, defendant obtained counsel. On July 6, 1977, defendant entered an additional plea of not guilty by reason of insanity. A petition for competency examination upon a plea of not guilty by reason of insanity was granted. Defendant was admitted to Eastern Washington State Hospital under the order for competency examination on July 13, 1977, and remained at the hospital for 15 days.

Tanya was transferred to the Harborview Medical Center in Seattle on July 26, 1977. On August 6, 1977, she died from a blood clot. Two informations were filed on August 8, 1977: (1) charging defendant with murder in the first degree under RCW 9A.32.030(1)(b), and (2) charging defendant with manslaughter in the first degree under RCW 9A.32.060(1)(a). Service of process was made upon defendant in jail where he was still incarcerated under a charge of second-degree assault. Defense counsel and the prosecuting attorney stipulated to a continuance of the arraignment until August 15, 1977. Meanwhile, the State was granted a voluntary dismissal of the first-degree manslaughter charge. Defendant pleaded not guilty to the charge of first-degree murder at his arraignment.

On August 30, 1977, venue was changed to Kittitas County, Washington. After numerous pretrial motions, trial commenced on October 11, 1977. Dr. Olmsted testified that, in his opinion, the burns to Tanya were not the result of an accident. Moreover, an attendant at Eastern State Hospital was allowed to testify that defendant had told him he had previously injured Tanya. The trial jury convicted defendant of first-degree murder and this appeal followed.

Three questions are presented to this court:

1. Was defendant denied his right to a speedy trial under CrR 3.3?

2. Were statements made by defendant to a hospital employee while there under an order for competency examination upon a plea of not guilty by reason of insanity pursuant to RCW 10.77.060 on a related charge of second-degree assault admissible in the later trial on the subsequently filed charge of first-degree murder?

3. Does the charge of first-degree murder under RCW 9A.32.030(1)(b) apply in fact situations where the acts alleged were aimed at or intended and inflicted upon a specific individual and no other?

I

The CrR 3.3 issue is twofold. On August 8, 1977, two informations were filed, one charging defendant with first-degree murder under RCW 9A.32.030(1)(b), and the other charging him with first-degree manslaughter under RCW 9A.32.060(1) (a). On August 11, on motion by the State, an order was entered dismissing the manslaughter charge. Defendant was arraigned on the murder charge on August 15, and pleaded not guilty. No bail was allowed. On August 30, after a stipulated motion for change of venue had been filed, the venue was changed to Ellensburg and the trial date was set for October 11, 1977.

Defendant points out that 64 days had elapsed between August 8 and October 11, and thus CrR 3.3 was violated under the holding of this court in State v. Striker, 87 Wash.2d 870, 557 P.2d 847 (1976). Defendant's confidence in Striker is misplaced. In Striker, there was a delay of several months between the filing of the information and the date defendant was held to answer. We said:

As we have observed earlier, the rules contemplate that if the indictment or information is filed before arrest, the accused will be promptly brought...