State v. Barnhart, 39640

• Decision Date: 29 May 1968
• Docket Number: No. 39640,39640
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Theodore V. BARNHART, Defendant, James Howard Leupp, Appellant.

Page 936

73 Wn.2d 936

442 P.2d 959

STATE of Washington, Respondent, v. Theodore V. BARNHART, Defendant James Howard Leupp, Appellant.

No. 39640.

Supreme Court of Washington, Department 2.

May 29, 1968.

Splawn & Bounds, Robert I. Bounds, Yakima, for appellant.

Joseph Panattoni, Pros. Atty., Ellensburg, for respondent.

LANGENBACH, Judge. ^*

Appellant and two other young men were charged with murder in the first degree, committed in Kittitas County. One defendant was allowed to plead guilty to a lesser offense, and one was dismissed at the close of the trial. Appellant was convicted of murder in the second degree and has appealed.

Appellant and the two other defendants, Barnhart and Fritsch, worked together on a beet farm. The victim, Robert Thompson, had also worked there but had recently been discharged. On the evening of November 1, 1965, the defendants drove around in Fritsch's automobile, drinking beer. Later, they picked up two girls and drove farther about the county and drank more beer until about three-thirty o'clock the next morning. They let the girls out at their apartment, and drove to the hotel where Thompson had a room.

Appellant went up to the room and persuaded Thompson to come down to the automobile for some beer. This was about four o'clock the same morning. Thompson went with them and appellant drove out into the country. Barnhart and Fritsch were under the influence of beer, or asleep, while appellant and Thompson discussed some petty matters. The argument between them waxed warmer, and finally the two got out of the automobile to fight. Thompson struck the first blow and knocked appellant down. He got up and beat Thompson with his fists about the head and face, and also kicked him.

When the fighting was over, appellant helped Thompson to his feet and they got into the car. Appellant wanted to take him to the doctor because of his beaten and bloody condition, but Thompson objected to any assistance from appellant. So appellant drove farther out into the valley and let Thompson out at the side of the road and drove back to town, with the other two defendants still in the automobile, but apparently oblivious to what had transpired.

Appellant drove to the girls' apartment about seven o'clock and awakened one of them. He asked her for a pan of water and a rag to wipe blood off the car. She complied with his request. Later, he and Barnhart told the girls that they had killed a doe deer; that that was the cause of blood on the car; that the game warden had seen them, and that they were going to draw their pay from the beet farmer and leave that area. (Fritsch, the other defendant, was still asleep in the back seat of the car.) Appellant stated he did not want to get into any further trouble so he had asked Barnhart to go to Aberdeen with him, and Barnhart agreed.

After taking Fritsch home, appellant and Barnhart drove out to the beet farmer and related their concocted story about shooting a deer and asked him for their pay. The farmer had them deliver a load of beets before he paid them, after which they returned to Ellensburg. They persuaded one girl to go along with them. They then gathered her personal belongings, and stopped to get their own personal things, and Barnhart's children, and started for Aberdeen late in the afternoon. On the way, they left the children with appellant's sister near North Bend.

They reached Aberdeen about 3 o'clock in the morning. They obtained one room for appellant and the girl, and another for Barnhart. The two men found employment in the lumber industry. They remained there until early the morning of November 8th, when a deputy sheriff and police came to the room and arrested appellant and the girl. The deputy sheriff advised appellant of his rights--the deputy had a 'Miranda card' with him--before taking him to jail, and held the girl as a material witness.

After the arrest, the deputy prosecuting attorney for Kittitas County flew to Aberdeen to interview appellant in the city jail. He talked to appellant about 7:30 p.m. and advised him as to his rights under the Miranda decision. (Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He had a copy of the Miranda decision with him at the time.) The police did not have a secretary, but the deputy sheriff had a tape recorder in his automobile. He procured it and set it up for sue in the chief's office.

After having advised appellant of his rights again, the deputy prosecutor commenced his interrogation. This was started before the deputy sheriff turned on the tape recorder, so the first part of the interrogation and the prosecutor's final warning were not on the tape. (It is not known why the tape was not re-started.) The interview lasted about fifteen minutes.

The next day, deputy sheriffs from Kittitas County arrived and took all three of the persons back to Ellensburg.

The trial court held a hearing to determine the sufficiency of the tape recording as an admission under CrR 101.20W. The Grays Harbor officers and the deputy prosecuting attorney testified about the recording of the interrogation on the tape. Appellant did not testify and the court found that the statement was voluntary and admissible.

At the trial, Fritsch was allowed to testify, but was not tried as his attorneys had agreed that he would plead guilty to being an accessory after the fact. Barnhart did not testify, and the case against him was dismissed for lack of evidence. Appellant did not testify.

There were 26 assignments of error directed primarily against instructions given and refused.

The information had alleged that the instrument used was an automobile lug wrench. When the evidence did not disclose the use of such an instrument, at the close of the case all reference to it was stricken.

Error was assigned to the admission of the tape recording. The statement of facts set forth that hearing in great detail. As there was no contradiction appearing, the trial court properly ruled that the statement was admissible as voluntarily and knowingly made. The appellant had been advised of his 'civil rights' on four separate occasions prior to the making of any statement at all.

Another error is directed against the admission of a statement made by appellant to his wife, over the sheriff's telephone, in the presence of the sheriff's secretary. There was no testimony that the appellant objected to talking to his wife in the presence of the secretary. He saw her sitting across the desk from him when the telephone connection had been made. A statement made in the presence of a third person, by a husband to his wife, loses its privileged character. If the communication is heard by a third person, even if an eavesdropper, the third person may testify to it, since the privilege protects only successful confidences. State v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953). Consequently, the statement made, as related by the sheriff's secretary, was properly admissible.

A principal argument of error concerned the instruction setting forth the elements of murder in the first degree, murder in the second degree, and manslaughter, all in a single instruction. While this instruction appears cumbersome and somewhat inartistically drafted, it sets forth, seriatim, the elements involved in these three separate offenses. Appellant contends there should have been three separate instructions, such as he proposed, instead of one which encompassed the three components of one possible offense. Although such instructions would have been preferable, this instruction, as given, was reasonably understandable by the jury.

Error was assigned to instruction No. 11, which reads as follows:

Under certain circumstances and conditions a homicide may be excusable or justifiable. None of such circumstances and conditions exist in this case, and I instruct you that, as a matter of law, excusable or justifiable...