State v. Baruso

• Decision Date: 22 November 1993
• Docket Number: No. 28440-1-I,28440-1-I
• Citation: 72 Wn.App. 603,865 P.2d 512
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Constantine B. BARUSO, Appellant. Division 1

Page 603

72 Wn.App. 603

865 P.2d 512

STATE of Washington, Respondent, v. Constantine B. BARUSO, Appellant.

No. 28440-1-I.

Court of Appeals of Washington,

Division 1.

Nov. 22, 1993.

Publication Ordered Jan. 20, 1994.

Anthony Savage, Robert M. Leen, Seattle, for appellant.

Norm Maleng, Pros. Atty., and Kathryn Goater, Rebecca Jane Roe, Deputy Pros. Atty.'s, Seattle, for respondent.

GROSSE, Judge.

The appellant, Constantine Baruso, appeals his conviction for aggravated murder in the first degree. Baruso claims the trial court erred by not suppressing his post-Miranda statements made during police custody, which he claims are tainted by his pre-Miranda statements to the police made during the same interrogation. Baruso also contends the trial court erred by admitting the hearsay statements of a co-conspirator, arguing that the statements were not made in the course of or to further the conspiracy. Lastly, Baruso challenges the trial court's imposition of a sentence for aggravated murder in the first degree claiming that because he was acquitted on a second count of premeditated first degree murder, that murder may not be taken into account as an aggravating circumstance.

Two members of the cannery workers union, Gene Viernes and Silme Domingo, were fatally shot at the union hall on June 1, 1981. Viernes died at the scene, and Domingo survived long enough to identify the perpetrators, Jim Ramil and Ben Guloy. Ramil and Guloy were members of a gang known as the Tulisan, which gang was involved in illegal gambling activities. Ramil and Guloy were tried and convicted for the murders. ¹ The leader of the Tulisan, Tony Dictado, was also tried and convicted for his participation in the murders. ² The State's theory of the murders was that the Tulisan intended to expand its gambling operation to Alaska. Dictado wanted to send gang members to Alaska through the union dispatch system; however, the dispatch had been recently reformed and under the new rules Tulisan members could not be dispatched. Viernes and Domingo had participated in the reform movement, and Viernes was the union dispatch officer.

Baruso was the president of the cannery union. The Seattle police had contacted Baruso on a few occasions to discuss the murders. In June 1981, the murder weapon was found in a dumpster and turned over to police. The weapon was registered to Baruso, and Baruso had been observed with the weapon or one similar to it at union headquarters. On July 13, Detectives Boatman, Tando, and Cameron went to Baruso's place of employment to talk to him. They were informed however that Baruso had not shown up for work that day. Baruso was called at his residence and asked if the officers could come to his home to speak with him. Baruso agreed, and when the officers reached Baruso's home they informed him that they wanted him to accompany the officers to the police station. Baruso again consented and rode with the officers to police headquarters. The officers did not speak regarding the murders at that point, but engaged in casual conversation with Baruso until they had reached headquarters. Baruso was then shown into an interview room with a table and chairs. Baruso was seated at one side of the table and officers Boatman and Tando sat across from him. The murder weapon was placed on the table in front of Baruso. Baruso denied he had ever seen the weapon. Officer Boatman then produced the firearms transaction report with Baruso's name on it and gave it to Baruso, asking him if that was his name on the form. Baruso said it was. Baruso was then advised of his Miranda rights and he signed the preprinted explanation of rights, but failed to sign the waiver portion of the document. After he was informed of his rights, police told him that the gun had been used in the murders of Domingo and Viernes. Baruso continued to speak with police, stating that he knew nothing about the murders. He told them he bought the gun but had never actually seen it because he never took it out of the sack. His statements were not in response to any questions by the officers. Baruso stated that he wanted an attorney. All questioning then ceased.

Baruso was charged with two counts of first degree aggravated murder on September 5, 1990. The State pursued two theories at trial: (1) the murders were part of a Tulisan gambling conspiracy, and (2) the murders were encouraged as part of a larger international conspiracy involving members of the Marcos family.

At a CrR 3.5 hearing to suppress Baruso's statements to the police, the trial court found the facts were undisputed and the officers had not taken coercive actions when speaking with Baruso. However, the court found the situation in the interrogation room was generally coercive. Nevertheless, the court concluded that the statements taken before and after the Miranda rights were given voluntarily, and therefore the post-Miranda statements were admissible. Detective Boatman testified at trial regarding Baruso's post-Miranda statements, which were refuted by other testimony.

At trial, Robert San Pablo, the Alaska cannery foreman, testified for the State. San Pablo related statements made by Boy Peli, a Tulisan member, after the killings in June 1981. Boy Peli had been dispatched to the Alaska cannery after the killings. ³ Over the objection of defense counsel, San Pablo testified that Boy Peli had conveyed threats from Dictado toward San Pablo in an effort to coerce a cut of gambling proceeds for Dictado. Boy Peli also told San Pablo that Ramil and Guloy were responsible for the murders of Viernes and Domingo and that Baruso had solicited Dictado to accomplish the murders for the sum of $5,000. San Pablo also stated that Boy Peli spoke about going to Baruso's house and examining the gun which had a silencer on it. He also discussed Boy Peli's statements that Baruso did not pay the $5,000, so he simply dropped off the gun.

At the close of the defense case, the court instructed the jury on the elements of first degree premeditated murder and aggravated first degree murder. The jury returned its verdict, finding Baruso guilty of the first degree premeditated murder of Viernes but not guilty of the first degree premeditated murder of Domingo. However, on its special verdict form, the jury found that both Viernes and Domingo died as the result of a common scheme or plan. Consequently, Baruso was convicted of aggravated murder in the first degree under RCW 10.95.020. He received a sentence of life without possibility of parole. Baruso appeals from the judgment and sentence.

Baruso argues that his post-Miranda statements made during his detention at police headquarters are inadmissible because they were tainted by his pre-Miranda statements to police and, therefore, the trial court erred by allowing the statements. We evaluate the trial court's determination in the suppression hearing independently because of the constitutional rights at stake. State v. Mennegar, 114 Wash.2d 304, 310, 787 P.2d 1347 (1990).

In order to preserve an individual's right against compelled self-incrimination under the Fifth Amendment, the police must inform a suspect of his rights before custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The lack of a proper Miranda warning prior to an initial confession does not necessarily prohibit the use of a subsequent post-Miranda confession. In Westover v. United States, a case consolidated with Miranda v. Arizona, the U.S. Supreme Court stated that police are not necessarily precluded from interrogating and giving Miranda warnings to an individual who has been previously questioned without appropriate warnings. Westover, 384 U.S. at 496, 86 S.Ct. at 1639. The court indicated that if the individual is removed in time and place from the original surroundings, a second confession would be admissible. Westover, 384 U.S. at 496, 86 S.Ct. at 1639. Under the "cat-out-of-the-bag doctrine," although a defendant is "never thereafter free of the psychological and practical disadvantages of having confessed", the Supreme Court has "never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." United States v. Bayer, 331 U.S. 532, 540-41, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947).

Recently, the U.S. Supreme Court added an additional distinction to this doctrine with respect to the nature of the initial confession. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Court held that "there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary." (Footnote omitted.) Elstad, 470 U.S. at 318, 105 S.Ct. at 1297-98. The court held that if a suspect responds to unwarned, uncoercive questioning, he is not precluded from waiving his rights and confessing subsequent to appropriate Miranda warnings. Elstad, 470 U.S. at 318, 105 S.Ct. at 1298. If the second post-Miranda confession was voluntary, the statements are admissible. Elstad recognized the inherent difference between coercion of a confession by physical violence or deliberate means and a voluntary statement made in technical violation of the Miranda rule, finding that the Westover requirement of a break in the proceedings is not applicable in the latter situation. Elstad, 470 U.S. at 310, 105 S.Ct. at 1293. See also State v. Allenby, 68 Wash.App. 657, 661, 847 P.2d 1 (1992), review denied, 121 Wash.2d 1033, 856 P.2d 382 (1993).

In this case, the trial court's conclusions of law stated:

The situation here, where the defendant was transported from his home to the police station in the company of three detectives, and taken to an interrogation room, is the kind of inherently coercive situation that is custody, regardless of whether the defendant...