State v. Bernson

• Decision Date: 23 May 1985
• Docket Number: No. 5761-III-5,5761-III-5
• Citation: 700 P.2d 758,40 Wn.App. 729
• Parties: STATE of Washington, Respondent, v. Stanley M. BERNSON, Appellant.
• Court: Washington Court of Appeals

Page 729

40 Wn.App. 729

700 P.2d 758

STATE of Washington, Respondent, v. Stanley M. BERNSON, Appellant.

No. 5761-III-5.

Court of Appeals of Washington, Division 3,

Panel Two.

May 23, 1985.

As Amended on Denial of Reconsideration June 27, 1985.

Rehearing Denied June 27, 1985.

John Matheson, Matheson & Matheson, Kennewic, William D. McCool, Walla Walla, for appellant.

Curtis Ludwig, Pros. Atty., Darcy Scholts, Deputy Pros. Atty., Kennewick, for respondent.

THOMPSON, Judge.

Stanley M. Bernson appeals his conviction of first degree murder. We affirm.

On December 29, 1979, a hunter discovered the skeletal remains of Diann Remington, who disappeared about a year earlier on January 4, 1979. Her death was attributed to multiple stab wounds. On September 22, 1982, Mr. Bernson was charged with Ms. Remington's murder. A jury returned a guilty verdict and Mr. Bernson was sentenced to prison for life.

Mr. Bernson first contends there was insufficient evidence connecting him with Ms. Remington's death to support his conviction. The issue is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of first degree murder beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980). It is necessary to review the facts surrounding the victim's death in order to determine whether they are sufficient to satisfy the "reasonable doubt" rule. See State v. Green, supra. We, therefore, set forth the following:

Sometime during November or December 1978, Mr. Bernson offered Sherry Ann Wagoner a job selling women's apparel at a high salary plus a car. In December 1978, the victim, Ms. Remington, told a friend that she had been offered a job selling women's apparel at a salary in excess of $20,000 per year plus travel benefits. Ms. Remington told the friend the offer had come from a friend of her mother's. Ms. Remington, age 22, had met Mr. Bernson through her mother. Prior to January 4, 1979, Mr. Bernson, in referring to Ms. Remington, told a co-worker, "I'd really like to get her." On January 4, 1979, Ms. Remington disappeared from her mother's home wearing a T-shirt, sweater, jeans and high heels. She left a note which read, "Mom, I will be back a little later, Diann, 3:30."

On January 26, 1979, Mr. Bernson offered 22-year-old Dina G. a job selling women's apparel at $2,000 per month plus a car. Mr. Bernson met Ms. G. after work to talk further about the job. During the conversation which occurred in Mr. Bernson's car, Mr. Bernson pulled a knife, forced Ms. G. to remove her clothes, and drove to a remote area. During an ensuing struggle, Ms. G. escaped, drove Mr. Bernson's car back to town, and filed a complaint with the police. On February 15, 1979, Mr. Bernson contacted Ms. Wagoner and asked her to meet him that evening to discuss the earlier job offer. Ms. Wagoner refused.

On December 29, 1979, Ms. Remington's remains were discovered by a hunter six-tenths of a mile from the spot where Mr. Bernson had assaulted Ms. G. The gravesite was the exact location Mr. Bernson described to Ms. G. as a dropsite used for small packages by Ms. G.'s prospective employer. The skeletal remains were scattered and the only clothing recovered after an extensive search of a 5-square-mile area was the T-shirt and sweater. A broken knife tip was found among the remains. The victim died of multiple stab wounds. No conclusion could be drawn from a detailed examination of the knife tip other than the grinding marks were similar to those on a knife allegedly given to Mr. Bernson. Finally, Mr. Bernson's job allowed him to be at the victim's home at the time of her disappearance on January 4, 1979.

Mr. Bernson claims there is insufficient evidence to identify him as Ms. Remington's slayer. He relies on State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975), in drawing a distinction between types of circumstantial evidence, and claims he should not be convicted on circumstantial evidence which is not physical, i.e., tangible, in nature. We disagree. State v. Gosby, supra, stands for the rule that direct evidence is not necessarily more reliable than circumstantial evidence. Gosby, faced with an identity issue, upheld convictions based partially on inconsistent eyewitness testimony.

Circumstantial evidence has been held sufficient "to take the case to the jury as to who killed [the victim], when he was killed, and where he was killed". State v. Fasick, 149 Wash. 92, 95, 270 P. 123, 274 P. 712 (1928). See also State v. Erving, 19 Wash. 435, 440, 53 P. 717 (1898) (slayer's identity established beyond a reasonable doubt by evidence of defendant's familiarity with the locality where the crime was committed, and the fact that "the evidence tended very strongly to show that he had induced the deceased to accompany him ... on the pretext that he would give him employment"). We hold Mr. Bernson's use of job offers to initiate meetings with young women, his familiarity with the remote area where the victim's body was discovered, his assault on one of those women with a knife, the sexual implications surrounding that assault and the circumstances surrounding Ms. Remington's murder, taken together present sufficient evidence to allow the jury to conclude beyond a reasonable doubt that Mr. Bernson was the slayer.

Next, Mr. Bernson contends he was prejudiced by prosecutorial delay. He claims the particular facts of this case warrant application of federal and state speedy trial provisions to precharging delay. We disagree.

The right to a speedy trial does not accrue before prosecution commences; therefore, Mr. Bernson's claim of preaccusation delay is tested under the due process clause. State v. Ansell, 36 Wash.App. 492, 499, 675 P.2d 614, review denied, 101 Wash.2d 1006 (1984); United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Madera, 24 Wash.App. 354, 600 P.2d 1303 (1979); State v. Haga, 13 Wash.App. 630, 536 P.2d 648 (1975) (Haga II ), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976); State v. Haga, 8 Wash.App. 481, 507 P.2d 159 (1973) (Haga I ). Under this test, the accused must specifically demonstrate the delay caused actual prejudice to his defense. "The prejudice shown must be sufficient to overcome the legislative intent to prosecute the crime as evidenced by the absence of a statute of limitation." State v. Ansell, supra 36 Wash.App. at 497, 675 P.2d 614; Haga I.

Mr. Bernson claims he was prejudiced by: (a) the police detective waiting until August 11, 1980, to check Mr. Bernson's alibi; and then limiting the investigation to show Mr. Bernson could have been at the Remington home by 3:30; (b) the relocation in June or July 1982 of the books and records of Mr. Bernson's Richland employer to Yakima where they were stored in a haphazard manner; and (c) the passage of time which precluded Mr. Bernson from establishing an alibi due to fading memories of potential witnesses. We will consider each claim of prejudice seriatim.

The police waited 8 months after the remains were discovered to investigate Mr. Bernson's movements on the day of Ms. Remington's disappearance. The rule which requires the State to preserve all potentially material and favorable evidence and to disclose potentially favorable evidence to the defendant does not include a requirement that the police or other investigators search for exculpatory evidence, conduct tests or exhaustively pursue every angle in a case. State v. Judge, 100 Wash.2d 706, 717, 675 P.2d 219 (1984); State v. Jones, 26 Wash.App. 551, 554, 614 P.2d 190, review denied, 94 Wash.2d 1008 (1980) (quoting State v. Hall, 22 Wash.App. 862, 866-67, 593 P.2d 554, review denied, 92 Wash.2d 1021 (1979)). Had the investigation divulged information that could establish an alibi for Mr. Bernson, the State would be obligated to disclose that discovery. But where, as here, the State terminated its investigation once establishing to its satisfaction that Mr. Bernson's job allowed him to be with the victim at the time of the disappearance, additional investigation for the benefit of the defendant was not mandated. The defendant is required to come forward with evidence of an alibi once the State has established a prima facie case. State v. Pam, 1 Wash.App. 723, 463 P.2d 200 (1969); State v. Rosi, 120 Wash. 514, 208 P. 15 (1922).

Mr. Bernson claims prejudice in the removal of his employer's books and records from Richland approximately 2 months before he was charged with the crime. Mr. Bernson apparently claims prejudice because the materials were stored in a haphazard manner. However, we find no prejudice since these materials merely duplicate Mr. Bernson's order book which was introduced at trial by the State.

Mr. Bernson claims the passing of time has dimmed memories, thus causing prejudice. In United States v. Marion, the Supreme Court stated at pages 404 U.S. 325-26, 92 S.Ct. at page 466:

Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment.

The possibility that memories will fade is not in itself sufficient to demonstrate prejudice. State v. Ansell, supra; Haga II. We find Mr. Bernson's claims of prejudice are not supported by the record.

Next, Mr. Bernson challenges a number of the trial court's evidentiary rulings.

At trial the State's expert, William Morig, compared the knife tip found at the gravesite with a knife similar to one allegedly given to Mr. Bernson. Mr. Morig's testimony at best established only that after comparing the two knives, the...