State v. Bockman

Decision Date07 May 1984
Docket NumberNo. 10319-9-I,10319-9-I
Citation37 Wn.App. 474,682 P.2d 925
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Michael M. BOCKMAN and Timothy M. Bockman, Appellants.

Washington Appellate Defender, Raymond H. Thoenig, James E. Sedney, Seattle, court appointed, for Michael Bockman.

Berkey & Kooistra, Brad Kooistra, Kirkland, for Timothy Bockman.

Norman K. Maleng, King County Pros. Atty., Lee D. Yates, Barbara Carey-Boulet, James M. Roe, Deputy Pros. Attys., Seattle, for respondent.

SWANSON, Judge.

Michael Bockman appeals convictions of second degree burglary, simple assault, and first degree murder. Timothy Bockman appeals convictions of second degree burglary, third degree assault, and first degree murder. The Bockmans' appeals have been consolidated.

Preliminarily, a summary of the procedural background of this appeal is necessary. This court heard oral argument in January of 1983 and filed an opinion on June 13, 1983. In July, the Bockmans moved for reconsideration, primarily on the issue of whether the trial court erred by permitting the jury to separate during deliberations. In light of our Supreme Court's opinion on the issue in State v. Smalls, 99 Wash.2d 755, 665 P.2d 384 (1983), we granted the Bockmans' motion for reconsideration. We heard additional oral argument, and on November 9, 1983, we withdrew the filed opinion and ordered a stay pending a remand to the trial court for the purpose of determining whether the jurors had been prejudiced by their separation. On February 7, 1984, we received the trial court's findings and conclusions after a hearing on that issue.

With the procedural background summarized, we proceed with the relevant facts. In the early morning hours of October 18, 1980, two police officers were summoned to a burglarized dentist's office in the 2200 block of North 56th Street in Seattle. One of the officers testified that his dog tracked a scent from the dental office to the Bockman residence. The officer was joined at the residence by a second officer. The officers stated that they had observed two people looking out the window of the residence as the officers approached the door. A person, later identified as Michael Bockman, apparently opened the door while two other persons, later identified as Timothy Bockman and Ray Kirkham, remained inside. The suspects allegedly told the officers that they had been home all evening. The officers testified that they observed the cuffs, shoes, and socks of the three persons to be damp. One officer stated that he viewed inside the house a green jacket similar to the one allegedly worn by one of the burglars. One of the officers testified that Timothy Bockman, Michael Bockman, and Ray Kirkham were brought out onto the porch, where a citizen witness in the burglary investigation identified them as the persons he saw near the dentist's office. The officers attempted to effect an arrest. An altercation ensued but Timothy and Michael Bockman and Ray Kirkham were all taken into custody. Christian Bockman, Timothy's and Michael's brother, testified that after his brothers were in custody he disposed of items his brothers had taken from the dentist's office.

On the day of the Bockmans' arrest, police discovered the murdered body of Anna Lauricella in the bedroom of her home located near the dentist's office and the Bockman residence. She had been stabbed repeatedly.

On November 21, 1980, the Bockman brothers were both charged with murder in the first degree and burglary in the second degree. On December 5, 1980, Ray Kirkham was also charged with murder in the first degree and burglary in the second degree. On December 31, 1980, the prosecution's motion was granted to dismiss without prejudice the first degree murder count against the Bockman brothers. The prosecution made the motion to dismiss because Kirkham was not available as a witness against the Bockman brothers and without his testimony the prosecution believed there was not sufficient evidence to convict the Bockman brothers of murder. The State amended the information by charging both Bockmans with third degree assault arising out of the arrest on the burglary charges. Michael Bockman was found guilty by a jury of burglary in the second degree and simple assault; Timothy Bockman was convicted of burglary in the second degree and assault in the third degree.

On February 4, 1981, several days after the conclusion of the burglary and assault trial, the Bockman brothers were again charged with first degree murder of Mrs. Lauricella. The defendants' joint trial before a jury on the murder charge commenced on March 23, 1981. Ray Kirkham was the State's primary witness. 1 He testified that he visited the Bockman residence the night of the burglary and murder and went with the two brothers down 54th Avenue toward Greenlake. He stated that they stopped in an alley behind what was later identified as the residence of Mrs. Lauricella. Michael Bockman then climbed onto the roof of the house and cut the power line to the house. Michael and Timothy entered the residence and a television set and other items were removed. Kirkham stated that he fled to the Bockman residence when he heard a scream in the Lauricella home. Kirkham also testified that when the Bockman brothers returned to their home, Timothy Bockman had bloodstains all over a pair of gloves, and Timothy said that they had to hurt someone. Kirkham quoted Timothy Bockman as saying that Mike tried to keep her quiet and he [Tim] finished her off. Kirkham also testified that he had observed a bayonet in Michael Bockman's back pocket, and that after the Bockmans returned from the Lauricella residence, they burglarized the dentist's office.

The jury found both Timothy and Michael Bockman guilty of first degree (felony) murder, and this appeal from the convictions in both trials followed.

Alleged Errors in Assault/Burglary Trial

The Bockmans claim that the trial court erred by not suppressing statements made to police at the time of the initial police contact on the porch.

The police officers were led to the Bockman residence by a tracking dog. Michael Bockman opened the door while Timothy Bockman and Ray Kirkham remained inside. Appellants claim that the police should have given Miranda warnings before asking questions; since no Miranda warnings were given, appellants reason that their prearrest statements should have been suppressed.

Appellants do not indicate where in the record an objection was made to the admission of statements made to police prior to the giving of Miranda warnings. 2 However, it appears from an examination of the record that the statements to police were made in the course of an investigatory stop. The trial court correctly found the police did not have probable cause to arrest prior to the identification by the witness. To justify a stop short of an arrest, an officer must have "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); see State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974). Appellants do not contend that the police officers lacked a well founded suspicion for stopping and talking to the Bockmans. For an investigatory stop to be reasonable, and thus constitutionally permissible, upon less than probable cause, the stop is limited as to length, movement of the suspect, and the investigative techniques employed. What an officer learns is significant; if the officer's questions are dispelled, the suspect must be released. An officer may ask a suspect to identify himself and explain his activities. State v. Gluck, supra. The investigatory stop in the case at bench was proper. See State v. Walker, 24 Wash.App. 823, 604 P.2d 514 (1979) (detention in a police car for 8 minutes so victim could arrive and identify suspect held proper).

Timothy Bockman contends that the trial court erred in failing to find he was illegally arrested. We find no error.

The police officers approached the Bockman residence after a tracking dog had circled the residence several times. The officers observed several people looking out of the residence window. A person, later identified as Michael Bockman, was said to have opened the door while two other persons, later identified as Timothy Bockman and Ray Kirkham, stood behind Michael inside the residence. The suspects allegedly told the officers that they had been home all evening. The officers testified that they observed the cuffs, shoes, and socks of the three persons to be damp. One of the officers stated that he observed a green jacket inside the residence. A witness in the burglary investigation had stated that one of the suspects was wearing a green jacket. One of the officers testified that he detained the three men and brought them out onto the front porch. The citizen witness in the burglary investigation was transported to the scene and made an identification. The officers then arrested the suspects.

In a motion to suppress evidence seized at the time of the arrest, the trial court ruled that the arrest on the front porch was permissible. The trial court found that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), was not applicable "where the officers were properly present and while present obtained probable cause for an arrest;" that officers were "in an investigative posture;" that the officers did not have probable cause to arrest prior to the identification by the witness; that prior to the arrest the "situation was basically consensual;" and that the showup identification used was in accordance with State v. Kraus, 21 Wash.App. 388, 584 P.2d 946 (1978)--namely it was within minutes after the crime was committed and in the course of a prompt search for the suspect.

The front porch of the home was a public place for arrest purposes where, once probable cause was...

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