State v. Brand

• Decision Date: 23 October 1989
• Docket Number: 23349-1-I,Nos. 19079-2-,s. 19079-2-
• Citation: 780 P.2d 894,55 Wn.App. 780
• Parties: STATE of Washington, Respondent, v. William Charles BRAND, Appellant. In the Matter of the Personal Restraint Petition of William Charles BRAND, Petitioner.
• Court: Washington Court of Appeals

Page 780

55 Wn.App. 780

780 P.2d 894

STATE of Washington, Respondent, v.William Charles BRAND, AppellantIn the Matter of the Personal Restraint Petition of William Charles BRAND, Petitioner.

Nos. 19079-2-I, 23349-1-I.

Court of Appeals of Washington Division 1.

Oct. 23, 1989.

Anna-Mari Sarkanen, Washington Appellate Defender, Seattle, for appellantWilliam C. Brand.

Katherine B. Wilcox, Deputy Pros.Atty., Seattle, for respondentState of Wash.

William C. Brand, Monroe, pro se.

FORREST, Judge.

William Charles Brand("Brand") appeals from his conviction of second degree murder for shooting his wife, Jacqueline Brand("Jackie").Brand's appeal and personal restraint petition have been consolidated.Brand contends that: (1) the record does not affirmatively show a knowing and voluntary waiver of his right to a jury; (2) the evidence is insufficient to support his conviction; (3)the court erroneously admitted lay opinion evidence; (4)he was not afforded an evidentiary hearing on his competency to stand trial; (5) his due process rights were violated at sentencing; (6)he did not receive a fair trial because the prosecutor is also a mental health expert; (7)the prosecutor made improper comments in his closing arguments; and (8)he has discovered new evidence that requires he be granted a new trial.We affirm the conviction and dismiss the restraint petition.

After a lengthy relationship, the Brands were married on April 23, 1982.Brand had enjoyed enormous financial success in Alaska, but by early 1985, was financially distressed.His credit was overdrawn, his rent and bills were overdue, and his trust account was depleted.Jackie was not made aware of their dire financial condition.

In January or February of 1985, Brand changed the beneficiary of his $500,000 life insurance policy from Jackie to his three daughters from a previous marriage.Brand also prepared a will that named Charles Baillargeon as executor, directed the executor to "abide by the wishes of family with respect to the disposition of the body of my wife", and stated "[i]nasmuch as my wife has died with me, I direct that she shall be conclusively deemed not to have survived me."

On February 21, Brand mailed an envelope to Baillargeon that contained a copy of Brand's will, some insurance documents, a document entitled "Comments to the Executor," and a 10 page narrative entitled "Bill and Jackie."The narrative chronicled Brand's and Jackie's lives from 1967 to 1979, including Brand's descriptions of Jackie's alleged sexual liaisons with other men.Brand also mailed copies of the "Bill and Jackie" narrative to friends and family members.

Baillargeon received the envelope on February 22, 1985.He immediately attempted to contact Brand, but was unsuccessful.Baillargeon contacted a long-time friend of Brand's, who went to the Brands' apartment.No one responded, despite signs that the apartment was occupied, so the police were called.

The police officers entered the Brands' apartment after they observed Brand staggering and crawling.They found Jackie's body lying in the hallway covered with a quilt.Brand was standing near the dining room table, and he staggered when the officers asked him to leave the apartment.The officers also noted a cocked revolver on the coffee table.

Following Brand's removal from the apartment, the officers found empty and partially empty bottles of scotch in the kitchen, approximately a dozen love notes in the kitchen and master bedroom, and a calendar with the following entry on February 21, 1985: "Jackie passed away at 1310 hours."A 1985 desk calendar seized from Brand's office contained the following notation on January 17, 1985: "loaded revolver."

After being advised of his rights, Brand made numerous, spontaneous inculpatory statements.He stated that he had "shot the most beautiful woman in the world," and that he"murdered [his] wife about 24 hours ago."Brand, who appeared very subdued and sad, also indicated that he was quite disturbed about his home being invaded, and he asked the officers why he was at the station.

A breathalyzer test administered 90 minutes after the arrest showed that Brand had a blood alcohol level of .19. After the test, Brand told the officers that "I shot her about 24 hours ago, and I have been drinking ever since."Brand also stated that the gun he used was on the table and that there were three rounds left.Between the inculpatory remarks, Brand talked about the Seahawks.

Brand was charged by information with first degree murder.Six psychologists and psychiatrists examined Brand between arraignment and trial for the purpose of determining whether insanity or diminished capacity were potential defenses.Eventually, Brand filed a "Notice of Intent to Rely on Insanity/Diminished Capacity Defense."Brand waived his right to a jury trial, both in open court and by filing a written waiver.

Brand called two psychiatrists, Drs. Joan Hampson and John Petrich, on his behalf.Dr. Hampson testified that Brand met most of the diagnostic criteria for major depressive disorder and for narcissistic personality disorder.She opined that Brand's ability to premeditate the intent to kill his wife or to form wrongful criminal intent was diminished by his mental illness.Hampson explained that despite the clear evidence that Brand had planned for both his and Jackie's deaths, Brand's illness caused him to make those plans and rendered him unable to understand that his actions were wrong.

Dr. Petrich also testified that Brand suffers from a major depressive disorder and from narcissistic personality disorder.Petrich acknowledged the "incontrovertible evidence of planning" and the existence of a motive, but he opined that Brand's ability to premeditate the intent to kill his wife or to form the intent to kill his wife was markedly diminished as a result of his mental illness.

During Dr. Petrich's testimony, the prosecutor asked that Brand's attorney either stipulate to Brand's competency to stand trial or that Dr. Petrich testify regarding Brand's competency because "of the frequent recesses we have had, apparently because of the defendant's emotional state."Brand's attorney was willing to stipulate that Brand was competent when the trial began, but he stated that he did not know whether Brand continued to be competent.The trial court accepted the stipulation, and proceeded with the trial.During cross examination, Dr. Petrich opined that Brand was presently competent to stand trial.

The State's rebuttal witness, Dr. Kathleen Mayers of Western State Hospital, concluded that Brand did not suffer from a disorder of psychotic proportions, but that he exhibited alcohol dependency, an adjustment disorder with depressed mood, and a narcissistic personality disorder.She opined that Brand was fully competent to stand trial ¹, was not criminally insane at the time of the offense, and was capable of premeditating and forming criminal intent at the time of the offense.

At the conclusion of the evidence, the trial judge found Brand not guilty of first degree because the State did not prove beyond a reasonable doubt that Brand premeditated Jackie's murder.The judge found Brand guilty of second degree murder.

JURY WAIVER

At the beginning of trial, Brand, his attorney and the court engaged in a colloquy in which Brand indicated his desire to waive his right to a jury trial.² Brand, his attorney, and the trial judge also signed a written waiver of jury trial.

The constitutional right to a jury trial ³, like other constitutional rights, may be waived.⁴To meet constitutional muster, the record must affirmatively show that the defendant knew of the right to a jury trial and personally and expressly waived it.⁵These requirements are implemented by CrR6.1(a), which requires a written waiver of a defendant's right to a jury trial.A similar requirement is provided in the Fed.R.Crim.P. 23(a).⁶In this case, not only was a written waiver filed, but (1) Brand's counsel stated in court that Brand was waiving a jury trial, (2) Brand orally waived a jury trial, and significantly (3) Brand stated that he had discussed the matter "to his satisfaction" with his attorney.

To date, no Washington case has required more than a written waiver.The claim that an extended colloquy on the record is required for jury waiver has been rejected each time it has been presented.⁷We find the reasoning in State v. Likakur, supra26 Wash.App. at 302-03, 613 P.2d 156, persuasive:

We believe that the various constitutional rights of the accused are accorded different procedural safeguards depending on the nature of the right itself and the circumstances of each case.A guilty plea amounts to a waiver of the entire arsenal of the accused's constitutional rights.Because of this, the acceptance of sucha plea must be preceded by appropriate safeguards to determine that the plea is made intelligently and freely.The right to counsel is also a right to be guarded carefully.The ordinary layman would effectively be denied his right to a fair trial, which right embodies many other constitutional rights, without the assistance of counsel.He lacks both the skill and knowledge to adequately prepare and present his defense even though he has a perfect one.The determination of whether there has been an appropriate waiver must depend in each case on the particular facts and circumstances including the experience and capabilities of the accused.Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357(1938).At a different level are the right to jury trial, the right to remain silent, and the right to confront witnesses.The trial strategy of any particular case may perhaps dictate the waiver of one or more of these rights while still preserving to the accused the right to a fair trial.

Implicitly recognizing that no Washington case requires an extended colloquy with the defendant as to a...