State v. Brooks

• Decision Date: 23 July 1984
• Docket Number: No. 13123-2-I,13123-2-I
• Citation: 38 Wn.App. 256,684 P.2d 1371
• Parties: STATE of Washington, Respondent, v. Steven Lynn BROOKS, Appellant.
• Court: Washington Court of Appeals

Page 256

38 Wn.App. 256

684 P.2d 1371

STATE of Washington, Respondent, v. Steven Lynn BROOKS, Appellant.

No. 13123-2-I.

Court of Appeals of Washington Division 1.

July 23, 1984.

[684 P.2d 1372] Thomas Conom, Lynnwood (Court-appointed), for appellant.

Seth R. Dawson, Pros. Atty., S. Aaron Fine, Deputy Pros. Atty., Everett, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

In the early afternoon of July 21, 1979, at 2 p.m., the defendant was seen going under a bridge at the Olney Creek campground near Sultan with a 10-year-old boy. Some 20 minutes later the defendant was seen to emerge by himself. A relatively short time afterwards, the child's nude body was found under the bridge draped over a large rock. The boy had head wounds, numerous scratches, abrasions At a jury trial, the defendant was convicted of murder in the first degree. He appealed to this court and we affirmed the conviction. State v. Brooks, 29 Wash.App. 1046 (1981). The State Supreme Court then granted discretionary review, reversed the conviction and remanded the case for a new trial. State v. Brooks, 97 Wash.2d 873, 651 P.2d 217 (1982).

                and bruises as well as a severe laceration of the genitalia which appeared to have been made by a dull cutting instrument.   Death was determined to have been caused by drowning, although the body was lying well above the water at the time it was discovered
                

On remand to the Superior Court, the defendant was again tried before a jury and was again convicted of murder in the first degree. His second appeal to this court raises two issues. ¹

ISSUES

ISSUE ONE. Did the police intentionally create a situation likely to induce the defendant to make incriminating statements to his cellmate in the absence of counsel, and thereby violate the defendant's Sixth Amendment right to counsel?

ISSUE TWO. Did the trial court err when it permitted two photographs of the child's body to be admitted into evidence at the trial?

DECISION

ISSUE ONE.

CONCLUSION. Under the facts of this case, the police did not deliberately elicit incriminating statements from the defendant by using his cellmate as their agent. The defendant was not denied his Sixth Amendment right to counsel and the trial court did not err when it permitted the cellmate to testify to incriminating statements made to him by the defendant during the time the two of them occupied the same cell.

Prior to the trial of this case, the defendant moved to suppress the testimony of his former cellmate concerning incriminating statements made to him by the defendant after the defendant's arrest and incarceration.

Following a lengthy hearing at which numerous witnesses (including the defendant and his cellmate) testified, the trial court denied the defense motion to suppress. Findings of fact were thereupon entered as were conclusions of law based thereon. These set forth the bases of the trial court's ruling on this issue:

FINDINGS OF FACT

On July 23, 1979, the defendant ... was placed in the Snohomish County Jail cell No. 3 with [his cellmate].

Finding of fact 1.

The two men were placed in the same jail cell in accordance with the written guidelines and procedures as adopted by the Snohomish County Jail.

Finding of fact 2.

No request was made by any law enforcement personnel involved in the investigation of the [defendant's] case to have the two men housed together in the Snohomish County Jail. From July 23, until August 10, 1979, [the cellmate] asked the defendant questions regarding his involvement in the death of [the child], and the defendant responded to his questions.

Finding of fact 3.

From July 23, 1979, until August 10, 1979, [the cellmate] had not discussed his intent to ask these questions with law enforcement officials nor had he discussed Finding of fact 4.

the conversations he had with the defendant to any law enforcement officials.

Prior to this meeting on August 10, 1979, neither [of the investigating detectives] knew or had any previous contact with [the cellmate].

Finding of fact 5.

Subsequent to August 10, 1979, [the detectives] learned from another cellmate of [the defendant], or from an employee of the Snohomish County Jail, that [the defendant] had made statements to [his cellmate] regarding the death of [the child].

Finding of fact 6.

On August 10, 1979, [detectives] of the Snohomish County Sheriff's Office, inquired [of the cellmate] as to whether he had had conversations with the defendant. [The cellmate] indicated at that time that he had conversations with the defendant but wished to consult with his attorney before any further discussions with the detectives.

Finding of fact 7.

During the meeting between the detectives and [the cellmate] on August 10, 1979, neither detective promised any rewards of "deals" to [the cellmate] in exchange for a statement. [The detectives] instructed [the cellmate] at that time to return to his cell and proceed in a normal fashion with the defendant. The detectives did not request [the cellmate] to elicit any information from the defendant.

Finding of fact 8.

During the period from August 10, to August 14, 1979, the defendant and [the cellmate] had additional conversations regarding the death of [the child]. On August 14, 1979, [the cellmate] provided a written statement to [the detectives] detailing the substance of the conversations he had with the defendant, ... [The attorney for the cellmate] was present when this statement was provided.

Finding of fact 9.

CONCLUSIONS OF LAW

Prior to August 10, 1979, [the cellmate] had had no contact with law enforcement officials pertaining to this case; therefore, he could not be considered an agent of law enforcement. Being a private citizen [the cellmate] would not be required to advise the defendant, ... of his constitutional rights prior to asking [the defendant] questions regarding his involvement in the death of [the child].

Conclusion of law 1.

After August 10, 1979, the nature and extent of [the cellmate's] contact with law enforcement officials was insufficient to create an agency relationship necessary to raise [the cellmate] to the status of an agent of law enforcement officials. Statements made to [the cellmate] both prior to August 10, and after August 10, 1979 are admissible.

Conclusion of law 2.

The foregoing findings of fact are supported by substantial evidence in the record.

United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), relied on by the defendant, is a case which involved incriminating statements made by a defendant to his cellmate. The cellmate had previously been engaged by the FBI to provide such information to that agency after the defendant had been indicted and was in custody.

The United States Supreme Court reversed the defendant's conviction, holding that "[b]y intentionally creating a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel, the Government violated [the defendant's] Sixth Amendment right to counsel." Henry, at 274, 100 S.Ct. at 2189. As the concurring opinion points out, "[t]o demonstrate an infringement of the Sixth Amendment, a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation." Henry, at 277 (Powell, J., concurring). See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Thomas v. Cox, 708 F.2d 132 (4th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); State v. Cadena, 74 Wash.2d 185, 190-93, 443 P.2d 826 (1968), overruled on other grounds, State v. Gosby, 85 Wash.2d 758, 767, 539 P.2d 680 (1975). All persons to whom someone charged with a crime makes an admission are not ipso facto police agents, nor is the presence of counsel constitutionally required whenever accused persons see fit to talk indiscreetly to third parties. Paroutian v. United States, 370 F.2d 631, 632 (2d Cir.1967); Cadena, 74 Wash.2d at 193, 443 P.2d 826.

Based on the trial court's findings and on our independent review of the record, see State v. Daugherty, 94 Wash.2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 382 (1981), the police in this case did not intentionally create a situation likely to induce the defendant to make incriminating statements, nor was there any deliberate and surreptitious interrogation of the defendant. Accordingly, the defendant was not denied his right to counsel as guaranteed by the sixth amendment to the United States Constitution.

ISSUE TWO.

CONCLUSION. No showing has been made that the trial court abused its discretion in admitting the two photographs of the victim's body into evidence, nor does anything in the appellate record support the defendant's assertion that the State was otherwise prohibited from introducing the photographs.

"A bloody, brutal crime cannot be explained to a jury in a lily-white manner." State v. Adams, 76 Wash.2d 650, 656, 458 P.2d 558 (1969), rev'd on other grounds, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable ..." ER 401.

The photographs of the child's body were evidence that repeated blows and wounds had been inflicted upon the child over an appreciable period of time before the drowning which ultimately caused his death. As such, they were relevant to the issues of intent to kill and premeditation, both of which are elements of the crime of murder in the first degree, with which the defendant was charged and convicted. RCW 9A.32.030(1)(a). See State v. Smith,...