State v. Burkins

• Decision Date: 15 March 1999
• Docket Number: No. 36736-6-I,36736-6-I
• Citation: 973 P.2d 15,94 Wn.App. 677
• Parties: STATE of Washington, Respondent, v. Wayne Eduard BURKINS, Appellant.
• Court: Washington Court of Appeals

Page 677

94 Wn.App. 677

973 P.2d 15

STATE of Washington, Respondent, v. Wayne Eduard BURKINS, Appellant.

No. 36736-6-I.

Court of Appeals of Washington Division 1.

March 15, 1999.

Kelly Curtain; Nielsen, Broman & Assoc., Seattle, WA, for Appellant.

Laura Hayes; Bellingham, WA, for Respondent.

KENNEDY, C.J.

Wayne Eduard Burkins appeals his first degree murder conviction and exceptional sentence. We affirm because evidence of Burkins' similar assault on another victim was admissible to prove a common scheme or plan, because the evidence was sufficient to prove premeditation, and because the trial court did not err in admitting evidence that is challenged on appeal. Moreover, under the standards set forth in RCW 9.9A.210(4), the trial court properly imposed Burkins' exceptional sentence.

FACTS

Donna Anderson's skeletal remains were found in an embankment approximately 2 months after she disappeared. She was last seen alive on a Friday evening at the Horseshoe Lounge in Bellingham. That night, Burkins bought Anderson drinks and then left the bar for about 30 minutes. When he returned, he and Anderson said they were going to the Royal, a nearby tavern. Anderson did not return home that evening. Two days later, Anderson's sister filed a missing persons report.

Approximately 2 weeks later, Detective Mark Stokes spoke to Burkins about the missing persons report. Burkins admitted being with Anderson at the Horseshoe and the Royal that evening, but said that Anderson left the Royal with a tall man in a dark jacket. Approximately 6 weeks later, Detective Willis Ziebell asked Burkins to come to the police station regarding a rape complaint filed against Burkins by M.L., a woman who alleged that Burkins picked her up at a bar, smoked marijuana with her, took her to a secluded location, tied her hands, pinched her nipples, sexually assaulted her, and threatened to kill her if she refused to obey his orders. ¹ Upon his arrival, Detective Ziebell read Burkins his Miranda ² rights. The police said that Burkins waived his right to an attorney and never requested that the police stop questioning him. Less than 1 hour later, Burkins agreed to speak to Detective Stokes again about the Anderson missing persons report. Burkins again told police that Anderson left the tavern with another man.

Despite Burkins' story, the police believed that the M.L. rape and the Anderson missing person case might be related. Accordingly, they attempted to link the cases by using two ruses while interviewing Burkins. In the first ruse, Detective Stokes told Burkins, though it was not true, that Anderson abused drugs and was a suspect in three robberies, one using a knife and one using a gun. But Burkins did not change his story. So the detectives utilized a second ruse: they told Burkins, though it was not true, that they had samples of Anderson's hair that matched hair found in the truck that Burkins had taken without the owner's knowledge to use that evening.

Burkins put his head down, started to shake, and admitted that he and Anderson had smoked marijuana in the truck that evening. Sergeant Kelsey told Burkins that, if Anderson had tried to rob him and he had resisted, she could have died from a heart attack or an overdose. Burkins then said, "You have the body, don't you?" Report of Proceedings (1/26/95) at 317. Although the police had not yet recovered Anderson's body, Sergeant Kelsey told Burkins that they had. Burkins then gave the detectives a second version of what happened that evening.

Burkins said he left the Horseshoe to cash a check and pick up a gun from his apartment. When he returned, he drank with Anderson. After they left the Horseshoe, they smoked marijuana and then went to the Royal. This time he said that he and Anderson left the Royal together in the truck. Burkins said that while he was driving, Anderson made sexual advances toward him that he refused. Then she came at him with a knife in an attempt to rob him, causing him to drive into a ditch off the highway. Because she continued to attack him, he threatened to shoot her. Then he shot at her twice, hitting her once in the neck or chest. After Anderson's body rolled into an embankment, he threw her belongings near her body.

Detective Stokes asked Burkins to show the detectives the exact route that he and Anderson took. Burkins agreed and led them near to the scene where Anderson's body was subsequently located. Detective Stokes told Burkins he needed to know everything that had happened. Burkins said he took off Anderson's bra and pinched her nipple one time. Detective Carlotta Jarratt asked Burkins if he had told anyone what he had done. Burkins responded, "[W]ho would I tell that I just murdered someone? I mean killed." Report of Proceedings (1/26/95) at 392.

Within 65 or 70 feet of where Burkins said Anderson's body and belongings were located, detectives found some items listed on Anderson's missing persons report. Later, they found several bones, a rope, a large mass of hair, and more of Anderson's personal belongings, including a bra that had been cut with a sharp object.

Back at the police station, Burkins told a third version of the night's events. He said that Anderson pulled her pants down and began to masturbate while they were driving in the truck. He said she had one hand on his thigh when she pulled a knife. Burkins ran the truck off the road. Then he said Anderson danced around with no pants on. He said he took out his gun and fired at her. Then he aimed at Anderson's head and fired again.

Later that evening, Detective Stokes spoke with Burkins alone and asked Burkins to clarify what happened. Burkins' eyes filled with tears and he admitted that Anderson did not have a knife. Burkins maintained that Anderson wanted to have sex with him, but he was not interested. Then he said, "[L]ook at me, I'm bigger and stronger than she was. Who's going to believe that I had to shoot an unarmed woman[?]" Report of Proceedings (1/26/95) at 370. Nonetheless, Burkins insisted that he shot Anderson from a distance of 12 to 18 inches because she attacked him. Speaking to Sergeant Kelsey alone, Burkins apologized for lying about the knife.

The State charged Burkins with first degree murder. At trial, the State's theory was that Burkins targeted both M.L. and Anderson to sexually assault. It theorized that Burkins ordered the women to perform sexual acts and threatened to kill them if they refused to submit and that Burkins sexually assaulted both women and allowed M.L. to live because she complied, but murdered Anderson because she resisted. After a 6-day trial, a jury convicted him. Because Burkins made Anderson more vulnerable, showed no remorse for killing her, and presents a source of danger to the community, the trial court issued an exceptional sentence above the standard range. Burkins appeals.

DISCUSSION

I. Premeditation

Burkins contends that his assault on M.L. was not admissible under ER 404(b) as evidence of premeditation. He also maintains that the State did not present sufficient evidence to prove this element beyond a reasonable doubt. "Premeditation" is defined as " 'the deliberate formation of and reflection upon the intent to take a human life.' " State v. Gentry, 125 Wash.2d 570, 597, 888 P.2d 1105 (quoting State v. Ortiz, 119 Wash.2d 294, 312, 831 P.2d 1060 (1992)), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). It "involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short." State v. Pirtle, 127 Wash.2d 628, 644, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996) (cites and internal quotation marks omitted).

A. Admissibility of Assault on M.L.

ER 404(b) addresses the issue of whether evidence of crimes or misconduct other than the acts for which a defendant is charged should be admitted to prove character as a basis for suggesting that that conduct on a particular occasion was in conformity with it. Judicial Council Comment 404(b), cited in 5 Karl B. Tegland, Wash. Prac., Evidence at 365 (3d ed.1989). Such evidence is generally inadmissible because it "could lead a jury to determine that a defendant committed the crime with which he or she is charged simply because he or she committed a similar crime in the past." State v. Lough, 70 Wash.App. 302, 312, 853 P.2d 920 (1993), aff'd, 125 Wash.2d 847, 889 P.2d 487 (1995). But it may be admissible for other purposes, such as proof of motive or plan. ER 404(b).

The decision to admit evidence of other crimes or misconduct will not be disturbed on appeal absent an abuse of discretion. Pirtle, 127 Wash.2d at 648, 904 P.2d 245. But the trial court must: (1) find by a preponderance of the evidence that the misconduct occurred; (2) determine whether the evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice. State v. Brown, 132 Wash.2d 529, 571, 940 P.2d 546 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998).

Here, the trial court permitted M.L. to testify that--approximately 2 months after Anderson's disappearance--she was sexually assaulted by Burkins. M.L. also testified that she and Burkins smoked marijuana and that he took her to a secluded location. She said he tied her hands, bit her nipples, and threatened to kill her if she did not follow his instructions. But the trial court prohibited M.L. from testifying that Burkins raped her and that a jury found him guilty of first degree rape. Nonetheless, because Burkins had been convicted of this crime before the trial in this case, the first element--finding by a preponderance of the evidence that the misconduct occurred--is not an issue here. Pirtle, 127 Wash.2d at 649, 904 P.2d 245.

The State sought to prove that if...