State v. Caliguri

Citation664 P.2d 466,99 Wn.2d 501
Decision Date05 May 1983
Docket NumberNo. 49234-4,49234-4
PartiesThe STATE of Washington, Respondents, v. Richard Francis CALIGURI, Appellant.
CourtUnited States State Supreme Court of Washington

Kenneth E. Kanev, Atty. at Law, Seattle, for appellant.

William Griffies, Pierce County Prosecutor, Christine Quinn-Brintnall, Deputy Pros. Atty., Tacoma, for respondents.

UTTER, Justice.

Defendant Richard Caliguri appeals his convictions of conspiracy to commit premeditated first degree murder as defined in RCW 9A.32.030(1)(a) 1 and conspiracy to commit first degree arson. He alleges error in four respects: (1) That there was insufficient evidence to support his conviction for conspiracy to commit murder; (2) That warrantless recordings of his conversations with a federal agent should have been excluded; (3) That the trial court erred in replaying the tapes in Caliguri's absence and after jury deliberations had begun; and (4) That his state trial subsequent to a federal conviction for racketeering constitutes double jeopardy. We affirm Caliguri's conviction and sentence for conspiracy to commit first degree murder. We also agree with the trial court, for different reasons, that punishment on the arson charge would constitute double jeopardy and reverse that conviction.

Caliguri moved to dismiss the information on double jeopardy grounds prior to trial. The federal indictment for racketeering, on which Caliguri was convicted, incorporated the conspiracy to commit arson charge as an element but not the conspiracy to commit murder charge. 2 The witnesses and exhibits relied upon in the state prosecution were also apparently relied upon in the federal prosecution. Nonetheless, the trial court denied Caliguri's motion to dismiss and the trial went forward.

The critical evidence focused on five conversations between Paul Russell, a federal agent, and Caliguri or Ron Williams, for whom Caliguri was working. The last four of these conversations were recorded, with only Russell's consent; however, the first conversation was not, due to an electronic malfunction. Caliguri sought to exclude the recordings as made in violation of the state privacy act (RCW 9.73), but the trial court ruled that they were admissible under the exception in RCW 9.73.030(2)(b) for unlawful threats of bodily harm and requests or demands of a similar nature.

In the first conversation, between Russell and Williams, the two men made preliminary arrangements for the arson of a tavern owned by one of Williams' competitors. In the second conversation, the first to be taped, Williams advised Russell by telephone that Caliguri would assist in the arson, arranged for a meeting between Caliguri and Russell and finalized the agreement. The next three conversations took place at meetings between Caliguri and Russell and centered on the logistics and timing of the arson. At the last of these meetings, Caliguri was arrested.

In his conversations with Williams and Caliguri, Russell did speak of the possibility of a bonus if somebody in the building was killed, but there was no clear agreement to this by either Williams or Caliguri. There was general recognition by all of the men of the possibility that someone might die. In particular, Caliguri recognized at one point that "the janitor's gonna go for sure" and "a few people are gonna take a fall". See exhibit 2, at 93, quoted in Reply Brief of Appellant, at 3. At no point, however, did Caliguri state that killing the janitor or anybody else was part of his or Williams' purpose.

At the close of the State's case, Caliguri moved to dismiss, for insufficiency of the evidence, the charge of conspiracy to commit murder. The motion was denied and the jury went into deliberation. It returned verdicts of guilty on both counts.

During deliberations, the court, in response to the jury's request, had an FBI agent replay the tapes. According to the agent, the full tapes were played, despite the fact that certain parts regarding Caliguri's arrest had been excluded at trial. The proceedings, at which only the court, FBI agent, and jury were present, were not recorded and Caliguri was not notified until afterward. Upon being notified, Caliguri moved to arrest judgment, but his motion was denied.

The court sentenced Caliguri to life imprisonment for the murder conviction but ruled that he should not be sentenced for the arson conviction because it arose from the same transaction. The court also ordered that Caliguri's sentence run concurrently with the sentence for his federal racketeering conviction.


The test for sufficiency of the evidence is "whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of [the crime charged] beyond a reasonable doubt." State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980). Caliguri contends that in the present case no rational trier of fact correctly applying the law could have found intent to kill beyond a reasonable doubt.

The intent which must be shown to prove first degree murder under RCW 9A.32.030(1)(a)--or conspiracy to commit such murder--is an intent to kill one or more particular individuals. See State v. Berge, 25 Wash.App. 433, 437, 607 P.2d 1247 (1980); cf. State v. Anderson, 94 Wash.2d 176, 186-92, 616 P.2d 612 (1980) (conduct directed at particular individual may constitute first degree murder only under RCW 9A.32.030(1)(a)). "Intent" to kill, moreover, means more than merely "knowledge" that death will result. See State v. Rinier, 23 Wash.App. 102, 105, 595 P.2d 43 (1979), rev'd on other grounds, 93 Wash.2d 309, 609 P.2d 1358 (1980); compare RCW 9A.08.010(1)(a) (defining "intent") with RCW 9A.08.010(1)(b) (defining "knowledge"). "Intent" exists only if a known or expected result is also the actor's "objective or purpose". RCW 9A.08.010(1)(a).

In the present case, there is sufficient evidence from which a rational trier of fact could find intent to kill the janitor. Caliguri's recognition that "the janitor's gonna go for sure" is direct evidence of knowledge that a particular individual's death would result. While there is no direct evidence that death was intended, intent may be inferred from circumstantial evidence. State v. Shelton, 71 Wash.2d 838, 839, 431 P.2d 201 (1967). Here, intent may be inferred from Caliguri's knowledge, since a trier of fact may infer that a defendant intends the natural and probable consequences of his or her acts. See State v. Caldwell, 94 Wash.2d 614, 617-18, 618 P.2d 508 (1980).


Recordings of private conversations made without a warrant, a court order, or the consent of both parties are generally inadmissible at trial. See RCW 9.73.050; RCW 9.73.030. Only one party's consent is necessary, however, when the conversation "convey[s] threats of extortion, blackmail, bodily harm, or other unlawful requests or demands". RCW 9.73.030(2)(b).

Our only pertinent case construing RCW 9.73 since major changes were made in 1977 (see Laws of 1977, 1st Ex.Sess., ch. 363) is State v. Williams, 94 Wash.2d 531, 617 P.2d 1012 (1980). That case consolidated pretrial appeals by the State and defendants in both the present case and a case in which identical charges had been brought against Ron Williams, Caliguri's coconspirator. The issue presented was the admissibility of the very tape recordings at issue here. In Williams' case, the trial court had ordered suppression of all of the recordings except those parts relating to threats of extortion, blackmail, bodily harm, or other unlawful requests or demands. Williams, at 535-36, 617 P.2d 1012. In Caliguri's case, the trial court suppressed the actual recordings of Caliguri's conversations with Russell but ruled admissible Russell's testimony regarding those conversations and also ruled admissible the actual recordings of Williams' conversations with Russell. Williams, at 536, 617 P.2d 1012.

We affirmed in its entirety the trial court's order in Williams' case but, regarding the order in Caliguri's case, held that the trial court erred in admitting Russell's testimony and the Williams-Russell recordings. Williams, at 549, 617 P.2d 1012. As to RCW 9.73.030(2)(b), we rejected Williams' argument that the exception's reach should be limited to emergency situations but did note that the potentially catchall phrase "unlawful requests or demands" is limited to requests or demands of a nature similar to threats of extortion, blackmail, or bodily harm. Williams, at 548, 617 P.2d 1012.

Because the issue was not addressed in Caliguri's case, the trial court on remand heard argument on the issue of the tapes' admissibility under RCW 9.73.030(2)(b). It then ruled that virtually all of the tapes were admissible under that exception. Caliguri now challenges this ruling as giving an overly broad scope to RCW 9.73.030(2)(b).

Williams controls our decision on this issue. The order in the present case, however, was entirely consistent with RCW 9.73.030(2)(b) and Williams. The conspiracy in the present case, as do most, if not all, conspiracies, was initiated by one coconspirator's request. Since the conspiracy and underlying request were to commit murder, a crime involving great bodily harm, any conversation "convey[ing]" the request is squarely within the scope of RCW 9.73.030(2)(b) as construed in Williams.

Nonetheless, Caliguri argues, the actual request was conveyed only in the second conversation while the other conversations focused solely on implementation of the request already made and agreed to. Hence, he continues, only the tape of the second conversation should have been admitted.

This argument construes the word "convey" too narrowly. That word is broadly defined as "to impart or communicate either directly by clear statement or indirectly by suggestion, implication, gesture, attitude, behavior, or appearance". Webster's Third New International Dictionary 499 (1971). Planning among coconspirators to implement an earlier request...

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