State v. Campbell

• Decision Date: 06 November 1984
• Docket Number: No. 49244-1,49244-1
• Citation: 103 Wn.2d 1,691 P.2d 929
• Parties: STATE of Washington, Respondent, v. Charles R. CAMPBELL, Appellant.
• Court: Washington Supreme Court

Page 1

103 Wn.2d 1

691 P.2d 929

STATE of Washington, Respondent, v. Charles R. CAMPBELL, Appellant.

No. 49244-1.

Supreme Court of Washington,

En Banc.

Nov. 6, 1984.

Charles Rodman Campbell, pro se.

Mark Mestel, Everett, Anthony Savage, Seattle, for appellant.

Seth Dawson, Snohomish County Prosecutor, Larry E. McKeeman, Chief Crim. Deputy, Pros. Atty., S. Aaron Fine, Deputy Pros. Atty., Everett, for respondent.

DIMMICK, Justice.

Defendant Charles Rodman Campbell appeals his conviction of three counts of first degree murder and his death sentence. Twelve issues are presented:

1. Whether the trial court violated defendant's right to a speedy trial (CrR 3.3), by granting defense counsel's request for a trial continuance over defendant's objection.

2. Whether it was error for the prosecutor in his opening statement to refer to defendant's attempted rape of witness Kedziorski which was not proved at trial.

3. Whether the prosecution's failure to disclose to the defense the exculpatory evidence of witness Frase's inability to identify defendant's jacket was corrected by the trial judge's instructions to the jury.

4. Whether the trial court erred in allowing the Chambers to testify at trial when their nonverbatim statements, taken by the police, were destroyed.

5. Whether the trial court denied defendant's right to confrontation when it prohibited cross examination of Jerold Ethington as to his refusal to give hair samples or try on an article of clothing.

6. Whether the trial court abused its discretion in admitting into evidence items seized from defendant at the time he was taken into custody.

7. Whether the search and seizure of defendant's car and the items contained therein violated the Fourth Amendment and Const. art. 1, § 7.

8. Whether the trial court abused its discretion in admitting into evidence the glass containing defendant's fingerprint.

9. Whether the special sentencing proceeding, RCW 10.95.040, violates equal protection, violates separation of powers, or is unconstitutionally vague because it grants the prosecutor discretion to request the death penalty.

10. Whether the special sentencing proceeding provides insufficient statutory standards to guide the jury and whether an instruction to the jury as to the eight mitigating factors contained in the statute constituted additional aggravating circumstances or an impermissible judicial comment on the evidence.

11. Whether defendant's death sentence withstands the three statutory appellate review questions mandated under RCW 10.95.130(2).

12. Whether the death penalty is cruel punishment in violation of Const. art. 1, § 14.

We affirm, finding no error in defendant's trial or sentencing.

On April 14, 1982, Renae Wicklund, her 8-year-old daughter Shannah Wicklund, and a neighbor friend, Barbara Hendrickson, were found dead in the Wicklund home in Clearview, Washington by Hendrickson's husband, Donald. Renae was home sick in bed on April 14, 1982. Normally, she was self-employed as a school financial aid consultant. Barbara had gone over to the Wicklund residence at 4:20 p.m. to take Renae's temperature, blood pressure, and help Shannah make Jello. Donald went over at 6:30 p.m., concerned he had not heard from his wife for over 2 hours. Evidence produced at trial indicated Renae had been the first victim. She was found nude on her bedroom floor. Shannah, the second victim, had been attacked in the dining room, then dragged into her mother's bedroom and killed. Barbara, the third victim, had also been attacked in the dining room and killed in the hallway.

All three had been beaten and assaulted prior to death. The right earlobes of Renae and Barbara had been torn, indicating trauma to the perforation where pierced earrings had been in place. The autopsy revealed Renae had received extensive blunt trauma beating on her head, back, and upper chest area. Her jaw and nose were broken and she had been strangled. Her neck had a 7-inch incision across the front, which severed both carotid arteries. She had bled to death from the neck cut. After her death, a blunt object was used to tear a 1-inch cut into the upper end of the vaginal wall. Shannah had also been strangled and had a 7 1/2-inch cut across her upper neck, inflicted by extending her backward and elevating the chin. She had suffered a massive hemorrhage such that a blood sample was difficult to obtain. Barbara had a 7-inch upper neck cut and also had died by a massive hemorrhage.

Campbell had prior contacts with the victims. In 1974, he assaulted and sodomized Renae in the same residence in which she was killed in 1982. Her daughter Shannah was restrained by the defendant who held a knife to her throat and threatened to harm her if Renae did not submit. Afterward, Renae ran to her neighbor's home (Barbara Hendrickson's) for help. In 1976, Campbell was convicted of the 1974 first degree assault and crime of sodomy on Renae. Both Renae and Barbara had testified at trial against Campbell. At the time of the murders, defendant was an inmate at Everett Work Release Facility.

A few days after the homicides, Campbell was charged by information of three counts of aggravated first degree murder. He was appointed counsel, and at arraignment the trial judge entered a not guilty plea. In May 1982, the State filed notice for a special sentencing proceeding to determine whether the death penalty should be imposed. Trial was set for June 29, 1982.

On June 21, 1982, defense counsel, over Campbell's objection, made a motion for continuance, based upon the vast amount of discovery to be completed and to afford defendant a fair trial with effective assistance of counsel. The State opposed this motion. However, the trial court granted the continuance until September 7, 1982 believing the "administration of justice and the interests of the defendant will best be served." On August 5, 1982, counsel was permitted to withdraw because of conflict with defendant over the continuance. New counsel was appointed. On September 27, 1982, Judge Kershner denied defendant's motion to dismiss, concluding CrR 3.3 created a procedural, not a fundamental right, which may be waived over defendant's objection. Subsequently, trial was again continued with defendant's acceptance. Jury selection began on October 25, 1982 in Spokane. The site was selected by Judge Britt, pursuant to a defense motion for change of venue. After the jury was impaneled, trial began in Everett on November 8, 1982.

The State's case was overwhelmingly strong, relying upon numerous witnesses and abundant evidence linking Campbell to the crimes. Campbell's girl friend, Judith Dirks, testified Campbell visited her on the morning of April 14, 1982. He had been drinking and drank a 6-pack of beer at her home. On April 15, Dirks testified she noticed her butcher knife, with 6-inch blade was missing. Dirks also stated Campbell felt a resentment toward Renae and had driven by her home while on work release.

At about 1 p.m. on April 14, 1982, Campbell visited a friend, Debbie Kedziorski, at her home. At a pretrial motion in limine, defense counsel attempted to preclude the State from eliciting facts that Campbell had attempted to rape Kedziorski. The court denied the motion, finding such testimony permissible under ER 404(b). The court stated, "Such testimony, if believed by the jury, could constitute evidence of identity, motive, intent [or] mental state of the defendant." The court, however, cautioned "the prosecutor against over-developing [Kedziorski's] anticipated testimony in opening statement." During the opening statement the prosecutor initially admonished the jury not to consider anything he said in the opening statement to be evidence. Rather, his purpose was to "simply outline the case." Subsequently, the prosecutor stated Campbell "attacked" Kedziorski, "attempted to rape her, forced her to the floor, [and] tried to take her clothes off."

At trial Kedziorski testified Campbell had made two passes at her and then asked if she "wanted to get it on." She rejected all his advances and testified Campbell "never hurt me or anything", although she was upset and crying. She had asked Campbell if he wanted a back rub to "feel better." Once on the floor, he "tugged at her clothes," but "backed off" when told to by Kedziorski. Following this testimony, defense counsel's motion for mistrial was denied.

Tim Fowler, a neighbor boy, testified that while riding home from school on the bus at 3 p.m. on April 14, 1982, he saw a red car parked in an inlet in the woods, with a man 6 feet 1 inch to 6 feet 2 inches, with sandy-brown wavy hair, nearby. Tim's brother, Mike Fowler, testified he saw the car parked in the woods around 3:15-3:20 p.m. Tim's dad, Jim Fowler, testified that at 3:40 p.m. that afternoon he saw the same car backed into the woods. The type of car described by the witnesses was very similar to the one owned by Campbell.

Eleven-year-old Josette Frase, next door neighbor of the Wicklunds, testified at trial that at about 3:30 p.m. on April 14, 1982, she saw a man wiggle around in the bushes by her house and then walk down a gravel road. She testified he was tall, had dark brown curly hair, and was wearing a blue sports jacket with a yellow stripe running across the middle. She identified Campbell in court and at a lineup, as the man she saw. A blue jacket was taken from Campbell's room the next day, pursuant to a search warrant.

During trial, the prosecution admitted that Frase had been asked in October 1982 to view the blue jacket seized from Campbell's room, but she was unable to identify it. The State admitted it was an "oversight" not to disclose this exculpatory evidence to the defense. Defense counsel moved for a mistrial. This motion was denied, but Judge Britt ordered that Frase be recalled to testify that she could not identify the jacket.

When recalled by the defense, Frase testified she was unable to identify the...