State v. Carothers

Decision Date15 August 1974
Docket NumberNo. 43040,43040
PartiesSTATE of Washington, Respondent, v. John Vincent CAROTHERS, Petitioner.
CourtWashington Supreme Court

Judith S. Dubester, Seattle, for petitioner.

S. Brooke Taylor, Clallam County Pros. Atty., Port Angeles, for respondent.

ROSELLINI, Associate Justice.

The petitioner was found guilty on two counts of murder in the first degree and one count of robbery, and his conviction was upheld by the Court of Appeals. State v. Carothers, 9 Wash.App. 691, 514 P.2d 170 (1973). The opinion of the Court of Appeals, while correctly disposing of the petitioner's contentions, raises questions which this court has found it appropriate to consider. Therefore a petition for review has been granted.

The record shows that on September 3, 1971, the bodies of a retired Port Angeles businessman and his wife, Ronald and Wanda Buck, were found in their country home near Sequim. Each had been shot with a .22 caliber pistol held close to the head and positioned so that the shot caused instant death. The woman had apparently been bound and gagged and laid face down on her bed before she was shot. The man was lying on the kitchen floor. His wallet and a .357 magnum revolver which he had recently purchased and which was customarily kept in his clothes closet, were missing. Otherwise, the house was not disturbed and a pouch containing money was found in a dresser drawer.

The victims had no known enemies. They were well regarded and devoted much of their time to their church. There were no witnesses, no fingerprints, and no clues to the identity of the person or persons who committed the crimes. Some 6 weeks later, one Joseph Lalak was involved in an automobile accident in Bellingham. He ran from the scene carrying a gun in a holster, which he dropped on the ground as officers apprehended him. The gun proved to be the revolver which had belonged to Ronald Buck.

After telling a number of obviously false stories about his acquisition of the revolver, Lalak was granted immunity by a special inquiry judge and then testified that he and the petitioner perpetrated these crimes, the petitioner doing the actual shooting and the taking of the property of the victims, and Lalak assisting him by keeping a lookout. At the trial he repeated this story without significant alteration. It contained inaccuracies of perception or memory but reflected obvious knowledge of the scene and circumstances of the crimes. The petitioner has not questioned Lalak's involvement.

The evidence at the trial showed that Lalak and the petitioner had been friends in prison in New York. After the petitioner was released, he married and went to live with his wife and her parents on a horse farm in Bothell. The petitioner later invited Lalak to join them there. At the time of the crimes, Lalak had been living in this household several months, helping the petitioner with work that he was doing around the barns. Lalak did not have a driver's license and was not permitted to drive any of the vehicles owned by the family.

In late August and early September 1971, the parents of petitioner's wife took a trip to Hawaii. Lalak testified that while they were gone he and the petitioner, using a car belonging to the latter's wife, took a trip around the Olympic Peninsula. They told the petitioner's wife that they were going on a diving job in connection with the salvage of a boat. They took with them a shotgun and a .22 caliber pistol belonging to the petitioner's father-in-law. After stopping in Raymond to buy shells for the shotgun, they drove around the north-western part of Oregon and ate at a restaurant in Tillamook. They then returned to Washington and spent the night in the car near the Rain Forest on the Olympic Peninsula. The next morning, which was September 3d, they proceeded to Port Angeles and drove around the town looking for a place to rob. Finding nothing that suited them, they drove on toward Sequim, passing the home of the victims which was off the main road but visible from it. After they had driven some distance past the house, they turned around and returned to it and parked the car in front.

Lalak stated that he remained in the car while the petitioner went to the door and knocked. The door opened and the petitioner disappeared inside. Very shortly Lalak heard three shots fired. The petitioner appeared at the window and beckoned to Lalak, who then went in the house and observed a man lying on the kitchen floor in a pool of blood. The petitioner had a pistol in his hand, which he was loading, and which he put in its holster and handed to Lalak. This was the revolver which was found in Lalak's possession at the scene of the automobile accident some weeks later. It appears that it was not fired at the scene of the crimes.

Lalak saw a woman come out of one of the two bedrooms, holding her hands over her face, apparently dazed. Leaving Lalak to keep watch, the petitioner took the woman into the other bedroom, saying he was going to tie her up. In a few moments, Lalak heard another shot. The petitioner came out of the bedroom, walked to a place at the back of the kitchen, and then reappeared, carrying a wallet. Before the two left the house, the petitioner fired another shot at the man on the kitchen floor.

All of these events occurred in less than 5 minutes, according to Lalak's recollection. The two men returned to Bothell by way of the Port Townsend-Whidbey Island-Mukilteo ferries, the petitioner changing his clothes at a gas station on the way. Lalak said he did not know what had become of the wallet, which he thought contained less than $20.

The petitioner admitted that he had taken a trip to the Olympic Peninsula with Lalak but insisted that it had been during the second week of September. He denied that he had done the things which Lalak stated he had done. Both he and his wife told investigating officers and testified at the trial that Lalak had not taken any trips by himself. A search of the premises where the petitioner lived revealed hidden weapons, a box of shells and a sales slip from a hardware store in Raymond, Washington, dated September 2. There was other corroborative evidence which need not be detailed in this opinion. No challenge to the sufficiency of the evidence was made on appeal, and such a challenge could not properly have been entertained, since the petitioner did not see fit to include in the statement of facts all of the evidence which was presented to the jury, the exhibits having been omitted at the direction of his counsel. See Heinz v. Blagen Timber Co., 71 Wash.2d 728, 431 P.2d 173 (1967); Kane v. Kane, 35 Wash. 517, 77 P. 842 (1904), and State ex rel. Van Name v. Directors, 14 Wash. 222, 44 P. 270 (1896).

The petitioner first maintains that the Court of Appeals should have set the judgment on the verdict aside for error in giving an instruction on aiding and abetting. The law is settled in this jurisdiction that a verdict may be sustained upon evidence that the defendant participated in the commission of the crime charged, as an aider or abettor, even though he was not expressly accused of aiding and abetting and even though he was the only person charged in the information. State v. Frazier, 76 Wash.2d 373, 456 P.2d 352 (1969); State v. Brown, 75 Wash.2d 611, 452 P.2d 958 (1969). Dictum in State v. McCaskey, 55 Wash.2d 329, 347 P.2d 895 (1959), indicating that this court subscribes to the view that when only one person has been indicted for a felony he cannot be convicted of aiding and abetting, was impliedly disavowed in State v. Brown, Supra, and was expressly rejected in State v. Frazier, Supra. That view is out of harmony with the expressed intent of RCW 9.01.030, which provides, Inter alia, that every person concerned in the commission of a felony, whether he directly commits the act constituting the offense or aids and abets in its commission, is a principal and shall be proceeded against and punished as such.

The petitioner was charged as principal upon two counts of premeditated murder and felony murder (robbery) and one count of robbery. The evidence concerning the condition of the bodies and the premises established beyond any doubt that such crimes had been committed. The only question was whether the petitioner was guilty of them. The jury may have found reason to doubt the testimony of Lalak that he was only a passive participant and that the petitioner held the gun, pulled the trigger, and took the wallet and revolver belonging to the victims. At the same time it could find entirely credible his testimony that the petitioner participated in the crimes and his admission of his own involvement, particularly since there was corroborative evidence of these facts.

The jury was not required, as suggested by the petitioner, to accept the testimony of Lalak in toto or reject it all. 1 It could reasonably infer that he was telling the truth when he said that the petitioner participated in the crimes, but that he was not accurately describing the events as they occurred and that he himself most probably played a more active role than he was willing to admit. The jury was not obliged to decide who held the gun or who committed the physical act of taking possession of the property of the victims. If it was convinced that the alleged crimes were committed and that the petitioner participated in each of them, it was justified in returning a verdict of guilty on each count. It was, therefore, proper for the trial court to instruct upon the provisions of RCW 9.01.030, in order that the jury could understand that it was not imperative that it determine the exact nature of the petitioner's participation in the crimes, if it was convinced that he did, indeed, participate.

The petitioner insists, however, that 'aiding and abetting' is a separate methold or mode of committing murder or robbery, that it requires a unanimous finding that this was the 'w...

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    ...832 (1977), finding that the actual perpetrator need not be convicted to sustain a conviction for aiding and abetting, the court relied on Carothers, Taplin, Frazier, Brown to note that Washington law is settled that a verdict may be sustained on evidence that a person participated in the c......
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