State v. Curtiss

• Decision Date: 06 May 2011
• Docket Number: No. 39215–1–II.,39215–1–II.
• Citation: 161 Wash.App. 673,250 P.3d 496
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Renee Ray CURTISS, Appellant.

161 Wash.App. 673

250 P.3d 496

STATE of Washington, Respondent,

v.Renee Ray CURTISS, Appellant.

No. 39215–1–II.

Court of Appeals of Washington, Division 2.

May 6, 2011.

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.QUINN–BRINTNALL, J.

¶ 1 A jury found Renee Curtiss guilty of the premeditated first degree murder of Joseph Tarricone. In 1978, Tarricone disappeared after visiting Curtiss's mother's Canyon Road, Puyallup rental home. In 2007, during a construction excavation, mutilated human remains were discovered buried in the Canyon Road property. Nicholas Notaro, Curtiss's brother, confessed that in 1978, he lured Tarricone into his mother's basement, shot him twice in the back of the head, and then put the body in a freezer. Curtiss and Notaro both confessed that they and their mother, who has since died, dismembered Tarricone's body using a chainsaw and buried the remains in the backyard.

¶ 2 Curtiss appeals challenging (1) the admission of her taped police confession, (2) comments on her right to remain silent, and (3) the admission of improper opinion testimony at trial. Curtiss also asserts that (1) prosecutorial misconduct and (2) ineffective assistance of counsel taint her conviction. In a statement of additional grounds for review (SAG), ¹ Curtiss challenges the sufficiency of evidence supporting her conviction, the State's use of “crowd manipulation” tactics to influence the jury, and the trial court's authority to impose a 40–year mandatory minimum sentence.

¶ 3 We hold that (1) the trial court correctly admitted Curtiss's knowing and voluntary statement; (2) Curtiss never invoked her right to remain silent, so no party could have improperly commented on it at trial; (3) sufficient evidence supports Curtiss's conviction; (4) police officer testimony recounting Curtiss's interrogation, even if improper, could not have affected the jury's verdict; (5) the State did not commit prosecutorial misconduct; (6) Curtiss's trial counsel was not ineffective; (7) Curtiss's alleged “crowd manipulation” error concerns matters outside the record; and (8) Curtiss's sentence is lawful. Accordingly, we affirm.

FACTS

Background

¶ 4 Joseph Tarricone was a travelling meat salesman from Alaska who had seven children. Gina Chavez last saw Tarricone, her father, in the summer of 1978, when they went out to eat during his visit to Seattle, a trip he frequently made to visit his girl friend, Curtiss. By the fall of 1978, all contact between Tarricone and his family abruptly ceased. Chavez eventually filed a missing person report with the Des Moines Police Department in March 1979. She directed the police to Curtiss and reported a Canyon Road, Puyallup, Washington home as Tarricone's last known whereabouts.

¶ 5 Detective Jerry Burger of the Des Moines Police Department began an investigation. After Burger made several attempts to contact Curtiss, someone who self-identified as Curtiss called Burger. When Burger asked about Tarricone's whereabouts, Curtiss said she last saw Tarricone in August or September of 1978, when he showed up at her home with airline tickets for Rome, Italy. Curtiss told Burger that she refused to go on the trip and that Tarricone had thrown the tickets on the ground and left. Burger wrote a report and then transferred the case to Pierce County. The record contains no information about an investigation of Tarricone's disappearance from 1979 to 1990.

¶ 6 In 1990, Jacqueline “Gypsy” Tarricone began her own investigation into her father's disappearance. Gypsy ² spoke with various Washington police departments, hired a private investigator, and personally contacted businesses on Tarricone's regular business travel routes to determine if anyone had seen him since 1978. A Pierce County detective spoke with Curtiss and this time she stated that the last time she saw Tarricone, he showed her a briefcase full of money, asked her to marry him, and, when she declined, he left.

¶ 7 Suspecting Curtiss knew what happened to Tarricone, Gypsy and her brother, Dean Tarricone, devised a plan to get information from Curtiss. Gypsy and Dean ³ created a story about a life insurance policy that Tarricone had left to Dean and Curtiss. Dean called Curtiss's home pretending to be an insurance adjustor for the policy. Dean, as himself, called again later and spoke to Curtiss pretending that he had just learned about the life insurance policy. Dean lied many times during the conversation to try to catch Curtiss off guard and trick her into revealing information. Although Curtiss did not reveal any relevant information during the call, Dean recorded the phone conversation and turned it over to the police. Again, the record contains no information of an investigation of Tarricone's disappearance from 1990 to 2007.

¶ 8 On June 4, 2007, while excavating the land at the Canyon Road property, a utilities construction crew uncovered skeletal human remains buried in a black plastic bag. The black bag contained human bones, some clothing, a belt, rope, and twine. Over a period of several days, the police and construction crew uncovered more bones, including a partial skull.

¶ 9 Detective Sergeant Ben Benson ⁴ of the Pierce County Sheriff's Office obtained a history of renters over the years. Specifically, he learned that Curtiss's mother, Geraldine Hesse, rented the property in 1978 and 1979. At trial, the property owner testified that Curtiss lived with her mother at the time.

¶ 10 Detective Benson received a tip from the King County Sheriff's Department about Tarricone's missing person report and its association with the Canyon Road address. This tip resulted in a forensic analysis of the bones. Based on a comparison of the bones' and Tarricone's sister's mitochondrial deoxyribonucleic acid (DNA), the Federal Bureau of Investigation (FBI) could not exclude that the bones were Tarricone's.⁵ In addition, Dr. Eric Kiesel, Pierce County's chief medical examiner, testified that the bones were consistent with someone of Tarricone's gender, age, and size. Kiesel could not identify a method of death based on the parts of the bones discovered and listed the official cause of death as “homicidal violence, otherwise not specified.” 6 Report of Proceedings (RP) at 266. But Kiesel did note that many of the bones were fragmented and had “tool marks” on them consistent with being cut by a saw or chainsaw. 6 RP at 258.

¶ 11 Detective Benson's investigation ultimately led him to believe that Curtiss and her family were involved in Tarricone's death. On March 24, 2008, Detectives Benson and Denny Wood ⁶ interviewed Curtiss at her work place.⁷ Even though she was not under arrest, Benson read Curtiss her Miranda ⁸ rights before asking her any questions. Benson and Wood told Curtiss that they had just arrested her brother for Tarricone's murder. Upon hearing Tarricone's name, Curtiss gasped; her neck, face, and ears turned bright red; and she “looked like she was in shock.” 6 RP at 296.

¶ 12 Initially, Curtiss made several untaped statements describing her relationship with Tarricone. Curtiss stated that she and Tarricone met in Alaska, dated for one year, and became partners in his meat selling business. Curtiss claimed that Tarricone frequently gave her and her mother gifts and regularly asked her to marry him. Curtiss declined the marriage proposals, eventually ended the relationship, and moved to Washington to get away from Tarricone. Curtiss said that, despite the move, Tarricone continued to pursue a relationship with her by regularly visiting her.

¶ 13 In the untaped portion of the interview, Curtiss also commented on several telephone conversations that she had with Notaro while he was in Alaska. Detective Wood testified that, during these telephone conversations, Curtiss described her problems with Tarricone and said that “she wanted [Tarricone] to go away. She just wanted the problems to end and she wanted [Notaro's] help.” 6 RP at 162. Wood also testified that Curtiss said, during a 1978 telephone conversation, that Notaro told her he had murdered his wife. This last telephone call occurred shortly after Notaro had an emergency appendectomy.

¶ 14 When Detective Benson asked about Tarricone's murder, Curtiss replied, “Yes, I did know about it,” and, “I don't know what I'm supposed to say.” 6 RP at 165. After being told that she should tell the truth, Curtiss replied, “I don't know if I'm supposed to talk to an attorney.” 6 RP at 165. The officers reminded her of her Miranda attorney rights, which she said she understood. Next, Detective Wood told Curtiss that the statute of limitations for rendering criminal assistance had expired.⁹ Wood testified that he made this statement to “put her at ease” and to help keep her talking and that he knew Curtiss could still be charged with Tarricone's murder. 6 RP at 166.

¶ 15 After hearing the statute of limitations for rendering criminal assistance had expired, Curtiss answered more questions. The detectives asked her if she would provide a taped statement. Although Curtiss stated that she needed to attend her husband's doctor's appointment because he was having heart surgery the next day, she agreed to give a taped statement. The detectives read Curtiss her Miranda rights again after starting the recording. In her taped statement, Curtiss confessed to rendering criminal assistance by helping cover up Tarricone's murder. She stated that she received a phone call at work to come to her mother's home where she was shown Tarricone's body. She admitted that she drove Notaro to buy a chainsaw, helped cut up the body, and later threw the gun Notaro used to kill Tarricone into Lake Washington. At the end of her taped statement, Curtiss acknowledged that she voluntarily gave all the information in her statement.

¶ 16 During the taped statement, Curtiss denied murdering Tarricone. Curtiss...