State v. Dickenson

• Decision Date: 22 June 1987
• Docket Number: No. 17708-7-I,17708-7-I
• Citation: 740 P.2d 312,48 Wn.App. 457
• Parties: STATE of Washington, Respondent, v. Keith Marvin DICKENSON, Appellant.
• Court: Washington Court of Appeals

Page 457

48 Wn.App. 457

740 P.2d 312

STATE of Washington, Respondent, v. Keith Marvin DICKENSON, Appellant.

No. 17708-7-I.

Court of Appeals of Washington Division 1.

June 22, 1987.

Publication Ordered July 10, 1987.

Review Denied Oct. 6, 1987.

Raymond Thoenig, Julie Kesler, Washington Appellate Defender, Seattle, for appellant.

Stuart Heath, King County Pros. Atty., Seattle, for respondent.

WEBSTER, Judge.

Appellant Keith Marvin Dickenson appeals his judgment and sentence entered after a jury found him guilty of murder in the second degree (RCW 9A.32.050). Dickenson contends that the court erred by disallowing impeachment evidence of a State's key witness during cross examination. Finding that the impeachment evidence was improperly suppressed but that there was overwhelming evidence to convict Dickenson without the key witness's testimony, we affirm.

Facts

On August 25, 1985, police found the body of Ed Howard lying next to the couch in the living room of his apartment. His small detached apartment was located on an alley in a residential area of Auburn. The investigating officer entered the apartment through the front door, which was slightly ajar. The apartment was in disarray: blood was spattered on the walls, cushions were off the couch, an end table and a chair had been overturned, and a portion of the stovepipe had been removed. In the living room the police found a dented propane cylinder and a four-by-four approximately 4 feet long. They also found a bullet lodged in the roof of the apartment. Judging from its trajectory, they determined that it had come from the living room.

A pathologist determined that Howard died on August 25, 1985, between 4 a.m. and 8:30 a.m., of injuries to the skull and brain caused by blunt force. Forensic evidence suggested that the propane tank and the four-by-four may have been used to inflict the injuries. Criminologists testified that blood and hair on the propane tank and the four-by-four may have come from Howard. Howard had also been strangled, but strangulation did not cause his death. His body contained a potentially lethal level of cocaine. Keith Dickenson was arrested in connection with Howard's death, and on August 29, 1985, he was charged with second degree murder.

At trial Errol Arnett, a friend of Howard's, testified that in response to a phone call on August 25, 1985, he went to Howard's apartment and found him dead. However, he had an ex-girlfriend call the police. Arnett telephoned Dickenson on August 25 after the killing had occurred, and Dickenson told him that two men had come to Dickenson's house on August 24 and warned him to stay away from Howard if he did not want to get hurt. Dickenson said he went over to Howard's house to warn him about these two men, but the two men were already there. They told him to get out or he could stand to be hurt. Dickenson evaded Arnett's request for a description of the men.

Arnett said that both Howard and Dickenson were dealers in cocaine but that their relationship was not amicable. The two men were both "bullheaded" and played "mind games" with each other. Dickenson owed Howard $10,000 for past deliveries of cocaine and Howard was serious about collecting this debt. Two days before the killing Arnett overheard Howard and Dickenson having an argument in which it sounded like Dickenson had the upper hand. Howard mainly used words to intimidate others, and he also carried a gun.

Connie Wilson, Dickenson's former girlfriend, testified that both Howard and Dickenson were heavy cocaine users. She also used cocaine heavily, spending $1,000-$1,500 for several days' supply. She frequently went to Dickenson's house to get high on cocaine but did not use cocaine every day. On the day before the killing she went out on a date and drank two shots of tequila. She then went to Dickenson's house where Dickenson gave her a shot of cocaine in the arm.

Connie said that Howard was also at Dickenson's house. After Howard left Connie left also, intending to meet Howard at his apartment. She lied to Dickenson about where she was going because she was afraid he would get mad and not let her go. However, when she could not locate Howard's house, she called Dickenson for directions. He hung up on her. After she called him three times he finally gave her the directions, and she arrived at Howard's house about 4:30 a.m. on August 25, 1985. Howard told her to call Dickenson back. She then called Dickenson and told him she was going home because Howard had no cocaine to give her. She testified that Howard had a gun and a vial of cocaine and that he was using a propane bottle to "freebase" on cocaine.

Connie said that, while she was still at Howard's house, Dickenson arrived. It was around 6:30 a.m. After he knocked on the doors and windows and repeatedly asked to be let in, Howard let him in. She said that Dickenson did not appear to be high on drugs or impaired in his ability to function. Dickenson asked for some cocaine, and Howard replied that Dickenson had no way to pay for it because everything Dickenson owned was Howard's. Howard then remarked to Connie, "You don't need this and this scum." Connie was not sure whether Dickenson heard this remark. She then left the house. She said that, when she left, the house was in order: the propane cylinder was not bent; the chairs were sitting upright; the cushions were on the couch; there were no stains on the wall; and the stovepipe was in place.

Connie stated that, as she left the house, she saw Dickenson pointing what appeared to be a gun at Howard. She testified that the following exchange took place:

Q [Prosecutor:] What did Keith [Dickenson] say?

A He said, "You son-of-a-bitch, sit down and shut up." That's when I looked through the door. It was open. I don't think he knew I could see him.

He said, "Don't you know the gun is loaded? Ed [Howard], don't shoot," as if Ed had the gun. But I seen his arms out.

Q When you say his, you mean Keith Dickenson's?

A Keith Dickenson's.

Q Was Keith Dickenson giving the command to Ed to sit down?

A Yes.

Q Did you hear Ed Howard say anything?

A No.

Q What happened next?

A After that I just stood there. I was watching them. And the gun went off, and Keith's hands went up. I didn't know if he hit him or--

Connie said that, when the gun went off, she was talking to Paula Moore, a friend of Dickenson's who was waiting outside in the alley in a car. When she heard the shot, Connie ran down the alley and onto Main Street. Paula came to get her, but she refused to go back. She then stood in the alley, watching the apartment. From where she was standing she could not see the door to the apartment, but she had a clear view of the rest of the apartment and the alley. She saw no cars or people in the alley and no one enter or leave the house. Connie could hear a lot of thumping and scuffling and Dickenson's voice coming from the apartment. He sounded angry. Keeping her eyes on the house the entire time, she then went to a phone booth and called Steve Ward to pick her up.

Connie testified that after Ward picked her up they drove to her car. When she discovered that her keys were missing, they walked back to the apartment. They were gone approximately 3 minutes, but Connie stated that she could see the apartment the entire time and that she saw no one come in or out. When Connie reached the apartment, Paula remarked that she was scared and Connie told her to leave. Connie walked to the telephone booth and found her keys. While standing by the telephone booth, she saw Paula and Dickenson drive away from the apartment. Dickenson was sitting on the passenger's side in a slightly hunched over position.

Ward testified that he received a telephone call from Connie about 6:30 a.m. on the day of the killing. After this conversation he picked Connie up at a telephone booth and took her to her car. It took about 5 minutes to drive to her car and to wait while she looked for her keys. From this location he could barely see Howard's apartment. After Connie discovered that her keys were missing they walked down the alley to Howard's apartment. He saw no cars or other people in the alley. As Ward stood in front of the apartment, he saw a body through the door, but could not make out whose body it was. The door was then slammed shut. He heard no sounds or voices from inside the apartment. He then told Connie, "Let's get out of here." They walked to the telephone booth, found her keys, and then observed Paula and Dickenson drive away from Howard's apartment. He saw no one enter or leave the apartment during the time he was with Connie and no other cars besides Paula's car and a white truck in the alley.

Paula testified that on the night of August 24, 1985, she had gone to Dickenson's house to "freebase" on cocaine. She was both high on cocaine and intoxicated; she thought that her ability to recall events was affected by the drugs and alcohol. Dickenson appeared to be high on cocaine also. Paula had talked to Connie around 5:30 a.m. when she called for directions to Howard's apartment. Connie was hysterical and irrational because Dickenson wouldn't give her the directions. Shortly thereafter, Paula rode with Dickenson to Howard's apartment. On their way they drove past Connie's house, but she was not there. They arrived at Howard's apartment about 6 a.m. and parked in the front. Dickenson asked Paula to wait in the car. After knocking on the doors and windows Dickenson eventually went into the apartment. Connie then came out and was talking to Paula when Paula heard a gun go off. Connie ran down the alley, and Paula tried unsuccessfully to persuade her to come back. Paula was out of sight of the front door for 5 to 10 minutes, but during this time she saw no other people or cars in the alley other than her car and Howard's white pickup. She then returned to her car.

Paula went to the door twice while she waited for Dickenson, and each time he...