State v. Dictado
| Citation | 102 Wn.2d 277,687 P.2d 172 |
| Decision Date | 02 August 1984 |
| Docket Number | No. 48973-4,48973-4 |
| Parties | STATE of Washington, Respondent, v. Fortunato L. DICTADO, Appellant. |
| Court | United States State Supreme Court of Washington |
Browne, Ressler & Foster, John Henry Browne, Seattle, for appellant.
Norman K. Maleng, King County Prosecutor, Joanne Y. Maida, Sr. Deputy Pros. Atty., Seattle, for respondent.
Defendant Dictado appeals his conviction for noncapital aggravated first-degree murder. He raises numerous issues, but primarily argues that the trial court erred in allowing the use of conspiracy evidence at trial when conspiracy was not charged. Among his other issues, he objects to the admission of a critical prosecution witness's prior consistent statements. He protests the use of his own statements made prior to arrest and his testimony from a previous trial of other defendants. He also challenges the constitutionality of the mandatory life sentence required under RCW 10.95.030. We reject these assignments of error, as well as the others he raises, and affirm the conviction.
On June 1, 1981, two members of the Cannery Workers Union were killed at the Union hall. One victim lived long enough to identify three union members Ramil, Guloy, and Peli, as the perpetrators of the shooting. Within several days, police learned that witnesses had seen a black uniquely marked Trans Am automobile in the area of the killing on the day in question. Further investigation revealed that at least three persons with possible Union connections owned similar cars. One of these was defendant.
On June 16, two Seattle police detectives stopped defendant on the street and told him that they would like to talk to him about the killings. He agreed to accompany them to their offices where he remained for approximately one hour. At that time, the investigation had disclosed between 10 and 20 potential suspects, most of whom were being questioned by the police. The police did not have probable cause to arrest defendant on June 16, and did not at any time, give him Miranda warnings. Both officers testified that had defendant refused to discuss the killings with them, they could not have held him.
Two of the identified men, Ramil and Guloy, were tried and convicted of the murders. At their trial, defendant was brought to court on a material witness warrant. The arresting detective testified that he gave defendant complete, verbal Miranda warnings at that time. In his testimony, defendant described his connection with a group called "Tulisan", and provided exculpatory testimony for Ramil and Guloy, including an alibi. Defendant was released at the conclusion of his testimony. During that trial, defendant's attorney was also the defense attorney who represented Ramil.
Two weeks after this testimony, defendant was charged with two counts of aggravated first degree murder. The attorney's representation was found to raise a potential conflict of interest, and Dictado was required to retain different counsel for his own trial.
In charging defendant with aggravated murder, the statutory aggravating factor relied on by the State was the killing of more than one victim as "part of a common scheme or plan or the result of a single act of the person." RCW 10.95.020(8). The State did not seek the death penalty.
Witnesses at defendant's trial testified that defendant was the leader of the Tulisan, and that Ramil and Guloy were members. The Tulisan protected and received profits from a gambling operation located in Seattle's International District. They intended to expand this activity to Alaska during seasonal cannery operations. In order to control the gambling activities in Alaska, it was necessary for the Tulisan to have several members sent to Alaska through the Union dispatch system. Some time prior to the killings, the dispatch system had undergone reforms. The reforms included abolishing the former bribery and patronage dispatch system, and establishing a seniority system based on prior cannery employment. Under the new system, the Tulisan was unable to get any members dispatched to Alaska. The two men killed were the vanguard of the reform movement, one of whom was the new dispatch officer.
In addition to the Tulisan gambling connections and the reform of the Union dispatch system, the State presented evidence that defendant threatened the new dispatch officer, that he met with Union president Baruso two days before the killing, and that the murder weapon was registered to Union president Baruso. Witnesses testified that they saw defendant driving his car near the Union hall several times on the day of the killings. Under the coconspirator exception, the State introduced statements made by Ramil and Peli implicating defendant in the planning and execution of the murders. Baruso testified, giving little more than his name and occupation and otherwise invoking the 5th Amendment to all other questions. The State also introduced statements made by defendant during his interview with the police on June 16th and portions of his prior testimony at the Ramil-Guloy trial.
Defendant was found guilty as charged, and sentenced, under the statute, to life in prison without possibility of parole.
THE STATE'S USE OF CONSPIRACY EVIDENCE.
Defendant's main contention is that the State's theory, murder committed in order to advance a gambling scheme, forced him to defend against an uncharged criminal conspiracy, deprived him of notice of the charges, and allowed the State to use coconspirator's statements in violation of his confrontation rights. We discuss his various arguments below.
Defendant contends that the trial court abused its discretion in admitting coconspirator statements under ER 801(d)(2)(v). Specifically, he asserts that unless conspiracy is charged in the information, coconspirator statements are inadmissible. We hold otherwise.
By its terms, ER 801(d)(2)(v) does not restrict its application only to criminal cases in which conspiracy has been charged. 1 Prior to the rule, the availability of the coconspirator exception did not depend on whether a criminal conspiracy was charged. State v. Wappenstein, 67 Wash. 502, 121 P. 989 (1912). Under the federal rule comparable to ER 801(d)(2)(v), the federal courts uniformly allow admission of coconspirator statements in criminal cases, whether or not conspiracy has been charged. See e.g., United States v. Lutz, 621 F.2d 940 (9th Cir.1980), cert. denied 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75; United States v. Lyles, 593 F.2d 182 (2nd Cir.1979), cert. denied 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789; see generally Annot., 44 A.L.R.Fed. 627 (1979).
Defendant implies that State v. Goodwin, 29 Wash.2d 276, 186 P.2d 935 (1947), overruled State v. Wappenstein, supra. The issue in Goodwin was the admission, in a joint trial, of a codefendant's written confession apparently made after his arrest. Despite ambiguous language, the holding does not apply to coconspirator statements made during the course and in furtherance of the conspiracy. ER 801(d)(2)(v) is entirely consistent with the concerns in Goodwin that statements made after the conspiracy has ended should not be admitted.
Defendant further argues that the trial court erroneously found a prima facie case of conspiracy, failed to find that the statements were made during the course and in furtherance of the conspiracy, and failed to determine that the declarants were members of the conspiracy. The record belies defendant's contentions.
The general rule is that prior to admitting coconspirator statements, the trial court must determine whether the State has shown, with substantial independent evidence a prima facie case of conspiracy, and at least slight evidence of defendant's participation. United States v. Fleishman, 684 F.2d 1329 (9th Cir.1982). A conspiracy may be shown by circumstantial evidence if, in the opinion of the trial court, it tends to establish the fact of conspiracy. State v. Culver, 36 Wash.App. 524, 675 P.2d 622 (1984). During the pretrial hearing in this case, the trial court indicated the independent evidence upon which it relied. The court found that substantial evidence, independent of the statements, showed the existence of a conspiracy to promote gambling.
Defendant's remaining claims are similarly meritless. The record indicates that the trial court, on several occasions, was concerned with establishing that the conspiracy was still ongoing after the killings, and had not yet ended when the statements were made. The trial court found that the coconspirator statements furthered the continuing conspiracy because they were implied threats made in connection with collecting the gambling proceeds. On several occasions during the offer of proof, the court requested and was given information regarding each alleged conspirator's involvement in the conspiracy. We find no abuse of discretion in admitting the coconspirator statements.
Defendant next argues that failure to charge a criminal conspiracy denied him notice of the charges against him. He further argues that the vagueness of the phrase "single act" in RCW 10.95.020(8) denied him proper notice of the charges. In a related assignment of error, he asserts that the trial court abused its discretion in denying his motion for a Bill of Particulars. The main thrust of defendant's argument is that although he was charged with murder, the State proceeded to prove a conspiracy to promote gambling, against which defendant was compelled to defend.
An accused has a due process right to know the charge he must defend against at trial; he cannot be tried for an unstated offense. State v. Carr, 97 Wash.2d 436, 645 P.2d 1098 (1982). Here, the State charged aggravated first degree murder, specifically relying on the aggravating factor of the killing of more than one victim as part of "a common...
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