State v. Drew

• Decision Date: 17 March 1967
• Docket Number: No. 38179,38179
• Citation: 70 Wn.2d 793,425 P.2d 349
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Frank A. DREW, Appellant.

Page 793

70 Wn.2d 793

425 P.2d 349

The STATE of Washington, Respondent, v. Frank A. DREW, Appellant.

No. 38179.

Supreme Court of Washington, En Banc.

March 17, 1967.

Rehearing Denied Aug. 18, 1967.

Steele and

McGoffin, Keith McGoffin, Neil Hoff, Tacoma, for appellant.

John G. McCutcheon, Pros. Atty., Don R. Smith, Deputy Pros. Atty., Tacoma, for respondent.

FINLEY, Chief Justice.

The defendant, Frank Allen Drew, was convicted of the crime of murder in the first degree and sentenced to life in prison for his alleged participation in a robbery in which a human being was killed. On this appeal, he makes four assignments of error. One assignment alleges that the state failed to establish the corpus delicti, another relates to a jury instruction which allegedly placed the burden of proving his innocence on the defendant, and the other two relate to the admission into evidence of a confession which was allegedly obtained in violation of the defendant's constitutional rights.

A somewhat lengthy recitation of the unusual fact pattern in the instant matter is necessary in order to understand the issues raised. In June of 1964, Tom Page, who had emigrated from Yugoslavia as a younger man, was 68 years of age. He was a successful South Tacoma businessman and lived alone. On July 13, 1964, various friends of Mr. Page, not having seen him for about two weeks, reported his disappearance to the police. The police proceeded to inspect Mr. Page's house. They found that the house had been ransacked and that the contents of drawers in the bedroom had been dumped on the floor. There was spoiled food in the kitchen. There were a number of bloodstains on the floor and walls, and near the front door was a particularly large on which had been covered with a rug; there were bloody smears along the wall of the hall leading to the bedroom, a bloody handprint on the doorjamb leading to the bedroom, and various bloodstained items in the bedroom. Dr. Charles Larson, a noted pathologist, identified the blood as human blood. Understandably enough, the police suspected foul play.

On August 25, 1964, the defendant, Frank Drew, was arrested on an unrelated burglary charge and detained in the Tacoma City Jail. A day or two later, an attorney was appointed for Drew, and trial on the burglary charge was set for October 21, 1964. Apparently at this time, the attorney for a James Maillard, who was also incarcerated in the Tacoma City Jail on a burglary charge, approached the Tacoma police with the news that his client might have some information in regard to the disappearance of Tom Page. The police learned from Maillard that Drew had mentioned that he knew where Tom Page's body was buried.

A microphone was hidden in a cell and connected up to a tape recorder in another part of the Tacoma City Jail. Drew and Maillard were then moved into the 'bugged' cell. (The record gives no indication that the police solicited Maillard for the part he was to play.) During this time, a police official contacted the attorney for the estate of Tom Page. At the official's request the attorney obtained court approval for the offering of a $1,000 reward for information as to the whereabouts of Mr. Page. Shortly after the reward offer was announced, the burglary charges against Maillard and Drew were dismissed, and they were released from jail within a short time of each other. The two men had spent five days together in the 'bugged' cell.

The day after his release, October 21, 1964, Drew called an acquaintance on the Tacoma Police Department in regard to the reward offer. The officer, Drew, and his brother-in-law drove to a wooded area about ten miles from Yelm. Without any hesitation, Drew led them through some brush and down what may have been a deer trail to an unmarked grave. Other officers were called. The body was exhumed and taken to a mortuary for identification and autopsy. Drew was taken back to the Tacoma City Jail. The time was then approximately 3:00 p.m Detectives Strand and Zatkovich attended the autopsy and identification of Page's body. They then returned to police headquarters and at approximately 9:30 p.m. they began the first police interrogation of Frank Drew in regard to Page's death. Detective Zatkovich testified that, before the interrogation began, Drew was warned that he had the right to remain silent, that anything he might say could be used against him, and that he had the right to have an attorney. It seems to have been conceded, even at the prehearing on the admissibility of the confession where Drew himself testified, that the warnings were given at this time. According to the detectives, Drew stated that he realized he had those rights, and he proceeded to tell his story. Drew first insisted that the general location of the grave had been pointed out to him by one Gary Farrar as the two of them drove by the site in a car. After a while, the detectives told Drew they knew he was not telling the truth, that they had other information. Reference was made to the fact that his cell had been 'bugged.' Apparently, at Drew's request, a portion of the tape was played to him. That part of the tape apparently contained nothing incriminating, but undoubtedly it did convey vividly to Drew the fact that his cell had been 'bugged.' A new set of warnings was then given to Drew by the detectives. He then admitted having been present during the attack on Page and at the burial; in fact, he told essentially the same story which subsequently was embodied in his signed confession. The entire interrogation--the only one Drew encountered on the day of his arrest--lasted about one hour and fifty minutes.

On the next morning, Drew was taken before Pierce County Justice of the Peace Shackleford. The charge against him was read. The charge at this time accused Drew of actually doing the beating of Page, although it was later changed to allege that Drew aided and abetted Gary Farrar in the robbery and killing of Page. Drew was handed a form by Judge Shackleford which set forth his rights, although it stated that any lawyer he obtained would have to be acquired at his own expense and on his own initiative. The form was so worded because Judge Shackleford, as a justice of the peace, had no authority to appoint counsel. It seems extremely unlikely that this could have misled Drew, however, for several reasons. In the first place, Judge Shackleford's testimony at the prehearing on the admissibility of the confession establishes that, before Drew made any statement, the prosecutor, in Drew's presence, explained that Drew was being charged as an accessory, not as the one who inflicted the injury, and that counsel would or could be appointed for Drew on the following day in superior court. In the second place, Drew had been given a similar form by Judge Shackleford when he was before her on the burglary charge less than two months before, and counsel had been appointed for him in that case shortly afterward in superior court. In the third place, Drew himself testified at the pretrial hearing that when the form was given to him, 'I never read it. I just glanced through it.' We must thus conclude that a form to which Drew paid little if any attention could not have misled him in view of oral statements by the prosecutor and his own previous experience.

Drew denied to Judge Shackleford that he had done the actual beating of Page and stated that Gary Farrar had done it. Later in the day, Drew, after receiving yet another warning of his rights, dictated and signed the written statement which, after the pretrial hearing, was admitted into evidence at his trial.

In his confession, as presented at the trial, Drew stated that the following events had occurred: On the night of June 30, 1964, Frank Drew was driving around Tacoma with Gary Farrar in Farrar's car. The subject of obtaining money arose. Farrar mentioned the name of Tom Page, who was known to be living alone. Apparently, Farrar had 'rolled' Page for money previously, and Page had not reported the matter to the police. Farrar and Drew arrived at Page's house between 11:00 p.m., and midnight. The house was dark. Farrar took a tire iron from the car, and he and Drew went to Page's door and began beating on it. Page eventually came to the door, without opening it. In response to Page's query as to the identity of his visitors, Farrar swore and told him it was the police. Page opened the door. He was greeted by a blow in the face with the tire iron. Farrar beat Page over the head several more times with the tire iron until the old man fell to a half-sitting, half-lying position on the floor. The attackers asked Page where his money was, but he had begun muttering in his native language. Farrar therefore kicked him several times in the ribs.

Farrar and Drew ransacked the bedroom and the kitchen of Page's house. Eventually, Drew discovered a coffee can containing about $20.00. Farrar picked up two rings, one containing a diamond and the other a red stone. Before leaving the house, Farrar kicked Page additional times, bringing the total to some place between 15 and 30 kicks. They left Page bleeding and muttering incomprehensibly, and in the same half-sitting, half-lying position into which he had fallen.

The two young men parted. On the next day, Farrar came to see Drew early in the afternoon. Farrar told Drew that he had returned to Page's house that morning; that the old man had made it to his bed, but was now dead. That evening, the 1st of July, Farrar and Drew took Page's body from his house and buried it, first, in a roadside park, and then, in a wooded area near Yelm. The second grave was dug quite away off the road--through some brush and down what may have been a deer trail. The grave was carefully covered with dirt.

According to Drew, Farrar had the diamond ring appraised at a pawn shop. The value of the ring was set at approximately $500, and a $50 loan was offered. They did not pawn the...