State v. Duhaime

• Decision Date: 13 July 1981
• Docket Number: No. 7757-1-I,7757-1-I
• Citation: 631 P.2d 964,29 Wn.App. 842
• Parties: STATE of Washington, Respondent, v. David DUHAIME, Appellant.
• Court: Washington Court of Appeals

Page 842

29 Wn.App. 842

631 P.2d 964

STATE of Washington, Respondent, v. David DUHAIME, Appellant.

No. 7757-1-I.

Court of Appeals of Washington, Division 1.

July 13, 1981.

Cody, Hatch & Bedle, George Wm. Cody, Lynnwood, Ross Miller, Everett, for appellant.

Russell Juckett, Snohomish County Pros. Atty., John Oswald, Deputy Pros. Atty., Everett, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

The defendant, David Duhaime, appeals from the judgment and sentence entered upon his convictions of premeditated murder in the first degree, rape in the first degree, kidnaping in the first degree and robbery in the first degree.

Early in the morning of January 27, 1979, 17-year-old Victoria McAllister was brutally stabbed to death. Her body was found lying in the snow outside of the town of Gold Bar in Snohomish County. She had been abducted and raped prior to her death. Duhaime was arrested on February 1, 1979, in Crescent City, California and confessed to the stabbing.

At 1:00 a. m. on February 1, 1979, Undersheriff Bill Beard of the Del Norte County, California Sheriff's Office, received a phone call from Jeannie Berry, Duhaime's sister, stating that she had a problem and needed to see him. She and Mrs. Cornelius, Duhaime's mother, arrived at Beard's residence minutes later. Beard had known both women for over 18 years. They told Beard that they had received a phone call from David's father, Dale Duhaime, in Seattle and were afraid that David was "involved" in a murder. The women told Beard that the police had been to Dale's house looking for David and had connected the automobile that David was driving, a white Dodge Charger with a black top, to the murder. Further, David had borrowed $300 from his father and was on the run. Mrs. Cornelius told Beard she was certain that David would show up in Crescent City since she was David's mother and he usually came to see her or went to Crescent City when he was in trouble. She wanted him stopped by the police but not hurt. Ms. Berry and Mrs. Cornelius also told Sheriff Beard that the homicide involved two young black women, that one had gotten out of the car and one had not and that the victim was a Beard advised the women to return home and go to bed. Three or 4 minutes after they had left, however, he received another call from Mrs. Cornelius telling him that David was in town, had just slowed down in front of her residence but then "peeled out". She again implored him to stop her son.

"hooker".

Beard immediately telephoned the sheriff's office and requested a roadblock be set up and ordered Duhaime's apprehension.

Officer James Maready of the Crescent City Police Department was on patrol at the time. He received radio communications advising him that Duhaime was wanted for murder in Washington, describing the car he was driving and giving a location for the vehicle. Upon entering that area, he observed a black-over-white Dodge Charger. As Duhaime later stated, the woman passenger in his car "was having labor pains so I pulled into the California Hiway Patrol Station and gave myself up." The officer asked the driver of the Charger if he was David Duhaime and the driver answered affirmatively. Officer Maready then advised him that he was under arrest on a murder charge from the State of Washington and Duhaime replied, "Yeah, I know."

At 2:50 a. m. on February 1, 1979, Detective Williams of the Del Norte County Sheriff's Office interviewed Duhaime in the detective's office. Williams first fully advised Duhaime of his constitutional rights. Duhaime responded that he understood his rights and wished to talk and signed a waiver form to this same effect.

Duhaime then gave Williams an account of the events in Washington and indicated that Bobby Joe Holmes had been with him at the time of the homicide. At 3:10 a. m. Duhaime was again advised of his rights and this time he gave a detailed taped confession to the murder of Victoria McAllister.

As the trial court was later to find, the defendant's confession was not the product of duress or coercion, but to the contrary, the defendant was so anxious to make a statement that he initially interrupted Officer Williams during the time that his rights were given to him and was told that he had to be quiet so they could conclude reading his rights to him.

Ms. Anna Beilin, a social worker, was called to the sheriff's office at approximately 5:00 a. m. on the morning of February 1 to make a determination as to whether or not Duhaime was a danger to himself. She met with Duhaime in the attorneys' room at the sheriff's office at 5:10 a. m. and identified herself as a mental health worker. Although she explained to Duhaime that her report would not be confidential and that everything he told her could be used against him, she did not herself again advise him of his constitutional rights. Duhaime indicated to Ms. Beilin that he understood her admonition about confidentiality but talked freely.

On February 3, Duhaime made another full confession, after again waiving his rights, to Detective Ward of the Snohomish County Sheriff's Office.

Detailed findings of fact and conclusions of law were entered by the trial court in pre-trial proceedings concerning confession (CrR 3.5(c)) and suppression (CrR 3.6) procedures.

Well into the trial, defense counsel informed the trial court that Duhaime would plead guilty to count 1, kidnaping in the first degree and the felony murder part of count 3, if the judge would assure him that the maximum penalty on each count would be life imprisonment with the possibility of parole. The trial judge rejected the change of plea.

The jury commenced deliberation on the guilt phase of the trial the afternoon of June 11, 1979. Of the instructions given by the trial court to the jury, instruction No. 14 was on rape in the first degree (WPIC 4.22, 40.02, 11 Wash.Prac. 45, 224 (1977)) and instruction No. 37 was the accomplice instruction (WPIC 10.51, 11 Wash.Prac. 97 (1977)).

During its deliberation, the jury submitted questions to the court in writing asking "(c)an the 'accomplice' concept According to the later affidavit of Juror Michael Welch, when the jury began deliberating on the guilt phase of the trial, some concern was expressed among the jurors as to the order in which they should consider the charges. He said the jury foreman asked the bailiff and the bailiff replied, "step by step".

of Instruction # 37 be inserted in place of the word 'defendant' in Instruction # 14(1)?" or "(i)s Instruction # 37 relating only to Instruction # 14(4)?" The trial judge answered the first question "Yes" and the second question "No".

The jury returned its verdict on June 12, 1979, finding the defendant guilty of premeditated first degree murder, and guilty of the other three charges as well. The jury was then polled regarding the murder verdict. At that time Juror Welch requested 5 more minutes in the jury room. The trial court directed the jury to retire for further deliberations and it did so.

Soon thereafter the same verdict was again presented by the jury and the jury was again polled. Juror Welch then declared that the verdict of premeditated first degree murder was his verdict. The jury were similarly polled on all of the verdicts and all jurors indicated that the verdicts were their own as well as those of the jury.

A special sentencing proceeding was then held pursuant to RCW 10.94.020. The trial court ruled that this proceeding should be bifurcated. The jury retired first to deliberate on the presence of aggravating and mitigating circumstances. This was during the morning of June 15, 1979.

The later affidavit of Juror Anthony Gillardo recited that after the special sentencing proceeding had begun, he asked a second bailiff two general questions in reference to the juror's handbook. The first question he asked was "if a jury cannot arrive at a decision, are they then a hung jury?" The bailiff hesitantly replied, "Yes". This juror then asked, "does that mean that a jury would have to be dismissed and a new jury chosen to deliberate on the same matter?" The bailiff again responded only with the answer "Yes".

At 6:15 p. m. on June 15, the bailiff delivered a handwritten statement of Juror Michael Welch to the trial court. Mr. Welch had written: "I rescind my vote on premeditated first degree murder. I request deliberation continue from the point where we discontinued Tuesday."

Later that evening, the court received two other questions, not related, from the jury foreman, George Shuh. The court thereupon met with the jury and informed them as follows:

Because you have entered on your deliberations, I can carry on no communications with you which might in any way influence your decision. Therefore, I must choose my words carefully and communicate only to and through your foreman.

The court then briefly answered one of the foreman's questions by reference to a written instruction.

At 3:20 p. m. the next day, the court received another note, this one signed by the foreman but evidently prepared by Juror Michael Welch, again requesting rescission of the first degree murder verdict. The trial court responded by sending a written note to the foreman stating: "Would you please have the juror explain in writing the reason for this action on his part and will you then deliver such to the bailiff." The court received a 3-page, unsigned, handwritten letter from the juror in reply. In it he harked back to the jury's deliberations on the guilt phase of the trial, specifically as to the premeditation issue, and indicated dissatisfaction with the jury's discussion of the issue. The juror's letter concluded:

I do not want to leave the impression I was coerced into my original verdict decision. I will only say we did not have the amount of quiet time for personal reflection that we should have had.

I felt pressured by time, by the jury foreman, and by other jurors to make a decision which I now know was wrong....