State v. Elmore, 64085-8.
| Decision Date | 07 October 1999 |
| Docket Number | No. 64085-8.,64085-8. |
| Citation | 985 P.2d 289,139 Wash.2d 250 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Clark Richard ELMORE, aka James Elmore, aka James Lee Dickey, Appellant. |
Cohen & Iaria, Michael Iaria, Seattle, Clark Elmore, Walla Walla, Meredith M. Rountree, Austin, TX., Griffith & Cole, Rita J. Griffith, Seattle, for Appellant.
David S. McEachran, Whatcom County Prosecutor, Laura D. Hayes, Deputy, Bellingham, for Respondent.
After pleading guilty to rape and aggravated first-degree murder, Clark Richard Elmore was sentenced to death when a Whatcom County Superior Court jury determined he did not merit leniency. Elmore now seeks review of his conviction and sentence pursuant to RAP 4.2(a)(6) and RCW 10.95.100, raising numerous allegations of error, both significant and insignificant. We affirm Elmore's conviction and sentence.
1. Was the information charging Elmore with aggravated first-degree murder inadequate?
2. Was Elmore's plea of guilty knowingly and intelligently made?
3. Does Elmore's appearance in shackles on the first day of voir dire require reversal of his sentence?
4. Can Elmore challenge the prosecutor's questioning of potential jury members for the first time on appeal?
5. May Elmore challenge the statement of the case read by the court to the venire when he proposed such statement and presentation?
6. Did references to defendant during trial as "James Dickey" deny him a fair sentencing hearing?
7. Was the admission of autopsy photographs proper?
8. Was evidence regarding Elmore's prior molestation of the homicide victim properly admitted?
9. Are instructions 3 and 8 improper; and did the trial court err in refusing Elmore's proposed instruction 15?
10. Should the Sentencing Reform Act of 1981(SRA) washout provisions be applied to Elmore's prior convictions?
11. Has Elmore met his burden in asserting the State's closing argument denied him a reliable sentencing?
12. Was reversible error committed where the jury played the tape of Elmore's confession during deliberations?
13. Did the presence of alternate jurors in the jury room prior to the reading of the verdict amount to reversible error?
14. Does the trial court have authority to conduct a proportionality review?
15. Is Elmore's sentence supported by the record; if so, is it disproportionate, excessive, or the result of passion or prejudice?
On Monday evening, April 17, 1995, Sue Ohnstad contacted the Bellingham Police Department to report that her 14-year-old daughter Kristy failed to return home from school. Kristy's name was then entered in the missing person's database.
The following day, a passerby, Willie Golightly, stumbled across Kristy's backpack in a ditch off Samish Way in Bellingham and among its contents found a sweatshirt and Sue Ohnstad's phone number; he called Ohnstad and informed her of the discovery. Clark Elmore, who at the time was known only as James Dickey, arrived at Golightly's residence shortly thereafter. Elmore, Ohnstad's partner of 10 years, considered himself to be Kristy's stepfather; he was also the biological father of Kayla, Kristy's stepsister. Elmore introduced himself to Golightly, said the articles belonged to his stepdaughter and asked to take them home. Golightly refused to return the backpack and its contents until the police arrived.
Officer Scott Matsudaira was dispatched to Golightly's residence. Golightly showed the officer the sweatshirt, the backpack, and the place where he had found them. Elmore did not accompany them, but spoke briefly with the officer when they returned to Golightly's. Matsudaira described Elmore as being "very distraught, very upset." 16 Report of Proceedings at 2442.
On Thursday, April 20, Bellingham Police Detective Les Gitts began a formal investigation into Kristy's disappearance. Detective Gitts interviewed Ohnstad and Elmore. Elmore told Detective Gitts he had received a phone call the night before from someone who reportedly saw Kristy downtown with a boy. Detective Gitts interviewed several of Kristy's friends, including the boy, but no one had seen her.
By Friday, April 21, Elmore had commissioned his own search party to look for Kristy. After publicly criticizing the inaction of police in the case, he organized a group of neighbors to search the area where Kristy's backpack was discovered. Several homeowners called the sheriff's office complaining that unidentified people were traipsing through their yards. At this point, the Whatcom County Sheriff's Office became involved. Whatcom County Search and Rescue assembled a command post off Samish Way and canvassed the area with marked rescuers.
That afternoon, Detective Gitts and another detective contacted Elmore at the command post, inviting him to drive down the road with them and talk about the situation. Elmore was advised he was not under arrest and was free to terminate the conversation at any time. Elmore agreed to speak with the detectives and also consented to their taping of the conversation.
During the 45-minute discussion, Elmore reported last seeing Kristy on Monday morning, April 17. He stated he dropped her off in front of the BP gas station where a group of kids were waiting for school to start. Elmore described what Kristy was wearing. He also reported Kristy had recently begun "acting out" at home. Elmore explained he and Ohnstad were having problems disciplining Kristy and did not approve of her new friends. Although Elmore said he had no idea where Kristy could be, he did not think she was still "kickin." Pl.'s Ex. 13 at 21. Elmore also told Detective Gitts that Ohnstad had questioned him about Kristy's disappearance.
After the interview, when Detective Gitts took Kristy's backpack out of his truck, Elmore became "extremely pale [and] shaky" when he saw it and looked like he was going to vomit. 14 Report of Proceedings at 2316. Detective Gitts drove Elmore back to the search base and asked Elmore if he could take a look in Elmore's van. Detective Gitts offered Elmore a written consent to search form, advising Elmore such consent would allow the police to examine his van for trace evidence, including blood, hair, and fibers. Elmore agreed to the search and signed the consent form. Using a flashlight, Detective Gitts conducted a cursory search of the interior, but found no obvious signs indicating Kristy had been inside the van.
That same evening, at about 8:30 p.m., Detective Gitts received a call from the Search and Rescue Team indicating a female body had been discovered near the south end of Lake Samish. Detective Gitts and another detective drove to the scene and tentatively identified Kristy's body, although further processing was delayed until daylight. Detective Gitts returned to the station and phoned Elmore, informing him the searchers had retired for the night, but assuring him they would return in the morning. Because Elmore was now a person of interest, he was not informed Kristy's body had been located. Instead, Elmore was told the searchers planned to scour the area south of Lake Samish to see if Elmore would return to the scene and attempt to move the body.
At 7:30 a.m., on Saturday, April 22, 1995, investigators from the Sheriff's Office and the Bellingham Police Department met to process the crime scene. They found Kristy's body laying face down on the ground beneath a plastic tarp. Her shirt was pulled over one shoulder and she had a plastic bag over her head. Other than the shirt and socks, she was naked. When investigators removed the bag, they found a black belt around her neck and a metal spike protruding from her ear. Animals had removed portions of her ears. Two red flecks of paint were recovered from the body. The flecks were eventually traced back to a red toolbox Elmore kept in his van. While investigators processed the crime scene, Detective Gitts attempted to contact Elmore by phone. Sue Ohnstad answered this call and reported Elmore had left to run errands, but she expected him back shortly. Elmore never returned.
Later that afternoon, Detective Gitts issued an interstate bulletin describing Elmore and his van, requesting Elmore be detained as a person of interest in the homicide investigation. Port of Seattle Police responded to the broadcast, reporting the van had been impounded from Sea-Tac International Airport for unpaid parking fees. Detective Gitts secured a warrant and had the van returned to Bellingham.
On Sunday evening, April 23, at about 9 p.m., Elmore appeared at the Bellingham Police Station and used the after-hours phone outside the station to call 911. When the dispatcher answered, Elmore instructed her to send an officer out to lock him up for murdering Kristy Ohnstad. Officer Alvin Carr responded to Elmore's call. Elmore told Officer Carr that he needed "to talk about killin' [his] daughter." Officer Carr invited Elmore into the station. 16 Report of Proceedings at 2449.
Once inside the station, Lieutenant Richard Sucee advised Elmore of his constitutional rights both orally and in writing. After agreeing to waive his rights, Elmore spoke briefly with Lieutenant Sucee while another officer paged Detective Gitts. Elmore told Lieutenant Sucee that he killed Kristy in his van at a location near Lake Samish.
When Detective Gitts arrived, Elmore consented to a more detailed tape-recorded interview. Elmore explained that, on Monday morning, April 17, he dropped Kayla off at daycare and returned home about 8:20 a.m. Kristy was complaining about going to school and had missed her bus. When Elmore told Kristy she was "grounded forever," she commented about Elmore molesting her. When detectives pursued the subject, Elmore acknowledged molesting Kristy when she was 5 years old. He said that after the incident, whenever he tried to discipline Kristy, she threatened to turn him in for the molestation. Elmore confessed he considered...
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