State v. Erickson

• Decision Date: 18 October 2001
• Docket Number: No. 19115-0-III.,19115-0-III.
• Citation: 108 Wash.App. 732,33 P.3d 85
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Andrew David ERICKSON, Appellant.

33 P.3d 85

108 Wash.App. 732

STATE of Washington, Respondent, v. Andrew David ERICKSON, Appellant.

No. 19115-0-III.

Court of Appeals of Washington, Division 3, Panel Five.

October 18, 2001.

David N. Gasch, Spokane, for Appellant.

John G. Wetle, Colville, for Respondent.

OPINION PUBLISHED IN PART

BROWN, J.

David Erickson, convicted of first degree murder and second degree unlawful possession of a firearm, appeals the admission of a statement he initiated after appointment of counsel and the lack of adequate jury admonishments not to discuss the case. We decide Mr. Erickson waived his counsel's presence before giving his statement. Further, absent showing prejudice, the jury admonishments, although infrequent, were adequate. In the unpublished portion of this opinion, we reject his allegations of exceptional sentencing and instructional error. The unchallenged findings support aggravating factors justifying an exceptional sentence.

Additionally, our Supreme Court has recently and decisively rejected his claim that the jury should have decided his exceptional sentence under appropriate instructions. Accordingly, we affirm.

FACTS

Mr. Erickson was arrested and jailed in Stevens County during July 1999 for the murder of Matthew J. Davis. On July 8, the Stevens County Superior Court appointed counsel for Mr. Erickson. On July 10, Mr. Erickson gave incriminating statements without the presence of his counsel that became the subject of an unsuccessful motion to suppress and this appeal.

Regarding the statement, the unchallenged findings indicate Mr. Erickson told his jailer on July 10 that he wanted to speak to a sheriff's officer. The jailer called Detective Anderson for instructions. The detective told the jailer not to talk to Mr. Erickson. Mr. Erickson, who was familiar with writing voluntary statements, asked the jailer for a pen and some paper to write on. The jailer advised Mr. Erickson of his constitutional rights and his waiver rights. Mr. Erickson then wrote a voluntary statement. Detective Anderson also advised Mr. Erickson again of his constitutional rights. Mr. Erickson waived them. Mr. Erickson said he wished to set the record straight and tell his side of the story. He said he wished to make a statement and agreed to have it recorded. Mr. Erickson was advised again of his rights before making his statement.

Mr. Erickson knew he had assigned counsel. Mr. Erickson did not know counsel's telephone number. He did not ask for counsel's telephone number because it was late and he did not want to bother counsel at home. Prior to making his recorded statement, Mr. Erickson again acknowledged his awareness that he had counsel. The officers did not ask Mr. Erickson any questions while he made his recorded statement.

Over a four-day trial, the court each day, intermittently but without objection, advised the jury not to discuss the case. Before the panel was selected, the court instructed the jury venire generally to follow the guidance given by the court and wait to make up their minds until the verdict was reached. At the day one lunch break, the trial court partly instructed the venire: "You're not on the jury panel yet. You can visit about it, I suppose, there's no problems with any of that." Report of Proceedings (RP) (Jan. 24, 2000) at 69.

During individual jury voir dire, one juror in response to an inquiry about prior case knowledge indicated some talk of it had occurred in the jury room. During follow-up questions, the juror explained that the discussion involved speculation about what case they were going to be involved with:

Q. What kind of talk was there in the jury room about it?

A. Oh, we're here for a murder trial, which was a surprise to me. I had no idea what the trial was about.

Q. Was it discussed—it was the one that occurred in July of 1999?

A. I believe it was.

Q. Do you remember how that came up?

A. A gentleman sitting next to me said, or I think I said I wonder what kind of trial it is and the fellow next to me said, well I think it's a murder trial, something that happened last summer in Chewelah and that was about the extent of it.

RP (Jan. 24, 2000) at 123-24. The prospective juror said his conversation with other jurors did not affect him in any way. Defense counsel asked a subsequent prospective juror, "Now were you where were you when the conversation occurred or took place between or amongst some jurors this morning? Did you hear anything about that conversation or participated in it at all about this trial?" RP (Jan. 24, 2000) at 148-49. The prospective juror replied, "All I heard was that someone had stated that it was a murder trial that we were sitting in on. That's all that I heard." RP (Jan. 24, 2000) at 149. The prospective juror answered "No" when defense counsel asked if there was any mention of names. RP (Jan. 24, 2000) at 149. These jury conversations resulted in an unsuccessful mistrial motion, a matter not appealed.

The trial court briefly recessed without any admonitions after jury selection. A few moments later, the trial court swore in the jury panel to hear the case. At the close of the first day after opening statements, the trial court partly instructed:

The first is that when you go home now, you are entitled to tell your family and friends and other people you know that you are on a jury. Yes, it's a criminal case and the name is the State as the plaintiff and Mr. Erickson as the defendant, and the charge we know is an allegation of murder brought against him. But beyond that, I don't want you to go and I don't want you to allow others to try to give you information as sometimes happens, again a friend or a family member wants to start to talk about this. I have instructed you to tell them please not to engage in those kinds of conversations but that when this is all done and your job is over, you will have the right to speak to anyone about the process and that includes, of course, friends and family members and for that matter, other people too should you choose to do so. But between now and then, no.

RP (Jan. 24, 2000) at 206-07.

Following an unrelated one-day recess, on the second day of trial, the trial court ordered a 15-minute morning recess without specific admonition not to discuss the case. When it was time for the jurors to take their lunch recess, the judge instructed:

When you go, you can go one, two, three, four together if you cho[o]se and certainly you don't have to if you don't want to do that. But the idea is if you do eat together in any way, you don't talk about the case. And then wherever you go for lunch you don't talk about the case.

RP (Jan. 26, 2000) at 297-98. No further admonishment not to discuss the case was given at either the afternoon recess or evening adjournment.

On the third trial day, the trial court gave the jury two recesses without instructions to not discuss the case. At the end of the third day, the trial court gave the jury "the same instructions as far as a good night's sleep and care going back and forth and not to talk about the case or read or listen from anyone else about it until we're done." RP (Jan. 27, 2000) at 719.

On the fourth and final day of trial, the trial court took morning recess without instructions not to discuss the case. At the noon recess, the trial court reminded the jury that it was not yet deliberating. At the conclusion of the case at a recess before instructions and argument, the trial court reminded the jury:

"Now you're not deliberating at this time. You haven't heard final arguments or the instructions of the court so I don't want you to do that[.]"

RP (Jan. 28, 2000) at 861.

The case facts are relevant now solely to the grounds given for an aggravated exceptional sentence, deliberate cruelty, lack of remorse, and multiple acts of violence. The facts supported Mr. Erickson's conviction for murder in the first degree, while armed with a firearm, and unlawful possession of a firearm.

Mr. Erickson, Richard Tullis and Aaron Dalager were accomplices in the death of Mr. Davis by shooting, stabbing and beating. Mr. Davis's body was left lying between railroad tracks to aid in destroying evidence of the crime. An autopsy found 28 gunshot wounds. Mr. Davis suffered a blunt impact injury to his left temple between the eye and sideburn. The autopsy also revealed two stab wounds to the neck, one of which indicated an attempt to slit his throat, and another stab wound to the chest.

Mr. Tullis and Mr. Dalager entered guilty pleas. Mr. Tullis testified against Mr. Erickson. Mr. Erickson admitted he and the others planned to assault Mr. Davis, but that he (Mr. Erickson) did not shoot Mr. Davis and had no intention to kill him.

Mr. Tullis's mother testified Mr. Erickson told her "he shot the kid and that he was massacred...." RP (Jan. 26, 2000) at 363. Mr. Dalager's sister and a friend of Mr. Erickson's testified he had told her that he had shot Mr. Davis "like 35 times." RP (Jan. 26, 2000) at 409. She said Mr. Erickson joked about being on "America's Most Wanted" and that he would tell the police that he killed Mr. Davis over a candy bar. RP (Jan. 26, 2000) at 423.

Tammy Howell testified she overheard Mr. Erickson and Donald Green, Mr. Tullis's brother, talking about assaulting and robbing Mr. Davis. She said Mr. Erickson told her he shot Mr. Davis, and then acted out the shooting. According to Ms. Howell, Mr. Erickson "was feeling pretty proud of himself and bragging." RP (Jan. 27, 2000) at 482.

Mr. Green related that Mr. Erickson told him he (Mr. Erickson), Mr. Dalager, Mr. Tullis, and Mr. Davis were walking along the train tracks. According to Mr. Green, Mr. Erickson said, "he turned around laughing and opened fire on Matthew." RP (Jan. 27, 2000) at 518. "He said Matthew said, `What the fuck—ow, ow, ow' as he was being shot." RP (Jan. 27, 2000) at 518. Mr. Green testified Mr. Erickson told him he aimed at "the mid-section, his guts and stuff. His stomach." RP (Jan. 27,...