State v. Fernandez, 6603-0-I

• Decision Date: 07 April 1980
• Docket Number: No. 6603-0-I,6603-0-I
• Parties: STATE of Washington, Respondent, v. Anthony FERNANDEZ, also known as Dr. Antonio Fernandez, Appellant.
• Court: Washington Court of Appeals

Page 944

28 Wn.App. 944

628 P.2d 818

STATE of Washington, Respondent, v. Anthony FERNANDEZ, also known as Dr. Antonio Fernandez, Appellant.

No. 6603-0-I.

Court of Appeals of Washington, Division 1.

April 7, 1980.

Reconsideration Denied June 4, 1981.

Note: Opinion Modified by 640 P.2d 731. Anthony Savage, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Thomas E. Kelly, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Acting Chief Judge.

Anthony Fernandez was convicted of the first-degree murder of his wife, Ruth Fernandez. He appeals from the judgment and sentence, contending he was deprived of a fair trial because evidence of prior unrelated criminal acts and expert testimony regarding his wife's signature were improperly admitted and because the jury was erroneously instructed regarding consideration of such evidence. Only in defendant's pro se brief is there any contention that the evidence is not sufficient to sustain the verdict of the jury. ¹ Further, in appellant's memorandum of additional authorities, which we permitted appellant to file after oral argument, he challenges an intent instruction on the constitutional grounds discussed in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

It is undisputed that Ruth Fernandez met a violent death or or about July 26, 1974. Her body was discovered over 100 feet down the slope from a narrow logging road near the wreckage of a motor home. A skull fracture and bruises to the brain caused her death. The State's theory is that Anthony Fernandez murdered his wife to obtain her property and collect on several insurance policies and then attempted to cover up his crime by staging an accident. The defendant denied the charge and claimed his wife died from injuries received when the motor home she was driving accidentally went off the road.

Fernandez and his wife owned land in the Mount Si-North Bend area of King County. In late June of 1974 the two spent a week camping in the area in a rented Winnebago motor home. According to Fernandez, on June 26 his wife left the campsite in the Winnebago to return to the couple's Auburn home, and he followed about half an hour later driving a Jeep.

Ruth Fernandez never arrived in Auburn. The next day Fernandez and his wife's daughter's fiance found the body of Mrs. Fernandez part way down the steep bank. They located the wreckage of the motor home over 100 feet further down the slope. Test showed the victim's blood alcohol level was .15 and might have been as high as .24 at the time of the accident. At the scene a rock was found imbedded in the road which defendant argues might have caused the deceased to swerve. However, the rock protruded only 4 inches above the road surface, and there were no skid marks at the scene. Expert witnesses disagreed as to whether Mrs. Fernandez was inside the vehicle when it went off the road.

Fernandez was inconsistent regarding his activities on the night of the accident. In a deposition he stated that his wife left first, that he made no phone calls on his way to Auburn, and that he did not know anything was wrong until he got home. However, a waitress who had served Fernandez and his wife earlier in the day testified that she received a call from Fernandez that evening and that he told her he was home and that he had left his wife at the campsite because she planned to take a walk in the woods. There was evidence that the Fernandez marriage was unhappy and that Fernandez was having an affair. It was also shown that Ruth Fernandez had a substantial estate including several life insurance policies which would benefit the defendant upon her death. In addition to existing policies of $84,000, the defendant had obtained a $100,000 policy on Ruth's life by forging her name to an application according to the testimony of the State's document examiners.

The State was allowed to introduce, over objection, testimony by Mr. and Mrs. William Belcher about an incident occurring in 1958 in which Fernandez allegedly assaulted Mr. Belcher with an iron bar and left him for dead in the Canadian woods. Belcher and Fernandez had gone to a remote area in British Columbia for the purpose of examining some timber Fernandez was interested in purchasing. Belcher survived the alleged assault, and when his wife went to Canada to visit him in the hospital, she found, in his suitcase at his hotel room, documents appearing to be business agreements between Fernandez and Belcher. The documents, exhibits 112 and 113, are copies of purported agreements entered into between Fernandez and Belcher for sale of British Columbia property and for the purchase of logging vehicles by Belcher from Fernandez for $40,000. Belcher had no prior knowledge of the purported agreements, and he later discovered that $40,000 had been withdrawn from his bank account.

The court also admitted into evidence the transcript of the testimony of John Casteel given in a 1962 federal trial in which Fernandez was one of the defendants. See Fernandez v. United States, 329 F.2d 899 (9th Cir. 1964). The gist of the testimony was that in 1961 Casteel and Fernandez were in the Longview area inspecting some timberland. After driving 6 or 8 miles into the woods in Fernandez' Jeep, Fernandez declared he had lost control of the vehicle and bailed out. With Casteel still inside, the Jeep went off the road and down a bank about 20 feet. Casteel also survived and returned to his Oregon home where he discovered, in his luggage, documents bearing his forged signature which transferred interests in various lands to an Oregon timber products company headed by a Mr. Dual, who was codefendant with Fernandez in the federal trial.

In a pretrial hearing the court ruled inadmissible, on the grounds of prejudice, part of the Casteel transcript in which Fernandez reportedly referred to Casteel as a "tough old bird to kill." The remainder of the Casteel transcript and the Belcher testimony were ruled admissible because they showed a distinctive modus operandi. The claimed erroneous admission of this evidence is the basis for the appellant's first two assignments of error.

The frequently stated rule in this state and elsewhere is that a defendant must be tried for the offenses charged in the indictment or information. Evidence of unrelated crimes is irrelevant and generally held inadmissible. State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950). This principle is an application of a policy which prohibits introduction by the State of evidence of a defendant's bad character unless relevant for some other purpose. Such rule of exclusion is subject to a number of exceptions almost as well recognized as the rule itself. See State v. Hames, 74 Wash.2d 721, 446 P.2d 344 (1968). These exceptions are to show motive, intent, the absence of accident or mistake, a common scheme or plan, or identity. State v. Goebel, 40 Wash.2d 18, 240 P.2d 251 (1952). This list of Goebel exceptions is not necessarily exclusive. State v. Dinges, 48 Wash.2d 152, 292 P.2d 361 (1956). An additional exception generally recognized is the so-called "handiwork" exception. Thus, evidence of other unrelated crimes may be admissible if such other crimes are so nearly identical in method as to earmark them as the handiwork of the defendant. Nasim v. State, 34 Md.App. 65, 366 A.2d 70 (1976); E. Cleary, McCormick's Handbook of the Law of Evidence, § 190 (2d ed. 1972). We described this concept in State v. Irving, 24 Wash.App. 370 at 374, 601 P.2d 954 (1979) as "a similarity of the modus operandi" and said,

Under this principle, the method employed in the commission of both crimes is so unique that mere proof that an accused committed one of them creates high probability that he also committed the act charged. In order to utilize this principle the facts of both crimes must be "so similar and peculiar in nature as to show a modus operandi." State v. Whalon, (1 Wash.App. 785, 464 P.2d 730 (1970)) at 792. Professor Meisenholder describes the basic requirement as:

Mere similarity of crimes will not justify the introduction of other criminal acts under the rule. There must be something distinctive or unusual in the means employed in such crimes and the crime charged.

(Footnotes omitted.) 5 R. Meisenholder, Wash.Prac. § 4, at 13 (1965).

A classic example of the "handiwork" exception is found in People v. Peete, 28 Cal.2d 306, 169 P.2d 924 (1946). Louise Peete was charged with murdering one Margaret Logan as part of a scheme wherein Peete sought out persons with substantial assets and killed them to acquire their property. There was evidence Peete had forged Mrs. Logan's signature to various documents to acquire possession of her property and had then shot Mrs. Logan at close range in an attempt to sever her spinal cord. The State introduced, over Mrs. Peete's objection, evidence that she had been convicted 20 years earlier of murdering one Denton by shooting him in the neck in such a way that his spinal cord was severed. Afterwards she essentially took over Denton's property, drawing forged checks against his bank account and leasing his residence. On appeal, Mrs. Peete argued that the prior murder did not fit into any of the generally recognized exceptions to the rule and was thus inadmissible. Justice Traynor formulated a test to establish the "handiwork" exception:

Evidence concerning another offense is relevant to prove that a death resulted from the execution of a scheme when in the light of the circumstances of the crime sought to be proved, it indicates the existence of such a scheme. When a defendant's conduct in connection with the previous crime bears such similarity in significant respects to his conduct in connection with the crime charged as naturally to be explained as caused by a general plan, the similarity is not merely coincidental, but indicates that the conduct was directed by design.

People v. Peete, supra at 317.

The admissibility of...