State v. Finch

Decision Date06 May 1999
Docket NumberNo. 62938-2,62938-2
Citation137 Wn.2d 792,975 P.2d 967
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Charles Ben FINCH, Appellant.

Rita Griffith, Beth Andrus, Seattle, Charles Finch, WallaWalla, for Appellant Finch.

Jim Krider, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, for Respondent State of Washington.


Charles Ben Finch appeals his sentence of death and his underlying convictions for the murders of Ron Modlin and Sergeant James Kinard. We uphold Mr. Finch's underlying convictions but reverse and remand his sentence of death.


The Defendant, Charles Finch, married Thelma Finch in September 1993. They lived together in a mobile home owned by Thelma and her mother, Margaret Elizares. Charles and Thelma separated on July 11, 1994. When they separated, Thelma told Charles not to return and asked him for his key, which he refused. At the end of July, Thelma told Charles that Ron Modlin, a blind friend of Thelma's, was going to move into a travel trailer located on her property. Ron was a long time friend of Thelma's who had lived on the property for many years prior to her marriage to Charles.

Around this time, Charles began asking co-workers and friends about buying a gun. Finally, a co-worker agreed to sell him a .40 caliber Ruger automatic for $350. After Thelma and Charles separated, Thelma stated that they only talked a couple of times when they would encounter each other at work. On the only two occasions they did speak, Charles asked Thelma if she had paid her burial insurance. Also, sometime in May or June, while Thelma and Charles were still married, Michael Thomas, a friend of Charles', was doing some work on the property. While inside the mobile home, Michael said that he "felt a little tension in the air" between Thelma and Charles, so he went outside. Verbatim Report of Proceedings (RP) (Jury Trial) at 1940. Later, Charles came outside and said, "I thought about buying a gun and shooting him in the head." RP (Jury Trial) at 1941. Charles did not specify who "he" was but Michael Thomas did testify that Ron was Thelma's only male friend. RP (Jury Trial) at 1941-42.

On the day of the crime, August 15, 1994, Charles asked his boss if he could take the following two days off work. After work he went to the credit union, withdrew money, and purchased the gun.

At approximately 7:30 that evening, Charles arrived at Thelma's mobile home. Thelma, her mother, Margaret, and Ron Modlin were eating dinner in the kitchen. As Charles drove up, Thelma went onto the front porch to get the cat. Charles got out of his car carrying a 12-pack of beer. Thelma told Charles that he could not bring the beer inside, so he left it on the porch. Charles then went back and got something out of the car, proceeded back to the house and told Thelma that he had a gift for her. Charles then "passed [Thelma] real fast with the case and brushed against [her] real fast and walked in the house." RP (Jury Trial) at 212.

Upon entering, Charles yanked the phone off the wall. Ron stood up and said, "What's going on?" RP (Jury Trial) at 63. Charles said, "This," and shot him in the head, killing him. RP (Jury Trial) at 64. After he shot Ron, he stated that he had been planning that for three months. RP (Jury Trial) at 63-65.

After Charles shot Ron, Thelma grabbed his hand and they struggled. As they struggled, Charles stated that he had planned to kill Thelma for a long time. Eventually, Thelma and Charles stopped struggling. Charles told Thelma and Margaret that he would "blow them up" if they went outside or tried to help Ron. RP (Jury Trial) at 74-75. Charles repeated that he had come there to kill himself and Thelma and later stated he had also come there to kill Ron. Additionally, Charles stated that he would kill anyone who came in, including police officers. When Margaret asked why, he stated because "I don't like the lousy cops." RP (Jury Trial) at 92.

After a long period of pleading, Margaret convinced Charles to call 911. Charles called at 10:24 p.m. and reported that a man had been shot. When asked who did it, Charles said that he did. Charles further stated that he shot Ron on purpose. Charles also told the operator he would come out when the police arrived and the gun was outside. After he got off the phone, he went to the back bedroom with his gun to wait for the police.

Among the first officers to arrive on the scene were Sgts. James Kinard and Arnold Aljets of the Snohomish County Sheriff's Office. Sgt. Kinard called to the house and asked everyone to come out. When Thelma and Margaret came out onto the porch Sgt. Kinard asked the address and at approximately that time shots rang out. Sgt. Kinard was hit in the head by one of the bullets and was killed. Thelma and Margaret left the house and hid outside. After Sgt. Kinard was shot, another officer took out the yard light to reduce visibility. When the officer shot out the yard light, Charles fired more shots from the window. At this point, the SWAT team was called in. An armored personnel carrier was used to rescue Thelma and Margaret from their hiding place by the side of the house and to position the officers closer to the house so they could shoot gas into the trailer. Although many rounds of gas were fired into the trailer, Charles did not come out of the trailer. At one point, Charles went to the front sliding glass door and shot at the armored personnel carrier.

Meanwhile, SWAT negotiators isolated the phone in the trailer, established contact with Charles and attempted to persuade him to surrender. During the conversations, Charles stated that he was going to shoot at officers he saw outside, that he had been shot in the shoulder and that he had a self inflicted gunshot wound in his foot. At around 5:30 a.m., the negotiator, Officer Helfers, became concerned that Charles was becoming increasingly agitated and upset. Officer Helfers tried to calm the situation by suggesting that what Charles had done was not as bad as it seemed. Officer Helfers asked, "[a]re you sure it wasn't in self-defense." RP (Jury Trial) at 735. Charles answered, "[h]ell, it wasn't no self-defense. It was premeditated, man." RP (Jury Trial) at 735.

Shortly thereafter, the SWAT team entered the trailer and placed Charles under arrest. After Charles was arrested and given Miranda 1 warnings, he made further incriminating statements to a police officer. The Defendant also made other inculpatory statements in letters and conversations with friends and co-workers.

During the investigation of the crime scene, the police tried to determine how visible Sgt. Kinard was from the bedroom window. To do this, the officers went to the scene the following evening and placed officers in the same positions as Sgts. Kinard, Aljets and Simpson were the night of the shootings. The officers recreated the same lighting as the previous evening and then video taped what could be seen from the bedroom window.

On August 18, 1994, the Snohomish County Prosecutor's Office charged Charles Finch with the aggravated murder of Ron Modlin, the aggravated murder of Sgt. James Kinard, the second degree assault of Thelma Finch and the unlawful imprisonment of Thelma Finch and Margaret Elizares.

On November 23, 1994, the State indicated its intent to seek the death penalty by filing a Notice of Special Sentencing Proceeding. Over defense objections, the trial court ordered Mr. Finch to wear leg shackles throughout the trial and sentencing proceedings and to wear handcuffs during the testimony of Thelma Finch and Margaret Elizares. The jury found Mr. Finch guilty on all counts and sentenced him to death. Charles Finch appealed directly to this court.

Notice of Special Sentencing Proceeding

When the State decides to seek the death penalty it is required to file written notice of its intent. RCW 10.95.040(1). Written notice must be served on the defendant or counsel "within thirty days after the defendant's arraignment upon the charge of aggravated first degree murder unless the court, for good cause shown, extends or reopens the period for filing and service of the notice." RCW 10.95.040(2). If the State does not file and serve notice as provided by the statute then it is precluded from seeking the death penalty. RCW 10.95.040(3).

In this case, there were two extensions for filing notice of special sentencing. Only the second extension is at issue. Mr. Finch was arraigned on August 22, 1994. On September 19, 1994, the State and the defense stipulated to an order extending the filing period to November 14, 1994. Defense counsel requested the first extension to compile mitigation evidence for the State. The court found good cause existed for the extension until November 14 and required the Defendant to provide the State with mitigation material by November 4. Mr. Finch was present in the courtroom and signed the order extending time.

On November 4, defense counsel submitted a draft mitigation statement to the prosecutor's office and on November 7, submitted the final mitigation statement. Though substantially similar, the final statement contained material not contained in the draft. On November 10, the State requested an extension based on late receipt of the mitigating information and the need to have time to consider the information.

Defense counsel agreed to the extension explaining that it would benefit both sides. Defense counsel noted that the current prosecutor had lost his election two days prior to the hearing. Thus, defense counsel wanted time for the prosecutor's office to consider the decision in light of the election. The judge granted the extension until November 23. The Defendant was present, although he did not sign the order.

The Defendant argues the second extension was improper because the State failed to make the requisite showing of good cause to...

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