State v. Forrester
| Decision Date | 14 November 1978 |
| Docket Number | No. 2462-III,2462-III |
| Citation | 587 P.2d 179,21 Wn.App. 855 |
| Parties | STATE of Washington, Respondent, v. John L. FORRESTER, Appellant. |
| Court | Washington Court of Appeals |
Richard L. Cease, Public Defender, Roger K. Gigler, William Nathans, Asst. Public Defenders, Spokane, for appellant.
Donald C. Brockett, Pros. Atty., Spokane, for respondent.
Defendant appeals his jury convictions on the charges of aggravated first-degree murder and first-degree extortion.
He raises the following issues: (1) Were the tape recordings of the defendant's telephone conversations with a police officer made in violation of RCW 9.73.030? (2) Was the defendant's confession to a police detective voluntary? (3) Was the admission into evidence of a typed manuscript of the defendant's tape-recorded confession prejudicial error? (4) Was the admission into evidence of certain photographs of the victims' bodies prejudicial error? (5) Was the testimony of Dr. Sol Levy proper rebuttal? (6) Do the alleged murders fall within the statutory definition of aggravated first-degree murder? (7) Did the trial court have authority to impose a sentence of life imprisonment without possibility of parole? and (8) Does such a sentence violate the eighth amendment prohibition against cruel and unusual punishment?
On December 15, 1976, James and Hattie Woods, both age 73, were murdered in their home on Spokane's north side. The victims' throats were slashed, Mrs. Woods had been shot, and Mr. Woods had been stabbed in the side and in one leg. The condition of the house indicated that the Woodses had struggled with their slayer. An emptied wallet and purse pointed to robbery as the motive for the double homicide. However, clues to the killer's identity were minimal. They included a .22 calibre pistol left at the scene, a palm print on a figurine that had apparently been used as a weapon, and the report of a nurse who worked across the street from the Woodses' residence and had seen someone leaving the house about 5 p. m. the evening of the murders.
Almost 10 days later, on Christmas Eve, the police received a telephone call from a person claiming to be the murderer and threatening to repeat his crime if he was not paid $10,000 by 9 p. m. Monday, December 27. He said that he would call again on Monday night and that the Mayor and the Chief of Police should be present to hear his demands. During a second call that same evening, this person again informed Detective Wilson, the police operator, that he would call on Monday night. The detective requested that the caller corroborate his claim that he was responsible for the homicides. In response, the caller described how he had killed the couple.
In preparation for the call expected on Monday night, the police installed a tape recording device on their telephone. When the extortionist called, he demanded that the police send a young boy with the $10,000 to the men's restroom at the Diamond Bowling Lanes. Again, the extortionist threatened to commit further murders should the police fail to cooperate, and in the latter event to reveal that lack of cooperation to the press. The extortionist also answered several questions concerning the details of the murders. He called a second time and inquired about the denominations of the currency. Police officers who had established surveillance at the bowling lanes testified that they observed the defendant in a phone booth outside the bowling lanes at about the time of the second call. They arrested him when he went into the men's restroom, advised him of his rights, and then transported him to the police station. When it was discovered that the defendant was only 17 years old, he was transferred to the Juvenile Department and booked on a charge of first-degree extortion. During this time, the defendant was twice again advised of his rights, and he chose to waive them.
Following booking procedures in juvenile, the defendant was taken to an interview room in the main police station. There, Detective Teigen questioned the defendant in the presence of Detective Staudinger, the police officer who had handled the telephone calls that night. Detective Teigen was familiar with those phone conversations since he had listened to the tape of the calls.
According to Detective Teigen, he said to the defendant: "It's time you help yourself." The detective then told him that the police had information that he was the one who had made the phone calls in which the caller had confessed to the killings. He further informed the defendant that the police had a palm print left at the murder scene which they could compare with his, and that a witness could identify him as the person leaving the Woodses' home. The defendant then stated, "I killed those two people."
Following this admission, Detective Teigen took a complete oral statement from the defendant, then taped the defendant's confession. In these confessions, the defendant described how he had forced his way into the Woodses' residence, then killed the couple when they attempted to resist. After this interview, Dr. Sol Levy, a psychiatrist, spoke with the defendant.
On January 6, 1977, juvenile court declined jurisdiction over the defendant. An information was filed in Superior Court charging him with aggravated first-degree murder, RCW 9A.32.045(6), and first-degree extortion, RCW 9A.56.120. On May 16, 1977, a jury found defendant guilty of both charges.
First, the defendant contends (1) the court should not have allowed Detective Staudinger to testify concerning his two telephone conversations with the extortionist on the night of December 27, 1976, because those conversations were tape recorded in violation of RCW 9.73.030, and (2) the court should have barred evidence of the telephone conversations with Detective Wilson on December 24 and defendant's subsequent confessions to Detective Teigen and Dr. Levy because those statements were obtained as a result of the Police Department's use of the unlawfully taped telephone conversations.
RCW 9.73.030 provided:
It shall be unlawful for . . . the state of Washington, its agencies, and political subdivisions to intercept, record or divulge any:
(1) Private communication transmitted by telephone . . . between two or more individuals . . . by any device electronic or otherwise designed to record . . . said communication . . . without first obtaining the consent of all the participants in the communication; 1
(Italics ours.) RCW 9.73.050 provides:
Any information obtained in violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal case . . .
RCW 9.73.090 2 provided:
The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
(1) Recording incoming telephone calls to police and fire stations for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls.
It is the defendant's position that the telephone calls in question were private communications within the general provisions of RCW 9.73.030(1) and that the exclusion contained in RCW 9.73.090(1) is not applicable because the calls were not emergency calls and, further, because the recordings were not used for the narrow purpose of verifying the accuracy of reception. We disagree with the defendant. The telephone calls here are not private communications, and, therefore, they are not within the prohibitions of RCW 9.73.030(1).
The statute does not define the words "Private communication." In the absence of such a definition, we must attribute to the statutory terms their ordinary and usual meaning. Warmington v. Department of Employment Security, 12 Wash.App. 364, 529 P.2d 1142 (1974). Webster's Third New International Dictionary (1969) defines the word "private" as: ". . . belonging to one's self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly: not open or in public."
To determine whether or not a telephone conversation is private, the court must consider the intent or reasonable expectations of the participants as manifested by the facts and circumstances of each case. Here, the defendant was using the telephone to commit the crime of extortion. The statements made by the defendant during the course of his conversations with Detective Staudinger are not the statements of a person who expects that his conversation will remain private. He knew or should have known that his demand for $10,000 could not be met from the personal funds of the policeman with whom he was speaking. Rather, the defendant intended to direct his extortion demand to the City of Spokane. In his first call, he told Detective Wilson that the Mayor and the Chief of Police should be present when he called on Monday night. Furthermore, he threatened to kill again if his demands were ignored, and he coupled this threat with a promise to reveal to the press that the City had risked a second murder rather than pay him $10,000. These are not the statements of someone who expects the substance of his telephone call to remain confidential.
For these reasons, we hold that the trial court did not err when it permitted Detective Staudinger to testify concerning his phone conversations with the defendant. State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977), cited by the defendant, is distinguishable. In Wanrow, our Supreme Court held that a telephone conversation in which the caller reported the commission of a crime was a private communication within the meaning of RCW 9.73.030. 3 Here, the caller was using the telephone to attempt the commission of a crime and to threaten the commission of other murders if his demands were not met. Under these circumstances, the conversations were lawfully recorded. Therefore, the recording could not taint the subsequent...
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