State v. Furman

• Decision Date: 30 September 1993
• Docket Number: No. 57003-5,57003-5
• Citation: 858 P.2d 1092,122 Wn.2d 440
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Michael Monroe FURMAN, Appellant. En Banc

Page 440

122 Wn.2d 440

858 P.2d 1092

STATE of Washington, Respondent, v. Michael Monroe FURMAN, Appellant.

No. 57003-5.

Supreme Court of Washington,

En Banc.

Sept. 30, 1993.

Michael Monroe Furman, pro se

Nance, Iaria & Gombiner, Robert H. Gombiner, Michael P. Iaria, Seattle, for appellant.

C. Danny Clem, Kitsap County Prosecutor, Michael B. Savage, Deputy, Pamela B. Loginsky, Deputy, Port Orchard, for respondent.

Beth M. Andrus, Alice Miller, Seattle, amicus curiae, for appellant on behalf of Amnesty Intern.

ANDERSEN, Chief Justice.

Michael Furman appeals his aggravated first degree murder conviction and death sentence. We affirm the conviction, vacate the death sentence, and remand for resentencing.

FACTS OF CASE

Eighty-five-year-old Ann Presler was brutally murdered in her home on April 27, 1989. A friend found her body the next morning. Detectives spoke with Mrs. Presler's neighbors, several of whom said they had seen Michael Furman walking door to door looking for work the day of the murder. Appellant initially denied visiting Mrs. Presler's house, but eventually admitted that he raped, robbed and murdered her.

According to his confession, appellant entered Mrs. Presler's house when she offered him $10 to wash her windows. When he ran out of glass cleaner, he went into the kitchen and asked Mrs. Presler for more. She suggested he use dish soap. He became angry and punched her in the head three times. She fell to the floor. He covered his hand with a rag, grabbed a coffee pot and hit her with the pot. He went to a bedroom, got a vase, returned, and hit her with the vase until it broke. He then went back to the bedroom, got another vase, returned and hit her with it until it too broke. He then raped her and then looked around the house for money. He found her purse. With his hand covered so he would not leave any fingerprints, he searched the purse and removed $30. He then went back into the bedroom and returned with a heavy crystal vase. He realized she was still alive, and he did not want her to be a witness, so he hit her with the crystal vase until he was certain she was dead. Appellant also mentioned that he smoked marijuana the morning of the murder, and he told police where they would find his marijuana pipe.

After taking appellant's confession, the officers obtained a search warrant for his home. During the search, the officers found the clothing appellant said he had been wearing on the day of the murder. They also found a marijuana pipe. The officers photographed and seized the pipe, which was then placed in the police evidence room. The pipe was later inadvertently lost.

Appellant was arrested on April 30, 1989, 2 months before his 18th birthday. Because of his age, he was initially charged After the charges were filed, appellant contacted the investigating detective several times and made additional incriminating statements. He subsequently moved to suppress those statements as well as the statements he made before the charges were filed. He also moved to dismiss the premeditation element of the aggravated first degree murder charge on the ground that the State's loss of the marijuana pipe denied appellant the opportunity to have it tested. The trial court denied both motions.

                with the murder in juvenile court.   Following a declination hearing, the case was transferred to superior court for appellant's prosecution as an adult.   The State then filed a notice of intent to seek the death penalty
                

Trial began in January of 1990. The only disputed issue at trial was whether appellant premeditated the murder. He testified that he smoked one or two bowls of marijuana and two bowls of marijuana sprinkled with methamphetamine 30 to 45 minutes before going to Mrs. Presler's house. The drugs made him "high", which he described as a condition in which he knows what is going on, but feels different and acts without thinking. To support claims of diminished capacity and intoxication, defense counsel called two expert witness: Dr. Lloyd Cripe, a neuropsychologist, and Dr. Lawrence Halpern, a neuropharmacologist. Defense counsel had also arranged for appellant to be examined by a clinical psychologist, Dr. Bruce Olson. Dr. Olson did not testify before the jury, but did prepare a report which was then provided to Drs. Halpern and Cripe. That report contains the detailed description which appellant provided of his sexual history. Dr. Cripe testified that appellant has a severe personality disorder. In Dr. Cripe's opinion, because of this disorder and appellant's drug use, it is very improbable that the murder was a deliberate, reflected action.

Dr. Halpern testified regarding the effect of methamphetamine on the mind and expressed the opinion that appellant's use of methamphetamine made him unable to reflect or deliberate about the mechanics or consequences ofhis The trial court instructed the jury on diminished capacity, but declined to give appellant's proposed instruction on voluntary intoxication. The jury found appellant guilty of aggravated first degree murder, unanimously agreeing that all five alleged aggravating factors had been proved. Following the penalty phase, the jury found the State had proved there were insufficient mitigating circumstances to merit leniency. Appellant was therefore sentenced to death.

                actions.   Dr. Halpern also said appellant probably suffers from Cluver-Busi syndrome, which can cause a person to attempt sex with almost any person or even inanimate objects.   According to Dr. Halpern, use of methamphetamine would tend to increase sexuality and decrease impulse control.   Over defense counsel's objection, the State asked Dr. Halpern about the sexual history material contained in Dr. Olson's report
                

ISSUES

ISSUE ONE. Did the juvenile court err in declining jurisdiction?

ISSUE TWO. Did loss of the marijuana pipe violate appellant's due process rights?

ISSUE THREE. Did the trial court err in ruling on challenges for cause based on the jurors' views regarding the death penalty?

ISSUE FOUR. Did the trial court err in admitting appellant's statements to the police?

ISSUE FIVE. Did the trial court err in admitting an "in life" photo of the victim?

ISSUE SIX. Did the trial court err in allowing the prosecutor to cross-examine appellant's expert about appellant's sexual history?

ISSUE SEVEN. Did the trial court err in failing to give appellant's proposed instruction on voluntary intoxication?

ISSUE EIGHT. Did prosecutorial misconduct deny appellant a fair trial?

ISSUE NINE. May appellant be executed for a crime he committed while a juvenile?

DECISION

ISSUE ONE.

CONCLUSION. The juvenile court did not err in declining jurisdiction.

A case filed in juvenile court may be transferred for adult criminal prosecution upon a finding that the declination of juvenile court jurisdiction would be in the best interest of the juvenile or the public. RCW 13.40.110(2). In making this determination, the juvenile court is to consider: (1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against persons or only property; (4) the prosecutive merit of the complaint; (5) the desirability of trial and disposition of the entire case in one court, where the defendant's alleged accomplices are adults; (6) the sophistication and maturity of the juvenile; (7) the juvenile's criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system. ¹ All eight of these factors need not be proven; their purpose is to focus and guide the juvenile court's discretion. ² The court's decision will be reversed only if there has been an abuse of that discretion. ³

We find no such abuse. The juvenile court expressly considered each of the eight Kent factors and quite reasonably concluded that trying appellant as an adult would be in the best interests of the public. Appellant was charged with aggravated murder, the most serious offense which can be committed in this state. In view of appellant's confession, the charge had obvious prosecutorial merit. Perhaps most importantly, the crime occurred less than 2 months before appellant's 18th birthday. If he had been tried as a juvenile, he could have been confined only for the 3 years remaining until his 21st birthday. ⁴ He could not, therefore, have served even the juvenile standard range penalty for the offense. The services available during that time are clearly inadequate to protect the public.

ISSUE TWO.

CONCLUSION. Loss of the marijuana pipe did not violate appellant's due process rights.

Appellant contends that loss of the pipe precluded him from having it tested, which might have shown he used methamphetamine as well as marijuana. He claims the loss of evidence to support his diminished capacity/intoxication defense violated his due process rights under the analysis in State v. Wright, 87 Wash.2d 783, 557 P.2d 1 (1976) and State v. Vaster, 99 Wash.2d 44, 659 P.2d 528 (1983). As we explained in State v. Straka, 116 Wash.2d 859, 883, 810 P.2d 888 (1991), the federal constitutional analysis in those cases is no longer valid in light of the Supreme Court's decisions in California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). We have not yet decided if the state constitution requires adherence to the analysis in Vaster and Wright. ⁵ We will consider whether to apply our state constitutional provisions more strictly than parallel federal provisions only when we are asked to do so, ⁶ "and even then only if the argument includes proper analysis of the six 'interpretive principles' outlined in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986...