State v. Gocken

• Citation: 71 Wn.App. 267,857 P.2d 1074
• Decision Date: 13 September 1993
• Docket Number: No. 28291-3-,31424-6-I,28291-3-
• Parties: STATE of Washington, Respondent, v. Victor G. GOCKEN, Appellant. In the Matter of the Personal Restraint Petition of Victor G. GOCKEN, Petitioner. Division 1
• Court: Court of Appeals of Washington

Page 267

71 Wn.App. 267

857 P.2d 1074

STATE of Washington, Respondent, v. Victor G. GOCKEN, Appellant In the Matter of the Personal Restraint Petition of Victor G. GOCKEN, Petitioner.

No. 28291-3-I, 31424-6-I.

Court of Appeals of Washington,

Division 1.

Sept. 13, 1993.

Joshua Weinstein, Appellate Defender, Seattle, for appellant.

Norm Maleng, Pros. Atty., and John Belatti, Deputy Pros. Atty., Seattle, for respondent.

AGID, Judge.

Victor Gocken appeals his judgment and sentence on one count of first degree murder and eight counts of forgery. He argues that: (1) the warrantless searches of the victim's condominium, where Gocken also lived, were unlawful because there was no valid exception to the warrant requirement; (2) the State's amendment of the information adding the forgery counts on the first day of trial deprived him of his constitutional right to be notified of the charges against him; (3) the trial court erred by admitting autopsy photographs; (4) the evidence was insufficient to support a finding of premeditation; and (5) the testimony of four witnesses was improper because the record does not reflect that they responded to the oath administered before each testified. Gocken has also filed pro se briefs, and his personal restraint petition has been consolidated with this appeal. We affirm the trial court's judgment and sentence and deny Gocken's petition.

I. FACTS

On June 16, 1990, Officer Martin Brunette of the Auburn Police Department arrived at 72-year-old Ann Compton's condominium in response to a call from her friend Norma Haskell who had been unable to reach Compton for some time. Officer Brunette was aware that Compton was elderly and had mental health problems because she had a reputation at the police station for making "crazy" calls complaining that people from federal and local agencies were watching her.

When no one responded after Officer Brunette knocked on Compton's door and announced that he was from the police, he decided to perform a routine health and safety check ¹ to see if Compton might have been injured and in need of assistance. He entered the condominium without a warrant through an unlocked window. He found the home very neat and orderly except for an unkempt bedroom with men's effects. ² He also saw a large door at the end of the hallway which he assumed was a closet. The door was locked but there was nothing unusual about it. When Officer Brunette initially entered the condominium, he had been aware that he might smell a dead body because Haskell was concerned that Compton had been injured. ³ However, he smelled no odors and, seeing nothing amiss, left the condominium.

Eight days later, on June 24, Officer Brunette responded to a second dispatch to Compton's condominium, assuming it would involve another health and safety check. Haskell was outside waiting with another woman. Because nothing around the condominium appeared unusual, Brunette did not enter it. He did not write a report for either of the two visits because he considered them only routine health and safety checks, not criminal investigations. ⁴

At about the same time, Diana Berthon, Compton's niece, also became worried about Compton because she had not seen her for several weeks. On Thursday, June 20, Berthon left a note on Compton's door asking her to call. Later that day, Berthon received a call on her answering machine from Gocken saying that Compton had gone "over the mountains" and that he would be going to get her. On June 21, Berthon went to Compton's home and found a note signed "Ann" indicating she would be back Monday, June 25, but the note was not in Compton's handwriting. Berthon called the police and was advised that she should file a missing person report if Compton had not returned by Monday.

Because Berthon could not reach Compton on Monday, she filed the report with the police. Officer Victor Shively, who was not aware of Officer Brunette's previous visits, accompanied Berthon to Compton's condominium at 10 a.m. to do a health and safety check. Shively had met Compton once and remembered making a police call to her condominium about 2 years earlier. At the condominium, Berthon looked through a window and said she thought furniture was missing. She convinced Officer Shively that he should enter the condominium to see if Compton was sick or injured. She also mentioned that Compton had a roommate. Shively knocked and announced who he was and, after receiving no response, entered through the front window. He let Berthon in through a sliding glass door. Berthon confirmed that furniture was missing, but at that point Officer Shively did not consider that fact suspicious. There were also beer cans, food, and garbage strewn around the living room and kitchen.

Berthon began noticing a strong odor in the hallway and walked toward the closed door which she identified as her aunt's bedroom. She mentioned that Compton had had a dog that was put to sleep. Compton had been unable to part with it, and Berthon wondered if the smell might be the dog's body. She tried to open the door, but it was locked. She also noticed that the edges of the door were sealed with masking tape and a towel lay across the base of the doorway. Officer Shively recognized the odor as that of decaying flesh and immediately escorted Berthon out of the condominium. According to Shively, he "didn't know what [he] had at that point" and decided to contact his supervisor, Sergeant Lee. ⁵

Sergeant Lee arrived at the condominium within 10 minutes. After learning of the circumstances and "[n]ot knowing what was in there," Sergeant Lee decided to use his cellular phone to call a police technician, Bob Phillips, to photograph the door and process it. Phillips arrived at the condominium shortly after 11 a.m. According to Sergeant Lee, the situation seemed "stable" because "nothing was happening" and he saw "no need for any haste". He had decided to call Phillips as

[a] precaution. With the decay--the smell of decaying flesh, you don't know what you have. The information I had was a lady was missing, ... her dog was missing. I didn't know what for sure I had there, but I didn't want to take achance and destroy any ... potential evidence, so to be on the safe side, I had [Phillips] called out to process the door.

As the sergeant later testified, he was not treating the situation as an emergency at that point. When later asked if he suspected a homicide had occurred, he testified:

Well, no, suspicion's too strong a word. I mean, we [didn't] know what was there. It could have been--it could have been anything, including the--the so-called missing dog. So I just didn't know, and so we proceeded with caution.

Officer Shively and Phillips entered the condominium without a warrant. Phillips photographed the interior and removed the tape sealing the bedroom door. With Sergeant Lee's authorization, Shively and Phillips kicked open the locked bedroom door. Shively noticed a door to the right and opened it. Although it was dark inside, he recognized coagulated blood on the floor. The men immediately went outside and sealed off the condominium. No one entered again until a warrant was obtained. When the police reentered the condominium, they checked Compton's private bathroom and found her body wrapped in garbage bags and a blanket tied with cord.

From Officer Shively's perspective, he was doing a routine check on Compton's welfare, not a criminal investigation. Although he had a feeling that "maybe something was wrong" when he and Berthon found the door taped, he did not have any specific reason to believe that he was dealing with a homicide at that point. According to Shively, the events of that morning did not turn into a criminal investigation until Compton's dead body was found.

Gocken was subsequently arrested for Compton's murder after the police located him at a motel in Federal Way. Later investigation revealed, among other things, that someone had forged more than 30 of Compton's personal checks. On June 28, 1990, Gocken was charged by information with one count of first degree murder.

Prior to trial, over defense objection, the information was amended to add eight counts of forgery. In addition, defense counsel moved to suppress the evidence found in Compton's bedroom and bathroom, arguing that the warrantless police searches violated the Fourth Amendment and the Washington State Constitution. The trial court denied Gocken's motion to suppress. It found that the June 16 search was a legitimate health and safety check, and there was no basis for Officer Brunette to assume any crime had been committed. The trial court also upheld the warrantless search on June 25 based on the exigencies created by Compton's age, her disability, and the circumstances of her apparent disappearance. Because there was no way of knowing whether Compton was ill and needed assistance until Officer Shively actually found her body, the court concluded that the search was not motivated by an "intent to arrest and seize evidence." Finally, the court held that Gocken lacked standing to challenge the search of Compton's bedroom and bathroom because his legitimate expectation of privacy did not extend to that portion of the premises.

During trial the medical examiner, Dr. Corinne Fligner, explained that when she began the autopsy the body had been wrapped in plastic garbage bags and a blanket. A towel and a ligature were tied around Compton's neck, and other ligatures tied her hands behind her back and bound her feet. Dr. Fligner also testified that the cause of death was asphyxia due to ligature strangulation, which might have been accompanied by manual strangulation.

Additional testimony from State witnesses indicated that Gocken used cocaine daily, had high bar tabs, and owed money to several people when Compton disappeared. In addition, Gocken acknowledged that he had earned no income since 1988 and sold various pieces of furniture to a...