State v. Grant
| Citation | 511 P.2d 1013,9 Wn.App. 260 |
| Decision Date | 09 July 1973 |
| Docket Number | No. 1285--I,1285--I |
| Parties | STATE of Washington, Respondent, v. Gary Gene GRANT, Appellant. |
| Court | Court of Appeals of Washington |
Wesley G. Hohlbein, James V. Grubb, Seattle, for appellant.
Christopher T. Bayley, King County Pros. Atty., Michael T. DiJulio, Deputy Pros. Atty., Seattle, for respondent.
Defendant was convicted and sentenced, after jury trial, on four counts of first degree murder, the life sentences to be served consecutively. Defendant appeals.
The facts as the jury could have found them are briefly these. On December 15, 1969, about 7:15 p.m., Carol Adele Erickson, age 19, was walking home from the Renton Municipal Library along a dirt road which runs parallel to the Cedar River. While so walking, defendant attacked her by plunging a hunting knife into her back, causing her death. He dragged Miss Erickson into the bushes nearby and raped her. In addition, he wrapped her shoelaces around her neck leaving constriction marks. The above facts were established at trial through the testimony of investigators at the crime scene, the autopsy surgeon, and the confessions of the defendant on April 30, 1971.
On September 20, 1970 at approximately 4:50 p.m Joanne Marie Zulauf, whose age according to the state was 17, left her home to take a short walk before dinner. About 12:20 a.m. on September 22, her nude body was found in a heavily-wooded area. She had been struck in the back of the head with a rock-like object; however, she died as a result of asphyxia caused by strangulation. Miss Zulauf's watch was missing from her body. These facts were established through the testimony of crime scene investigators, the autopsy surgeon, and persons who had seen Miss Zulauf prior to her disappearance. The evidence at trial on this count against the defendant consisted of his oral confession to Detective Gillespie of the Seattle Police Department and his written confession to Detective Sergeant George Helland of the King County sheriff's office on April 30, 1971. A tape recording of Sergeant Helland's entire interview with defendant was admitted into evidence and played before the jury. The state also presented circumstantial evidence that defendant committed the murder. The defendant's former girlfriend testified that defendant gave a watch to her as a birthday present on September 26, 1970. The watch was identified as belonging to Miss Zulauf.
On April 20, 1971, two 6-year-old boys, Scott Andrews and Bradley Lyons, wandered away from their homes in Renton. The boys were last seen playing behind the Lyons' residence at approximately 11:15 a.m. on the morning of the 20th. After extensive search, the bodies of the two boys were discovered on the evening of April 22, 1971 in a heavily-wooded area about 2 miles from their homes. The boys' clothing, as well as ferns and leaves, had been strewn over the bodies, leaving only the heads visible. There were three stab wounds in the left chest area of Scott Andrews, two of which were fatal as they penetrated his body approximately 4 1/2 inches. The body of Bradley Lyons was found next to Scott Andrews. Bradley Lyons died as a result of asphyxiation caused by strangulation by ligature. Both boys had contusions, indicating they had been beaten about the face. The crime scene investigators took plaster casts of two footprints at the scene, which were later matched with the tennis shoes worn by defendant at the time of his arrest.
On April 28, 1971, search teams found a hunting knife located approximately 156 feet from where the two boys were found. This knife had blood on the blade matching the blood type of Scott Andrews. Inscribed on the handle of the knife was the name 'Tom Evenson.' Mr. Evenson testified that the knife had been sold to Jerry Triplett. A Jim Monger testified that he acquired the knife from Jerry Triplett and last saw it in defendant's possession. As a result of their interviews with Monger and Evenson on April 29 and 30, 1971, Renton police detectives Hume and Phelan contacted defendant at his home in Renton on April 30, 1971. Detectives Hume and Phelan and Detectives Gillespie and Helland testified extensively concerning their interviews with defendant on April 30, 1971.
Defendant makes eight assignments of error, argued extensively. After consideration of the contentions advanced, we find no reversible error. We confine our discussion to the critical arguments advanced, finding it unnecessary to comment on many of the cases cited.
In defendant's first two assignments of error defendant contends the court erred in denying his motion to dismiss the charges against defendant on the ground that police officers secretly and illegally monitored and taped a conversation of defendant with his attorney, Mr. Robert Kroum, on May 1, 1971. Defendant also contends the court erred in refusing to suppress the 'bugged conversation between defendant and Detective Hume . . . and all evidence which might have been gained' thereby, including defendant's conversation. At the CrR 101.20W hearing it appeared that Detective Hume interviewed defendant at the police station on April 30, 1971 concerning defendant's involvement with the killings. That conversation was secretly monitored and taped by another police officer without the knowledge or consent of the defendant or the detective. The evidence also showed that on May 1, 1971, defendant was interviewed by Mr. Kroum, his attorney, in the presence of defendant's father, all three of whom were then at the Renton police station. On this occasion also a Renton police officer listened in and made a tape recording of the conversation without the knowledge and consent of any of the three persons present. After reviewing the evidence, including the conversations described, the court entered detailed findings and conclusions. In substance, he ruled:
(T)hat all written and oral statements are admissible up to and including the statement taken by Detective Helland. That the statements taken subsequent to that, after 9:00 a.m. on May 1st, are inadmissible. With regard to those statements, the State has failed to meet its burden of proving that the defendant had an opportunity to exercise his constitutional rights with regard to those statements.
The court also took steps to eliminate any possible prejudice to the defendant by the illegal invasion of his rights. He required the state to file a summary of evidence it proposed to offer at trial and gave the defendant an opportunity to object to that evidence prior to trial. The state filed its required summary on July 6, 1971. On August 2, 1971, defendant filed his objections and obtained rulings thereon prior to trial. The state also made a motion in limine that the court rule inadmissible confessions made by one John Arthur Chance to police officers that he killed the two boys with whose murder defendant was charged. The trial court granted the state's motion.
In order to consider the two assignments of error dealing with the illegal monitoring of conversations with the defendant, we first consider the impact of RCW 9.73. RCW 9.73.030 provides:
Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, record or divulge any:
(2) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
(Emphasis supplied.) RCW 9.73.050 provides:
Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.
RCW 9.73.030(2) seeks to prevent encroachment upon the privacy of the parties to a conversation. The words 'private conversation' contained in RCW 9.73.030(2) are not defined and have not heretofore been construed in any published opinion in this state. That language is not contained in Federal Communications Act § 605 (47 U.S.C. § 605), which corresponds somewhat to our statute. In construing the statutory words 'private conversation,' we seek to best fulfill the purpose of the statute. Roza Irrigation Dist. v. State, 80 Wash.2d 633, 497 P.2d 166 (1972); State v. Lee, 62 Wash.2d 228, 382 P.2d 491 (1963). In considering that purpose, we note the phrase 'private conversation' is all-embracing and is broad enough to include a confidential or privileged conversation, and one protected against disclosure under the Fourth Amendment. To construe the words 'private conversation' narrowly and grudgingly would unnecessarily fail to give full effect to the legislative purpose to protect the freedom of people to hold conversations intended only for the ears of the participants. Both the conversation held by the defendant with his attorney and the conversation held by the defendant with Detective Hume are each 'private conversations' entitled to the protection of RCW 9.73.030 and 9.73.050.
The recording and the transmitting of the conversation between the defendant and his attorney also violated defendant's Sixth Amendment rights to effective counsel. The violation of RCW 9.73 renders inadmissible in a civil or criminal case information obtained in violation of RCW 9.73.030. The sanction for the violation of Sixth Amendment rights, in case of prejudice, results in dismissal of the charge. State...
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