State v. Green

• Decision Date: 05 January 1979
• Docket Number: No. 44705
• Citation: State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (Wash. 1979)
• Parties: The STATE of Washington, Respondent, v. Michael Charles GREEN, Appellant.
• Court: Washington Supreme Court

Page 431

91 Wn.2d 431

588 P.2d 1370

The STATE of Washington, Respondent, v. Michael Charles GREEN, Appellant.

No. 44705.

Supreme Court of Washington, En Banc.

Jan. 5, 1979.

Kempton, Savage & Gossard, Anthony Savage, Seattle, for appellant.

Timothy K. Ford, Seattle, for respondent.

HAMILTON, Justice.

This is a direct appeal by a defendant convicted of aggravated murder and sentenced to death. We affirm the conviction but remand for reimposition of sentence.

The appellant Green was charged with the murder of an 8 1/2-year-old girl Kelly. The factual setting as necessary to an understanding of the issues may be described briefly.

In the early evening of September 28, 1976, Kelly took a younger child for a short walk along an alleyway adjacent to an apartment house in the Capitol Hill area of Seattle. Approximately 10 minutes after the two children left for the walk, screams were heard by adults within and without the apartment house. Then, another youngster reported Kelly was injured. The mother of the child who had been with Kelly investigated; when she did she observed her child in the alleyway unharmed, standing near a pool of blood. A butcher knife was nearby. Picking up her child, she went to look for Kelly.

Meanwhile, a resident of an apartment who had heard the screams, looked outside. From a vantage point on the balcony of his apartment, he could see two figures huddled in the alleyway directly below. He recognized Kelly. The other figure, an adult, lifted Kelly up off the ground. She was kicking and screaming. This witness also observed the individual place his hand over her mouth in an apparent effort to muffle the noise she was making.

Within moments, Kelly was carried out of the witness' sight as the individual holding her turned the corner of the building. A few seconds later, the witness exited his apartment, ran downstairs, and observed the appellant who was now located in a recessed stairwell at the rear of the apartment house. He was holding Kelly. Appellant's clothes were covered with blood; Kelly's were ripped away from her body. She was pale and quiet. He asked appellant what he could do to help and was requested to call an ambulance. As he did so, appellant took Kelly's body to the apartment lawn where he set it down.

Shortly thereafter, the police arrived on the scene and spoke with appellant. He gave the police a description of a person he claimed to have observed assaulting Kelly. The description was broadcast by the police and a search of the general vicinity was initiated. In addition, appellant explained why he moved the body onto the lawn. As yet, appellant had not been identified as the person in the alley with Kelly.

The officers transported appellant to the police station in order to obtain his statement. Appellant went along without objection. While appellant was at the station, the on-the-scene investigation continued. Another witness, a 13- year-old boy, came forward and provided a new description of Kelly's assailant. This new description closely matched appellant's.

Meanwhile, a detective had obtained appellant's statement, which included an unusually minute description of the person appellant asserted he observed assaulting Kelly. After the statement was completed, the detective asked appellant to remove his clothing so the blood on it could be typed. When appellant did so, the detective noticed blood on his undershorts, a spot too large, he thought, to have soaked through appellant's pants. At approximately the same moment, word reached the detective that a witness had described appellant as the individual who was struggling with Kelly in the alley. Only then was appellant advised of his Miranda rights and arrested. He was charged with aggravated murder.

At trial, the state's theory was that appellant stabbed Kelly, killing her in the course of kidnapping or rape. At the close of the State's case, appellant made several motions to dismiss, which the court denied. He then rested. The jury returned a verdict of guilty, and under Washington law the death penalty was mandatorily imposed.

Appellant argues: I. The court should have suppressed his statement to the detective as it was the product of a custodial interrogation conducted without prior Miranda warnings; II. The trial court should have granted his motion to dismiss the Information, as the statutory scheme created by RCW 9A.32.030(1)(c) (2) and (5) and RCW 9A.32.045(7) violates equal protection; III. The trial court erred by permitting the jury to convict if it found the killing occurred in the course of rape Or kidnapping; IV. The mandatory death penalty is unconstitutional.

I.

Appellant argues the statement he gave to the Seattle police detective should have been suppressed since it was the product of custodial interrogation conducted without prior advice of rights. Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues custodial interrogation should include all station house questioning, relying on State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969), and State v. Vining, 2 Wash.App. 802, 472 P.2d 564 (1970).

In Creach, the defendant was asked to step outside a hotel and answer some questions. The issue was admissibility of the statements made in response to those questions. We held the statements were admissible because the questioning was during the course of a routine investigation. Although we quoted from United States v. Gibson, 392 F.2d 373 (4th Cir. 1968), we did not adopt the view expressed therein that station house questioning is Per se custodial interrogation as suggested in State v. Vining, supra, 2 Wash.App. at 806, 472 P.2d 564.

In Creach, and recently in State v. Hilliard, 89 Wash.2d 430, 573 P.2d 22 (1977), we recognized the difficulty inherent in establishing an all-inclusive rule by which to judge the need for Miranda warnings, but we held that:

(O)nce an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial, and the suspect must be warned of his rights.

(Italics ours.) State v. Creach, supra, 77 Wash. at 198, 461 P.2d at 331, quoted with approval in State v. Hilliard, supra, 89 Wash.2d at 435, 573 P.2d 22.

Probable cause to arrest arises when there is reasonable ground for suspicion, supported by circumstances within the knowledge of the arresting officer, which would warrant a cautious person's belief that the individual is guilty of a crime. State v. Hilliard, supra ; State v. Parker, 79 Wash.2d 326, 485 P.2d 60 (1971). Thus, mere suspicion before the facts are reasonably developed is not enough to turn routine investigatorial questioning of a witness into a custodial interrogation. State v. Hilliard, supra ; See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam).

Appellant gave a statement to police without being advised of his rights under Miranda. At the time he did so, he was located at a police station; however, there is no evidence to indicate his presence there was involuntary. Further, the testimony indicates it was routine procedure to take material witnesses to the station in order to record their statements. At the time appellant arrived at the station, the evidence possessed by police was insufficient to warrant a cautious person's belief that appellant had committed the crime involved. Whatever general suspicions the officers may have felt were as yet unsupported by circumstances which would have given rise to probable cause. Therefore, it is reasonable to assume appellant was free to leave. When, however, the appellant removed his clothes and the detective observed blood and was informed that a person answering appellant's description had been seen struggling with Kelly in the alley, the facts then supported a reasonable belief appellant committed the crime, following which he was appropriately advised of his Miranda rights.

Thus, we hold the questioning of appellant, prior to the time he removed his clothing and the detective received the description, was part of a general investigation and was not custodial interrogation. His statement to police was accordingly admissible since the interrogation was not conducted in violation of Miranda.

II.

Appellant next urges the Information against him should have been dismissed at the outset of trial, because, based upon the same set of facts, the prosecutor could elect to charge either aggravated murder under RCW 9A.32.045(7) (penalty: mandatory death) or felony-murder under RCW 9A.32.030(1)(c)(2) and (5) (penalty: life imprisonment). He claims unfettered charging discretion in effect allows the prosecutor to seek varying degrees of punishment for different persons who commit identical crimes. This, he asserts, denies equal protection of the law. Olsen v. Delmore, 48 Wash.2d 545, 550, 295 P.2d 324 (1956); State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970); U.S.Const. amend. 14, § 1, and Const. art. 1, § 12.

The first-degree felony-murder statute, in pertinent part, states:

(1) A person is guilty of murder in the first degree when:

(c) He commits or attempts to commit the crime of either . . . (2) rape in the first or second degree, . . . or (5) kidnaping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; . . .

RCW 9A.32.030(1)(c)(2) and (5).

The aggravated murder statute states:

A person is guilty of aggravated murder in the first degree when he commits murder in the first degree as defined in RCW 9A.32.030 under or accompanied by any of the following circumstances:

(7) The defendant committed the murder in the course of or in furtherance of the crime of rape or kidnaping or in immediate flight therefrom.

RCW...