State v. Guloy
| Decision Date | 05 September 1985 |
| Docket Number | No. 48248-9,48248-9 |
| Parties | The STATE of Washington, Respondent, v. Pompeyo Benito GULOY, Jr., et al., Appellants. |
| Court | Washington Supreme Court |
Washington Appellate Defender Ass'n, Raymond H. Thoenig, James E. Lobsenz, Mark W. Muenster, James V. Grubb, Seattle, for appellants.
Norman K. Maleng, King County Pros. Atty., Deborah J. Phillips, Sr. Appellate Atty., Roland Nikles, Deputy, Seattle, for respondent.
We affirm the Ben Guloy and Jim Ramil convictions of first degree aggravated murder.
On June 1, 1981, two members of the Cannery Workers Union, Gene Viernes and Silme Domingo, were shot at the union hall. Viernes was shot through the heart and died immediately. Domingo, despite being shot four times, managed to stumble out of the union hall and call for help. A bus driver heard Domingo's cries and called Medic I. Huckins, a firefighter responding to the call, asked Domingo whether he knew who shot him. Domingo stated that he was shot by two Filipinos, Jim Ramil and Ben Guloy. Domingo repeated the names several times and even told another firefighter that Ramil's name had ended in an "l" and not an "o". On his deathbed in the hospital, Domingo again identified Ramil and Guloy as his assailants.
Rachael Kennedy saw Guloy, Tony Dictado, and Boy Peli (all belonging to a gang known as the Tulisan) in an alley that was next to the union hall an hour before the murders occurred. And Jaime Malebo testified that, immediately after seeing Domingo outside the union hall holding his stomach, he saw Ramil and Guloy walking in an alley that is next to the hall. Because Malebo knew them, he intended to get their attention. He hesitated, however, because both defendants were walking exceedingly fast.
The State presented evidence that defendants belonged to a group known as the Tulisan and that the Tulisan was involved in illegal gambling. The State's argument was that the murders of Viernes and Domingo were committed in order to advance the gambling conspiracy. The State showed that Tony Dictado 1 was the leader of the gang and that Dictado wanted to send two members of the gang to Alaska in order to gain control of gambling in that state. Because of new dispatch rules imposed by reformers in the cannery union, Dictado could not get members of Tulisan dispatched. Viernes and Domingo were members of the reform movement. Furthermore, Viernes was directly responsible for preventing Tulisan members from going to Alaska, as he was the dispatcher for the union.
The jury found defendants guilty of first degree aggravated murder. They now appeal to this court. Most of the issues presented by the defendants do not go to the question of whether defendants are guilty of first degree murder but rather whether such murders were aggravated. Four issues concern the aggravated first degree murder statute and its requirements; five question evidentiary and constitutional matters concerning admitted conspiracy evidence. The remaining claimed errors involve questions of speedy trial, expert testimony, jury sequestration, and jury instructions.
"Aggravated" First Degree Murder
Defendants argue that the trial court committed four errors in its application of the aggravated first degree murder statute, RCW 10.95.020. The statute provides in pertinent part:
A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:
* * *
(8) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
Defendants claim that the trial court interpreted the statute to require that murderers, not victims, be linked by a "common scheme or plan". If the trial court had interpreted the statute as defendants contend, then it would have erred. In State v. Grisby, 97 Wash.2d 493, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983), we held that "common scheme or plan" involves a nexus between the killings and not the killers. Here, the proof of conspiracy, while incidentally linking the defendants together, showed that there was a common scheme or plan involved in the murder of the victims. The victims were part of a union reform movement that was hindering the conspirators' efforts to send members to Alaska to further the illegal gambling conspiracy. In order to facilitate the sending of Tulisan members to Alaska, the conspirators believed it was essential to eliminate Viernes and Domingo, so they arranged their murders.
"Common Scheme and Plan"
Defendants next argue that the trial court erred by not defining the phrase "common scheme or plan". If an element of a crime is not a matter of common understanding, then the trial court must define it for the jury. State v. Davis, 27 Wash.App. 498, 618 P.2d 1034 (1980). Commonly understood words require no definition. Seattle v. Richard Bockman Land Corp., 8 Wash.App. 214, 505 P.2d 168 (1973). Whether words used in an instruction require definition is a matter of judgment to be exercised by the trial judge. State v. Schimmelpfennig, 92 Wash.2d 95, 594 P.2d 442 (1979).
While the trial court did not explicitly define the phrase, one of the instructions given by the court made it clear that the common scheme or plan requirement applied to the victims. In instruction 11, the court informed the jury that in order to find a defendant guilty, the jury must find that "both Gene Allen Viernes and Silme Domingo died ... as a result of a common scheme or plan; ..." (Italics ours.) Clerk's Papers, at 28. Even had the trial court not given such instruction, it would not have abused its discretion as the phrase "common scheme or plan" are words of common understanding. These words are found in daily use and are not technical nor were they used in any special legal sense.
Defendants further contend that the evidence was insufficient to show a common scheme or plan. They argue that there was no original plan to kill Domingo, but that he was killed to protect the identity of the defendants. The standard for determining whether the evidence was sufficient is whether after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980).
There was evidence presented from which the jury could conclude that the murders of Viernes and Domingo were part of a common scheme or plan. They were both part of the reform movement in the union that was hindering the gambling conspiracy. They were also members of the executive board of the union that determined the union dispatch procedures which prevented Tulisan from sending members to Alaska. There was testimony that both Domingo and Viernes reviewed the dispatch procedures with the union's attorney. Domingo was a cofounder of the Rank and File Committee in the union, whose purpose was to reform certain old practices in the union and organize opposition to eroding union management. Finally, Ramil had called shortly before the murders took place and talked to Domingo. Thus, Ramil had good reason to suspect that Domingo would be present when Viernes would be killed. We hold that there was substantial evidence for any rational trier of fact to find that a common scheme or plan existed to kill both Viernes and Domingo.
Defendants' final argument regarding the aggravated murder statute deals with the alternative method, under RCW 10.95.020(8), of finding an aggravating circumstance. RCW 10.95.020(8) provides that an aggravating circumstance can be proved by showing that the murders were part of a common scheme or plan or the result of a single act of the person. Defendants assert that the trial court's instruction on what constitutes a single act was incorrect. The trial court instructed the jury as follows:
A "single act" means that the crimes alleged in Counts I and II are alleged to be part of a continuous transaction, and set in motion by a single unintermittent force.
Clerk's Papers, at 26. Defendants argue that this definition is too broad--that a "single act" is just that, a single act, and not a continuous transaction. They allege that multiple murders caused by a bomb or arson would come within the definition of a single act but not multiple murders committed by a person using a gun unless one bullet killed more than one person.
We have already read the term "single act" broad enough to encompass multiple murders committed by a lone gunman. In State v. Kincaid, 103 Wash.2d 304, 692 P.2d 823 (1985), the defendant first killed his estranged wife's sister with a shotgun and then moments later killed his estranged wife. We held that both murders were the result of a single act. A reading of the aggravated murder statute supports our interpretation. Subsection (8) of RCW 10.95.020 is the only section that takes into account the murder of more than one victim. Multiple murders are apt to occur in one of two ways. First, the murderer can have a plan to kill more than one person. Thus, multiple murders can be an aggravating circumstance even though not linked by time. Second, even though there is no plan involved, a murderer can kill more than one person in the course of a very short period of time involving one continuous act, i.e., the present case.
We hold that the trial court's instruction on what constitutes a single act was correct. There is no valid reason for characterizing multiple murders that occur by bombing differently than those caused by consecutive gun shots.
Defendants raise a number of issues pertaining to hearsay statements that were admitted under the coconspirator exception to the rules of evidence, ER 801(d)(2)(v). First, they note...
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