State v. Hacheney, No. 29965-8-II (WA 8/3/2005), 29965-8-II
| Decision Date | 03 August 2005 |
| Docket Number | No. 29965-8-II,29965-8-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. NICHOLAS DANIEL HACHENEY, Appellant. |
Appeal from Superior Court of Kitsap County. Docket No: 01-1-01311-2. Judgment or order under review. Date filed: 02/07/2003. Judge signing: Hon. Anna M Laurie.
Counsel for Appellant/Cross-Respondent, John L. Cross, Ness & Associates, 420 Cline Ave, Port Orchard, WA 98366-4698.
Thomas E. Jr Weaver, Attorney at Law, PO Box 1056, Bremerton, WA 98337-0221.
Counsel for Respondent/Cross-Appellant, Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
In this appeal from a conviction for aggravated premeditated first degree murder committed in the course of an arson, Nicholas Hacheney raises 29 issues. We affirm.
On December 26, 1997, Nicholas and Dawn Hacheney's house burned. A firefighter discovered Dawn, deceased, on a bed in the debris. Several propane canisters and an electric space heater were found near the bed. For the next couple of years, the fire marshal, medical examiner, and other investigators thought both the fire and Dawn's death were accidental. In 2001, however, they came to suspect foul play.
On December 29, 1997, Dr. Emmanuel Lacsina performed an autopsy. He found that although Dawn did not have soot in her trachea or lungs, she did have pulmonary edema, which can result from congestive heart failure, drowning, a drug overdose, head injury, or suffocation.
He initially thought that she had been asphyxiated when, during a flash fire, her larynx had spasmed reflexively.
During the autopsy, Dr. Lacsina collected blood and lung samples that were later tested by Egle Weiss, an employee of the state toxicology laboratory. Weiss performed the tests about ten days after the fire, at a time when she and the investigators were thinking that the fire had been accidental. She found little carbon monoxide and no propane in the lungs, no carbon monoxide in the blood, and an elevated level of Benadryl. Weiss died unexpectedly before trial.
Like the others, John Rappleye, a fire investigator for the Bremerton Fire Department, initially thought the fire was accidental. He also noted that some of the propane canisters had `vented' during the fire,1 and that the area around the canisters had burned more heavily than other areas in the room.
On January 26, 1998, Hacheney was interviewed by Rappleye and Detective Daniel Trudeau. Hacheney said that he and Dawn had opened Christmas presents in the bedroom, that they had strewn wrapping paper around the room, and that the bedroom space heater was the only source of heat in the house. He had been duck hunting when the fire occurred.
During the summer and fall of 1997, Hacheney was having an affair with a woman named Sandra Glass. During the spring of 2001, Glass mentioned to her then-boyfriend that while she and Hacheney had been alone in the basement of their church, Hacheney had admitted giving Dawn some Benadryl and lying awake until God told him, `{G}o take something that you want.'2 He held a plastic bag over Dawn's head until she was no longer breathing, set the fire, and left.
In September 2001, the State charged Hacheney with first degree premeditated murder. In February 2002, the State amended its charge to allege that Hacheney, on or about the 26th day of December, 1997, with a premeditated intent to cause the death of another person, did cause the death of such person: to-wit: Dawn M. Hacheney, and furthermore, the defendant committed the murder in the course of the crime and/or attempted crime of arson in the first degree; contrary to {RCW} 9A.32.030(1)(a) and RCW 10.95.020(11)(e).{3}
In February and March 2002, the trial court held pretrial hearings to determine whether certain evidence was admissible under ER 404(b). The State offered Hacheney's alleged statements, made before the fire, that he could not wait to go to heaven because then he could have sex with whomever he wanted. The State also offered that shortly after the fire, Hacheney had begun sexual relationships with women named Latsbaugh, Anderson, and Matheson; and that at Dawn's funeral, he had given Anderson a hug of questionable propriety. Hacheney objected, but the trial court admitted. Later, at trial, the court gave the following limiting instruction:
Evidence has been introduced in this case on the subject of the Defendant's relationships with several women for the limited purposes of whether the Defendant acted with motive, intent or premeditation, or as evidence of consciousness of guilt. You must not consider this evidence for any other purpose.{4}
On June 28, 2002, over Hacheney's objection, the trial court granted the State's request to take depositions from three witnesses who were planning to be in other countries at the time of trial. Two of those witnesses, Michael and Julia DeLashmutt, were moving to Scotland for three years so Michael could obtain an advanced degree. The third, David Olson, was moving for at least six months to a rural area in Bolivia. Hacheney's father asked to attend the depositions, but the trial court denied his request.
On October 1, 2002, the court held a hearing on the admissibility of testimony from Drs. Logan, Lacsina, and Selove. At the end of the hearing, the trial court indicated it would admit the offered testimony.
On October 16, 2002, a jury trial began. During voir dire, the trial court permitted the prosecutor to ask potential jurors, over Hacheney's objections, whether they could convict on circumstantial evidence if otherwise convinced that the State had met its burden of proving the case beyond a reasonable doubt.
Drs. Lacsina, Selove, and Logan all testified. Based in part on the lab report in which Weiss had described the results of her tests, Lacsina and Selove opined that Dawn had died from suffocation prior to the fire. Dr. Logan testified to being Weiss' supervisor in late 1997 and to the lab's general procedures for handling and testing blood and tissue samples. Over Hacheney's objections, the trial court admitted Exhibit 323, the report in which Weiss described her test results. No one has included Exhibit 323 in the record on appeal.
On November 18, 2002, the State informed the trial court that it had identified a new witness, Eduard Krueger, a retired employee of the manufacturer of the propane canisters found near Dawn's body. Until about a week before trial, the parties had thought the canisters had been manufactured by Coleman. A week before trial, the State had discovered that the canisters had actually been manufactured by Garrett Industries. Active Garrett employees proved reluctant to testify, so the prosecutor found Krueger, a retired Garrett employee. Hacheney objected to the late disclosure and asked that Krueger's testimony be excluded. The trial court offered a continuance so Hacheney could prepare to meet Krueger's testimony. Hacheney declined the continuance, the trial court overruled his objection, and Krueger testified.
The jury received the case on December 26, 2002. During deliberations, it submitted three written questions to the court. (1) (2) `Does malice have to be specifically w/ intent to injure another person.' (3) `For Arson to be an aggravating circumstance did the fire have to result in the injury to a living person or only related to the murder, assuming Dawn Hacheney was all ready dead.'5 After hearing from the parties, the court responded in writing that it 6
Also on December 26, 2002, the jury found Hacheney guilty of first degree premeditated murder and answered `yes' to a special interrogatory asking whether Hacheney had killed in the course of first degree arson. The trial court imposed a sentence of life without parole, and this appeal followed.
Citing State v. Golladay,7 State v. Diebold,8 State v. Dudrey,9 State v. Leech,10 and State v. Brown,11 Hacheney claims that the evidence is insufficient to support the jury's finding that he committed the murder `in the course of' first degree arson. This is true, he says, because the evidence shows that Dawn was dead before the fire started. The State responds that Washington law requires only an `intimate connection' between the arson and the murder, and that such a connection exists here.
RCW 10.95.020(11)(e) states 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) . . . and . .. {t}he murder was committed in the course of . . . {a}rson in the first degree.
`To establish that a killing occurred in the course of, in furtherance of, or in immediate flight from a felony, there must be an `intimate connection' between the killing and the felony.'12 An `intimate connection' between a killing and a felony charged as an aggravating circumstance is established when the killing is `part of the `res gestae' of the felony.'13 A killing and an aggravating felony are part of the same res gestae where the killing occurs in `close proximity in terms of time and distance,'14 and there is a `causal connection' clearly established between the killing and the felony.15
In Brown, the defendant kidnapped, robbed, and raped a woman for two days before killing her. On appeal, he argued that the evidence was insufficient to prove that he had committed first degree murder `in furtherance of' kidnap, rape, or robbery because the murder had occurred `hours' after the other felonies.16 Declining to read `in furtherance of' literally, and `look{ing} instead to whether the killing was part of the res gestae...
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