State v. Hacheney

• Decision Date: 31 May 2007
• Docket Number: No. 77767-5.,77767-5.
• Citation: 160 Wn.2d 503,158 P.3d 1152
• Parties: STATE of Washington, Respondent, v. Nicholas Daniel HACHENEY, Petitioner.
• Court: Washington Supreme Court

158 P.3d 1152

160 Wn.2d 503

STATE of Washington, Respondent, v. Nicholas Daniel HACHENEY, Petitioner.

No. 77767-5.

Supreme Court of Washington, En Banc.

Argued October 24, 2006.

Decided May 31, 2007.

John L. Cross, Cross & LaCross PLLC, Port Orchard, WA, for Petitioner.

Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA, for Respondent.

Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, WA, for Amicus Curiae Wash. Ass'n of Criminal Defense Lawyers.

BRIDGE, J.

¶ 1 Dawn Hacheney's body was found badly burned after a fire destroyed part of the Hacheney home. The State eventually charged her husband, Nicholas Hacheney, with her murder. At trial, the State's experts presented evidence that Dawn was suffocated to death before the fire began. The jury found Nicholas Hacheney guilty of premeditated first degree murder. By special verdict, the jury also found that he committed the murder "in the course of" first degree arson, an aggravating factor subjecting him to a life sentence without the possibility of release. Clerk's Papers (CP) at 1362; RCW 10.95.020(11)(e). Hacheney now argues that the jury was improperly instructed on the aggravating factor and that there was insufficient evidence to show that he committed the murder in the course of arson because Dawn was dead before the fire was set. This court has held that in order for a death to have occurred in the course of a felony, there must be a causal connection such that the death was a probable consequence of that felony. State v. Golladay, 78 Wash.2d 121, 131, 470 P.2d 191 (1970), overruled on other grounds by State v. Arndt, 87 Wash.2d 374, 378, 553 P.2d 1328 (1976); State v. Diebold, 152 Wash. 68, 72, 277 P. 394 (1929). In this case, the murder was not a probable consequence of the arson. We conclude that, as a matter of law, Hacheney did not murder his wife in the course of arson.

¶ 2 Hacheney also argues that the trial judge violated his Sixth Amendment right to confrontation by allowing the jury to view videotaped depositions of three witnesses who were out of the country at the time of trial. We conclude that Hacheney did not suffer a confrontation clause violation because those witnesses were unavailable for confrontation clause purposes. We affirm in part, reverse in part, and remand for resentencing absent the aggravating factor.

I Facts and Procedural History

¶ 3 Nicholas Hacheney was one of several pastors at a large church in Bremerton, Washington. On December 25, 1997, Nicholas and Dawn Hacheney attended a Christmas party, and they returned home late in the evening. Dawn's mother reported that Dawn had not been feeling well that day and she was taking Benadryl.

¶ 4 Early the next morning, Nicholas Hacheney left to meet friends for a hunting trip. Soon after, the Hacheneys' neighbors noticed that a fire had erupted in the Hacheney home. Firefighters responded and put out the blaze, which had destroyed the bedroom. The firefighters discovered Dawn's badly burned body on the bed. They also discovered several propane canisters and an electric space heater in the bedroom.

¶ 5 When interviewed by investigators, Nicholas Hacheney reported that he and his wife had opened Christmas presents late on Christmas night, and they had left wrapping paper in front of the heater. He said that he had turned the space heater on before he left that morning. He reported that Dawn had gotten up in the middle of the night to take Benadryl and suggested that her sensitivity to the drug might have explained her failure to escape the fire. He also explained that the case of propane had been a Christmas present that he opened the night before, and he had not yet removed it from the bedroom.

¶ 6 The autopsy, completed by a forensic pathologist, revealed that Dawn did not have soot in her trachea or lungs. Tests submitted to the state toxicology lab and other labs revealed that Dawn had no carbon monoxide or cyanide in her blood, all of which suggested that she did not inhale after the fire began. She did have an elevated level of Benadryl in her blood. The autopsy report stated that Dawn suffered from pulmonary edema or fluid in her lungs, which can occur as a result of asphyxiation, suffocation, or a long list of other causes. The forensic pathologist concluded that Dawn was asphyxiated when her larynx reflexively closed as the result of a flash fire. The pathologist based his flash fire conclusion in part on the fact that there was no suspicion of foul play at the time. The original police and insurance investigations concluded that the fire and Dawn's death were accidental, though at least one investigator reported being uncomfortable with that conclusion.

¶ 7 Then in 2001, several facts came to light that caused authorities to take a second look. Sandra Glass approached investigators and reported that she had an affair with Nicholas Hacheney during the summer and fall of 1997. A couple of weeks after Dawn's death, Hacheney confessed to Glass that on Christmas night he had given Dawn some Benadryl and then lain awake until God told him to "`Take the land,'" a biblical phrase interpreted by members of his church to be an admonition to act. Report of Proceedings (RP) at 2333-34. Glass told authorities that Hacheney confessed to having held a plastic bag over Dawn's head until she stopped breathing; he then set the fire. Hacheney also told Glass that Dawn knew what was happening to her.¹ Further investigation revealed that in the few months after Dawn's death, Nicholas Hacheney developed ongoing sexual relationships with at least three additional church members.

¶ 8 In September 2001, the Kitsap County prosecutor charged Nicholas Hacheney with first degree premeditated murder and/or first degree felony murder committed in the course of, in furtherance of, or in flight from first degree arson. The prosecutor then filed an amended information elevating the premeditated murder charge to aggravated first degree murder based on two alternative aggravating circumstances. The State alleged that Hacheney committed the murder to conceal the commission of a crime and/or he committed the murder in the course of, in furtherance of, or in immediate flight from arson in the first degree.

¶ 9 Hacheney challenged whether there was probable cause to support the amended charges. The trial court agreed that there was not probable cause to charge him with felony murder, with committing the murder to conceal a crime, or with committing the murder "in furtherance of" or "in immediate flight from" arson. However, the court concluded that there was probable cause to charge Hacheney with aggravated premeditated first degree murder committed "in the course" of first degree arson. CP at 349; CP at 919 (Third Amended Information).

¶ 10 Before trial, it became apparent that three witnesses were going to be out of the country at the time of trial. Two were parishioners at Hacheney's church and the third was an electrical engineer who had consulted with Safeco Insurance as a fire investigator. All three witnesses were subpoenaed and all three notified prosecutors that they would be out of the country and unable to return for trial. All three were deposed and videotapes of their deposition testimony were shown at trial over defense objection. The videotaped depositions were redacted to delete deposition objections and testimony that had been ruled inadmissible.

¶ 11 After a lengthy trial involving several expert witnesses, the jury was instructed that it had to first determine whether Hacheney was guilty of first degree premeditated murder. If the jury found Hacheney guilty, it then had to consider the aggravating circumstance, whether the murder was committed "in the course of" arson in the first degree. CP at 1352. At the State's request and over the defendant's objection, the jury was further instructed:

To establish that the killing occurred "in the course of" another crime, there must be an intimate connection between the killing and the other crime. The killing and the other crime must be in close proximity in terms of time and distance. However, more than a mere coincidence of time and place is necessary: A causal connection must clearly be established between the two crimes.

CP at 1353.² During deliberations, the jury submitted the following question:

Would arson be an aggravating circumstance if Dawn Hacheney was [already] dead but other people were injured by the fire. For instance the insurance company, Dawn's parents and Dawn's body.

CP at 1358. The court responded, "[t]he court will not provide further instructions in response to this inquiry. Please review the instructions provided." CP at 1358. The jury also inquired:

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 [already] dead.

CP at 1360. The court responded identically to this question.

¶ 12 On December 26, 2002, the jury found Nicholas Hacheney guilty of first degree premeditated murder. By special verdict, it also found that he committed the murder in the course of arson in the first degree. Having been convicted of aggravated first degree murder, Hacheney was sentenced to life in prison without the possibility of release.

¶ 13 Hacheney appealed, raising numerous issues. State v. Hacheney, 2005 WL 1847160, at *1, 2005 Wash.App. LEXIS 1940, at *1. He argued, in part, that the evidence was insufficient to support the jury's finding that he committed murder "`in the course of'" first degree arson. Id. at *3, 2005 Wash. App. LEXIS 1940, at *8. In an unpublished opinion, the Court of Appeals held that the murder was sufficiently connected to the arson to be part of the res gestae³ of the crime, and thus, the evidence was sufficient to show that Dawn's murder was committed in the course of arson. Id. at *4, 2005 Wash. App. LEXIS, at *11 (citing State v. Brown, 132...