State v. Haq

• Decision Date: 30 January 2012
• Docket Number: No. 64839-0-I,64839-0-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. NAVEED AFZAL HAQ, Appellant.

STATE OF WASHINGTON, Respondent, v. NAVEED AFZAL HAQ, Appellant.

No. 64839-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: January 30, 2012

PUBLISHED

Cox, J. — Naveed Haq appeals his judgment and exceptional sentences for conviction of one count of first degree aggravated murder, three counts of first degree attempted murder, two counts of second degree attempted murder, and one count each of unlawful imprisonment and malicious harassment. Though Haq alleges numerous errors in his trial below, we hold there were none and affirm.

RCWs 9A.12.010 and 10.77.030(2) specify that an insanity defense must be proven by a preponderance of the evidence. This latter statute places that burden of proof on the defense. Haq fails in his burden to prove beyond a reasonable doubt that these statutes are unconstitutional. Additionally, the State did not violate any constitutional or statutory right of Haq by recording his jailtelephone calls and offering those recordings for admission into evidence at trial. Nor did the trial court abuse its discretion in either its evidentiary or discovery rulings. The trial court also properly instructed the jury regarding the aggravated murder charge. The evidence was sufficient to convict Haq of the charge of malicious harassment. Further, because we hold that there was no error below, there was no cumulative error.

Naveed Haq entered the offices of the Jewish Federation of Greater Seattle late in the afternoon of July 27, 2006. He was armed with two pistols. Once inside, he demanded to speak with a manager. When advised that Haq was armed, the manager alerted another to call 911 before she came out to meet him in the reception area.

Shortly thereafter, Haq began shooting. He killed one woman and seriously injured five other women.

Later, Haq spoke with a 911 operator who responded to an emergency call from the Federation's offices. He demanded to be put in contact with the media to "make a point" about America's foreign policy in Iraq and Israel. After several minutes of conversation, Haq specifically demanded to be connected to CNN, and he was told this demand was impossible. He then surrendered to the police response team outside the building.

The State charged him with aggravated first degree murder, two counts of attempted second degree murder, three counts of attempted first degree murder, unlawful imprisonment, and malicious harassment. Haq raised defenses ofinsanity and diminished capacity.

Before the incident at the Jewish Federation, doctors diagnosed and treated Haq for bipolar disorder with psychotic features. Prior to trial, pursuant to Superior Court Criminal Rule (CrR) 4.7 and RCW 10.77.060(2), the court ordered Haq to submit to a mental-health examination by the State's mental health expert. This expert testified at trial.

While awaiting trial, Haq was kept in solitary confinement in the King County Jail. He was allowed one hour each day to use the telephone. The jail recorded conversations between Haq and his parents, who live in Eastern Washington. In accordance with jail policies, written notice of the recording of telephone calls was provided to Haq and posted next to each telephone. Additionally, before every phone call, Haq's parents received audio notice that the conversation would be recorded.

Haq's first trial in 2008 ended in a mistrial due to the jury's inability to reach a verdict. On retrial in 2009, the trial court, over defense objection, admitted into evidence recordings of some of the jail telephone conversations between Haq and his parents.

The jury convicted Haq of all counts as charged. The court sentenced Haq to life in prison for the first degree aggravated murder conviction and imposed further incarceration time for the other convictions.

Haq appeals.

CONSTITUTIONAL CLAIMS

Burden of Proof for Insanity Defense

Haq claims that RCW 9A.12.010 and RCW 10.77.030 are unconstitutional. Specifically, he claims that the jury trial right of article I, sections 22 and 23, carry with them the right to require the State to prove beyond a reasonable doubt that an accused is sane.

We start with the well-established principle that a statute is presumed constitutional, and the party challenging it has the burden to prove beyond a reasonable doubt that it is unconstitutional.¹ Haq fails in his burden to prove beyond a reasonable doubt that either of these statutes is unconstitutional.

RCW 10.77.030(2) states that "[i]nsanity is a defense which the defendant must establish by a preponderance of the evidence." Correspondingly, RCW 9A.12.010 states:

To establish the defense of insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) He [or she] was unable to perceive the nature and quality of the act with which he [or she] is charged; or

(b) He [or she] was unable to tell right from wrong with reference to the particular act charged.

(2) The defense of insanity must be established by a preponderance of the evidence.²

These statutes clearly provide that insanity is an affirmative defense that must be proven by a preponderance of the evidence. RCW 10.77.030(2) placesthe burden of proving this affirmative defense on the defendant. Thus, the question before us is whether Haq has proven beyond a reasonable doubt that these presumptively constitutional statutes are unconstitutional.

Haq bases his argument on article 1, sections 21 and 22. Both concern the right to a jury trial under the Washington Constitution.

Article 1, section 21 provides that the "right of trial by jury shall remain inviolate . . . ." Under article 1, section 22:

[i]n criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases.

We note that nowhere among the enumerated rights of section 22 is there any mention of either the quantum of proof required to show insanity or who bears that burden in a criminal prosecution.

State supreme court precedent makes clear that the rights provided for in the Washington Constitution are to be interpreted as they were at common law in the territory at the time of adoption of the state constitution in 1889.³ Thus, we examine relevant authorities to determine whether the jury trial right in 1889 included a requirement that the State prove beyond a reasonable doubt that an accused was sane.

Haq does not cite any statutory authority that existed in 1889 to supporthis claim, nor was he able to state any during oral argument. We thus assume there was none at the time of the adoption of our state constitution.

Of the cases close to the time of statehood, two are particularly relevant in addressing this question of whether the government was required to prove the sanity of the accused. Likewise, these cases are also important in addressing whether proof beyond a reasonable doubt was the required quantum of proof.

In 1904, 15 years after the adoption of the constitution, the supreme court decided State v. Clark.⁴ There, a jury convicted Clark of first degree murder, and a court sentenced him to death.⁵_

Clark and the female victim lived together in a house in Olympia.⁶ A witness testified that early one morning she was awakened by Clark calling her in a muffled voice from the room where he and the victim slept.⁷ The witness went to the door of the room, but the door was bolted shut.⁸ After a short time, Clark succeeded in unbolting and opening the door.⁹ When he did so, he fell and struck his head against the door jamb, apparently rendering him unconscious.¹⁰ Clark's hands, face, and clothes were covered in blood.¹¹ Inside the room, the victim was lying on the bed.¹² Her forehead was crushed and along gash cut across her throat.¹³

At trial, Clark asserted an insanity defense.¹⁴ He also testified in his defense.¹⁵ He related his movements the previous day and evening before the victim's death.¹⁶ He claimed not to recall that another trial witness had come into the bedroom the previous evening while the victim appeared to be alive.¹⁷ He also claimed that he remembered someone "poking something down [his] throat" and that he "came to and found [himself] lying in a strange bed, just like a person would wake up out of a dream."¹⁸

On appeal following his conviction and sentence, he raised several claims of instructional error. Among them was the claim that the trial court erred by giving the jury the following instruction:

You are instructed that every man is presumed to be sane, and to intend the natural and usual consequences of his own acts. As the law presumes a man to be sane until the contrary is shown, I charge you that the burden of proving insanity as a defense to a crime is upon the defendant to establish by a preponderance of the evidence, and unless insanity is established by a fair preponderance of the evidence the presumption of sanity must prevail.¹⁹

In deciding whether the instruction was legally correct, the supreme court surveyed the question of the quantum of proof required to establish insanity among the courts of many other states and the United States Supreme Court.After duly considering other jurisdictions' conflicting authorities over the quantum of proof needed to establish the defense of insanity, the court held:

[i]t is no injustice to a defendant to presume that [the defendant] is sane, and to require him to prove the unnatural condition of mind, which he alleges as a defense for a crime admitted . . . . Notwithstanding the weighty reasons advanced by the learned courts in the

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