State v. Haynes
| Decision Date | 20 January 1977 |
| Docket Number | No. 1806--II,1806--II |
| Citation | 559 P.2d 583,16 Wn.App. 778 |
| Parties | The STATE of Washington, Respondent, v. James D. HAYNES, Appellant. |
| Court | Washington Court of Appeals |
Jerome L. Buzzard, Buzzard & Glenn, Olympia, for appellant.
Craig Ritchie, Prosecuting Atty., Clallam County, Port Angeles, for respondent.
James D. Haynes appeals his jury convictions for second-degree murder and second-degree assault. Defendant primarily challenges the trial court's refusal to grant a change of venue and the admissibility of certain statements he made to the police. Other assignments of error relate to the State's destruction of evidence damaging to the credibility of a prosecution witness; to the alleged inadequacy of defendant's trial counsel; and to the admissibility of photographs of the death scene and other evidence. We affirm.
Defendant's marriage had foundered, and dissolution proceedings had begun. He departed Washington for a visit in California, expecting to return late Sunday, October 6, 1974 or early the next day. Instead he returned in his motor home unexpectedly at about 11:30 p.m. on October 5, to find the family home in Agnew full of teenagers attending a birthday party for his 16-year-old stepdaughter, Teresa Goin. Defendant smelled marijuana and could see beer and whiskey bottles in the house; Thomas Suave, Mrs. Haynes' boy friend, was sitting close to her on the couch. Disgusted and angry, Haynes ordered the revelers out of
the house. People began to leave, including Suave, who was seen to get in his car and drive away. Teresa saw her stepfather pull a gun from his trousers and shoot it. General panic ensued. Others heard shots, and one young man, Scott Percival, was seriously wounded. Haynes' wife, Joyce, was found dead of multiple .38 caliber gunshot wounds in a neighbor's yard, where the neighbor saw defendant running. Haynes' testimony was that Joyce pulled a .38 caliber revolver from a nightstand, they struggled and he gained possession of the gun, it discharged into the wall or ceiling, and he followed her out of the house. Outside, he claimed to have exchanged shots with a shadowy figure who got away. Scott Percival saw Haynes with his arm outstretched and an object in his hand, but Teresa was the only one who saw defendant or anyone else with a gun. No gun was found, although the surrounding area was searched thoroughly.
The crime occurred in Clallam County, a rural area served largely by news media from Port Angeles, some 12 miles from Agnew. The homicide was a major news event in the county, and was given prominent play by the local press. The Port Angeles Daily News carried front page articles on the story every publication day from October 7 to October 13. Defendant was initially released on bail. Then on October 10, Superior Court Judge Chamberlin, who was temporarily disabled, conducted a bail revocation hearing in his home.
Defendant alleges that several occurrences at the hearing illustrate why venue should have been removed to another county. The judge, in explaining to the citizens present why he had initially authorized bail for Haynes under CrR 3.2, said 'perhaps it is alien to you or foreign to you to realize that somebody that kills another person can be placed on bail.' The judge asked a citizen, sworn in order to give his reasons for seeking bail revocation, 'What information do you have, other than the fact that this man has committed a crime?' In addition, the Daily News quoted Chamberlin said the defendant's aggressive tendencies appear to go beyond the October 5 incident, because on two other occasions Haynes released his aggressive impulses with firearms. 1
the judge as saying 'even though he is charged with a homicide, there is nothing to indicate he is going to repeat;' and,
Defendant argues these comments demonstrate an improper assumption of guilt by the judge who was later to deny the motion for change of venue (but not to preside at trial), and that their impact, when reported in the press, had to have poisoned the possibility of obtaining an unbiased jury from Clallam County.
Haynes cites other examples of activities which he urges were given such wide publicity as to warrant a change of venue. At the bail revocation proceedings, the prosecutor presented the judge with petitions from citizens urging revocation. Dozens of citizens telephoned law enforcement agencies to protest defendant's release on bail and many were quoted in the newspaper voicing their displeasure at his release. The schools released pupils to search for the murder weapon. A front page newspaper account featured a picture of policemen with dogs searching for the suspect.
The sum of defendant's arguments is that the pretrial atmosphere relating to his case was so tainted by the prominent newspaper coverageThe citizen complaints and involvement, and the comments of the judge and law enforcement authorities, that he could not have obtained an impartial jury.
Our traditional role in reviewing a venue decision is defined by State v. Malone, 75 Wash.2d 612, 614, 452 P.2d 963, 964 (1969):
A motion for a change of venue in a criminal case is directed to the sound discretion of the trial court, and its decision with respect thereto will not be disturbed on appeal, absent a convincing showing of an abuse of discretion.
See CrR 5.2(b). However, where the circumstances involve a probability that a defendant's right to an impartial jury will be prejudiced, due process is violated by a failure to change venue even without a showing of actual prejudice. State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043 (1971). Therefore, we must independently review the record to determine whether there was a reasonable probability of juror prejudice at the time of trial. State v. Stiltner, supra; State v. Wilson, 16 Wash.App. 348, 555 P.2d 1375 (1976); State v. Warwick, 16 Wash.App. 205, 555 P.2d 1386 (1976).
The factors commonly utilized in reviewing a venue decision based on pretrial publicity are listed in State v. Crudup, 11 Wash.App. 583, 587, 524 P.2d 479, 482 (1974):
(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.
Applying these criteria, we find (1) The news account of this homicide were responsible and 'contained factually accurate material of a relatively nonsensational nature.' State v. Wilson, supra 16 Wash.App. at 354, 555 P.2d at 1379. (2) and (3) Press coverage was extensive at first-- including front page play in the Daily News for a week following the crime--but was virtually nonexistent between October 13, 1974, and the trial in February 1975. (4), (5), and (6) The voir dire was conducted carefully and competently, the defense used 9 peremptory challenges and several others for cause, and of those 7 jurors who said they had read about the crime, all declared they could nevertheless be impartial and decide the case on the basis of the evidence. (7) Although news accounts quoted statements of the pretrial judge, prosecutor It is axiomatic that courts in largely rural counties should give careful consideration to a change in venue for an unusually notorious crime such as a homicide, and should not hesitate to transfer the cause for trial in a more neutral environment if it is apparent the local atmosphere has become charged beyond assurance of an impartial jury. In this case, however, no probability of prejudice is apparent and, consequently, there was no abuse of discretion in the retention of venue in Clallam County.
and police officials, there is no suggestion or indication they attempted to 'leak' stories to the press or in any way tried to intensify or manipulate the press coverage to the prejudice of defendant. Judge Chamberlin's statements in the bail revocation hearing merely reflect an attempt to mollify citizen concern and his awareness of the premise underlying pretrial release concerns, I.e., that the prosecution may demonstrate that the accused, although presumed innocent, does offer some risk of flight or danger from which society is entitled to protection. See CrR 3.2. There is no affirmative indication in the record that the judge's reported comments influenced any juror. (8) The charge of first-degree murder, of course, warranted particular caution in assuring an impartial jury, which we are convinced was accomplished in this case. (9) Finally, the jury pool was drawn from the whole of Clallam County, and at least three of the panel selected were from towns many miles distant from Port Angeles and had not read of the crime. This jury represented a fairly good geographic cross-section of the county.
Defendant challenges the admissibility of statements attributed to him by Deputy Terry Roth at trial. Relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as applied in State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974), Haynes argues that police questioning of him should have stopped when he asked to see his attorney, and that the admission at trial of the statements he made thereafter is reversible error.
Defendant's statements in issue were first recounted by Deputy Roth at a CrR 3.5 hearing, where he described them as largely spontaneous and voluntary, and the court so found. As the following testimony by Roth at trial makes clear, however,...
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