State v. Hoyt, 8545-0-I

• Decision Date: 18 May 1981
• Docket Number: No. 8545-0-I,8545-0-I
• Citation: 29 Wn.App. 372,628 P.2d 515
• Parties: STATE of Washington, Respondent, v. Gary J. HOYT, Appellant.
• Court: Washington Court of Appeals

Page 372

29 Wn.App. 372

628 P.2d 515

STATE of Washington, Respondent, v. Gary J. HOYT, Appellant.

No. 8545-0-I.

Court of Appeals of Washington, Division 1.

May 18, 1981.

Timothy McGarry, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Rebecca Roe, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Gary J. Hoyt was convicted of first-degree burglary and two counts of rape. He possessed a deadly weapon when he committed each crime. The appeal raises the following issues:

(1) Whether the defendant unlawfully was convicted of first-degree burglary when he also was convicted of first-degree rape.

(2) Whether his mental disorder rendered involuntary his confession and written consent to the search of his apartment.

(3) Whether the victim's out-of-court identification of the defendant should have been suppressed because she identified him from a photograph of a lineup the day after she had viewed the lineup and had identified another person as the possible rapist.

Hoyt was convicted of raping a 22-year-old Kirkland woman on the morning of January 15, 1979. When the victim answered a knock at the door, a man pushed her aside and briefly searched her residence. She either fell or was pushed to the living-room floor where he raped her and scratched her body with a knife. She did not report the incident to the police at that time.

The same man returned to the victim's home on February 11, 1979 about 5:30 p.m. As she was carrying out the garbage, he grabbed her and pushed her down the stairway. He cut the front of her body with his knife, inserted the knife and his fingers into her vagina, and then left abruptly.

The victim reported the incidents to the Kirkland police on February 15. A detective was assigned to investigate the case, and the victim assisted in composing an Identi-Kit picture.

On April 6, 1979, Hoyt entered the Kirkland Police Department and asked to speak with a detective. According to one of the detectives, Hoyt said that he had become a Christian and wished to confess his sins, including assaults on several young men and women that had occurred during the previous year and a half. When the detective assigned to investigate the rapes noticed a close resemblance between Hoyt and the composite drawing, the detective read Hoyt his rights, which Hoyt acknowledged. Hoyt also acknowledged that he wished to waive those rights and to continue speaking with the detectives.

In the lengthy conversation that followed, the defendant described the various assaults, including the two occasions when he raped the Kirkland woman. At the end of the session, he gave his written consent to search his apartment. The detective again read the defendant his rights, had him read them to himself, and received his written waiver of rights. No written statement was taken, however, because the defendant appeared tired and disoriented.

After the detectives conducted the search, they drove the defendant, with his consent, to the area of the victim's home to determine whether he could identify it. The defendant recognized the house and the accompanying stairway. He was placed under arrest when they returned to the police station. The next day, April 7, 1979, the detectives took the defendant's written statement after they had read him his rights and had received a signed waiver of rights.

On April 10, the victim returned from a 3-day business trip to Alaska and learned at midnight that she was to view a lineup the following morning. At the lineup, she became very upset when she learned that a younger girl was present, who possibly had been attacked by the same man. The victim identified the tallest person in the lineup as the possible assailant. She did not complete the form properly. The victim told her roommate on the way home that she knew she had made a mistake and by the time they reached home, she had decided to return to the police station to explain. Before she could do so, the detective assigned to her case came to her door, and she explained the problem. The following day, the victim identified Hoyt as her assailant when she viewed pictures of the previous day's lineup.

The defendant was charged with first-degree rape, first-degree burglary, and possession of a deadly weapon for the January 15 attack. He was charged with first-degree rape and possession of a deadly weapon for the February 11 attack.

1. Burglary and Rape Convictions

First, Hoyt argues that the first-degree burglary ¹ conviction "merged" into the first-degree rape ² conviction under the rationale of State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979). We disagree. Johnson held that a defendant cannot be separately convicted of any crime used to elevate a rape to the first degree "unless (the other crime) involves some injury to ... the victim ..., which is separate and distinct from and not merely incidental to the crime of which it forms an element." State v. Johnson, supra at 680, 600 P.2d 1249. The court affirmed Johnson's first-degree rape convictions but vacated the assault and kidnapping convictions because those crimes are elements of first-degree rape and because the victims had suffered no injury separate and distinct from the rape.

RCW chapter 9A.44 provides for different degrees of rape. The chapter has been construed as exhibiting a legislative intent not to punish separately those crimes incident to first-degree rape when those crimes did not have an independent purpose or effect. State v. Johnson, supra at 676, 600 P.2d 1249.

In Johnson, the opinion noted that the existence of the burglary anti-merger statute is evidence that the legislature had considered whether additional punishment should be imposed for a crime incidental to another offense. RCW 9A.52.050 provides:

Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.

The court said:

If (RCW 9A.52.050) is read with RCW 9A.52.020 and .030, defining burglary in the first and second degrees, it will be seen that, while subsection (1) of .020 includes assault as an element, subsection (1) of .030 involves no other offense. Both, however, have as an element the intent to commit another crime. It would appear, therefore, that RCW 9A.52.050 has reference to such other crimes, rather than to the assault which is an element of first-degree burglary. From the fact that the legislature found this provision necessary, it can be inferred that the legislative assumption was that without it, a question would arise whether such crimes could be punished. If this was the legislative thought with respect to crimes which clearly would not involve multiple punishments, it is not unreasonable to conclude that it was taken for granted that such punishments would be avoided under other sections of the code.

(Footnotes omitted.) State v. Johnson, supra at 677, 600 P.2d 1249.

The burglary anti-merger statute controls. We uphold both the first-degree rape and first-degree burglary convictions. Unlike Johnson, where legislative intent was inferred, see State v. Johnson, supra at 676-77, 600 P.2d 1249, the anti- merger statute is an express statement that the legislature intended to punish separately any other crime committed during the course of a burglary.

In addition, the defendant contends that his conviction of first-degree rape and first-degree burglary constitutes double jeopardy because both offenses stemmed from the same incident. The test for whether conviction of two different offenses for the same incident constitutes double jeopardy is set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

The "elements of the crimes" test announced in State v. Roybal, 82 Wash.2d 577, 582-83, 512 P.2d 718 (1973), is the same as that enunciated in Blockburger. State v. Swindell, 93 Wash.2d 192, 195, 607 P.2d 852 (1980).

The same evidence will not convict a defendant of both first-degree rape and first-degree burglary. Each crime requires proof of a fact that the other does not: first-degree rape requires sexual penetration while first-degree burglary requires unlawful entry or presence in a dwelling. RCW 9A.44.040; .52.020. The trial court properly refused to give the defendant's requested jury instructions.

2. Confession and Consent to Search

Second, Hoyt argues that his confession and the physical evidence seized pursuant to his written consent to search his apartment should have been suppressed as evidence at trial. He claims that the confession and consent were not voluntary because he was suffering from a mental disorder.

Written findings and conclusions were not entered following the suppression hearing. See CrR 3.5(c) (confession); CrR 3.6 (physical evidence). The Supreme Court "has recognized both by rule and decision that knowledge of the basis for a trial court's ruling or decision is often essential to enable it ... properly (to) dispose of an appeal." State v. Agee, 89 Wash.2d 416, 420, 573 P.2d 355 (1977). Here, we do have the guidance of the oral opinion of the trial court and the testimony of the witnesses at the hearing. Moreover, "when CrR 3.5 has not been observed the appellate court may examine the record and make its own determination of voluntariness." State v. Vickers, 24 Wash.App. 843, 846, 604 P.2d 997 (1979); see State v. Mustain, 21 Wash.App. 39, 42-43, 584 P.2d 405 (1978).

The record does not reveal, nor does the defendant contend, that the confession and consent to search were the result of police misconduct. He claims only that his mental disorder rendered his confession...