State v. Hummel, 64134–4–I.

• Decision Date: 03 January 2012
• Docket Number: No. 64134–4–I.,64134–4–I.
• Citation: 266 P.3d 269,165 Wash.App. 749
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Bruce HUMMEL, Appellant.

165 Wash.App. 749

266 P.3d 269

STATE of Washington, Respondent,

v.Bruce HUMMEL, Appellant.

No. 64134–4–I.

Court of Appeals of Washington, Division 1.

Jan. 3, 2012.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

David S. McEachran, Kimberly A. Thulin, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.

SPEARMAN, J.

[165 Wash.App. 754] ¶ 1 A jury convicted Bruce Hummel of the premeditated murder of his wife Alice. The main issue in this appeal is whether Hummel's statements were properly admitted under the corpus delicti rule. That rule requires the State to produce sufficient evidence to establish the corpus delicti of the charged crime before a defendant's statements may be admitted into evidence. The corpus delicti of a homicide case is proved by evidence, independent of a defendant's statements, establishing the fact of death and a causal connection between the death and a criminal act. We conclude that there was sufficient independent evidence to establish the corpus delicti and that Hummel's statements were properly admitted into evidence. We reject Hummel's contention that the conviction should be reversed and the charge dismissed.

¶ 2 Hummel's argument that his public trial rights were violated, however, is well taken. The trial court here questioned a number of jurors in chambers without first weighing the factors set forth in State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995). The court did not engage in any meaningful review or balancing of the defendant's right to an impartial jury versus public trial rights. As such, we are constrained by the Supreme Court's opinion in State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009) to reverse Hummel's convictions and remand for a new trial. We also address additional issues that may arise on remand.

¶ 3 Reversed and remanded for further proceedings.

FACTS

¶ 4 At the time Bruce Hummel's wife Alice disappeared in 1990, their youngest daughter, Shanalyn, was twelve years old, and Hummel had been molesting her for years. Hummel forced Shanalyn to help him masturbate. Hummel tried to force Shanalyn to perform oral sex. Hummel would drive to remote areas with Shanalyn to molest her.

¶ 5 Shanalyn talked with her mother every day. Alice was apparently suspicious about possible molestation, because she twice asked Shanalyn if anything “inappropriate” had happened with Hummel. Shanalyn initially did not disclose the abuse, but finally told her mother about the molestation a few days before her birthday. According to Shanalyn, her mother was “upset” at the news of the molestation. Shanalyn believed her mother would take action.

¶ 6 Just a couple of days after Shanalyn told Alice about the abuse, however, Alice disappeared. On that day, Shanalyn came home from school and only her father was there. Alice had never mentioned to Shanalyn that she was leaving, and Shanalyn did not see her pack any bags. In fact, Alice left behind her personal belongings, including some of her medication, purse, wallet, identification, and bank cards. Additionally, Alice had made special plans to attend a ballet with Shanalyn for Shanalyn's birthday. Before she vanished, Alice never gave any indication she would miss Shanalyn's birthday or the ballet performance.

¶ 7 After Alice disappeared, Shanalyn helped Hummel pack her mother's purse, clothes, makeup, medication, and other personal items, allegedly to send to her mother, who Hummel indicated had secured a new job in California. Hummel never sent the items, but instead sold them at a garage sale later that year. Likewise, Shanalyn's brother Sean saw Hummel pack a suitcase and boxes with his mother's belongings purportedly to be forwarded. Sean, however, found these boxes and the suitcase hidden in Hummel's basement months later. Hummel told many stories over the years about Alice's location. He initially said Alice had accepted a job in California, but he later claimed she had received a promotion and was working in Texas.

¶ 8 Shanalyn never saw her mother again. She never received a telephone call from her mother. Shanalyn did receive typewritten letters purportedly from her mother, including one letter saying her mother had met a new man who had no interest in children. But to Shanalyn, those letters did not read as if they were written by her mother. A forensic scientist who examined the signature on the various pieces of correspondence allegedly sent by Alice after her disappearance testified there were indications the signatures were made by Hummel, not Alice. Additionally, Hummel would throw “temper tantrums” if he caught Shanalyn or Sean attempting to get the mail to see if their mother had sent a letter. After Alice's disappearance, Hummel kept molesting Shanalyn.

¶ 9 Sean and his mother had a history of leaving notes for each other in a “special place”—in a false ceiling of their basement. Sean checked the false ceiling after his mother disappeared but found nothing. About a year later, however, Sean discovered a “suicide letter” in the space. The letter was in his father's handwriting. Sean once received a Christmas card purportedly from his mother after her disappearance, but the check inside was signed by his dad.

¶ 10 Sean attempted to find his mother sometime in the early 1990s after purchasing software called 1–800 U.S. Search. None of the “hits” returned by the software were for Alice. Shanalyn also attempted to find her mother using online software, but was unsuccessful. Hummel and Alice's oldest child, Sharinda, attempted to find Alice after Alice's father died in 1993, but the effort was unsuccessful. Years later Sharinda learned that Hummel had been molesting Shanalyn. Sharinda eventually filed a missing person report for Alice.

¶ 11 In 2004, Bellingham police and the FBI met with Hummel, who had moved to Billings, Montana. The FBI was involved because after Alice disappeared, Hummel immediately began stealing her disability payments. Hummel told law enforcement officers he last saw Alice in October 1990 when he drove her to Sea–Tac so she could fly to California for a job interview. Hummel initially denied taking her disability payments, but later admitted taking the money. He also admitted molesting Shanalyn starting when she was three years old.

[165 Wash.App. 757] ¶ 12 Hummel pled guilty to twelve counts of federal wire fraud for the theft of the disability payments. In his guilty plea, Hummel admitted Alice died on October 18, 1990 and that after she was dead, he falsely represented himself to be Alice for the purpose of collecting her disability payments. Hummel later sent a letter to one of the Bellingham Police Department detectives, apologizing for not telling the truth. In the letter, Hummel again admitted Alice was dead, but he claimed she had committed suicide. The letter was an exceedingly lengthy description of how Hummel purportedly discovered Alice, who he claimed had slit her wrists; how he panicked; how she left a note saying “don't let the kids know,” and a detailed account of how he disposed of her body the following night by rowing out into Bellingham Bay and dumping her there. In the letter, Hummel claimed it was a stormy night. (The letter was admitted as an exhibit at trial and read by an officer on the stand).

¶ 13 The police tested Hummel's former residence for blood and found no traces. They dredged Bellingham Bay, but found nothing. Moreover, on the night Hummel claimed to have disposed of the body, Bellingham Bay was calm with no wind, unlike Hummel's description in the letter. The police arrested Hummel. While he was in Whatcom County Jail, he told his cellmate Donald Cargill, that he had helped his wife Alice “get to a better place” by mixing a handful of ground up pills in apple cider and giving it to Alice to drink.

¶ 14 The State charged Hummel with first degree murder. Hummel moved to bar the admission of his statements and to dismiss the charge, arguing there was insufficient evidence of the corpus delicti of the crime. The trial court denied both motions. The jury convicted Hummel as charged. At sentencing, the trial court included Hummel's federal wire fraud convictions in his offender score. Hummel appeals.

DISCUSSION

I. Corpus delicti

¶ 15 The first issue we must decide is whether the corpus delicti of the crime of homicide was sufficiently established to allow the proper admission of Hummel's statements. It has long been the rule in Washington that such statements cannot be considered by the finder of fact unless the State first establishes the corpus delicti of the crime by independent evidence. State v. Lung, 70 Wash.2d 365, 423 P.2d 72 (1967), State v. Meyer, 37 Wash.2d 759, 226 P.2d 204 (1951), State v. Bestolas, 155 Wash. 212, 215–16, 283 P. 687 (1930). It is also well settled that only two elements are necessary to establish the corpus delicti in a homicide case: the fact of death and a causal connection between the death and a criminal act. ¹ State v. Aten, 130 Wash.2d 640, 927 P.2d 210 (1996); Lung, 70 Wash.2d at 371, 423 P.2d 72; State v. Little, 57 Wash.2d 516, 521, 358 P.2d 120 (1961); State v. Richardson, 197 Wash. 157, 163, 84 P.2d 699 (1938); State v. Gates, 28 Wash. 689, 69 P. 385 (1902); State v. Rooks, 130 Wash.App. 787, 125 P.3d 192 (2005); State v. Sellers, 39 Wash.App. 799, 695 P.2d 1014 (1985). The independent evidence may be either direct or circumstantial and need not be of such character as would establish the corpus delicti beyond a reasonable doubt or even by a preponderance of the evidence. Aten, 130 Wash.2d at 656, 927 P.2d 210. It is sufficient if it prima facie establishes the corpus delicti. Id. “Prima facie” in the context of the corpus delicti rule means “ ‘evidence of sufficient circumstances which would support a logical and reasonable inference’ of the facts sought to be proved.” Aten, 130 Wash.2d at 656, 927 P.2d 210 (quoting State v. Vangerpen, 125 Wash.2d 782, 796...