State v. Kendrick, 17732-O-I

• Decision Date: 11 May 1987
• Docket Number: No. 17732-O-I,17732-O-I
• Citation: 736 P.2d 1079,47 Wn.App. 620
• Parties: STATE of Washington, Respondent, v. Brett A. KENDRICK, Appellant.
• Court: Washington Court of Appeals

Page 620

47 Wn.App. 620

736 P.2d 1079

STATE of Washington, Respondent, v. Brett A. KENDRICK, Appellant.

No. 17732-O-I.

Court of Appeals of Washington,

Division 1.

May 11, 1987.

Review Denied July 1, 1987.

[736 P.2d 1080] Mark Mestel, Mestel and Muenster, Everett, for appellant.

Norm Maleng, Pros. Atty., William Downing, Rebecca Roe, Deputy Pros. Atty., Seattle, for respondent.

WEBSTER, Judge.

Brett Allen Kendrick appeals from the judgment and sentence entered upon a jury verdict finding him guilty of two counts of first degree murder. He raises numerous issues. We find that many of those issues were not preserved for appeal and that those that were preserved

                do not warrant reversal of his conviction.   Consequently, we affirm
                

FACTS

On the morning of May 30, 1984, the dead bodies of 56-year-old Mary Colleen Gill and her 16-year-old daughter, Katy, were found in the residence the two shared in the Windermere area of Seattle. Colleen's body was completely unclothed; Katy's body had on a sweatshirt that was pushed up around the neck and underpants that had been forcibly removed from one leg. Both women had been beat about the head, strangled, and stabbed numerous times with a knife. The head of each was mutilated; authorities removed a pocket knife, a screwdriver and knitting needle from Colleen's head, and from Katy's head they removed a screwdriver and a wooden pencil. Katy's body had a kitchen knife protruding from the side and what was later determined to be a human bite mark on the left nipple. There was no evidence of theft, forced entry into the home, or sexual intercourse with either victim.

Police learned through their investigations that Colleen Gill had been in Shay's Cocktail Lounge ("Shay's") from the evening of May 29 to the early morning hours of May 30, 1984. A number of lounge patrons recalled seeing Colleen Gill seated next to a young man. That young man was later identified as Brett Kendrick. They recalled that both appeared to be intoxicated, and that Gill had been acting amorously toward Kendrick, though Kendrick was not returning her affections. Colleen left the bar alone at approximately 1 a.m.; within a few minutes, Kendrick left as well. A taxi driver pulled into Shay's parking lot at about the same time. He saw a woman matching Colleen Gill's description standing by the opened passenger side door of a silver gray Mustang in the parking lot. The woman appeared to be waiting for someone.

The Mustang, later determined to be Colleen's, was next seen parked in the vicinity of Shay's at 7:45 a.m. on May 30. In the car were gloves bearing blood that matched Katy Gill's. On both the gloves and the car's driver's seat were Kendrick admitted owning a green Shay's t-shirt. Police, however, were unable to find it. Nor were they able to find a pair of tennis shoes owned by Kendrick at the time of the murder. Kendrick admitted owning a pair of Jox tennis shoes, between sizes 8 and 9. A bloody foot print left at the crime scene was made by a Jox shoe, size 8 1/2. At trial, the defense produced a pair of size 9 Jox tennis shoes that it alleged had been found in a truck which Kendrick had driven. The shoes had a great deal of tar on them, but no traces of blood. Those shoes, it was later revealed, were of a type not sold prior to the time of the killings.

                fibers that were microscopically indistinguishable from the fibers contained in green Shay's t-shirts.   Some of the patrons who had seen Kendrick in Shay's the night before testified that he had been wearing a green Shay's t-shirt
                

State forensic experts testified that hairs found near Katy Gill's body were consistent with Kendrick's hairs and dissimilar to those of the victims. They also testified that the bite mark on Katy Gill's breast was consistent with the mark that would be left by Kendrick's teeth. In response to their testimony, Kendrick produced experts who opined that the hairs attributed to him could have originated with Katy Gill, and that the bite mark could not have been made by Kendrick. Other evidence used against Kendrick at trial will be discussed in the context of individual issues raised by this appeal.

Kendrick admitted his presence at Shay's, but denied involvement in the murders and presented an alibi defense. He testified as follows: On the night in question, he had consumed approximately 10 scotch-and-waters, as well as cocaine. Because he was intoxicated, he took a nap in his car in a sleeping bag. On awakening he drove to his girlfriend's house, arriving there between 3 and 3:59 a.m. Given Kendrick's alibi, the primary issue at trial was his connection with the two homicides.

Following a lengthy trial during which numerous witnesses, both expert and lay, testified, and over 180 exhibits were admitted, the jury returned verdicts of guilty on both As noted, we find that many of the issues Kendrick raises are not properly raised at this late juncture. Our discussion begins with those issues that have been preserved either by counsel's timely objections or by the constitutional implications of the question involved.

                counts charged.   The trial court sentenced Kendrick to two life terms, with the sentences to run consecutively.   Kendrick's motion for a new trial was denied, and this appeal followed
                

PHOTOGRAPHIC EVIDENCE

Among the many exhibits introduced at trial were several photographs. Kendrick argues that three of those photographs should not have been admitted because they were unnecessarily gruesome.

Accurate, though gruesome, photographic representations are admissible if their probative value outweighs their prejudicial effect. State v. Crenshaw, 98 Wash.2d 789, 806, 659 P.2d 488 (1983). The determination of whether a photographs' probative value is outweighed by its prejudicial effect is left to the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal absent an abuse of that discretion. Id. We find no such abuse.

Two of the challenged photographs are of Katy and Colleen Gill as they were found hours after their deaths. Those photographs, like the actions that ended the Gills' lives, were gruesome. They were not, however, unnecessarily gruesome. We repeat the oft-quoted proposition that "[a] bloody, brutal crime cannot be explained to a jury in a lily-white manner". State v. Adams, 76 Wash.2d 650, 656, 458 P.2d 558 (1969), rev'd on other grounds, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971).

Furthermore, while the photographs of the victims were gruesome, they were also probative. Kendrick maintained his innocence throughout his trial, thereby placing in issue every element of the crime charged. See RCW 10.40.180. These photographs proved the corpus delicti of the crime.

                Moreover, they aided the State in explaining its theory of the manner in which the murders were committed.   In that regard they were not unlike the challenged photographs that we held were properly admitted in  State v. Bockman, 37 Wash.App. 474, 682 P.2d 925 (1984).   In Bockman we upheld admission of gruesome photographs because they "may have helped the jury understand how the victim was attacked and may have aided the jury in determining what caused the victim's death."  37 Wash.App. at 489, 682 P.2d 925.   The same factors are of importance here, especially given the lack of eyewitnesses
                

Kendrick also challenges the admission of a photograph of his mouth with dental retractors in place to expose the teeth and gums. He describes the pose as "vampire-like". While we question whether the photographs are "gruesome", it is clear that their probative value outweighed any unfair prejudicial impact. The photograph of Kendrick's teeth was offered in connection with the testimony of an odontologist who opined that Kendrick's bite mark was consistent with the bite mark on Katy's breast. The photographs aided the witness in explaining a rather complex theory. Moreover, the jury was told both why the photograph was necessary and why the dental retractors were employed in the taking of the photograph. It was therefore within the court's discretion to admit the challenged photographs.

TATTOOS

Among the other photographs admitted at trial were two that depicted the rather unique tattoos inscribed on Kendrick's forearms. Both the tattoos are unprofessional renditions, and Kendrick admitted that he volitionally had them placed on his body. One of them depicted a syringe, dripping from the needle-end, piercing a skull. The other depicted a woman's head being touched by the head of what was variously described as a peacock or a praying mantis. At trial, defense counsel objected to the introduction of the tattoos on the grounds of irrelevancy and unfair Kendrick contends that the tattoos are constitutionally protected materials, and as such may not be used as evidence of his guilt. His argument is not well taken. In effect, it is a relevancy objection under the guise of a constitutional argument. It is true that constitutionally protected behavior cannot form the basis of criminal punishment. See Hess v. Indiana, 414 U.S. 105, 107, 94 S.Ct. 326, 328, 38 L.Ed.2d 303 (1973). Consequently, "[t]he State can take no action which will unnecessarily 'chill' or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right." State v. Rupe, 101 Wash.2d 664, 705, 683 P.2d 571 (1984). For instance, neither a defendant's post-arrest silence, State v. Mace, 97 Wash.2d 840, 650 P.2d 217 (1982), nor his failure to testify, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, rehearing den'd, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), may be used as evidence of guilt. The impermissible use of constitutionally protected behavior constitutes a violation of due process. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

                prejudice.   See ER 401 and ER 403.   On appeal, Kendrick renews

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