State v. Laureano

• Decision Date: 07 June 1984
• Docket Number: No. 49117-8,49117-8
• Citation: 101 Wn.2d 745,682 P.2d 889
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Jorge Ivan LAUREANO, Appellant.

Page 745

101 Wn.2d 745

682 P.2d 889

The STATE of Washington, Respondent, v.Jorge Ivan LAUREANO, Appellant.

No. 49117-8.

Supreme Court of Washington En Banc.

June 7, 1984.

Crawford & McGilliard, William M. Crawford, Port Orchard, Fernando Perez, Seattle, for appellant.

C. Dan Clem, Kitsap County Prosecutor, Kenneth Bell, DeputyCounty Prosecutor, Port Orchard, for respondent.

Michael A. Frost, Seattle, Bryan P. Harnetiaux, Spokane, Hennings, Maltman, Weber & Reed, Douglass A. North, Seattle, for Washington State Trial Lawyers Ass'n, amicus curiae.

Judith Dubester, Seattle, for Washington State Bar Ass'n--Crim.Law Section, amicus curiae.

PEARSON, Justice.

In the early morning hours of December 15, 1979, a robbery occurred at the home of Edward and Terry Friel in rural Kitsap County.The three robbers entered the Friel home while both residents were present.They took money from a safe, a quantity of cocaine from Ms. Friel, bound Ms. Friel, and forced her husband Edward to crawl into a back room of the house.They then shot Mr. Friel in the back of the neck with a 20 gauge shotgun.He died instantly.

DefendantJorge Ivan Laureano was convicted in Kitsap County Superior Court of first degree murder for the killing of Edward Friel.Terry Friel, a key witness in the prosecution's case against the defendant, was hypnotized by the prosecution to enhance her ability to identify the perpetrators.The hypnosis session occurred before the identities of the three robbers were known or presumed.In accord with State v. Martin, 101 Wash.2d 713, 684 P.2d 651(1984), where we found such hypnotically induced testimony inadmissible, we reverse defendant's conviction and remand for a new trial.

On appeal defendant raises 14 issues.

1.Did the trial court properly refuse to suppress pretrial and in-court identifications of defendant by Ms. Friel on the ground that her identification was improperly induced by hypnosis?

2.Was the defendant denied his right to a speedy trial under CrR 3.3?

3.Did the trial court abuse its discretion by refusing to grant defendant's motion for change of venue because of pretrial publicity?

4.Did the trial court abuse its discretion by refusing to allow individual voir dire for each prospective juror?

5.Did the trial court properly refuse to dismiss murder charges against the defendant because of the prosecution's alleged failure to preserve potentially exculpatory evidence?

6.Did the trial court properly allow the prosecution to amend its information to charge the defendant in the alternative with felony murder?

7.Did the trial court properly refuse to exclude the testimony of witnesses described in the second supplemental list of State's witnesses or in the alternative to dismiss the case for failure to comply with discovery rules?

8.Did the trial court abuse its discretion by allowing the prosecution to introduce evidence of another robbery in its case in chief?

9.Did the trial court properly admit evidence of defendant's prior robbery conviction for impeachment purposes?

10.Did the trial court abuse its discretion by refusing defendant's request for additional peremptory challenges to prospective jurors?

11.Did the trial court err in allowing Martha Lipp, a Spanish speaking interpreter, to use typed transcripts of interviews with defendant when she testified regarding her recollections of the interviews, and by admitting the transcripts into evidence?

12.Did the trial court properly exclude defendant's proffered expert testimony regarding the reliability of eyewitness identifications?

13.Did the trial court properly refuse defendant's proffered jury instruction regarding the reliability of an eyewitness identification by a person of a different race or ethnic origin?

14.Did the trial court properly refuse defendant's proffered jury instructions regarding the law of complicity in the criminal activity of others?

I.

Terry Friel was the only witness to the shooting and killing of Edward Friel.Soon after the killing, Ms. Friel was interviewed by Detective Bertholf of the Kitsap County Sheriff's Department.Ms. Friel described one of the suspects to be approximately 5 feet, 11 inches tall, weighing about 160 pounds, 28 to 30 years of age, with afro-style hair and wearing a green army-type jacket.She told detectives this suspect was possibly a light-skinned black man who was armed with a pistol, and that he apparently was the leader of the robbers.In her interview, Ms. Friel said most of the conversation between the robbers was in a foreign language.

On December 16, 1979, Ms. Friel worked with Detective Mossman and an artist from the sheriff's department to complete composite drawings of the robbery suspects.Additional composite drawings were rendered on January 9, 1980.Ms. Friel was hypnotized for the January 9 session with the artist.

On January 7, 1980, the home of Mr. and Mrs. William Sackman in rural Kitsap County was robbed at gunpoint by James Turner, Julio Malave, and the defendant.Shortly after the Sackman robbery, Kitsap County Sheriff's deputies searched Laureano's home.In addition to items implicating Laureano in the Sackman robbery, deputies found a pistol and several 20 gauge shotgun shells of the same weight as the shell used to kill Edward Friel.Sheriff's deputies also found marijuana packaged in a manner identical to the way Edward Friel packaged marijuana for sale.

On February 23, 1980, Detective Bertholf showed Ms. Friel a photo montage without defendant's picture.Ms. Friel was unable to identify a suspect from the photo montage.One month later, on March 22, 1980, Detective Bertholf again presented a photo montage to Ms. Friel, this time including defendant's picture in the montage.Ms. Friel identified Laureano from the montage.Also, on March 22 Detective Bertholf showed Ms. Friel police photographs of Laureano, Julio Malave, James Turner, and Tony Cupic, a suspect in another Kitsap County murder case.Detective Bertholf told Ms. Friel that the person she identified from the photo montage, Laureano, was in custody.

On June 3, 1980, Laureano was sentenced for the Sackman robbery.Sheriff's deputies conducted a lineup on June 17, 1980, at which time Ms. Friel identified Laureano.He was questioned extensively by detectives and on June 23, 1980, Laureano was charged with first degree murder for the killing of Edward Friel.

On June 30, 1980, Laureano pleaded not guilty to the first degree murder charges.Trial was set for August 25, 1980, but was later postponed until August 29.On August 13, 18, and 21, 1980, the Superior Court conducted pretrial hearings concerning a motion by defense counsel to change venue, mutual discovery requests, the filing of an amended information, and a motion by defense counsel for the appointment of expert witnesses.Both defense counsel and the Kitsap County Deputy Prosecutor indicated they were unprepared to commence trial by August 29.Defendant remained adamant, however, in his refusal to waive his rights under CrR 3.3.

On August 21, 1980, the Superior Court on its own motion ordered a continuance under former CrR3.3(f)(2).The court found the delay was necessary for the due administration of justice, and that Laureano would not be prejudiced by the delay but rather it assisted in the preparation of his defense.The court accepted the suggestion of defense counsel that the trial be scheduled for October 13, 1980.

On September 2, 1980, the State filed an amended information charging Laureano with first degree murder, conspiracy to commit first degree murder, and conspiracy to commit first degree robbery.Defendant was rearraigned and pleaded not guilty to each count.On October 10, 1980, the court concluded the case was still not ready for trial and, again on its own motion under CrR3.3(h)(2)(former CrR 3.3(f)(2)), postponed the trial until October 20, 1980.On October 17, 1980, Laureano for the first time moved to dismiss because of a speedy trial violation.The court denied this motion.

On October 20, 1980, trial commenced with voir dire of prospective jurors by means of written questionnaires.The court denied defendant's request for total individual voir dire, but allowed defense counsel to question 19 prospective jurors individually.The court also denied defendant's request for a greater number of peremptory challenges than allowed under CrR6.4(e)(1).

At trial, the prosecution produced the testimony of various witnesses regarding investigation and background of the case.Among others, Martha Lipp, the interpreter during interrogations of defendant, testified regarding her recollection of the interrogations.Over strenuous defense objections, Ms. Lipp was permitted to use her own transcription of the interrogations.

The prosecution, over defense objections, produced testimony of Laureano's prior conviction for robbery of the Sackman residence.The prosecution also called Terry Friel to testify.Over defense objections, Ms. Friel identified the defendant as one of the three men involved in the shooting death of her husband, Edward Friel.

The defendant produced numerous alibi witnesses.The defendant denied the charges and testified on his own behalf.Nevertheless, on November 14, 1980, Laureano was found guilty of first degree murder.On November 20, 1980, he was sentenced to a maximum term of life imprisonment.The court ordered defendant's sentence for first degree murder to run concurrently with the sentence he received for the Sackman robbery.

II.

Defendant argues that the trial court should have suppressed pretrial and in-court identifications by Terry Friel because her identification was improperly induced by hypnosis.In accord with our recent decision in State v. Martin, 101 Wash.2d 713, --- P.2d ----(1984), where we found hypnotically induced testimony inadmissible, we reverse defendant's conviction and remand for a new trial.

Ms. Friel was put under hypnosis by ...