State v. Messinger, 530--III

• Decision Date: 24 April 1973
• Docket Number: No. 530--III,530--III
• Parties: The STATE of Washington, Respondent, v. Kelley D. MESSINGER, Appellant.
• Court: Washington Court of Appeals

Page 829

8 Wn.App. 829

509 P.2d 382

The STATE of Washington, Respondent, v. Kelley D. MESSINGER, Appellant.

No. 530--III.

Court of Appeals of Washington, Division 3.

April 24, 1973.

Rehearing Denied June 19, 1973.

Herbert H. Freise, Walla Walla, for appellant.

Arthur R. Eggers, Pros. Atty., Jerry A. Votendahl, Deputy Pros. Atty., Walla Walla, for respondent.

MUNSON, Judge.

Defendant appeals his conviction for murder in the first degree. A maximum term of life imprisonment was imposed.

In the early morning of August 7, 1970, the naked body of defendant's 16-year-old wife was discovered along a road outside the city of Walla Walla, Washington. The probable cause of death was later determined to be asphyxiation. After 4 months of investigation, the state successfully wove a web of circumstances sufficient to convince a jury that defendant had murdered his wife. Defendant did not take the stand at trial.

We shall not set forth all of the facts or circumstances before the jury; to do so would unduly lengthen this opinion. However, a short statement of the pertinent facts is necessary.

Several hours after her unidentified body had been discovered, defendant reported his wife was missing. He discussed the couple's activities and actions the previous evening with law enforcement officers. ¹ The officers verified some of these facts and later that day confirmed that the unidentified body was that of defendant's wife.

Later that same day defendant returned to the police station and restated the previous night's activities. He related how he and his wife had been to Fancy Dan's Restaurant and had left and returned home so decedent could repair a tear in her clothes. She was wearing a purple pant outfit and had a similar pair of pants which matched the outfit to which she anticipated changing. The second pair of pants, however, had burned in the dryer, and were ultimately thrown into the fireplace. Decedent then sewed the tear in the other pair of pants and the parties renewed their activities.

Defendant also advised the police of an argument they had in the restaurant on August 6. Their argument was supposedly feigned for the purpose of avoiding their previous boarder and babysitter, Sandy Wickenhagen. During the argument, decedent removed her ring and gave it to defendant, who in turn returned it to her. She placed it in her purse.

According to defendant's statements, he and decedent again left their home after the decedent's clothing was repaired. Upon returning home at about 11 p.m., decedent indicated a desire to sleep in their car in hopes that their cats would return to their newly acquired home; she did this. Defendant went to bed. He got up at 1 a.m., found her gone and drove around town looking for her. Unable to find her, he returned home. At about 5 a.m. he again continued the search. Later that morning, defendant reported the disappearance of his wife to the police.

On August 7, after defendant's second discussion of these activities, the officers requested an opportunity to search his home seeking clues which might indicate the cause of her disappearance and death. Permission was readily granted by defendant, in a spirit of aid and cooperation in locating her killer. The police searched the residence for one hour but seized nothing. They did note, however, that decedent's purse was still in the kitchen and contained her glasses, but no ring. They further noted a warm residue still burning in the fireplace at a time some 18 hours after defendant, according to his own statement, set it.

The officers continued their investigation. On August 13, 1970, they again called defendant in to confer with him. At this time they preceded the discussion by advising defendant of those rights required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

After discussing the case with defendant, they again requested the right to search his home. When defendant appeared to be hesitant about giving such consent, the officers sought and obtained a search warrant from the Superior Court of Walla Walla County. Thereafter defendant did consent to the search. At this time the officers seized the contents of the fireplace, a crumpled-up note ostensibly in decedent's handwriting, the contents of a vacuum sweeping of defendant's car and two blankets therefrom containing hair fibers. Again, defendant was not taken into custody and the officers left the premises.

No further contact was had between the officers and defendant except for several phone conversations and a note which defendant wrote when he took a short trip into Oregon.

In early December 1970, a close friend of defendant, Ron Dixon, gave information implicating defendant in the murder. Based upon this information, plus the laboratory results regarding the hair fibers and contents of the fireplace, the officers sought and obtained a warrant for the arrest of defendant, charging him with first-degree murder.

At the time of defendant's arrest, he was given the Miranda warnings and was again requested to consent to a search of his premises. Defendant called his attorney. While it is disputed whether he discussed with his attorney the advisability of consenting to the search, at least the opportunity was afforded him to so discuss it. After the telephone call, defendant executed another consent to search. The officers returned to the home on December 12, 1970 and procured other items, only some of which were relevant to this crime.

This case is based entirely upon circumstantial evidence. In State v. Richardson, 197 Wash. 157, 166, 84 P.2d 699, 703 (1938), our Supreme Court cited O'Brien v. Commonwealth, 89 Ky. 354, 12 S.W. 471 (1889), for the following proposition:

'Necessarily, where the commission of crime can be shown only by proof of circumstances, the evidence should be allowed to take a wide range; otherwise the guilty person would often go unpunished. It is true there must be some connection between the fact to be proven and the circumstances offered in support of it; yet any fact which is necessary to introduce or explain another, or which offered an opportunity for any transaction which is in issue, or shows facilities or motives for the commission of the crime, may be proven. . . . The purpose is to weave a net about the guilty; and often this can no more be done by proof of a single circumstance than the building of a house with a single brick.'

See also State v. Spadoni, 137 Wash. 684, 243 P. 854 (1926); 1 Wigmore on Evidence § 38, et seq. (3rd ed. 1940).

After careful review of the voluminous record and briefs submitted by counsel, we are satisfied the circumstantial evidence presented, if believed, is sufficient to support the jury's finding of guilt. The jury was properly instructed that, as to circumstantial evidence, the facts and circumstances in evidence must be consistent with each other and with the guilt of the defendant and inconsistent with any reasonable theory of defendant's innocence. State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972); State v. Cerny, 78 Wash.2d 845, 849, 480 P.2d 199 (1971); State v. Douglas, 71 Wash.2d 303, 428 P.2d 535 (1967).

Analyzing the numerous assignments of error, we believe the primary issue is whether some of the state's evidence presented collateral matters either irrelevant or so unduly prejudicial to the defendant as to deny him a fair trial. The evidence challenged as being improperly admitted principally concerns alleged prior criminal misconduct by defendant. This evidence may be broken down into testimony relating to incidents alleged to have occurred prior to the death of decedent and subsequent thereto.

It is a well-recognized rule that defendant must be tried for the offense or offenses charged; to introduce evidence of unrelated crimes is grossly and erroneously prejudicial. However, there are exceptions. Evidence of unrelated crimes of criminal misconduct is admissible to prove: (1) motive, (2) intent, (3) absence of accident or mistake, (4) common scheme or plan and (5) identity. State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950). To these classifications may be added several others such as (6) evidence of the criminal acts which are an inseparable part of the whole deed, State v. Jordan, 79 Wash.2d 480, 487 P.2d 617 (1971), and (7) evidence of other offenses relative and necessary to prove an essential ingredient of the crime charged, State v. Dinges, 48 Wash.2d 152, 154, 292 P.2d 361 (1956).

A further corollary of this rule requires evidence which might be slightly relevant to be held inadmissible if its admission would be highly prejudicial. State v. Goebel, Supra; State v. Portrey, 6 Wash.App. 380, 384, 492 P.2d 1050 (1972); State v. Sims, 4 Wash.App. 188, 480 P.2d 228 (1971); State v. Thrift, 4 Wash.App. 192, 480 P.2d 222 (1971).

Defendant has generally challenged the use of these collateral matters without clearly enumerating the specific instances assigned as error. We have attempted to enumerate below the instances where evidence of collateral misconduct was introduced.

ACTS OF MISCONDUCT PRECEDING DEATH

These acts consist of marital infidelity known to decedent and defendant to have been committed by the other, and unsolved burglaries and larcenies allegedly committed by defendant and known to decedent. There is further testimony by Ron Dixon that defendant had come to him with a proposition that each should kill the other's wife, at a time, place and by a method unknown to the respective husband.

The state justifies the introduction of this evidence under the Motive exception to the general rule. We agree. Evidence of marital disharmony and infidelity may be relevant and material and be admissible if there exists some causal relationship or natural connection between the misconduct and the criminal act with which the accused stands charged. State v. Gaines, 144 Wash. 446, 258 P. 508 (1927). The acts...