State v. Modica, Docket No. 4817-I

• Decision Date: 18 July 1977
• Docket Number: Docket No. 4817-I
• Citation: 18 Wn.App. 467,569 P.2d 1161
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Tommie MODICA, Appellant.

Page 467

18 Wn.App. 467

569 P.2d 1161

STATE of Washington, Respondent, v. Tommie MODICA, Appellant.

Docket No. 4817-I.

Court of Appeals of Washington, Division 1.

July 18, 1977.

As Corrected Sept. 9, 1977.

Edwards, Wetherall & Barbieri, Charles K. Wiggins, Malcolm L. Edwards, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., James R. Miller, Deputy Pros. Atty., Seattle, for respondent.

PER CURIAM.

The defendant, Tommie Modica, was charged with the second-degree murder of Otis Davis. The jury found him guilty of murder in the second degree and returned a special verdict that he was armed with a firearm at the time of the commission of the offense. The defendant was sentenced to a term of not more than 50 years in prison. He appeals.

Otis Davis was shot and killed on February 17, 1976. He was living in an apartment building in Seattle, and the defendant lived in the same building, sharing with one Dennis Ball the apartment directly above Davis' apartment. A witness for the prosecution, the manager of the apartment building, testified that prior to the night of the shooting Davis had caused trouble around the apartment building, parking in other residents' spaces and complaining about other residents parking in his space. The apartment manager said that he had been unable to handle Davis and had asked the owners of the building to resolve the problem of Davis' disturbing behavior.

On the night of February 17, the defendant parked in Davis' father's parking stall, because his own stall was occupied. Davis became angry when he saw the defendant's car and demanded that it be moved immediately. The defendant refused and an argument ensued. Davis threatened to have the car towed away. At this point, the defendant sought out the apartment manager to resolve the dispute, and Davis threatened the defendant as he left the building.

The defendant found the manager on the street in front of the building and asked him what was wrong with Davis. The manager said that although the defendant was "pretty hot" at this point, his demeanor was "gentlemanly" and "peaceful." The manager told the defendant about Davis' "bad attitude," that he had been unable to handle Davis, had "decided to not continue fooling with the guy," and that "there wasn't anything he could do about it." The manager agreed, however, to talk to Davis at that time.

During the trial, the testimony of the apartment manager and the defendant's testimony concerning the substance of their conversation about Davis conflicted upon one major point. The manager testified that the defendant said of Davis, "I'll blow him away," but the defendant denied ever having made such a statement. The defendant testified that the only mention of violence in his conversation with the manager was the manager's statement that recently Davis had beaten someone almost to death with a gun. The manager testified that they had discussed Davis' bad attitude, but he did not remember whether he told the defendant about the assault charge against Davis.

After his conversation with the defendant, the apartment manager went up to Davis' apartment while the defendant returned to his own apartment. The manager testified that at that time Davis was "up tight" and began complaining about the defendant. The manager said that Davis told him that he had been in a fight and was upset over problems he was having with the police. When Davis seemed to calm down, he and the manager began drinking gin.

The testimony showed that at about the time that the manager and the victim began to drink together, the defendant was telling Dennis Ball about the parking stall dispute. Ball suggested that he and the defendant go to Davis' apartment to discuss the problem. The apartment manager was still in Davis' living room when the defendant and Ball arrived and they were admitted to the apartment by Davis. There is conflicting testimony upon whether or not defendant was armed when he arrived at Davis' apartment. The apartment manager testified that he saw a gun sticking out above the defendant's hip, but the defendant denied being armed when he went to the apartment.

A heated argument began after the defendant arrived at Davis' apartment. Both the defendant and Dennis Ball testified that Davis stated that he was going to get his "piece," and started down the hallway toward the bedroom followed by the defendant and Ball. The manager stated that he thought Davis said, as he was walking down the hallway, that he did not have a gun.

During the argument in the living room, Kathy Smith was sitting in the bedroom of Davis' apartment. She had known Davis for almost 2 years, and had lived with him for about a year and a half. She testified that she was sitting on the bed when Davis, the defendant and Dennis Ball entered the bedroom. She said she knew Davis had had at least two guns, although she had not seen either one for some time, and she testified she thought that Davis might have been looking for one of the guns, but she was uncertain. Ms. Smith further testified that after a scuffle in the bedroom Davis told the defendant and Dennis Ball that they were being disrespectful to him in his home, and told them to leave. As the three men emerged from the bedroom into the hallway, Davis ordered the defendant and Ball out of the apartment. A scuffle ensued in the hallway, and a shot was fired.

The manager was unable to see who was holding the gun, but saw Davis sink to the floor. Later that night, Dennis Ball described the struggle in the hallway to a police officer. At that time he told the officer that during the argument Davis kicked him in the groin and he fell to the floor. He said that the defendant was trying to get out of the apartment when he saw Davis knock Ball to the floor and kick him, and that Davis then turned and went for the defendant. Ball then said that in the scuffle the defendant grabbed the gun from his belt and Davis was shot.

Ms. Smith denied that there was a scuffle or that blows were exchanged. She testified that the defendant pulled out a gun and shot Davis and that all she saw of the gun was "the barrel out of the side of his jacket."

A security officer with the Department of Social and Health Services testified that he lived directly across the hallway from Davis' apartment, and that he heard a loud argument occurring in Davis' apartment. This witness said he heard Davis say, "I don't want to box," about 1 minute prior to the shooting, and then heard a scuffle and a shot almost simultaneously.

The next day, upon learning that Davis had died, the defendant turned himself in to the police. The defendant was advised of his constitutional rights and waived those rights in the presence of his attorney. A written statement was taken at that time which was admitted into evidence at the time of trial. The interrogating detective testified as follows:

Q (By prosecutor) Now during the time that you took that statement, did you ask Mr. Modica if he had a gun when he went to Apartment No. 9, Otis Davis's apartment?

A Yes, I did.

Q What was his response?

A They would not answer that question.

There was no objection to the questions upon direct examination and the matter was not pursued upon cross-examination.

When the defendant testified at the trial, the prosecutor cross-examined him about his interrogation by the detective as follows:

Q And your testimony is that you did not have a gun in your possession when you went down there?

A No.

Q Do you recall Detective Moran testifying Friday that he wanted to ask you that question and he took a statement from you?

A Yes.

Q Your attorney said you didn't want to talk about that

A No. It wasn't worded like that.

Q Well, how was it worded?

A I mean, it was worded like it was I wasn't going to tell him everything.

On redirect examination, the defendant was asked by his attorney what the attorney had told the detective when the defendant surrendered himself:

A You said be the whole truth, that would be that I'm going to say everything.

Q And did you tell Detective Moran the whole truth?

A Yes, I did.

On recross-examination, the prosecutor asked:

Q . . . What was meant by you when you said that you weren't going to say everything?

A Well, just talking about the little details, is all.

Q Well, little details like what? You carrying a gun into the apartment?

A No.

At no time did defense counsel object to the cross-examination concerning the defendant's refusal to tell the detective about the gun.

The prosecutor called to the jury's attention defendant's refusal to answer the detective's question during his closing argument. He argued that in evaluating the defendant's credibility the jury should consider the testimony that the defendant stated that he would not tell "the whole truth." He argued further that the defendant's statement constituted evidence that the defendant had been armed:

That's part of the truth they didn't want to tell, that he did have a gun when he walked into that apartment. And that's why he didn't want to answer that question.

The information filed against the defendant set forth two counts. The first count charged him with the crime of second-degree murder, committed either of two ways: By shooting Otis Davis with the design to effect his death; or by mortally wounding Otis Davis "while engaged in the commission of a felony, to wit: assault in the second degree." The second count charged the defendant with violation of the Uniform Firearms Act, RCW 9.41.040. At the outset of the trial, the court granted the prosecution's motion to sever the violation of the Uniform Firearms Act from Count 1, the murder charge. At the conclusion of the prosecution's case, the defendant moved for dismissal of the murder charge on the ground that no independent felony had been proven. It was argued that the only possible felony charge was the alleged assault when the defendant fired the gun. The court denied the...