State v. Neslund

Citation749 P.2d 725,50 Wn.App. 531
Decision Date08 February 1988
Docket NumberNo. 17752-4-I,17752-4-I
PartiesSTATE of Washington, Respondent, v. Ruth NESLUND, Appellant.
CourtCourt of Appeals of Washington

James Lobsenz, Wolfe, Lobsenz and Cullen, Seattle, Ellsworth Connelly, Herrmann & Levinson, Tacoma, for appellant Ruth Neslund.

Charles Silverman, Deputy Pros. Atty., Montesano, Greg Canova, Asst. Atty. Gen., Seattle, for respondent State.

SWANSON, Judge.

In her appeal of her jury conviction of first-degree murder in violation of RCW 9A.32.030(1)(a) while armed with a deadly weapon, a firearm, Ruth Neslund (Neslund) raises the following issues:

1. Was the admission of the .38 caliber Smith & Wesson handgun an abuse of discretion?

2. Was it error to permit the State to attempt to impeach a defense witness with a previously suppressed handgun transfer receipt which was ultimately not admitted into evidence?

3. Does independent evidence establish prima facie the corpus delicti of the crime such that the defendant's confessions and admissions properly were considered by the jury?

4. Was it error to admit Paul Meyers' account of the overheard conversations as an adoptive admission?

5. Was the defendant's right to confront witnesses violated by the admission of Paul Meyers' testimony as to the overheard conversations?

6. Is there sufficient evidence for a rational trier of fact to have found premeditation beyond a reasonable doubt?

7. Did the allegedly improper comment in the prosecutor's closing argument deny the defendant a fair trial?

8. Was evidence of the defendant's shooting at animals properly admitted?

9. Did the trial court abuse its discretion in denying the defense new trial motion based upon Winnie Stafford's alleged incompetence to testify at trial?

Rolf Neslund disappeared in August 1980. At trial Joy Stroup, the defendant's niece, testified that on August 8, 1980, Neslund called her in Ohio and told her that she had a confrontation with her husband Rolf during which Rolf hurt her left breast and her nose and that "Uncle Bob [Neslund's brother, Robert Meyers] held him and I shot him and he's now outside burning in a barrel."

Paul Meyers, Neslund's other brother, testified that he visited the defendant several times during 1980 and 1981, and during one of those visits, Neslund told him that she had shot Rolf twice in the head and killed him. According to Paul Meyers, he also overheard conversations between the defendant and their brother, Robert Meyers, in which the two mentioned that after he was shot, Rolf had fallen over a couch and a storage box and that they dragged his body on a sheet into the bathroom off the master bedroom. Paul testified that the two talked about how Robert had cut up Rolf's body in the bathtub using a broadax and a butcher knife and then carried the body parts in a wheelbarrow out behind the barn, where he built a wood fire in the burn barrel and burned the body parts and later dumped the ashes in a pile of animal waste behind the barn.

Paul further testified that Neslund and their brother Robert discussed how she had withdrawn $75,000 of Rolf's pension money from their joint bank account and placed it in an account in her separate name. Rolf had gotten upset and had told Neslund to put the money back or else, and Robert said that Neslund gave Rolf the "or else."

Winnifred Stafford, Neslund's friend, testified as a State rebuttal witness. At trial she admitted that in the 1982 Neslund testified that on August 14, 1980, Rolf left their home on Lopez Island after having told her that he was going to Norway, and that she never saw him again. Neslund was charged with, and was convicted by a jury of, first-degree murder.

                inquiry judge proceeding she had perjured herself when she gave sworn testimony that Neslund had not told her that she had killed Rolf.   Stafford testified that on the evening of August 8, 1980, she went to the Neslund residence after Neslund called and asked her to come over.   Neslund told her that she had shot and killed Rolf near [749 P.2d 729] the living room couch and that her brother Robert was in the bathroom cutting up Rolf's body.   Stafford overheard Neslund tell her son, Butch Daniels, over the telephone that Neslund had killed Rolf.   Neslund told Stafford that before the shooting, Rolf had become upset when he found out that Neslund had taken all the money out of their savings account and he did not know what had happened to it
                

ADMISSION OF SMITH & WESSON HANDGUN

During the March 1982 execution of a search warrant for the Neslund residence, a .38 caliber Smith & Wesson handgun was seized upon being found in the bottom drawer of a bureau in the master bedroom. Neslund contends that the trial court abused its discretion in admitting the Smith & Wesson handgun into evidence in that the State did not first prove that the weapon was used in the commission of the charged crime and under State v. Robinson, 24 Wash.2d 909, 167 P.2d 986 (1946), and State v. Lloyd, 138 Wash. 8, 244 P. 130 (1926), weapons not used in the commission of the charged crime are inadmissible. Recently our state Supreme Court disagreed that these two cases stand for that proposition and instead asserted that Robinson and Lloyd held that "weapons that are unrelated to the case are not admissible." State v. Jeffries, 105 Wash.2d 398, 412, 717 P.2d 722, cert. denied, --- U.S. ----, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986).

We reject Neslund's argument, for here the testimony of several witnesses establishes the relevance of the Here Michael Grubb, Washington State Patrol Crime Laboratory criminalist, testified that the Smith & Wesson gun had been cleaned since it was last fired, but upon examining the gun under a low-powered microscope, he found eight small blood droplets on the face of the gun's cylinder, one blood flake which was loose but was still adhering to the extractor shroud, and two small blood spots under the thumbpiece (the mechanism which slides forward to release the cylinder), which spots were observable when the thumbpiece was slid forward. Each of these spots, subjected to two chemical tests, showed a positive result for the presence of blood.

                .38 caliber gun to the issue of the murder weapon used.  See State v. Jeffries, supra;  State v. Kendrick, 47 Wash.App. 620, 627, 736 P.2d 1079, review denied, 108 Wash.2d 1024 (1987).   Evidence is relevant where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."   ER 401;  State v. Kendrick, supra.   Moreover, a trial judge's relevance determination will be undisturbed on appeal absent a clear abuse of discretion, i.e., only where no reasonable person would take the view adopted by the trial court.  State v. Kendrick, supra
                

According to Grubb, the blood spots under the thumbpiece most likely were deposited there in one of two ways:

Either the thumb of the person operating the gun had blood on it, and in the operation of moving the thumb piece to open the cylinder, blood was deposited under and behind the thumb piece, or at some point there was a larger amount of blood deposited on the frame and subsequently wiped off. But the blood under the thumb piece was missed.

Grubb testified that the eight blood droplets on the face of the cylinder head, which were high velocity blood spatters caused by blood which is accelerated at a high velocity, could have been caused by blood spattered back from the object into which the gun was fired, and that the pattern of The gun's probative value is brought into focus by the testimony of certain prosecution witnesses. Joy Stroup, Neslund's niece, testified that on August 8, 1980, Neslund telephoned her and told her that there was a confrontation between Neslund and Rolf and that Neslund's brother, Robert Meyers, held Rolf and she shot him. Paul Meyers, Neslund's brother, testified that several times during his visits to Neslund's home in December 1980 and during 1981, Neslund or their brother Robert, in her presence, stated that Neslund had killed Rolf, and on one occasion Neslund said that she shot Rolf twice in the head. Sgt. Rodney Englert of the Multnomah County Sheriff's Office in Portland, Oregon, who is an expert by training in forensic blood spatter pattern analysis, analyzed the minute blood spots found on the living room ceiling of Neslund's home and determined that they were high velocity mist which, based on their location in two separate areas of the ceiling, he determined had come from two gunshots. According to him, the pattern of the high velocity mist was consistent with blood being deposited on the ceiling from two gunshot wounds to the head of a person in the area of the living room couch.

                blood spots on the gun was consistent with the high velocity back spatter of a gunshot wound to an uncovered area of a human being or animal from a distance of three feet or less.   Grubb's testimony was [749 P.2d 730] unrebutted. 1
                

Neslund contends that the gun's relevance was not shown since the unrebutted evidence was that she obtained the gun in December 1980, four months after the alleged murder, and the gun was not found in her residence until 18 months When the trial judge reserved his ruling on the Smith & Wesson gun's admission until the State made an offer of proof through the state criminalist's testimony regarding the blood spots on the gun, he noted that "a firearm is a pretty dramatic piece of evidence." Following the state criminalist's testimony, the gun was admitted into evidence. In ruling on the gun's admissibility, the trial court appears properly to have weighed the probative value against the potential prejudice and it cannot be said that the court abused its discretion here. See State v. Kendrick, supra, 47 Wash.App. at 628, 736 P.2d 1079.

                after the crime allegedly was committed.   Outside the jury's presence
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