State v. Nist

• Decision Date: 13 November 1969
• Docket Number: No. 39859,39859
• Citation: 461 P.2d 322,77 Wn.2d 227
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Robert Anthony NIST, Appellant.

Page 227

77 Wn.2d 227

461 P.2d 322

STATE of Washington, Respondent, v.Robert Anthony NIST, Appellant.

No. 39859.

Supreme Court of Washington, En Banc.

Nov. 13, 1969.

Rehearing Denied Dec. 16, 1970.

Peter D. Preston, Seattle, for appellant.

Charles O. Carroll, Pros.Atty., Seattle, Robert E. Dixon, Deputy Pros.Atty., for respondent.

HUNTER, Chief Justice.

The defendant, Robert A. Nist, appeals from the judgment and sentence entered from his conviction by jury of the following counts contained in an amended information: three counts of kidnapping in the first degree, one count of rape, one count of burglary in the second degree, one count of assault in the second degree, and one count to taking and riding in a motor vehicle without the permission of the owner.

Two informations were filed in this case.The initial information contained two counts of kidnapping in the first degree and one count of assault in the second degree, which the defendant allegedly committed on April 18, 1967.An amended information was filed on June 8, 1967.This information, on which the defendant proceeded to trial, added four counts to the three counts contained in the initial information.The additional counts involved one count of kidnapping in the first degree, one count of rape, one count of burglary in the second degree, and one count of taking and riding in a motor vehicle without permission of the owner.The acts charged in the latter counts were alleged to have been committed by the defendant on April 4, 1967.

The events which transpired on April 18, 1967, are charged in counts 1 through 3 of the amended information.The state's evidence showed that Miss A., age 15, at approximately 3:30 p.m. on that date, had picked up her nephew, age 2, at a babysitter's home on Queen Anne Hill in Seattle and had begun walking to her sister's home where she was to care for the child until her sister returned home from work.On her way to her destination, the defendant pulled up to the curb in a two-tone green automobile and stopped.He emerged from the vehicle, drew a pistol, and approached Miss A. and her nephew.He ordered her to take the child and get into the automobile.The defendant then drove them to a home on Beacon Hill which had formerly been occupied by him and his ex-wife, but was vacant at the time.He parked the car in the alley behind the house and took Miss A. and her nephew into the home.The defendant put Miss A. in one bedroom and her nephew in another.

When the defendant returned to the room in which Miss A. was held, he sat on the bed and ordered her to sit next to him.When she refused, he took the pistol and said he would shoot her if she didn't comply with his demand.Miss A. testified that she screamed and the defendant then grabbed a rag and choked her into unconsciousness.She awoke about 15 or 20 minutes later to find that her shoes, garter belt, and hose had been removed.Her clothes were also in a disheveled condition.Thereafter, the defendant put Miss A. and her nephew back into the car and returned them to Queen Anne Hill about two blocks from her sister's home.Miss A.'s rainhat was later found in the home on Beacon Hill.As the defendant's automobile sped off, after he released his two victims, Miss A. observed the license number of the vehicle and wrote it down.When Miss A. arrived at her sister's home, she called her mother who notified the Seattle police.Shortly thereafter, on the same day, Miss A. gave the investigating police officer a description of her assailant and described the events which had taken place.Although it is not specifically stated in the record, in describing these events it is reasonable to assume that Miss A. gave the investigating officer the license number of the defendant's vehicle at this time.Early the next morning, a detective gave Miss A. a number of police photographs and asked her to identify her assailant if she could.Miss A. examined the photographs and identified the defendant from one of them.

Counts 4 through 7 of the amended information charged the defendant with acts committed on April 4, 1967, involving Miss B., age 19.The state's evidence showed that on that date Miss B. returned home from her place of employment at 6:30 a.m. and entered her home in south Seattle.Upon entering, she turned and saw someone in the shadows.He immediately struck her numerous times, knocking her to the floor, and inflicting a deep cut on her head.The man then blindfolded her, took her car keys, and placed her in her automobile which was parked outside.He then drove her to a home which she could not identify, but which the evidence indicates was the same Beacon Hill home which was involved in counts 1 through 3.A witness, Mrs. Amelia Meduna, who lived across the alley from the subject house, observed Miss B.'s automobile behind the house the morning of the 4th, and she saw a man and woman emerge from the car and go into the house.Mrs. Meduna described Miss B.'s attire and what appeared to be a sack over her head.Because the house had been vacant for approximately 4 months, she thought this was rather unusual and she decided to write down the license number of the car.Since she then had to go to the hospital to see her husband, she gave the license number of the automobile to another neighbor, Mrs. Cora Crowder, who wrote the number down on a piece of paper.This was admitted into evidence during the trial.It was shown to be the license number of Miss B.'s car.

Taken into the home, Miss B. was tied and gagged, and the defendant left for about 30 minutes.Mrs. Meduna testified that a gentleman had driven off in the automobile about 20 minutes after his arrival without the woman who had accompanied him to the home.The evidence also indicates that during the time the defendant was absent from the Beacon Hill home, he returned Miss B.'s car to the area near her home and picked up his own automobile.Upon his return, Miss B. who was still blindfolded testified that she pleaded with the defendant for her release.He refused, however, and then raped her.Thereafter, the defendant drove her to a point a few blocks from her home where he released her.Miss B. noticed that this car was not her automobile, the one in which she had originally been transported by the defendant.After her release, she was subsequently found by a neighbor, Mary Brummel, while walking along the street in a dazed condition.She had a gaping hole in her head and the witness had her lie down on the parking strip in front of her home and covered her with a blanket.This same witness identified the defendant's car as the one which had driven up the street in front of her home a few seconds before she found Miss B.The defendant's automobile had attracted the witness's attention because it resembled in color another neighbor's vehicle and because it was being driven slowly on the wrong side of the street.She testified that the driver appeared to be looking very intently at the homes along the street.After the witness found Miss B. and was tending her in the yard, the witness testified that the same car returned and passed by her and Miss B. once again.The driver of that automobile, whom she later identified as the defendant, was driving very slowly and just looked at them as he passed nearby.He did not stop.

On April 19, 1967, the defendant was arrested at his place of employment in Seattle by two police officers who had in their possession a parole board pickup order.The circumstances surrounding his arrest will be discussed later in this opinion.The aforementioned charges were subsequently filed and the defendant pleaded not guilty to each count alleged in the amended information.The jury found the defendant guilty on all counts alleged in the amended information and also returned a special verdict that the death penalty not be imposed on counts 1, 2, and 4.The defendant's subsequent motion in arrest of judgment or in the alternative for a new trial was denied.

Prior to the trial on July 10, 1967, the trial court conducted a CrR 101.20W hearing to determine the admissibility of certain statements made by the defendant to the arresting officers shortly after his arrest and to a police officer who later on the same day interrogated him at the city jail.

Pursuant to CrR101.20W(c), the trial court entered findings and conclusions holding that the statements were admissible against the defendant at the trial.

The defendant contends the trial court erred in admitting the statements made to the officers prior to his being placed in the patrol car and his statements taken in the patrol car and at the police station.

It is clear from the record that the warnings to the defendant of his constitutional rights, required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), were not given prior to his being placed in the patrol car.It is further clear that the statements of the defendant taken in the patrol car and at the police station were after he received the Miranda warnings and were therefore admissible unless tainted by the defendant's prior admissions which were obtained without the Miranda warnings having first been given.

The record shows that Detectives Miller and Delaney took the defendant into custody at his place of employment on a valid parole board pickup order around 8:50 a.m. on April 19, 1967.As the officers and the defendant left the building in which the defendant was employed, officer Miller asked the defendant if he had his car.The defendant replied affirmatively and stated that it was in the parking lot adjoining the one in which the officers' patrol car was located.The officers asked the defendant if he would mind their looking in his car and if there was a gun inside.The defendant answered no to both questions.The defendant then opened the car and the officers looked through it.The officers also inquired at this time as to the...