State v. Pang
| Citation | 940 P.2d 1293,132 Wn.2d 852 |
| Decision Date | 15 October 1997 |
| Docket Number | No. 64786-1,64786-1 |
| Parties | STATE of Washington, Respondent, v. Martin Shaw PANG, Petitioner. |
| Court | United States State Supreme Court of Washington |
Norm Maleng, King County Prosecutor, Marilyn B. Brenneman, Timothy A. Bradshaw, Deputies, Seattle, for respondent.
Petitioner Martin Shaw Pang seeks review of a King County Superior Court decision which denied his motion to dismiss or sever four counts of murder in
the first degree from one count of arson in the first degree based upon his claim that the Federal Supreme Court of Brazil approved his extradition from that country for prosecution in the [940 P.2d 1295] State of Washington only for the crime of arson in the first degree. We reverse.
The basic question in this case is whether the State of Washington may prosecute Petitioner Martin Shaw Pang for four counts of murder in the first degree and one count of arson in the first degree when the Federal Supreme Court of Brazil, ruling on the State's petition for extradition, granted his extradition for prosecution in the State of Washington "for the crime of arson in the first degree, resulting in four deaths .... without the additional charge of four counts of first degree murder." To answer the basic question, we must answer these additional questions:
(1) Does Petitioner Pang have standing to object to violation by the State of Washington of the terms of the order on extradition issued by the Federal Supreme Court of Brazil?
(2) Did the United States of Brazil explicitly or implicitly waive any objection it could have made to prosecution by the State of Washington of Petitioner Pang for murder in the first degree contrary to the specific terms of the extradition order issued by the Federal Supreme Court of Brazil?
(3) Does the "specialty doctrine" in international extradition law prohibit the State of Washington from prosecuting Petitioner Pang for crimes specifically excluded in the extradition order?
(4) Does the Extradition Treaty between the United States of America and the United States of Brazil prohibit the State of Washington from prosecuting Petitioner Pang for crimes not authorized in the extradition order?
(5) Is the State of Washington obligated to follow the decision
of the Federal Supreme Court of Brazil which ruled that, as a condition for extraditing Petitioner Pang to the State, he can be prosecuted only "for the crime of arson in the first degree resulting in four deaths .... without the additional charge of four counts of first degree murder"?
On January 5, 1995, four firefighters died while fighting a fire at the Mary Pang Products, Inc. warehouse at 811 Seventh Avenue South in Seattle, Washington. 1 Fire investigators later determined the fire had been deliberately set. Martin Shaw Pang became a suspect. A fugitive warrant was issued for his arrest. 2 On March 3, 1995 the King County Prosecuting Attorney by Information charged Petitioner Pang with four counts of murder in the first degree as follows:
COUNT I
I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington, do accuse MARTIN S. PANG of the crime of Murder in the First Degree, committed as follows:
That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Walter Kilgore, a human being who was not a participant in the crime, and who died on or about January 5, 1995;
Contrary to RCW 9A.32.030(1)(c), and against the peace and dignity of the State of Washington.
COUNT II
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:
That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Lieutenant Gregory A. Shoemaker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;
Contrary to RCW 9A.32.030(1)(c), and against the peace and dignity of the State of Washington.
COUNT III
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:
That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Firefighter James T. Brown, a human being who was not a participant in the crime, and who died on or about January 5, 1995;
Contrary to RCW 9A.32.030(1)(c), and against the peace and dignity of the State of Washington.
COUNT IV
And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Murder in the First Degree, a crime of the same or similar character as another crime charged herein, and committed as follows:
That the defendant MARTIN S. PANG, together with another, in King County, Washington on or about January 5, 1995, while committing and attempting to commit the crime of Arson in the First Degree, and in the course of and in furtherance of said crime and in immediate flight therefrom, did cause the death of Firefighter Randall R. Terlicker, a human being who was not a participant in the crime, and who died on or about January 5, 1995;
Contrary to RCW 9A.32.030(1)(c), and against the peace and dignity of the State of Washington.
Prosecuting Attorney
By: [s] Marilyn B. Brenneman
MARILYN B. BRENNEMAN, WSBA # 91002 [sic]
Senior Deputy Prosecuting Attorney
By: [s] Timothy A. Bradshaw
Timothy Bradshaw, WSBA # 91002 [sic]
A Certification for Determination of Probable Cause was attached to the Information. 4
On March 16, 1995, Petitioner Martin Shaw Pang was arrested in Rio de Janeiro, Brazil. 5 The following day the Prosecuting Attorney of King County by amended information added a charge of arson in the first degree. The Amended Information, after repeating the four counts of murder in the first degree, then stated:
COUNT V
And I Norm Maleng, Prosecuting Attorney aforesaid further do accuse MARTIN S. PANG of the crime of Arson in the First Degree, a crime of the same or similar character That the defendant MARTIN S. PANG in King County, Washington on or about January 5, 1995, did knowingly and maliciously cause a fire or explosion located at 811 Seventh Avenue South (the Mary Pang Warehouse), Seattle, which was manifestly dangerous to any human life, including firemen;
and based on a series of acts connected together with another crime charged herein, which crimes were part of a common scheme or plan, and which crimes were so closely connected in respect with time, place and occasion that it would be difficult to separate proof of [940 P.2d 1297] one charge from proof of the other, committed as follows:
Contrary to RCW 9A.48.020(1)(a), and against the peace and dignity of the State of Washington. 6
In July 1995 the United States of America requested the United States of Brazil to extradite Petitioner Pang to the State of Washington for trial on four counts of murder in the first degree and one count of arson in the first degree. 7 The Affidavit in Support of Request for Extradition states:
STATE OF WASHINGTON
I, MARILYN B. BRENNEMAN, being duly sworn, hereby depose and say:
1. I am a citizen of the United States and a resident of the State of Washington.
2. I have been engaged in the practice of law in the State of Washington since 1980.
3. Since May 1, 1980 I have been employed by the King County Prosecuting Attorney's Office as a Deputy Prosecuting Attorney. I was appointed Senior Deputy Prosecuting Attorney 4. On March 3, 1995, an Information was filed in King County Superior Court charging the defendant with the crimes of Murder in the First Degree, Counts I, II, III, and IV, Class "A" Felonies, carrying the potential penalty of life imprisonment. On March 17, 1995, an Amended Information was filed in King County Superior Court adding the charge of Arson in the First Degree, Count V, also a Class "A" Felony, carrying the potential penalty of life imprisonment.
on January 2, 1985. My duties are to prosecute persons charged with criminal violations of the laws of the State of Washington. In the course of such prosecutions, I have become knowledgeable about the state criminal statutes and case law, including those related to the crime of Murder in the First Degree and Arson in the First Degree. I am responsible for prosecuting the case of State of Washington vs. Martin Shaw Pang, King County Superior Court Cause Number 95-1-00473-0. I am therefore familiar with the evidence and charges in this case and the contents of the relevant files of the King County Superior Court and the Office of the King County Prosecuting Attorney.
5. The statutes cited in the Information and Amended Information are Revised Code of Washington 9A.32.030(1)(c) and 9A.48.020(1)(a). These statutes are as follows:
9A.32.030. Murder in the first degree.
(1) A person is guilty of murder in the first degree when:
(a) With a...
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