State v. Peyton

• Decision Date: 30 June 1981
• Docket Number: No. 3943-II,3943-II
• Citation: 29 Wn.App. 701,630 P.2d 1362
• Parties: The STATE of Washington, Respondent, v. William Duane PEYTON; Walter O. Mathis; Albert Woodrow Harmon; Clifford James Johnson; Willie Lee Moore; Bryce Monds; Debra Sue Cartwright a/k/a Nulf and James Edward Mathis a/k/a Malone, Appellants.
• Court: Washington Court of Appeals

Page 701

29 Wn.App. 701

630 P.2d 1362

The STATE of Washington, Respondent, v. William Duane PEYTON; Walter O. Mathis; Albert Woodrow

Harmon; Clifford James Johnson; Willie Lee Moore;

Bryce Monds; Debra Sue Cartwright a/k/a

Nulf and James Edward Mathis

a/k/a Malone, Appellants.

No. 3943-II.

Court of Appeals of Washington, Division 2.

June 30, 1981.

David D. Gordon, Gig Harbor, Charles Herrmann, Steven L. Larson, Robert S. Felker, Gregory C. Abel, Robert G. Grey, Moe Birnbaum, Tacoma, for appellants.

Joseph D. Mladinov, Senior Deputy Pros. Atty., Tacoma, for respondent.

PETRIE, Judge.

James Malone, a/k/a James Mathis, Clifford Johnson, Walter Mathis, William Duane Peyton, Bryce Monds, Willie Moore, and Debra Sue Cartwright were all convicted of first degree murder and first degree robbery. Both charges arose out of the robbery of a bank in the Parkland area of Tacoma on October 6, 1978 and the killing of a deputy sheriff who was in hot pursuit of several of them in flight from the bank. All defendants raise some common issues, and other issues are argued by one or more but not all of the defendants. We affirm the convictions; the assignments of error have been grouped together in five general headings in this opinion.

The background facts, some of which were testified to by Albert "Buck" Harmon, a codefendant who pled guilty before trial to robbery and second degree murder, present a tragic picture. The bank robbery was planned extensively. Six of the defendants (Peyton, Monds, Johnson, Moore, Cartwright, and Harmon) entered the bank wearing ski masks, some of them carrying guns. They took approximately $44,000 in cash and fled in a van driven by Harmon. Walter Mathis, who was coordinating the robbery by two-way radio, and Malone were parked nearby in other vehicles. They also left the scene when the others fled. Mathis went home. Malone followed the van to a prearranged location where the van was abandoned. Four of the occupants got into a waiting getaway car, a Bobcat station wagon, and two of them joined Malone in his car. Washington State

Patrol Trooper Richard Krook took up pursuit of the Bobcat and was fired upon. The Bobcat came to a stop and all four occupants (Peyton, Johnson, Monds, and Moore) jumped out and began running across the nearby fields. Pierce County Deputy Sheriff Kenneth Moran joined Trooper Krook and gave chase on foot to the robbery suspects while Krook tried to get some onlookers in the area to take cover. Shots rang out in the field killing Moran. The State's theory of the case was that Peyton fired the fatal shot, but all defendants besides Harmon were tried jointly and were convicted upon the felony-murder doctrine. RCW 9A.32.030(1)(c).

PRETRIAL RULINGS AND ACTIVITIES

We first consider the contention that a change of venue should have been granted due to the pretrial publicity given this case. We advert to the factors set forth in State v. Crudup, 11 Wash.App. 583, 587, 524 P.2d 479 (1974):

(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.

News media gave the bank robbery, murder of Deputy Moran, and Moran's funeral extensive coverage over a one-week period some three months prior to jury selection. Newspaper coverage included large photographs of the "manhunt" that occurred in the semi-rural area of the shooting and of the mourners at the funeral. We have reviewed the record to determine if a reasonable probability of juror prejudice was present at the time of trial, in order to decide whether the trial court abused its discretion by Defendants Peyton and Mathis argue that they did not knowingly waive their right to speedy trial because their counsel allegedly was not present at the hearing on November 21, 1978 when the speedy trial right was waived. The record shows this contention to be frivolous. Each of them was present with his attorney when the waivers were executed and the trial date was continued.

denying a change of venue. State v. Jamison, 25 Wash.App. 68, 604 P.2d 1017 (1979); State v. Haynes, 16 Wash.App. 778, 559 P.2d 583 (1977). Rather than unduly protracting this opinion by a point-by-point discussion of the Crudup factors, suffice it to say that none of them individually or collectively lead us to conclude that a change of venue should have been granted. Many of the jurors had read "something" about the case, but generally their recollections were vague. Only one venireman of 86 recalled that two of the defendants had prior criminal records, and he was removed by the court. The defense team accepted the jury and utilized only 17 of 21 peremptory challenges. The record clearly indicates the trial judge's concern that an impartial jury be impaneled, which the court took steps to effectuate by conducting the examination of each juror in isolation from the panel. A change of venue was not necessary.

Mathis also argues that because his arrest was based on the unlawful confession of Clifford Johnson, the police did not have probable cause to arrest him and this somehow impacts his conviction. We disagree. We recognize that the exclusionary rule may limit the proof offered at trial, but the illegality of a defendant's detention cannot deprive the prosecution of the opportunity of proving guilt by the introduction of evidence wholly untainted by police misconduct. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). An illegal arrest or detention does not void a subsequent conviction otherwise valid. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Several defendants moved for separate trials because The granting or denial of a motion for separate trials of jointly charged defendants is entrusted to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.

they feared guilt would be imputed to them by association and that codefendants' statements might be used against them. The motions were denied.

State v. Barry, 25 Wash.App. 751, 756, 611 P.2d 1262 (1980). The defendant must be able to point to specific prejudice as a result of the joinder before denial of a motion will be overturned. State v. Kinsey, 20 Wash.App. 299, 579 P.2d 1347 (1978). In this case the court protected against guilt by association by granting defendants' pretrial motion to exclude evidence of prior bank robberies by some defendants. Further, several confessions were suppressed and another was edited to keep the jury from considering any incriminating statement by a defendant who might choose not to take the stand and thereby prevent a codefendant from exercising his right of confrontation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); CrR 4.4(c). We find no error on this issue.

JURY SELECTION

The next issue involves the so-called "death-qualified jury," i. e., a jury in a capital case from which prospective jurors have been excluded for cause because of their attitudes toward the death penalty. In Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968), the Supreme Court refused to prohibit the prosecution's power to exclude for cause those prospective jurors who could not vote to impose the death penalty regardless of the evidence or could not even vote for guilt because of the risk of subsequent imposition of the death penalty. The Witherspoon court struck down a statute enabling the prosecution to challenge for cause any and all jurors who express general, conscientious scruples against or opposition to capital punishment; but, although leaving the question open for future decision, the court refused to conclude The defendants in this case were all charged with premeditated murder, RCW 9A.32.030(1)(a), and first degree felony murder, RCW 9A.32.030(1)(c). They were later put on notice of the State's intent to seek the death penalty, but death penalty proceedings were not ultimately invoked because the jury found defendants guilty of felony murder, but not guilty of premeditated murder which would have been required to trigger the special sentencing proceeding of RCW 10.94.020, 9A.32.045. Nevertheless, defendants argue that the empirical data now show a death-qualified jury is unconstitutionally prone to convict a defendant. ¹

on the basis of the "tentative and fragmentary" data then before it, "that the exclusion of (all) jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." Witherspoon v. Illinois, 391 U.S. at 517-18, 88 S.Ct. at 1774-75.

This subject was analyzed exhaustively in the recent California Supreme Court decision of Hovey v. Superior Court of Alameda County, 28 Cal.3d 1, 616 P.2d 1301, 168 Cal.Rptr. 128 (1980). California, like Washington, provides for exclusion for cause of jurors who would either always vote for acquittal in a capital case as a matter of conscience, or who would We agree with Hovey, 28 Cal.3d at 20, 616 P.2d at 1310-11, 168 Cal.Rptr. 137-38 that each jury pool is likely to contain a spectrum of community viewpoints ranging from people who (1) automatically will impose the death penalty, at one extreme, through those who (2) are in favor but would not vote for it invariably, and those who (3) are indifferent, and those who (4) oppose it but...