State v. Pirtle

Decision Date12 October 1995
Docket NumberNo. 60661-7,60661-7
Citation904 P.2d 245,127 Wn.2d 628
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Blake Richard PIRTLE, Appellant.

Blake Pirtle, Walla Walla WA, pro se.

Joan M. Fisher, Genesee, ID, for appellant.

James Sweetser, Spokane County Prosecutor, Kevin Korsmo, Deputy, Spokane, WA, for respondent.

JOHNSON, Justice.

Defendant Blake Pirtle was convicted in Spokane County Superior Court of two counts of aggravated murder and sentenced to death. Pirtle appealed directly to this court, raising numerous issues. The State cross-appealed as to two issues. After considering the arguments and conducting our own statutorily mandated review, we affirm Pirtle's conviction and death sentence.


When Terra Kanzler arrived for work at 8 a.m. at the Argonne Road Burger King in Spokane on May 17, 1992, she found the restaurant locked. Alarmed, she called the police. When officers entered the Burger King, they found the bodies of Tod Folsom and Dawnya Calbreath. Tod was lying on the floor of the main office in a pool of blood. He had suffered severe head and neck injuries, and a hacksaw was found on his back. His hands had been bound behind his back with plastic tape formed into handcuffs.

The body of Dawnya Calbreath was found on the floor of a cooler. She had also suffered a head injury and severe neck and hand wounds. Plastic tape was found on her body, although her hands were free. A stained knife was found near her body. Signs of a struggle were visible throughout the back of the building. Blood and paint were found throughout. Material had been discharged from a fire extinguisher.

The restaurant had been robbed; $4,200 was missing. The telephone line was found cut. A burned egg on the grill indicted the victims had been surprised while opening the restaurant.

Autopsies of the victims revealed that Tod's skull was "crushed" by a blow from a blunt object while his head was resting against a hard surface. Tod's neck was cut after he was unconscious. There were nine wounds to the front of the neck and eight to the back. They could have been caused by the knife or the hacksaw. He had no defensive wounds.

Dawnya suffered three to five blows to the head. She had a hairline skull fracture. A paint can was identified as the probable instrument causing the injuries. Dawnya's neck was cut after she lost consciousness. The blade of a knife had been drawn across the neck at least 16 times, cutting through to the spinal bone at the back of the neck. She also suffered knife wounds to her hands. The examining doctor speculated the probable sequence of events was that she received the knife wounds to her hands trying to defend herself, was knocked unconscious from blows of the paint can, and that her neck wounds were later inflicted by the knife and possibly the hacksaw.

Trial testimony from several Burger King customers and employees provided information about the events of the morning. Wesley LeDoux had worked that night at the restaurant and had left shortly before 7 a.m. Dawnya was alone. Joie Taylor, a customer, used the drive-through window about 7:15 a.m. and was told by Dawnya that service was somewhat slow because Tod had not arrived.

Within minutes, David Schmidt, apparently the next customer to use the drive-through window, was told by a man who was not dressed in a Burger King uniform that the restaurant would not open for another 20 minutes. At 7:25 a.m., the panic alarm in the cooler was activated. The alarm was relayed to a security company, but Burger King had closed its account there. A dispatcher tried telephoning the restaurant, but received a disconnect message. He did not take any other action because the account was closed.

The investigation quickly focused on Pirtle. At about 7:50 on the morning of the murders, a neighbor saw Pirtle drive to his mother's house, where he was living. He got out of the car and carried a big green garbage bag into the house. At about 8:30 a.m., he left again in his mother's car.

The garbage bag was later found and seized by sheriff's deputies pursuant to a warrant. Inside the bag, they found paint-stained clothing, a fire extinguisher, a knife, and three plastic gloves. Crime scene investigators identified three fingerprints and four barefoot prints found at the scene as Pirtle's.

Pirtle also had a motive. On May 4, a Burger King assistant manager fired him for sexual harassment. Dawnya attended the termination interview as a witness for the manager. On May 14, Pirtle pulled up to the drive-through window and ordered coffee. Dawnya was standing next to another employee at the window. Pirtle warned the other employee not to talk to him because he would sexually harass her. Then as he left, he said, "They'll see". Report of Proceedings, vol. 9 at 1686.

Pirtle was arrested with a female companion at a Spokane motel the evening of May 17. His body was stained with paint. He told officers he had been at the restaurant, but had left before the killings took place. He attributed the murders to a "whacked out junkie" named "Joe".

On May 20, Pirtle was charged by information with two counts of aggravated first degree murder, alleging the aggravating factors that the murders were part of a common scheme or plan, were committed in the course of robbery, and were committed to conceal the commission of the crime of robbery or to protect or conceal the identity of any person committing the crime. On June 19, notice of intent to seek the death penalty was filed. Trial was set for May 24, 1993.

While Pirtle was in custody awaiting trial, a reporter and a Burger King employee received letters from "Joe" stating he was free to kill again while the Defendant was in jail taking the blame for the killings. The "Joe" letters were later determined to have been written by a jail inmate at Pirtle's request. Pirtle then sent them to a friend who placed them in the mail.

On June 9, the trial began. Defense counsel told the jury in opening that his client had committed the killings but disputed they were premeditated. The defense focused primarily on the Defendant's mental capacity at the time of the slayings. Various friends and family members testified about Pirtle's alcohol and drug use during the week before the crime.

Blake Pirtle took the stand on his own behalf to try to establish a diminished capacity defense. He testified to a long history of drug use, but said he had not used hard drugs in several months until being fired. Then, on both Thursday and Saturday before the killings, he injected cocaine and "crystal meth". After injecting methamphetamine late Saturday night, he became paranoid and started hallucinating. He contended the effect of the drugs was diminishing on Sunday morning and that he wanted more, so he decided to rob the Burger King.

Pirtle testified he took a knife from his kitchen and left. He said he waited next to the restaurant until LeDoux left. He then went to the back door, buzzed, and was allowed entry by Tod, stating he was Wesley LeDoux. He told Dawnya he was robbing the restaurant and cut the telephone cord. He then had her open the safe and confirmed that it was open. He had Dawnya tie up Tod before he did the same to her. Pirtle put the two employees in the freezer and rolled the portable freezer in front of it. He admitted he then took Dawnya's keys and emptied the tills and the safe, putting the money into bank deposit bags.

Pirtle testified he was ready to leave when the drive-through lane signal went off. He told the customer the restaurant would not be open for 20 minutes. As he was walking back he saw the bread knife and picked it up. He then took Dawnya, who had freed her hands, out of the cooler and tried to "intimidate" her. According to Pirtle's own testimony, a struggle ensued, resulting in the knife wounds to her hands. He said when he saw the blood he "snapped" and grabbed a paint can. He struck her twice to knock her down, and then twice more with a different can. He then cut her throat with the knife.

Pirtle testified he then talked Tod into leaving the cooler and walking to the office. Pirtle told him he intended only to knock him out, convinced him to remove his glasses and lie down face down. Pirtle hit Tod twice with the fire extinguisher, and then used the knife to cut his throat. At that point he said he heard sounds coming from Dawnya and returned to her to cut her throat further.

Pirtle testified he removed his clothing, put in it a bag, and put on some old clothes from the restaurant. He set the bags down outside and went and got his car. He then drove the short distance back to Burger King, loaded the bags in the car, and went home.

The defense also offered extensive expert testimony in an effort to establish Pirtle's diminished capacity to premeditate. Dr. Dennis Pollack, a clinical psychologist, testified the Defendant was drug and alcohol dependent and had a personality disorder with antisocial and borderline features. Because of these mental disorders, Dr. Pollack did not believe the Defendant had the ability to premeditate.

Dr. Karen Sheppard, another clinical psychologist, testified Pirtle's frontal lobes had been impaired by drug use, making it difficult for him to evaluate a situation, organize, and come to a decision.

Clinical psychologist Dr. Phillip Murphy testified Pirtle had likely suffered a temporal lobe seizure during the killings. He believed the Defendant could not therefore premeditate the killings.

Dr. Jonathan Lipman, a neuropharmacologist, testified concerning the effects of drugs on the brain. He explained the temporal lobe may develop heightened sensitivity to drugs with repetitive use. This reverse tolerance can result in a sudden "kindling" or seizure. When the temporal lobe goes into seizure, the result is extreme and explosive rage. This explosive dyscontrol is frequently characterized by...

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