State v. Rehak

• Decision Date: 20 August 1992
• Docket Number: No. 14046-2-II,14046-2-II
• Citation: 834 P.2d 651,67 Wn.App. 157
• Parties: The STATE of Washington, Respondent, v. Anna M. REHAK, Appellant.
• Court: Washington Court of Appeals

Page 157

67 Wn.App. 157

834 P.2d 651

The STATE of Washington, Respondent, v. Anna M. REHAK, Appellant.

No. 14046-2-II.

Court of Appeals of Washington,

Division 2.

Aug. 20, 1992.

Robert A. Lewis, Knapp, O'Dell, Lewis & Hagensen, Camas, (Court-appointed), for appellant.

Arthur D. Curtis, Pros. Atty., and Mark E. Beam, Deputy Pros. Atty., Vancouver, for respondent.

SEINFELD, Judge.

Anna Rehak was convicted by a jury of the first degree murder of her husband, Dana Rehak, Sr. She appeals, challenging several of the court's evidentiary rulings and jury instructions, and its denial of her motion to dismiss for insufficient evidence of premeditation. We find no error and affirm.

On February 13, 1990, sometime between 11 and 11:30 a.m., Dana Rehak, Sr. was shot three times in the head while seated in the basement family room of his home in rural Clark County. The shots were fired from a .22 caliber pistol. One shot entered the back of his head, a second entered his right temple, and the third went in his right cheek. The first two shots were fatal.

Law enforcement officials responded to the scene after Anna Rehak called 911 and reported that her husband had sustained a gunshot wound. It had snowed the night before and the ground was coated with new snow. The first emergency medical technicians to arrive at the Rehak home had to push aside snow accumulations to open the gate at the end of the driveway. There were no new vehicle tracks in the snow on the driveway.

Mrs. Rehak, described the morning events to police officers, stating that she left the house a little before 11 a.m. and crossed the yard to the barn, where she fed her cats. When she returned to the house she discovered her husband lying on the floor of the family room. Mrs. Rehak showed the officers the route she took from the house to the barn and pointed out the shoes she had worn, boots with a distinctive tread. The investigating officer retraced Mrs. Rehak's route but did not see any new prints of the size or shape of Mrs. Rehak's boots. In addition, the officer noted that the cement floor of the barn and the soles of Mrs. Rehak's boots were both dry.

Mrs. Rehak permitted a search of her home, the outbuildings and the family vehicles. On February 14, the day after the murder, the officers discovered the murder weapon in the Rehaks' travel trailer, hidden under the mattress of Mrs. Rehak's bed. Testimony from the Rehaks' children confirmed that the gun was at least similar to one that they had seen in Mrs. Rehak's purse at various times in the past few years. The officers also discovered an unpaid GTE telephone bill hidden with the gun. Mrs. Rehak was charged with murder in the first degree for the death of her husband and the case proceeded to trial.

The Rehaks' adult children from separate marriages testified, painting a picture of a stormy and occasionally abusive marriage. Mrs. Rehak had previously threatened to leave her husband, the couple had actually separated a few times and, in the months prior to Mr. Rehak's death, Mrs. Rehak had claimed to be tired of the constant fighting, stating that she "didn't know if she could take it any more." It was not uncommon for Mrs. Rehak to hide items from her husband, including mail and bills.

At the time of Mr. Rehak's death, the Rehaks were delinquent in their payments of various bills, including the mortgage on their house. On February 12, an officer of the mortgage company spoke to the Rehaks about this. Mr. Rehak expressed surprise at the delinquency, assured the mortgage officer that they were not in financial difficulties, and offered to come to the bank the next day to resolve the problem. However, other evidence indicated that the balances in the Rehaks' checking and savings accounts had decreased significantly over the past two years.

The defense sought to establish that Mr. Rehak's son, Dana Rehak, Jr., could have been his father's murderer. By way of offer-of-proof, counsel for the defense presented evidence of father and son quarrels, and of how Dana, Jr might benefit financially if his stepmother were convicted of the murder of his father. An effort was made to establish that Dana, Jr. also had the opportunity to commit the murder. He knew where the murder weapon was kept and he was absent, without explanation from his work, on the morning of the murder. However, as the defense had no evidence placing Dana Jr., who lives in Snohomish County, near the murder scene or even near Clark County, the proffered testimony was rejected.

The defense also argued that because the police immediately concluded that Mrs. Rehak was the killer, they failed to pursue other possible suspects. However, the trial court did not allow the cross examination of investigating officers regarding their failure to question certain other possible suspects, persons angry with Mr. Rehak, whose names were provided either by Mrs. Rehak or by anonymous tipsters. The trial court also barred the testimony of a potential third party perpetrator because of lack of foundation, but it did not preclude the defense from attempting to show, if it could, that one or more of the investigating officers decided immediately that Mrs. Rehak was the murderer and failed to consider any other possibilities. Nor did the trial judge prevent the defense from questioning the police about their investigatory techniques in order to cast doubt on the thoroughness of the investigation and on the evidence of Mrs. Rehak's guilt.

At the close of the trial, Mrs. Rehak objected to the jury instruction setting forth the elements of first degree murder, arguing that there was insufficient evidence of premeditation, and asked instead for an instruction on second degree murder. ¹ Neither party wanted the jury instructed on second degree murder as a lesser included offense of first degree murder. The trial court determined that there was enough evidence to support the first degree murder instruction. The defense also sought an instruction advising the jury that "premeditation may be shown by direct evidence or by substantial circumstantial evidence." (emphasis provided); the trial court rejected the instruction. The jury convicted Mrs. Rehak of murder in the first degree and she appeals the conviction.

Mrs. Rehak first argues that she was denied her right to present a defense when the trial court excluded evidence of Dana Rehak, Jr. as a potential suspect. We find no error. A defendant in a criminal case has a constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible. State v. Austin, 59 Wash.App. 186, 194, 796 P.2d 746 (1990), citing Taylor v. Illinois, 484 U.S. 400, 404-10, 108 S.Ct. 646, 651-53, 98 L.Ed.2d 798 (1988). Nonetheless, the admission or refusal of evidence lies largely within the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion. State v. Stubsjoen, 48 Wash.App. 139, 147, 738 P.2d 306, review denied, 108 Wash.2d 1033 (1987). An abuse of discretion exists only where no reasonable person would take the position adopted by the trial court. State v. Huelett, 92 Wash.2d 967, 969, 603 P.2d 1258 (1979).

Moreover, the constitutional right to present a defense is not unfettered. State v. Drummer, 54 Wash.App. 751, 755, 775 [834 P.2d 655] P.2d 981 (1989) also citing Taylor v. Illinois, supra. Specifically, in a case where the defendant seeks to introduce evidence connecting another person with the crime charged, a proper foundation must be laid.

[B]efore such testimony can be received, there must be such proof of connection with it, such as a train of facts or circumstances as tend clearly to point out someone besides the prisoner as the guilty party....

State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932), aff'd in State v. Mak, 105 Wash.2d 692, 716, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also Leonard v. Territory, 2 Wash.Terr. 381, 7 P. 872 (1885) (defense allowed to argue third party perpetrator theory after offering evidence to show that the third person was near the scene of the crime).

Mrs. Rehak maintains that the facts of her case are similar to those in Leonard; Dana Jr. was unaccounted for on the morning of the murder and had the ability to get from ...