State v. Rooks

• Decision Date: 19 December 2005
• Docket Number: No. 52971-4-I.,52971-4-I.
• Citation: 130 Wn. App. 787,125 P.3d 192
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Mark Allen ROOKS, Appellant.

125 P.3d 192

130 Wn. App. 787

STATE of Washington, Respondent, v. Mark Allen ROOKS, Appellant.

No. 52971-4-I.

Court of Appeals of Washington, Division One.

December 19, 2005.

Nielsen Broman Koch Pllc, David Bruce Koch, Seattle, WA, for Appellant.

Mark Allen Rooks, Appearing Pro Se.

Amy Holt, Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA, Amy R. Meckling, King County Prosecutor's Office, Seattle, WA, for Respondents.

PUBLISHED OPINION IN PART

SCHINDLER, J.

¶ 1 Mark Allen Rooks appeals his conviction for murder in the second degree of his ex-girlfriend, Amanda Gurr. Rooks argues his constitutional right to be present at a critical stage of the trial was violated when he was excluded from an in-chambers conference to address his attorneys' motion to withdraw based on a conflict of interest. Rooks also argues the trial court erred in admitting his statements to the police including a ninety-minute taped confession because the State failed to establish the corpus delicti of the crime; the prosecutor committed misconduct during jury selection, opening statement and closing argument; and his attorney provided ineffective assistance of counsel in failing to propose an adequate ER 404(b) limiting instruction. Finally, Rooks claims the imposition of an exceptional sentence violated his right to a jury trial under Blakely v. Washington.¹ We affirm Rooks' conviction but remand for resentencing.

FACTS

¶ 2 On July 11, 2001, Amanda Gurr, the twenty-six-year-old ex-girlfriend of Rooks and the mother of their young son, suddenly disappeared. The police located her remains on September 6, 2001, after Rooks' brother, Jeff Schomburg, told police Rooks admitted strangling Amanda to death on July 11 and described where to find her body.

¶ 3 Rooks and Amanda were involved in a troubled on-again, off-again romantic relationship. In 1996, Rooks and Amanda began living together in the Seattle area. When Amanda's older sister, Jessica Gurr, visited Amanda and Rooks, she said Rooks would not let Amanda and Jessica be alone together and Amanda always looked at Rooks before answering any questions. Jessica also recalled Amanda was uncharacteristically scared and nervous when she was unable to find the items on Rooks' grocery list. And when they returned home without the items Rooks got upset at Amanda.

¶ 4 In fall 1997, Amanda moved to where Jessica lived in Oregon. Rooks followed Amanda to Oregon and moved in with her a couple months later. In July 1998, Rooks and Amanda had a son, M.R. After M.R. was born, Rooks constantly told Amanda she was not a good mother. Jessica said Rooks frequently berated Amanda, telling her she was irresponsible and stupid and she was lucky to be with him. When Amanda went to Jessica's house to visit her, Rooks called every fifteen minutes and drove by the house if no one answered the phone. Every time Jessica took Amanda to run errands, they had to check in with Rooks and explain where they were going, how long they'd be gone, what they were going to buy, and who else was going to be there.

¶ 5 On at least ten separate occasions Jessica saw bruises on Amanda. Jessica also testified that she witnessed Rooks hit Amanda two times. The first time, Rooks was yelling at Amanda and slapped her with an open hand. The second time Amanda called and asked Jessica to come pick her up at her house. When Jessica arrived Amanda was running from the back bedroom toward the front door with Rooks close behind chasing her. Rooks hit Amanda on the back of her head with a closed fist and Amanda nearly fell down from the force of the blow. Jessica picked up M.R., grabbed a pair of shoes for Amanda and went outside with Amanda. Jessica called the police and urged Amanda to leave Rooks. But when the police arrived Amanda refused to talk to them.²

¶ 6 While living in Oregon, Amanda became friends with Stacie Sandoval. Stacie testified that Rooks made rude remarks about Amanda's mothering skills. Stacie also observed bruising on Amanda's arm and testified about an occasion when she witnessed Rooks assault Amanda. Amanda called Stacie and asked her to pick her up at her house. When Stacie arrived, Amanda was walking down the road crying and shaking. Amanda asked Stacie to take her back to the house so she could get her three-month-old son. Amanda went in the house, and then ran towards Stacie's car with the baby. Rooks followed behind Amanda yelling. As Amanda handed the baby to Stacie, Rooks grabbed Amanda by the hair and threw her to the ground. Rooks tried to get the baby from Stacie, but Stacie refused and called the police. When the police arrived Rooks admitted throwing Amanda on the ground and was arrested.

¶ 7 During the two-and-a-half years Amanda and Rooks lived together in Oregon, Amanda took M.R. and left Rooks at least five times. But Amanda always returned because Rooks said their son needed a father and he apologized each time for losing his temper.

¶ 8 In late 1999, Amanda took M.R. and moved to Alaska to live with her mother and younger sister, Elizabeth. Rooks traveled to Alaska to visit M.R., and Amanda let Rooks take M.R. for two hours. When Amanda went to Rooks' hotel room with Elizabeth and Elizabeth's fiancé to get M.R., Rooks refused to allow Amanda to take M.R. Elizabeth tried to get the police to intervene, but because the dispute was out of their jurisdiction they would not get involved. Rooks returned to Seattle with M.R.

¶ 9 Amanda left Alaska and moved back to Seattle to regain custody of M.R. When she returned, Amanda lived with her father, Steve Gurr, in Burien. Amanda learned that because Rooks reported Amanda was an unfit mother, Child Protective Services (CPS) had placed M.R. in protective custody with Rooks' mother, Diane Schomburg. To regain custody of M.R., CPS required Amanda to attend parenting classes and submit to random urine analyses. Rooks wanted sole custody of M.R., and according to the guardian ad litem, Rooks also wanted control of all decisions about his son. Amanda enrolled in and completed parenting classes, and her urine analyses were normal. Amanda had twice-weekly visitation with M.R. on Wednesday afternoons and Saturday afternoon until Sunday afternoon. Amanda never missed a visit with M.R.

¶ 10 Amanda and Diane Schomburg had arranged to meet at a park on Wednesday, July 11, 2001, for a picnic with M.R. When Amanda's father left for work that morning, she was awake but not dressed. Steve left Amanda his cell phone so she could call Diane Schomburg. At 9:48 a.m., Amanda called Diane Schomburg to confirm getting together for the picnic with M.R. later that morning. Amanda never showed up for the picnic with her son.

¶ 11 When her father returned from work at 6:45 p.m., Amanda was not home. The front door was unlocked, which was unusual, a half-eaten pizza was on the stove, and the stereo volume was turned up much higher than normal. Amanda typically left Steve a note if she was out but there was no note. At first, Steve thought Amanda's visit with M.R. might have lasted longer than expected. But when Amanda did not return by 9:30 that night, Steve tried to find her. The next morning, Steve located her purse, keys and cigarettes behind the dresser in her bedroom. Because Amanda hardly ever left home without her purse and keys, Steve called the police and reported Amanda missing.

¶ 12 In the evening of July 11 or 12, Rooks told his brother, Jeff Schomburg, that he had strangled Amanda on July 11 and described the remote area where he left her body. Rooks did not admit his involvement in Amanda's death to anyone else. Between July 11 and when Amanda's body was found in September, Rooks went to visit Steve Gurr several times to talk about Amanda and her sudden disappearance. Rooks always denied knowing anything about what happened to Amanda.

¶ 13 In late August, Jeff went to the area Rooks had described and saw Amanda's body. A couple of weeks later, on September 6, Jeff told the police that Rooks admitted killing Amanda and told them where to find her body.

¶ 14 The next day on September 7, the police found Amanda's remains at the location described by Jeff. The area was thick with foliage. Amanda's body was lying in a drainage ditch about twenty feet away from a utility service road in Des Moines. That same day, the police told Rooks that they found Amanda's body and that Jeff told them Rooks admitted killing her. In a ninety-minute taped statement, Rooks confessed to strangling Amanda on July 11. Rooks was charged with murder in the second degree, domestic violence.

¶ 15 According to the medical examiner, Amanda's body had been at the remote location for one to three months. Because her body was in an advanced state of decomposition, the medical examiner was unable to determine the manner and cause of death. The medical examiner could not rule out strangulation or drug overdose as the cause of death. The examiner found evidence that Amanda ingested cocaine within a few days of her death.

¶ 16 Relying on the medical examiner's findings, Rooks filed a pretrial motion to exclude his ninety-minute statement to the police under the corpus delicti rule. In response, the State made an offer of proof and presented evidence independent of Rooks' confession to show Amanda's death was related to a criminal act. The trial court ruled the State met its burden to establish the corpus delicti and denied Rooks' motion to exclude his taped confession.

¶ 17 Rooks also filed a motion under ER 404(b) to exclude evidence of prior acts of physical abuse by Rooks against Amanda; Rooks' controlling and abusive behavior toward Amanda; Rooks' refusal to return M.R.; and statements made by Amanda about her fear of Rooks. The court ruled that the history of Rooks' and Amanda's relationship including acts of domestic violence, Rooks' controlling and abusive behavior, and the child custody dispute were relevant to prove motive.³

¶ 18 At trial, the...