State v. Rupe

• Decision Date: 07 June 1984
• Docket Number: No. 48729-4,48729-4
• Citation: 683 P.2d 571,101 Wn.2d 664
• Parties: The STATE of Washington, Respondent, v. Mitchell Edward RUPE, Appellant.
• Court: Washington Supreme Court

Page 664

101 Wn.2d 664

683 P.2d 571

The STATE of Washington, Respondent, v. Mitchell Edward RUPE, Appellant.

No. 48729-4.

Supreme Court of Washington,

En Banc.

June 7, 1984.

Cordes, Cordes & Younglove, Clifford F. Cordes, III, Olympia, for appellant

Patrick D. Sutherland, Thurston County Prosecutor, Gary R. Tabor, Deputy Pros. Atty., Olympia, for respondent.

ROSELLINI, Justice.

This case comes to us for direct review of defendant Mitchell E. Rupe's sentence of death. Defendant was convicted of two counts of aggravated first degree murder and two counts of first degree robbery.

By this appeal, defendant raises multiple issues relating to his conviction and to his sentence. The issues raised by defendant in respect to his conviction are:

1. Did the trial court abuse its discretion by refusing to grant a change in venue?

2. Did the trial judge err in admitting defendant's statements to police?

3. Do technical violations of RCW 9.73.090 require exclusions of defendant's taped statements to police?

4. Was defendant prejudiced by the admission of the 911 tape, predeath photos of the victims or hearsay testimony?

5. Was defendant denied due process by the exclusion of evidence regarding the results of the State's chief witness' polygraph examination?

6. Do separate convictions for robbery, where money is taken from areas under the control of two different individuals, constitute double jeopardy?

7. Does due process require that the State inform the defendant that identified witnesses may have potentially exculpatory evidence when the witnesses' statements have been released to defense counsel?

8. Did the prosecutor improperly exceed the scope of cross examination?

9. Was the jury improperly allowed to consider aggravating factors which were not supported by the evidence?

10. Was defendant denied due process by the procedure of death qualifying the jury?

Defendant's challenges to his death sentence include:

11. Is the capital punishment statute, RCW 10.95, unconstitutional under our state constitution, article 1, section 14, or the Eighth and Fourteenth Amendments to the United States Constitution?

12. Was the defendant prejudiced by the improper admission of aggravating evidence?

13. Did the trial judge improperly exclude mitigating evidence during the defendant's sentencing proceeding?

14. Was the jury improperly instructed during the sentencing phase?

15. Was the defendant prejudiced by the trial judge's decision to allow jurors access to publicity during the period between the guilt phase and the sentencing phase?

In addition to the above issues, RCW 10.95.130 requires that this court independently review defendant's sentence of death.

We resolve these issues as follows:

1. We find that defendant was given a fair trial and was not denied due process or subjected to double jeopardy (Issues 1, 5-8).

2. We find that the alleged errors in admission of evidence did not prejudice defendant during the guilt phase of his trial (issues 2-4).

3. We reject defendant's challenge to the death penalty statute.

4. We find the defendant was denied due process of law by the admission of evidence of his gun collection during the sentencing phase.

5. We hold that the jury was properly instructed during the sentencing phase.

We affirm defendant's convictions of two counts of robbery and aggravated first degree murder but remand for a new sentencing proceeding in accordance with this opinion.

Defendant received the sentence of death for shooting and killing two bank tellers during the course of a robbery. The victims, Candace Hemmig and Twila Capron, were employed by Tumwater State Bank to staff its trailer branch in West Olympia. The branch office consisted of a mobile home located in a remote area near the Thurston County Courthouse. On the morning of September 17, 1981, about a half-dozen customers transacted business with the bank between approximately 10:25 and 10:45.

At 11 a.m. Michael Capron, Twila's husband, arrived at the bank to take his wife to lunch. He walked into the bank, looked around for his wife and Candy, but couldn't see them. He then heard a rasping sound, approached the counter, and spotted his wife and Candace lying on the floor. Capron attempted to telephone for help by dialing zero, but nothing happened. Another line was lit from an incoming call and Capron punched into that line. Capron testified that he did not remember exactly what he said but believes he said "Help" or "Get help, this is Mike, the bank has been robbed, and Twila has been shot, and I think Candy is dead". Report of Proceedings, at 205. The person on the other line (later identified as Ann Marie Gianoulakis) yelled back "Dial 911" and Capron did so.

When medics and the police arrived on the scene, they determined that Candace was already dead and that Twila The police secured the area and began their investigation. Officer Jim Partin was posted outside the bank. At approximately 11:40, Officer Partin was approached by defendant who advised the officer that he had been at the bank that morning.

could not survive the apparent massive injuries to her brain.

Within the bank, police officers, gathering evidence, discovered defendant's bloodstained checkbook lying open on the customer's side of the counter.

During the next 5 days, defendant was interviewed several times. On the day of the crime, September 17, defendant talked to police officers once at the scene (approximately 11:40 a.m.), and four times at work (at 2 p.m., 3 p.m., 6 p.m., and 11 p.m.). During these discussions defendant volunteered that he was overdrawn at the bank. He stated that he went to the bank both on the 16th and 17th to take care of the overdraft but was unable to do so because each time he forgot materials needed to resolve the problem. Defendant next was interviewed on the 18th, and on the 20th he went to the police station and prepared an identi-kit sketch of an individual he claimed to have seen at the bank on the 17th.

On September 22, defendant went to the police station to take a polygraph examination. Following the polygraph, Officer Midthun informed defendant that due to the "sensitivity of [his] voice, we have some very serious problems". Polygraph transcript, at 34. After discussing the matter with Officer Midthun, defendant admitted that he had committed the crimes. Defendant subsequently gave three statements to police officers. Searches of his vehicle netted ammunition of the type used in the robbery/murders. In addition, the police found a pair of white pants, wet and soiled, in a vehicle used by defendant the weekend after the murders.

Defendant's trial began with jury selection on March 10, 1982. During voir dire, the judge allowed counsel to question individual jurors, apart from the pool, concerning their The State's chief witness was Monte Yovetich. Monte, a friend and fellow student of Rupe's at the time of the murders, testified that on Tuesday, September 16, 1981, ¹ he accompanied defendant to Olympia. Following a discussion about robbing the Tumwater State Bank, Monte dropped defendant off near it and drove to Olympia Technical Community College (OTCC). Defendant joined him there shortly afterwards, and confessed that he had gone into the bank with his gun with the intention of robbing it but was unable to do it. Monte next saw defendant on the 17th between 11 and noon. He testified that defendant told him that he had done it, that he had robbed the bank and put the gun, money and green satchel in Monte's garage.

                views regarding the death penalty.   As no jurors stated that they would be unable to impose the death penalty regardless of the crime, none were excused because of their beliefs concerning the death penalty
                

According to Monte, he and his friend Marlin Townsend looked for the gun and a green satchel and put it in Marlin's car. Monte and Marlin drove towards Grapeview and hid the money and gun. They returned to their respective homes, but shortly thereafter, nervous about the other's honesty, they went to look for each other. When they met up, they retrieved the money and gun. They then dropped the gun off at the home of a third friend, Skip (Carl) Grosskopf. From there they went to dinner and to Marlin's parents' house. While with Marlin's parents, they learned from the newspapers that two women had been shot during the robbery. They retrieved the gun from Skip, took it to the Hartstene Island Bridge and threw it into the water. The remaining money was hidden a second time.

Marlin Townsend's testimony generally confirmed this sequence of events. Both Monte and Marlin testified that they took money from the bag. Only slightly over $2,100 of the $4,382 missing from the bank was eventually recovered.

Skip Grosskopf took the stand and stated that Monte had dropped the gun off around 6 p.m. Skip testified that the gun appeared to have been fired recently but agreed to take it when Monte assured him that it wasn't "hot". An hour and 10 minutes later, Monte returned for the gun. He appeared "nervous, jittery". When asked why he wanted to pick up the gun so soon, Monte stated that he [Skip] "didn't want to know." Report of Proceedings, at 1308.

Defendant's post-polygraph confessions were admitted at trial. In addition, three of defendant's friends testified that defendant admitted involvement in the crimes. ²

At trial defendant elected to testify and denied robbing the bank. On direct examination by the State, defendant admitted that he had discussed robbing the bank with Monte Yovetich and admitted that he had gone to the bank on September 15, and that he intended to rob it. He stated that he had Monte drop him off near the bank. He carried a green satchel, which contained his gun, a .357 Colt Trooper. Defendant testified that, while in the bank, he decided he couldn't rob it. Consequently, he merely inquired about his account and left.

Monte Yovetich, defendant alleged, subsequently...