State v. Rupe

Decision Date17 September 1987
Docket NumberNo. 51443-7,51443-7
Citation108 Wn.2d 734,743 P.2d 210
PartiesThe STATE of Washington, Respondent, v. Mitchell E. RUPE, Appellant.
CourtWashington Supreme Court

Swanson, Parr, Cordes, Younglove, Peeples & Wyckoff, P.S., Clifford F. Cordes, III, Olympia, for appellant.

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

BRACHTENBACH, Justice.

On June 7, 1984, this court affirmed defendant Mitchell E. Rupe's conviction of two counts of aggravated first degree murder and two counts of robbery in the first degree. The court reversed his death sentence because the trial court erroneously admitted evidence of Rupe's gun collection in the penalty phase of his trial. State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984) (Rupe I). The court remanded for a new sentencing proceeding. The jury impaneled for the resentencing trial unanimously determined that there exist no sufficient mitigating circumstances to merit leniency. The trial judge then sentenced Rupe to be executed. This review is mandatory pursuant to RCW 10.95.100. In addition, Rupe has appealed, raising a number of issues. We affirm the sentence.

Rupe's conviction resulted from the September 1981 shooting deaths of two bank tellers, Candace Hemmig and Twila Capron, during the course of a bank robbery in West Olympia. The facts surrounding the crime are set forth in Rupe I. Following reversal of the death sentence, the mandate was issued on August 8, 1984. On August 17, 1984, the trial court issued an order setting the resentencing trial for October 1, 1984. On September 17, 1984, the trial court issued an order appointing counsel for Rupe. The attorney appointed had been Rupe's appointed counsel for the original trial and for the first appeal. Three days before the resentencing trial was to begin, Rupe was transported from Walla Walla to Thurston County pursuant to court order. Rupe was present before the trial court on the date the proceedings were scheduled to begin, October 1, 1984.

On that date, defense counsel moved for dismissal of the proceedings, or, in the alternative, for a continuance. Counsel argued that the State had not filed a notice of intent to reseek the death penalty nor otherwise notified Rupe of its intent to reseek the death penalty. Counsel also argued that Rupe was not represented by counsel when the trial date was set. The court denied the motion to dismiss, but continued the trial to January 7, 1985. Also on October 1, 1984, Rupe orally waived any speedy trial rights and later filed a written waiver of any speedy trial rights. Subsequently, Rupe moved to exclude all evidence of the facts and circumstances of the crime. The trial court denied the motion.

On January 7, 1985, jury selection began. Rupe moved to quash the jury panel of 100 persons on the ground that they did not represent a fair cross section of the community. He based this argument on the fact that of the 100 persons selected, only three were under 40 years old, and none were under 35. The trial court denied the motion.

During jury selection, Rupe challenged six jurors for cause. Three of these jurors were excused, the others were not. Rupe also exercised all twelve of his peremptory challenges.

Following selection of the jury, Rupe moved for a change of venue, arguing that due to pretrial publicity he could not obtain a fair and impartial trial in Thurston County. In support of his motion for change of venue he again argued that, based upon age, the jury panel did not represent a fair cross section of the community. The trial court denied the motion for change of venue.

Rupe next filed a waiver of trial by jury, stating that he did so due to the trial court's denial of his motion for change of venue and his belief that he could not obtain a fair trial with the jury as composed. The court denied Rupe's request to waive his right to trial by jury. Rupe then requested additional peremptory challenges. The court granted two additional peremptory challenges which Rupe exercised. Two of the alternate jurors were then seated on the jury and additional alternates were selected. None of the jurors ultimately impaneled knew of Rupe's prior sentence, his appeal, this court's reversal of his sentence, or of Rupe's gun collection.

Additional facts pertaining to alleged errors involving admission of certain photographic evidence, the propriety of certain questions on cross examination, and jury instructions and proposed jury instructions are set forth below.

Following the jury's unanimous finding that there were not sufficient mitigating circumstances to merit leniency, the trial court sentenced Rupe to be executed. Rupe appealed. This case is before this court for mandatory review, with which Rupe's appeal is consolidated.

I

Rupe argues that his statutory and due process rights were violated because the State did not file a notice of intent to reseek the death penalty and failed otherwise to notify Rupe of its intent to reseek the death penalty.

RCW 10.95.040 requires that the prosecuting attorney file written notice of a special sentencing proceeding when the death penalty is sought. If the prosecuting attorney does not file and serve the notice according to the statutory procedures, he may not request the death penalty. RCW 10.95.040(3). RCW 10.95.040 applies by its terms only to the prosecutor's original decision to seek the death penalty. There is no statutory requirement that the prosecutor file a second notice of a special sentencing proceeding when a defendant's conviction is upheld on appeal but the case is remanded for a new sentencing proceeding. Thus, there is no statutory violation here.

There also is no due process violation based upon lack of notice. In Rupe I, 101 Wash.2d at 710-11, 683 P.2d 571, this court directed: "[T]he case is remanded for a new sentencing proceeding, with a new jury, in accordance with the principles set forth above, to determine whether the death penalty should be imposed." Clearly, Rupe was informed that the death penalty would be again at issue. Moreover, even if there were a due process notice problem here, which there is not, Rupe has shown no resulting prejudice.

II

Rupe argues that his right to counsel was violated by the court's failure to appoint an attorney for him until 2 weeks before the date the resentencing trial was originally scheduled to begin. He reasons that the setting of the trial date, which occurred earlier, was a critical stage of the proceedings at which an indigent defendant is entitled to appointed counsel. He claims that counsel was unable to prepare in 2 weeks' time, and that he was, therefore, forced to ask that the death penalty proceedings be dismissed or that they be continued past any existing speedy trial requirement.

Sentencing is a critical stage of the proceedings, at which a defendant is constitutionally entitled to be represented by counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Generally, this right exists whenever a court considers any matter in connection with a defendant's sentence. 3 C. Wright, Federal Practice § 525, at 81 (1982). This right extends to resentencing. Johnson v. United States, 619 F.2d 366 (5th Cir.1980).

Rupe was entitled to counsel when the resentencing trial date was set. However, CrR 3.1(b)(2) provides that counsel initially appointed to represent a defendant "shall continue to represent the defendant through all stages of the proceedings unless a new appointment is made by the court following withdrawal of original counsel ..." Nothing in the record suggests that defense counsel ever officially withdrew, pursuant to CrR 3.1(e), from representation of Rupe. Thus, Rupe had appointed counsel throughout these proceedings. The trial court's "formal reappointment" of counsel appears to have been an exercise of caution, rather than a necessary action.

Nonetheless, evidently neither defense counsel nor Rupe was actually present when the trial date was set. Although not the thrust of Rupe's argument on this issue, it might be argued that because defense counsel was not present at the setting of the resentencing trial date, there was a violation of Rupe's right to have his counsel present whenever any matter in connection with his sentence was considered. See 3 C. Wright, Federal Practice § 525, at 81 (2d ed. 1982). (The record is not clear, but it appears defense counsel was unaware in advance of the setting of the trial date.) Even so, Rupe does not establish that he was prejudiced. The defense motion to continue the proceedings was granted. Thus, a new date was set when defense counsel was present and counsel had ample time to prepare.

Moreover, despite Rupe's claim to the contrary, there is no speedy trial problem here. While this court has recognized a right to speedy sentencing, this right is not defined by the "60-day rule" of CrR 3.3, but rather by constitutional bounds. See State v. Johnson, 100 Wash.2d 607, 629, 674 P.2d 145 (1983), overruled in part on other grounds, State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985). Any delay in these resentencing proceedings would constitute a violation of the right to speedy sentencing only if such delay was " 'purposeful or oppressive.' " State v. Johnson, supra 100 Wash.2d at 629, 674 P.2d 145; see Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). In determining whether a violation has occurred four factors are balanced: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the extent of any prejudice to the defendant. State v. Johnson, supra 100 Wash. at 629, 674 P.2d 145; State v. Braithwaite, 34 Wash.App. 715, 667 P.2d 82 (1983).

Applying these factors: The resentencing trial commenced 5 months after the mandate was issued. According to Rupe the delay was necessary due to defense counsel's...

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