State v. Russell

Decision Date02 April 1993
Docket NumberNo. 13584-1-II,13584-1-II
Citation848 P.2d 743,69 Wn.App. 237
PartiesThe STATE of Washington, Respondent, v. Harvey L. RUSSELL, Appellant. Division 2
CourtWashington Court of Appeals

Robert M. Quillian, Thomas E. Doyle, Olympia (Court-appointed), for appellant.

Rodney G. Franzen, Thurston Co. Deputy Pros. Atty., Olympia, for respondent.

SEINFELD, Acting Chief Justice.

Harvey L. Russell appeals his conviction for homicide by abuse of his 20 month old son. He makes 33 assignments of error, challenging the constitutionality of the statute, a claimed lack of unanimity in the verdict, and his exceptional sentence. He also claims evidentiary errors, insufficiency of the evidence, ineffective assistance of counsel, and improper reference to his post-Miranda silence. We affirm.

Derik Russell was born on July 29, 1987 to Harvey Russell and Marsha Antonelli. Derik died on March 18, 1989. He lived with his parents for only 8 to 9 months of his short life, spending the remainder of his time with foster parents or with relatives.

On the evening of Derik's death, Antonelli left Russell alone with their two children while she went to the store. Russell somehow became locked out of their residence. He pounded on the door and yelled at Derik to let him in before breaking the door to gain entry. Neighbors then heard thumping sounds, a baby's cries, and a man's voice saying "Wake up."

When Antonelli returned, Russell told her not to go into the bedroom because he had put Derik to bed. Later, when Antonelli was able to check on Derik, she found him limp pale, and moaning. Russell resisted her efforts to obtain medical treatment for the child, but Antonelli eventually prevailed. Derik died before he arrived at the hospital.

Medical testimony indicated that Derik was killed by a severe blow to his abdomen which ruptured his liver, causing internal bleeding and severe pain. Brass knuckles probably caused the bruise marks on Derik's abdomen. Derik also was struck several times on the head with brass knuckles. Earlier that day Russell had obtained a pair of brass knuckles that once belonged to his grandfather.

Derik had sustained other serious injuries prior to the last fatal assault. In late November, 1987, when he was 4 months old, Russell and Antonelli took Derik to Mary Bridge Hospital because he was throwing up and refusing to eat; a doctor diagnosed flu. However, when Derik returned to the hospital a few days later, the doctors realized that the child's head was abnormally swollen and they transferred him to Children's Hospital in Seattle.

The doctors at Children's Hospital discovered that Derik had previously suffered a linear skull fracture and subdural hematomas, 1 probably as the result of a single traumatic occurrence. They diagnosed these injuries as occurring several weeks before admission, sometime before October 26, 1987. Derik had also previously suffered a fractured clavicle or collarbone.

The doctors also determined that Derik had been injured 2 to 5 days prior to his admission to the hospital. That injury caused retinal hemorrhages 2 and bleeding beneath the arachnoid brain membrane, resulting in pressure on the brain and seizures. According to the medical testimony, it was extremely unlikely that the cause of Derik's head injuries was accidental. However, the clavicle could have fractured in an accidental fall.

When Derik left Children's Hospital, Child Protective Services placed him in foster care. He returned to his parents on July 7, 1988. Antonelli gave birth to a daughter, Vanessa, on August 22, 1988.

Following Vanessa's birth, Russell and Derik visited Antonelli at the hospital. A nurse observed Russell roughly dump Derik at the foot of Antonelli's bed "like a sack of potatoes," and heard Russell "meanly" tell the 1-year-old to sit there and be quiet. She reported her observations to Child Protective Services.

At the end of August 1988, Antonelli observed Derik's nose begin to bleed without any apparent reason. A relative also noted bruises on the infant's neck and reported the two injuries to Child Protective Services. Following the reporting of Derik's unusual bruise, Russell remarked that "the next thing you know Angel [the relative] is going to say somebody picked him up by the hair of the head and hit him in the nose." That day, Derik also had a rash on his head that Antonelli had thought was caused by a new shampoo.

Derik resided with his parents until September 9, 1987, when Child Protective Services placed him with another relative. Derik returned to his parents on December 22, 1988. In February of 1989, he and his mother moved in with Antonelli's parents while Russell served time in jail. Russell killed Derik shortly after his release from jail.

At trial, Russell admitted that he had caused Derik's death, but he denied previously engaging in a pattern or practice of assaulting his son. However, the State produced evidence linking Derik's earlier injuries to Russell. On October 19, 1987, the approximate time of Derik's first head injury, Antonelli came out of the shower and discovered Derik pale and limp, making an unusual cry. Russell, the only person who had been with Derik resisted, as he did later, Antonelli's suggestion that they take Derik to the hospital.

Derik's shoulder injury might have occurred shortly prior to the time Derik visited a Dr. Nelson in Chehalis in late October, 1987. Both Russell and Russell's mother observed then that Derik was favoring his shoulder.

The State produced evidence indicating that the second head injury may have occurred on November 29, 1987. Several witnesses testified that Russell on that day had said that Derik (then 4 months old) needed discipline and should be placed in a boy's reform school. Those present took this remark as a joke.

At sentencing Russell acknowledged that he had previously assaulted Derik and caused the two earlier head injuries, but continued to deny responsibility for other assaults alleged by the State. Through counsel, he explained that his assaultive conduct was motivated by anger.


The Legislature enacted the homicide by abuse statute, RCW 9A.32.055 3, in response to the Eli Creekmore killing. See State v. Creekmore, 55 Wash.App. 852, 868, 783 P.2d 1068 (1989), review denied, 114 Wash.2d 1020, 792 P.2d 533 (1990). The statute applies to those who kill particularly vulnerable victims: children under 16, dependent adults, or developmentally disabled persons. The death must be caused "under circumstances manifesting an extreme indifference to human life"; neither premeditation nor intent is required. RCW 9A.32.055. However, the State is required to prove that the defendant "previously engaged in a pattern or practice of assault or torture" of the person killed. RCW 9A.32.055. For sentencing purposes, the crime is equal in seriousness to first degree murder. RCW 9.94A.320.


Russell argues that the statutory phrase "pattern or practice of assault or torture" is unconstitutionally vague under the due process clauses of the Fourteenth Amendment and under the Washington State Constitution, art. 1, § 3. Although the statute does not define those words, we look to existing law, ordinary usage, and the general purpose of the statute and conclude that the statute meets constitutional requirements of clarity.

A statute is presumed constitutional; a challenger must prove the statute vague beyond a reasonable doubt. State v. Coria, 120 Wash.2d 156, 163, 839 P.2d 890 (1992). A vagueness challenge to a statute not involving First Amendment rights is evaluated as applied, using the facts of the particular case. Coria, 120 Wash.2d at 163, 839 P.2d 890; Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990). The challenged law "is tested for unconstitutional vagueness by inspecting the actual conduct of the party who challenges the ordinance and not by examining hypothetical situations at the periphery of the ordinance's scope." Douglass, 115 Wash.2d at 182-183, 795 P.2d 693. The alleged conduct of the challenger may be used. See Douglass, 115 Wash.2d at 183, 795 P.2d 693.

The Fourteenth Amendment due process clause requires that citizens be afforded fair warning of proscribed conduct. Spokane v. Douglass, 115 Wash.2d at 178, 795 P.2d 693. A statute is unconstitutionally vague if either: "(1) ... [it] does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) ... [it] does not provide ascertainable standards of guilt to protect against arbitrary enforcement." Douglass, 115 Wash.2d at 178, 795 P.2d 693.

Although a statute is insufficiently definite if persons of common intelligence must guess at the meaning of the statute and may differ as to its application, some imprecision or uncertainty is constitutionally permissible. Douglass, 115 Wash.2d at 179, 795 P.2d 693. We consider the context of the entire enactment, not just the challenged words. Douglass, 115 Wash.2d at 180, 795 P.2d 693. The Legislature may use ordinary terms adequately interpreted in common usage and understanding in addition, words defined elsewhere in statutory or case law retain their meanings when used without definition in a new law. Douglass, 115 Wash.2d at 180, 180 n. 5, 795 P.2d 693.

The other due process requirement, "ascertainable standards of guilt," is violated if a statute lacks minimal standards or if it uses terms that are inherently subjective in the context in which they are used. Douglass, 115 Wash.2d at 180-81 n. 6, 795 P.2d 693. Minimal standards protect against arbitrary, erratic and discriminatory enforcement. 115 Wash.2d at 180, 795 P.2d 693. However, a statute violates the Fourteenth Amendment "only if it invites an inordinate amount" of law enforcement discretion. Douglass, 115 Wash.2d at 181, 795 P.2d 693.

Thus, we review the phrase "pattern or practice of assault or torture" in the context of...

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