State v. Russell

• Decision Date: 29 September 1980
• Docket Number: No. 7015-1-I,7015-1-I
• Citation: 27 Wn.App. 309,617 P.2d 467
• Parties: STATE of Washington, Respondent, v. Phyliss Eileen RUSSELL, Appellant.
• Court: Washington Court of Appeals

Page 309

27 Wn.App. 309

617 P.2d 467

STATE of Washington, Respondent, v. Phyliss Eileen RUSSELL, Appellant.

No. 7015-1-I.

Court of Appeals of Washington, Division 1.

Sept. 29, 1980.

Richard A. Hansen, Seattle-King County Public Defender, John R. Muenster, Asst. Public Defender, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., William Redkey, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

Phyllis Eileen Russell was convicted after jury trial of forgery and possession of stolen property (credit cards) in the first degree. She appeals from the judgment and sentence entered and from orders revoking suspended sentences entered on two previous convictions.

Russell was arrested when she attempted to purchase a coat for $250 and completed a charge slip using a credit card stolen from Carol Peterson. A defense witness testified that she had been present when a woman, claiming to be "Carol Peterson" borrowed $75 from Russell and, in exchange, authorized Russell to use the credit card.

Russell sought to introduce oral and written testimony concerning statements made by a Gloria Johnson. The The judge granted the State's motion to exclude the testimony relating to the statements by Johnson. The testimony would have been that Gloria Johnson, had represented herself to be Carol Peterson and had given Russell the use of two stolen credit cards in that name in exchange for a loan.

written statement was made to Russell's investigator and attorney 5 months after the crime had been charged. Although a material witness warrant had been issued, Johnson could not be found to testify.

The jury verdict was returned August 16, 1978. Judgment and sentence were entered September 20, 1978.

At sentencing, the judge also considered the State's request to revoke orders suspending sentence on two previous convictions. One of the suspended sentences was revoked on September 20, 1978. The other was revoked on October 13, 1978. Probation was to have ended on the two suspended sentences on June 1, 1978 and May 31, 1978 respectively. The only action appearing in the record, taken prior to the end of the probationary terms, is a bench warrant relating to the second suspended sentence. It was issued on May 31, 1978.

KNOWLEDGE INSTRUCTION

The jury was instructed on the definition of knowledge in the words of the statute which reads:

(1) Kinds of Culpability Defined.

(b) Knowledge. A person knows or acts knowingly or with knowledge when:

(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or

(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.

RCW 9A.08.010(1)(b). In State v. Van Antwerp, 22 Wash.App. 674, 591 P.2d 844 (1979) we held that an instruction based on this statutory definition did not violate due process of law. That holding was reversed by the Supreme The Court held that a jury could interpret the instruction three ways. First, as creating a mandatory presumption which is "clearly unconstitutional." Second,

Court in State v. Shipp, 93 Wash.2d 510, 610 P.2d 1322 (1980).

(it) redefines knowledge with an objective standard which is the equivalent of negligent ignorance. If the defendant is ignorant in a situation where the ordinary man would have knowledge, then the defendant would be deemed to have "knowledge" under the law. . . .

This interpretation of the statute, as redefining knowledge, is also unconstitutional.

State v. Shipp, supra at 515, 610 P.2d at 1325.

Third, it was held

that the statute merely allows the inference that a defendant has knowledge in situations where a reasonable person would have knowledge, rather than creating a mandatory presumption that the defendant has such knowledge.

State v. Shipp, supra at 512, 610 P.2d at 1324.

The giving of the "knowledge" instruction in the language of the statute does not require reversal in every case. Where the jury must have found that a defendant had actual knowledge the conviction will not be disturbed. In Shipp, in one of the cases considered, the Court let stand a conviction where the jury, by convicting, must have found that the defendant acted intentionally. The issue of "knowledge" is subsumed when the jury is required by the instructions to find that a defendant acted intentionally. The same situation is present in the case at bench.

Here the jury was instructed:

To convict the defendant of the crime of forgery, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 12th day of March, 1978, the defendant falsely made or completed or altered a written instrument.

(2) That the defendant acted with intent to injure or defraud.

(Italics ours.) Instruction No. 5.

Instruction No. 6 informed the jury in the language of RCW 9A.08.010(1)(a) that

A person acts with intent or ntentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.

(Italics ours.) By convicting Russell of forgery the jury necessarily found that she acted intentionally. By law she also acted knowingly. RCW 9A.08.010(2) provides in part: "When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally." "Inclusion of the ambiguous definition of knowledge in the jury instructions (was an error in form not substance as to the forgery charge) was therefore harmless error." State v. Shipp, supra at 518, 610 P.2d at 1327.

As to the possession of stolen property charge, the jury was informed by instruction No. 10 that the State was required to prove beyond a reasonable doubt that Russell acted with knowledge that the credit card had been stolen. There was evidence that Russell may have been ignorant of the fact the card was stolen. It is possible the jury may have considered this evidence yet convicted her because, interpreting the instruction impermissibly, it believed that an ordinary person would have known the credit cards were stolen. Thus the knowledge instruction was erroneous in the context of the possession of stolen property charge. State v. Shipp, supra. The conviction for possessing stolen property must therefore be reversed.

We recognize that, after finding an intent to defraud on the forgery charge, the jury was unlikely to have been misled by the knowledge instruction. There was, however, testimony that Russell had been authorized to use the credit card in exchange for a $75 loan. The jury could have found that Russell believed she had authority to charge $75 or a little more for interest but that she intentionally exceeded

her authority to use the card by attempting to purchase the $250 coat.

EXCLUSION OF INCULPATORY STATEMENT

In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court held that under certain circumstances declarations against penal interest cannot be excluded. In State v. Gardner, 13 Wash.App. 194, 195, 534 P.2d 140 (1975), this court set forth the minimal evidentiary criteria ¹ which must be met before it is constitutionally mandated that a declaration against penal interest be admitted at trial:

1) the declarant's testimony is otherwise unavailable;

2) the declaration is an admission of an unlawful act;

3) the declaration is inherently inconsistent with the guilt of the accused;

4) there are such corroborating facts and circumstances surrounding the making of the declaration as to clearly indicate that it has a high probability of trustworthiness.

The State concedes that the first and second requirements of Gardner are met in this case but argues that the third The determination whether corroborating circumstances clearly indicate the trustworthiness of a third party confession lies within the sound discretion of the trial court, which is best situated to weigh the reliability of the circumstances surrounding the declaration. We find in Chambers v. Mississippi, supra at 300-01, 93 S.Ct. at 1048 general considerations relevant to a determination of the trustworthiness of such confessions.

and fourth are not. We affirm the trial court because the trial court did not abuse its discretion in ruling that the fourth criterion was not met as to the forgery charge.

(1) The time of the declaration and the party to whom the declaration was made.

(2) The existence of corroborating evidence in the case.

(3) The extent to which the declaration is really against declarant's penal interest.

(4) The availability of the declarant as a witness. See United States v. Guillette, 547 F.2d 743 (2d Cir. 1976).

Considering the circumstances of Johnson's statement we believe that the trial court did not abuse its discretion in refusing to admit it. First, in Chambers MacDonald confided in close friends shortly after the murder for which he claimed responsibility. Johnson, however, made her statement to the defense counsel 5 months after the incident. We agree with the trial court that a confession given to a close acquaintance shortly after a crime is committed is more reliable than a confession given to the defense, months after the crime and shortly before trial.

A confession is not necessarily unreliable, however, simply because it lacks an element of spontaneity. The highest motive can spur a criminal to come forward on the eve of trial, confess guilt, and spare an innocent accused. It is only natural that such a declarant would contact the defense. The objective of rules of evidence is to do justice. If there are corroborating circumstances indicating a high degree of trustworthiness, an 11th hour confession should be admitted.

Second, there were items of corroborating evidence as to each of MacDonald's confessions in Chambers. Moreover, the several confessions corroborated themselves. Here the sole corroborating evidence was the testimony of a close friend of...