State v. Russell
| Decision Date | 13 October 1994 |
| Docket Number | No. 60673-1,60673-1 |
| Citation | 125 Wn.2d 24,882 P.2d 747 |
| Court | Washington Supreme Court |
| Parties | , 63 USLW 2291 The STATE of Washington, Respondent, v. George W. RUSSELL, Appellant. |
Washington Appellate Defender, Rita J. Griffith, Eric Broman, Seattle, for appellant.
Norm Maleng, King County Prosecutor, Jeffrey B. Baird, Deputy, Rebecca J. Roe, Deputy, Appellate Unit, Seattle, for respondent.
George W. Russell was convicted by a King County jury of the first degree murder of Mary Ann Pohlreich and the aggravated first degree murders of Carol Beethe and Andrea Levine.
Russell appealed, and the Court of Appeals certified his appeal to this court pursuant to RCW 2.06.030. Before examining the issues presented, we will briefly outline the facts pertinent to each count.
On Friday, June 22, 1990, Mary Ann Pohlreich went to Papagayo's, a Bellevue night club, with two friends. The three drove in Pohlreich's car. Her two friends left Pohlreich at Papagayo's at approximately 9:30 p.m.
Early the next morning, Pohlreich's body was found partially inside the dumpster corral area in the parking lot behind the Black Angus restaurant, about a mile from Papagayo's. Pohlreich's body was unclothed, but she was wearing two pieces of jewelry. There was a Frito Lay dip container lid over her right eye and forehead, her arms were folded over her stomach, her legs were extended and crossed at the ankles, and she had a pine cone in one of her hands.
Though there were a number of significant injuries, the King County medical examiner determined that the most likely cause of death was manual strangulation. Pohlreich's skull fracture and numerous facial injuries appeared to have been inflicted by a fist. Pohlreich's liver had two widely separated lacerations, and she had a distinct anal tear that the medical examiner opined was caused by a solid, nonhuman object. Pohlreich had a blood alcohol level of .14 percent at the time of her death.
Pohlreich's purse, sweater, and car were found at Papagayo's. The police discovered that on the evening of Pohlreich's death George Russell went to Papagayo's with his friend Smith McLain to have dinner. Once there, Russell and another friend talked to Pohlreich. After dinner, Russell borrowed the keys to McLain's truck, explaining that he had to change into a shirt with a collar as required on Papagayo's dance floor. Russell had a duffle bag in the truck.
A Bellevue police officer was working off duty that night as a doorman at Papagayo's. He often spoke with Russell, a frequent patron of the nightclub. That night he saw Russell twice: once shortly after he began his shift at 10:30 p.m. and again approximately an hour later. On the second occasion, Russell told the officer that he was going to take "this girl" over to her place to get something. Verbatim Report on Appeal, at 4042, 4052. The officer did not see the woman well enough to identify her; however, he described her size as being similar to Pohlreich's, and he noticed that the woman seemed very intoxicated.
Russell did not return to Papagayo's that evening with the truck. McLain was upset and spent the rest of the evening waiting for him at the Overlake Denny's where it was customary for Papagayo's patrons to go after closing. At around 5:30 a.m., McLain found a ride home.
On the morning that Pohlreich's body was discovered, Russell telephoned the McLain residence. Russell said that he had been out looking for McLain all night. At approximately 6 a.m., McClain's sister, Shawn Calvo, saw Russell return in her brother's truck. Russell told her that he had borrowed the truck to drive a friend home and then could not find McLain. During this conversation Calvo noticed a reddish-orange stain on the passenger seat of the truck. Russell explained that his friend had vomited clam chowder in the truck. Russell declined Calvo's offer of a ride home and walked away with his duffle bag.
McLain woke up after Russell had left and went out to inspect his truck. He smelled a strong offensive odor that reminded him of vomit or the smell of a deer gutted after a hunting kill. Russell called McLain that morning and told him that he had thrown up in the truck after drinking too much. Russell informed McLain that he had driven a woman home in the truck because he did not want to be seen in the woman's Porsche.
Russell had spoken previously about the woman with the Porsche. That woman was Tamara Francis. Francis testified that she knew Russell but had never left Papagayo's with him.
The police also discovered that Russell had been a regular customer at the Black Angus, where Pohlreich's body was discovered, from 1989 until March 1990, when he was banned from the restaurant. Russell was very angry about that decision.
On October 11, 1990, almost 3 1/2 months after Pohlreich's murder, the police removed the interior of Smith McLain's truck. While the interior had been cleaned and detailed during the summer, the floormats had not. McLain had removed the floormats, which were made from house carpet remnants, from his truck and had put them in the garage because they smelled so bad.
The upholstery in McLain's truck reacted positively for blood and HO and A antigens which matched the HO and A antigens in the vaginal swab taken at the Pohlreich autopsy. Both antigens could have been contributed by Pohlreich herself who was a type A secretor. Russell was type O; although he could have been the source of the HO antigens, he could not have contributed the A antigens.
The State also sent the vaginal swab and upholstery samples for DNA testing. Because of the poor quality of the samples, the laboratory conducted a polymerase chain reaction (PCR) test. The PCR test results indicated that neither Russell nor McLain could have been the source of the blood in McLain's truck, but that Pohlreich could have been. The testing also revealed that only Russell, of all the comparison samples, could have been the donor of the sperm.
In addition to the sperm and blood samples, one negroid hair, consistent with Russell's, was found in the debris on the sheet in which Pohlreich's body was wrapped. Five fibers found in the pubic combings were consistent with the truck carpet as was one fiber from the sheet debris. Another fiber in the sheet debris was consistent with the truck's upholstery.
Carol Beethe was employed as a bartender at Cucina Cucina, a restaurant in Bellevue. She lived in a condominium with her two children. Beethe's ex-husband, Paul, lived nearby. On August 8, 1990, Beethe spoke with Paul at around 9:30 p.m. At 10:30 p.m. she spoke with her boyfriend, Mike Suell, with whom she was planning to go on a vacation. At midnight she met another friend at the restaurant where he was the bartender. Beethe left at approximately 2:15 a.m.
At 4:30 a.m. Beethe's daughter Kelly heard someone in the hall of the family's condominium, and then saw the person shine a flashlight in the bathroom, her sister's bedroom, and her own bedroom. Kelly assumed that the person was Mike Suell.
When Kelly awoke at 8:30 a.m., her mother was not up as she usually was, her bedroom door was locked, and Kelly could not wake her. When Kelly went outside to open the sliding glass door to her mother's room, she saw her mother and became scared. She called her father who came over and entered the room through a sliding glass door.
Beethe was on her back on the bed. The bedspread was pulled down to the foot of the bed. Her body was unclothed except for a pair of red high-heeled shoes. Her feet were together with legs spread and knees bent. Blood had been smeared on her legs in a manner that resembled "finger painting". Verbatim Report on Appeal, at 3290. A rifle had been placed resting symmetrically between Beethe's legs, resting on her shoes. The firearm penetrated approximately five or six inches into her vagina. Her left arm was bent upward at the elbow, while her right arm was bent down at the elbow, nearly touching her hip. Beethe's head was wrapped in a plastic bag and covered with a large pillow.
The medical examiner ascertained that Beethe's death had been caused by head injuries. The head injuries were inflicted by an instrument swung with considerable force in rapid succession. The blows left distinct "Y" shaped marks and crushed the entire left side of Beethe's skull. Beethe had also been struck many times with a knee or fist in the torso. Her ribs were broken and her liver was lacerated.
Testimony suggested that Beethe and Russell were acquaintances. One witness testified that both Russell and Beethe frequented the Overlake Denny's. A waitress at the Black Angus testified that on two occasions she was talking to Beethe about a "situation ... between George [Russell] and I" and saw Russell glaring at them. Verbatim Report on Appeal, at 4898-99. (This occurred before Russell was banned from the Black Angus). After the murders, Russell told friends that he knew the victim of the second murder and that she was a bartender at the Cucina Cucina restaurant in Bellevue.
When Beethe's body was found, she had rings on her right hand but not on her left hand. At the time of her death, Beethe owned two wedding ring sets, one from her mother and one from her previous marriage. The rings were kept in a jewelry box in Beethe's bedroom, but they were never located after her death. During their investigation, the police published photographs of the rings in a Bellevue newspaper. At trial, one of the State's witnesses testified that Russell had tried to sell him rings that resembled the missing set.
Beethe's family also informed the police that she had a half dozen small Crown Royal bags in the top drawer of her dresser containing silver dollars and other change from tips. When police allowed Paul to reenter his ex-wife's house he noticed the Crown Royal bags were missing.
About three weeks after Beethe's...
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