State v. Stein
| Decision Date | 07 August 2007 |
| Docket Number | No. 31980-2-II.,No. 32982-4-II.,31980-2-II.,32982-4-II. |
| Citation | 140 Wn. App. 43,165 P.3d 16 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. John Kenneth STEIN a/k/a Jack Stein, Appellant. In re the Personal Restraint Petition of John Kenneth Stein a/k/a Jack Stein, Petitioner. |
Nancy P. Collins, Washington Appellate Project, Seattle, WA, John (jack) Kenneth Stein (Appearing Pro Se), Vancouver, WA, for Appellant.
Lana Sue Weinmann, Office of the Attorney General, Seattle, WA, for Respondent.
¶ 1 In 1989, a jury acquitted John Kenneth Stein of first degree murder charges and convicted him of three attempted murders and burglary. We dismissed his appeal for failure to perfect the record, but in 1996, the federal district court reinstated the appeal in part because officers of the court contributed to this failure. We then reversed Stein's convictions and remanded for a new trial; the Supreme Court affirmed our decision. Before the second trial, the trial court conducted an extensive hearing on what remedy Stein was entitled to for the State-caused delay. The trial court denied Stein's request to dismiss the charges, concluding that the delay did not prejudice Stein. After the retrial in 2004, a jury again convicted Stein of the attempted murders and burglary.
¶ 2 Stein now argues that the trial court should have dismissed the charges against him due to governmental misconduct, contending that it should have considered governmental misconduct beyond that found by the federal court and that it should have found this misconduct prejudicial.
¶ 3 Stein also contends that the trial court (1) should not have admitted evidence of his role in the murder for which he was acquitted; (2) abused its discretion in admitting (a) a judge's testimony about cases over which he presided, (b) co-conspirator hearsay statements, and (c) testimony of two attorneys about privileged communications; (3) violated his right to confront adverse witnesses by admitting prior testimony and a tape recording made during a deposition; (4) misadvised the jury by referring to several instructions in response to a jury question during deliberations; (5) wrongly imposed consecutive sentences for the attempted murder convictions; and (6) vindictively increased his sentence after his successful appeal.
¶ 4 Stein presents numerous other issues in a statement of additional grounds for review (SAG)1 and a personal restraint petition (PRP), which we consolidated with his direct appeal. Finding no error, we affirm Stein's convictions and deny his personal restraint petition.
¶ 5 In 1987, the State charged John Kenneth Stein, also known as Jack Stein, with conspiracy to commit first degree murder, felony first degree murder, aggravated first degree murder, three counts of attempted first degree murder, and first degree burglary.
¶ 6 The charges related to Stein's attempts to remove people he believed were conspiring to deprive him of substantial assets he stood to inherit from his father, Nicholas Stein. One of Stein's targets was Thelma Lund, Nicholas's long-term companion and caregiver. Another was Ned Hall, a lawyer who was Nicholas's court-appointed guardian. Hall had filed a successful lawsuit to set aside, on the basis of undue influence, a transaction in which Nicholas assigned Stein a real estate sales contract. And Lund testified on behalf of the guardianship and adversely to Stein in that litigation.2
¶ 7 Michael Norberg, Stein's stepson, helped Stein by recruiting others to kill Lund and Hall, promising them money or property in exchange for the killings. Roy Stradley testified that he discussed the murders with Stein and that Stein said he was financing the killings, but Stradley declined to participate. Edward Denney, who also did not participate, testified that Norberg told him Stein would pay for the killings.3 Richard Bailey testified that Norberg told him the money for the killings would come from Stein. Bailey and Gordon Smith eventually agreed to participate in the killings.
¶ 8 In April 1987, Norberg and Bailey murdered Lund in her home. In June 1987, the men attempted three times to murder Hall. The first time, Bailey and Smith took homemade napalm to Hall's house, intending to burn the house down; they fled when Smith said someone had seen them. The second time, Bailey and Smith went to Hall's house to lure him out of the house so they could shoot him, but Hall refused to come out. During the final attempt, Norberg, Smith, Bailey, and Bailey's brother went to Hall's house during the night and Smith entered through a bathroom window. Smith fired a shot at Hall and shut Hall's thumb in a door, cutting off the tip.4
¶ 9 In 1989, a jury acquitted Stein of the charges related to Lund's murder, but it convicted him of the three counts of attempted first degree murder and one count of first degree burglary related to the Hall incidents. Stein appealed, but his appellate attorney failed to perfect the record, and we dismissed the appeal in 1991.
¶ 10 In 1996, the federal district court ordered his appeal reinstated, ruling that his appellate counsel was ineffective and that the court reporter, county clerk, and prosecutor, as court officers, contributed to the delay. We reversed Stein's convictions because of error in the accomplice instructions. State v. Stein (Stein I), 94 Wash.App. 616, 617, 972 P.2d 505 (1999) (published in part), aff'd, 144 Wash.2d 236, 27 P.3d 184 (2001). The Washington Supreme Court affirmed. State v. Stein (Stein II), 144 Wash.2d 236, 238, 27 P.3d 184 (2001).
¶ 11 In 2003, the trial court, after a hearing under CrR 8.3, declined to dismiss the charges against Stein, ruling that the delay did not prejudice Stein's right to a fair trial on remand.5 A jury again convicted Stein of burglary and three counts of attempted murder. The trial court then sentenced Stein to three terms of 220 months, to run consecutively, for the three attempted murders, and 36 months for the burglary, to run concurrently, for a total sentence of 660 months.
¶ 12 Stein first contends that the trial court should have dismissed the charges against him under CrR 8.3(b) because of governmental misconduct.
¶ 13 CrR 8.3(b) provides:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.
Stein bears the burden of proving both misconduct and prejudice by a preponderance of the evidence. State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (citing State v. Michielli, 132 Wash.2d 229, 239-40, 937 P.2d 587 (1997)). Dismissal is an extraordinary remedy. Rohrich, 149 Wash.2d at 653, 71 P.3d 638 (citing State v. Baker, 78 Wash.2d 327, 332-33, 474 P.2d 254 (1970)).
¶ 14 We review a trial court's decision on a motion to dismiss under CrR 8.3(b) for an abuse of discretion. Rohrich, 149 Wash.2d at 654, 71 P.3d 638. A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997).
¶ 15 The Supreme Court concluded its opinion in Stein II by stating: "We remand for a new trial, leaving to the sound discretion of the trial court the question of whether further relief is appropriate under CrR 8.3, or other theories raised in Stein's cross petition." Stein II, 144 Wash.2d at 248, 27 P.3d 184.
¶ 16 The trial court held a CrR 8.3 hearing from September 2002 to April 2003, with continuances. Numerous witnesses testified, including Stein's former attorneys from his first criminal trial and various civil matters; judges who presided over Stein's criminal trial and civil matters; employees of the Clark County clerk's office; and members of Stein's family. Professor John Strait testified on Stein's behalf as an expert on professional responsibility, and doctors Stan Abrams and Caleb Burns gave expert opinions on Stein's memory functions. Judge Roger Bennett, currently on the Clark County bench but the lead prosecutor in the original case, testified about his role as prosecutor and his involvement in the case after the Supreme Court remanded the case for a new trial.
¶ 17 The trial court ruled that it was bound by the federal district court's order that Stein's original appeal was dismissed and delayed due in part to governmental misconduct. The court also ruled that it could not consider issues that we resolved against Stein, including his claims that he was denied counsel of choice and a speedy trial. Thus, the court considered only whether Stein had shown that the governmental misconduct prejudiced him.
¶ 18 The trial court found that Stein had not shown that the delay had impaired his memory of the events surrounding the charges or caused his financial loss; that transcripts from the previous trial could be used to refresh witnesses' memories, to impeach witnesses, or as a substitute for live testimony; and that a witness's decision to change his testimony was irrelevant to the issue of actual prejudice. The court also found that Judge Bennett's activities after the Supreme Court's remand did not constitute governmental misconduct or prejudice Stein. Finally, in denying Stein's motion to dismiss, the court concluded that the mere passage of time was insufficient to show actual prejudice.
¶ 19 Stein maintains that the trial court erroneously applied the doctrines of collateral estoppel and law of the case to bar his claims of right to counsel of choice and right to a speedy trial as additional reasons to dismiss the charges against him. He argues that our previous decision was not a final judgment on the merits because the Supreme Court's...
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