State v. Swenson
| Decision Date | 03 October 2000 |
| Docket Number | No. 41376-7-I.,41376-7-I. |
| Citation | 104 Wash. App. 744,9 P.3d 933,104 Wn. App. 744 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Shawn Daniel SWENSON, Appellant. |
David B. Koch, Nielsen, Broman & Associates, PLLC, Seattle, for Appellant.
Deborah A. Dwyer, King County Prosecutor's Office, Appellate Unit, Seattle, for Respondent.
Shawn Daniel Swenson contends that his conviction of first degree felony murder based on the predicate felony of first or second degree robbery or attempted robbery must be reversed because (1) the victim's father, while acting as a government agent, obtained evidence in violation of the Fourth Amendment that should have been suppressed, together with the fruits of that evidence; and (2) that automatic reversal is required because the accomplice liability instruction, the current WPIC 10.51, relieved the State of its burden to prove all the essential elements of felony murder beyond a reasonable doubt.1 Substantial evidence supports the trial court's finding that the victim's father was not acting as a government agent. Accordingly, it was not error to refuse to suppress the evidence obtained by the father and the fruits of that evidence. Assuming without ruling that the current version of WPIC 10.51 generally misstates the law of accomplice liability, any such error was harmless beyond a reasonable doubt in this case. Swenson was charged as a principal and the instructions as a whole did not relieve the State of proving any element of first degree felony murder. But even if the jury believed that Swenson was an accomplice to the coparticipant rather than a principal, the error was still harmless because Swenson admitted during his testimony that he had the requisite intent for robbery, i.e., the intent to commit theft. The state of mind necessary to prove felony murder is the same state of mind necessary to prove the underlying felony. Accordingly, we affirm the conviction.
On March 7, 1995, David Loucks left home for a 7 p.m. meeting at the Seattle recording studio that he owned and operated. The next morning, David Loucks' father, Allan Loucks, Sr., discovered his son's dead body on the floor of the studio with duct tape over his mouth and nose and around his hands and feet. David Loucks' wedding band, keys to the studio, and some of his recording equipment were missing.
Allan Loucks, Sr., an attorney, took an immediate interest in helping the police find his son's killer or killers. He suggested investigative strategies that the police should pursue and provided the police with information that he obtained, including information that a "Paul Waller" had an appointment with David Loucks on the evening of March 7, 1995. Detectives Alan Lima and Kevin O'Keefe followed up on many of these leads and kept Allan Loucks informed of their progress.
By June 1995, Allan Loucks decided that the detectives were not competently investigating his son's death. He took time away from his law practice to investigate on his own. Despite instructions from Detective Lima to let the police handle the investigation, Allan Loucks continued to pursue various leads and provide information to the police. By August 1995, this information included driver's license numbers, credit card numbers, birth dates, birth certificates, social security numbers, bank records, insurance information, court documents, and addresses of people that Allan Loucks thought the police should investigate. Through the end of 1995, Allan Loucks continued to be a consistent source of information for the police.
In January 1996, Allan Loucks met with the police to provide them with some additional names of people to investigate, including Shawn Swenson. In turn, the police updated Allan Loucks on their investigation and exchanged information with him. Shortly thereafter, Allan Loucks provided police with an address and car that he connected to Swenson.
On February 7, 1996, Detective Lima obtained Swenson's driver's license photo, address, date of birth, height, and weight. On February 9, 1996, Allan Loucks provided the police with a sketch, credit information for Swenson, and his social security number. On February 13, 1996, Allan Loucks tipped Detective Lima that Swenson had used a Washington Driver's License with a Florida address at a music store in Spokane.
In March 1996, the police called Allan Loucks to ask for the cellular phone numbers that Allan Loucks thought they should investigate. Allan Loucks called back and said that he did not have any new cellular phone numbers to investigate. He did, however, indicate that he was able to connect Swenson to some stolen recording equipment. Allan Loucks also provided the police with some additional names to investigate.
In the spring of 1996, Allan Loucks received some anonymous information that Swenson had called David Loucks' studio five times in the weeks and days leading up to his son's death. The information included the days, times, and lengths of the calls. Earlier, Allan Loucks had contacted several people in the telephone industry asking for this information. He advised them to provide the information anonymously because he knew that his contacts could not obtain the information legally.
Allan Loucks did not immediately provide the information to police because he was frustrated with how the police were conducting their investigation. On June 10, 1996, Allan Loucks told police that the key to solving the case was Swenson's phone records and that he believed Swenson was "Paul Waller." Allan Loucks also said that he had a lot of additional information but needed to consult a criminal attorney before releasing it.
On June 18, 1996, Allan Loucks met with police and again advised them that Swenson's phone records were very important to solving the case. In addition, he provided police with information connecting Swenson to another theft of recording equipment. On July 3, 1996, the police received a "Crime Stoppers Tip" advising police that Swenson called David Loucks' recording studio from Swenson's home telephone on February 24, 1995, that Swenson called the studio several times around David Loucks' death, and that Swenson was involved in two other thefts of recording equipment in the Seattle area. The tipster also provided Swenson's home telephone number. On July 6, 1996, after meeting with Allan Loucks, King County Deputy Prosecutor Patty Eakes told police that it might be important to obtain a subpoena for Swenson's phone records. Shortly thereafter, a warrant was issued for Swenson's arrest in connection with recording equipment stolen in Redmond, Washington. The police called Allan Loucks and informed him that the police would interview Swenson once he was arrested on the theft charges.
In September 1996, Allan Loucks met with Eakes. At that point, he was so angry that the police had not obtained Swenson's phone records on their own that he provided her with the dates and times that David Loucks' studio had been called from Swenson's former Spokane phone number, and the length of the calls. On October 14, 1996, Allan Loucks followed Swenson's girlfriend home from her place of work to an apartment building. After Allan Loucks spotted Swenson, he called the Spokane Police Department. The police arrived at the apartment and arrested Swenson on the outstanding warrant related to the theft charges.
The next day, Eakes and Detectives Pima and O'Keefe traveled to Spokane, and confronted Swenson with the information provided by Allan Loucks and the fact that they now had his fingerprints. Swenson eventually admitted that he was at the studio on the night David Loucks was killed. Swenson then gave a taped statement to the police, implicating someone named "Joe" in David Loucks' death. Swenson later identified "Joe" as Joseph Gardner. The police interviewed Gardner, who was already in prison for another crime, and Gardner implicated himself and Swenson in the robbery at David Loucks' studio.
Based on the information obtained from Swenson and Gardner, the police obtained several search warrants. With the search warrants, the police seized Swenson's phone records—which confirmed the information provided to Eakes by Allan Loucks—a stun gun from Swenson's apartment, and various pieces of recording equipment. The State charged Swenson and Gardner with first degree felony murder, based on the underlying felony of robbery or attempted robbery. Before trial, Gardner pleaded guilty.
Swenson moved to suppress the phone records and his subsequent statements to police, contending that Allan Loucks was acting as a government agent when Allan Loucks obtained initial information from Swenson's phone records. At the CrR 3.6 hearing, Allan Loucks testified that the police never told him, directly or indirectly, that they wanted Swenson's phone records. Detective Lima testified that he was concerned about how Allan Loucks was getting his information but did not want to know his sources. In addition, Detective Lima testified that he never asked Allan Loucks, directly or indirectly, to obtain any phone records and repeatedly discouraged Allan Loucks from continuing his investigative efforts. Detective Lima, however, also testified that he told Allan Loucks that the police could not obtain telephone records without probable cause, in response to a statement by Allan Loucks that the police needed to get phone records for certain individuals. The trial court denied Swenson's motion to suppress, concluding that Allan Loucks was not acting as a government agent and even if he was, Swenson's phone records would have been inevitablydiscovered by the police.
At trial, the medical examiner testified that David Loucks died around 9:30 or 10 p.m. on March 7, 1995. His death was caused by strangulation and probable suffocation. David Loucks suffered a blunt force injury to the head and...
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