State v. Thompson, 44197

• Decision Date: 12 May 1977
• Docket Number: No. 44197,44197
• Citation: 88 Wn.2d 518,564 P.2d 315
• Parties: The STATE of Washington, Respondent, v. Timothy Allen THOMPSON, Appellant.
• Court: Washington Supreme Court

Page 518

88 Wn.2d 518

564 P.2d 315

The STATE of Washington, Respondent, v. Timothy Allen THOMPSON, Appellant.

No. 44197.

Supreme Court of Washington, En Banc.

May 12, 1977.

Jennings, Westbrook & Ellis, P.S., K. Michael Jennings, Gelman & Couture, Herbert Gelman, Tacoma, for appellant.

Don Herron, Pros. Atty. for Pierce County Joseph D. Mladinov, Special Counsel, Michael R. Johnson, Ellsworth I. Connelly, Deputy Pros. Attys., Tacoma, for respondent.

WRIGHT, Chief Justice.

Defendant appeals from convictions of second-degree murder and second-degree assault.

On October 9, 1974, the body of Jan A. Cygan was discovered in a shallow grave on the Fife side of the Puyallup River near the Highway 99 bridge. The body was in a sleeping bag, with hands and feet bound. Cygan was last seen alive at defendant's house in Tacoma on or about August 7, 1974.

In an information filed October 11, 1974 defendant was charged with first-degree murder (RCW 9.48.030). That information was amended on November 20, 1974, to list decedent's name correctly. On January 16, 1975, with the trial court's permission, a second amended information was filed. In count 1 defendant was again charged with the first-degree murder of Jan A. Cygan. In count 2, defendant was charged with the second-degree assault of his wife, Janice Thompson, as part of the same transaction.

Counsel for defendant moved to sever counts 1 and 2, which motion was denied, and the trial began on February 5, 1975. The trial judge made several rulings during defendant's 5-day trial, to which rulings defendant objected and from which he appeals. The issues he raised are discussed herein in the order they were argued in his brief.

At the trial, the State called defendant's wife, Janice Thompson, as a witness. Out of the presence of the jury, the trial court ruled that the defense would have a continuing objection to her testimony.

Mrs. Thompson testified to the following: On August 6, 1974, she came home at about 5 p.m. When she arrived, defendant and some friends were present. After the friends left, defendant closed and locked the front and back doors, and turned up the stereo. He instructed his wife to come into the living room and sit on the couch. Defendant, who was holding 'one of those small butane burners and a piece of rubber hose,' accused his wife of adultery with Cygan. At first she denied it, but when defendant threatened to 'torture . . . the truth out of' her, she admitted her infidelity. Defendant then hit her across the face with his hand causing her nose to bleed 'pretty bad.' Mrs. Thompson went into the bathroom and leaned over the bath tub. Defendant followed her in and beat her across the backs of her legs 'a couple of times' with the rubber hose.

Mrs. Thompson continued to testify: About 8 or 8:30 p.m. that same evening, Cygan, who had been living at defendant's house, returned. Also present, when he arrived was one Rick Seward, another prosecution witness. Mrs. Thompson, whose nose had stopped bleeding, was in the kitchen when she heard a noise from the front room that sounded like someone being hit and falling to the floor. She went into the front room and saw defendant 'straddled across (Cygan's) chest and he (defendant) was hitting him (Cygan) in the face' several times. Defendant then dragged the man into a bedroom and tied him down to a set of metal bed springs. Defendant said he was going to kill Cygan, and he proceeded to beat him with a rubber hose 'about ten to twelve times.'

Mrs. Thompson then testified that she left the house with Rick Seward to go shopping. When they returned at about 10 p.m., Seward, defendant, and she went to Seward's house. Defendant and his wife returned home about 1 a.m. (August 7, 1974). All this time, Cygan was tied to the bed springs. Upon returning home defendant ordered his wife to go to bed. As Mrs. Thompson passed Cygan's bedroom, he raised his head. Instead of going to bed, Mrs. Thompson peeked out her bedroom door and saw defendant carrying Cygan in a sleeping bag out of the house. As defendant left the house, he bumped Cygan's head against the doorway and Cygan 'moaned.'

Finally, Mrs. Thompson testified that when defendant returned home at about 7 a.m. (August 7), his shoulders were dirty 'like he had been crawling around in the dirt or something.' Then she testified that her husband said, "I killed him, he's dead."

While there was other evidence from which the jury might link defendant with Cygan's death, Mrs. Thompson's testimony was the only eyewitness account of the rubber-hose beating, and the removal of Cygan covered by a sleeping bag from the house. It is true, Mrs. Thompson testified that Rick Seward, another witness, saw the beating. Seward, however, testified he was outside and did not see any beating.

Defendant argues that the trial court erred when it permitted his wife to testify against him concerning the facts relating to the murder of Jan Cygan. He argues that this is in violation of RCW 5.60.060(1). That statute provides in pertinent part:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, . . .

It will be noted that this statute covers two privileges, which are closely related, but separate. The first part of the quoted section covers testimony as to factual matters known to the spouse, regardless of how the spouse received the information. The second part of the section covers communications between the spouses. See 5 Wash.Prac. §§ 164 and 181 (Meisenholder, 1965 and Supp. 1975). Both privileges are involved here. Mrs. Thompson testified as to statements made to her in private by defendant. She also testified to facts, that is, acts of the defendant done in her presence.

Defendant argues that a crime of personal violence must be committed by the defendant-spouse against the witness-spouse in order for the 'crime committed by one (spouse) against the other' exception to apply, and that once the exception applies, the witness-spouse may only testify about facts relating to the crime of personal violence against that spouse. Defendant cites prior decisions by this Court ¹ and the Court of Appeals ² in support of his argument.

Respondent cites State v. Briley, 53 N.J. 498, 251 A.2d 442, 36 A.L.R.3d 811 (1969) in support of its position that defendant's wife should be allowed to testify against him about both the assault on her and the homicide of Jan A. Cygan. In Briley, defendant, armed with a shotgun, approached a car in which his wife and another (one Reaves) were preparing to leave. Reaves got out of the car and struggled with defendant. The gun discharged and Reaves received a stomach wound from which he died. Defendant's wife then jumped out of the car and tried to run away. She tripped and fell, however. Defendant, still holding the shotgun, caught up to her and struck her with the gun causing injuries. Defendant was charged in the same indictment with the murder of Reaves, and atrocious assault and battery of his wife.

By permitting defendant's wife to testify against him, the Supreme Court of New Jersey broadened the 'crime committed by one spouse against the other' exception in their husband-wife privilege statute ³ to include the following situation, State v. Briley, supra at 507, 251 A.2d at 446:

If there is a single criminal event in which she and others are targets or victims of the husband's criminal conduct in the totality of the integrated incident and formal charges are made against the husband for some or all the offenses committed (one of which charges is for an offense against the spouse), the wife should be a competent and compellable witness against her husband at the trial of all the cases regardless of whether they are tried separately or in one proceeding. And, in this connection, it should be immaterial that the offense against the wife does not reach the same dimensions of criminality as it does against the third-party victim.

In reaching its conclusion, at page 506, 251 A.2d 442, the New Jersey court argued that rigid adherence to the husband-wife privilege would promote 'the suppression of truth,' and that the principles of public policy make it more important in situations like this that the witness-spouse's testimony be available. Id. at 509, 251 A.2d 442. We agree with the New Jersey Supreme Court that in this carefully defined situation one spouse should be allowed to testify against the other. We agree with defendant, however, that CrR 6.12 does not supersede RCW 5.60.060(1). See 5 Wash.Prac. § 164 (Meisenholder Supp. 1975) and CrR 6.12(c) which states, 'This shall not affect any recognized privileges.' The rule stated in Briley appears reasonable in view of the testimony in this case. At trial, Mrs. Thompson's testimony is the only evidence concerning the rubber-hose beating of decedent by defendant and defendant's act of carrying decedent out of the house. The lack of that testimony would definitely tend toward the suppression of truth.

Defendant argues further, however, that even if we accept the rationale of Briley the alleged crimes for which he is charged did not occur within the same transaction. We disagree. Both the assault upon Mrs. Thompson and the murder of Jan Cygan apparently stemmed from defendant's discovery of his wife's infidelity. Although he may have suspected her marital misconduct before August 6, 1974, it was then that she admitted the same. And while there was some passage of time between the assault and the murder, the logical relationship of the crimes is more...