State v. Townsend

Decision Date04 January 2001
Docket NumberNo. 68337-9.,68337-9.
Citation15 P.3d 145,142 Wash.2d 838
PartiesSTATE of Washington, Respondent, v. Roy James TOWNSEND, a/k/a Roy Campbells Townsend, a/k/a David W. Rivera, a/k/a Roy J. Justiniano, Petitioner.
CourtWashington Supreme Court

Thomas Edward Doyle, Hansville, WA, for Petitioner.

David Brian St. Pierre, Assistant City Attorney, Bremerton, WA, for Respondent.


Petitioner seeks review of a Court of Appeals decision affirming his first degree murder conviction and rejecting his contention that his trial counsel provided ineffective assistance of counsel when he failed to object to the oral instructions to the jury during voir dire that the present charges did not involve the death penalty. Additionally, the petitioner argues that the court erred when it found sufficient evidence to support premeditation. We hold that it is error to inform the jury during voir dire in a noncapital case that the case is not a death penalty case. However, under the facts of this case, we find the error harmless and affirm the Court of Appeals.


On November, 1, 1996, Roy Townsend, Jack Jellison and the victim, Gerald Harkins, attended a party at Mike Brock's home. Several hours prior to the party, Brock mentioned to Townsend that he was angry at Harkins for spreading rumors about Brock's sister. After hearing the rumors, Townsend replied "either you can deal with it or I can deal with it." Verbatim Report of Proceedings (RP) at 95.

Brock suggested a hunting trip, at which time Brock would confront Harkins about the rumors. Brock later decided to not go hunting. Harkins, however, left the party in his pickup truck with Townsend and Jellison to go hunting. On the way, they stopped at Townsend's house where they picked up a spotlight and Townsend changed clothes. After the stop, Harkins drove while Townsend sat in the passenger seat, using a spotlight to search for deer and occasionally taking shots at road signs with his .45 caliber pistol.

Eventually, Harkins turned the truck onto a road which was blocked by a locked gate that prevented further access to the road. Townsend exited the vehicle and shot the lock several times but was unsuccessful in opening the gate. Townsend then got into the back of the pickup truck and Harkins turned the truck around. Later, Harkins turned onto a side road in another attempt to get up into the mountains. This road, too, was impassable, blocked by a large mound of dirt. As Harkins began backing up to go back down the hill, Jellison, then sitting in the passenger seat, heard a shot from the rear of the truck. Turning around, Jellison saw that Townsend had fallen out of the truck and lay on the ground many feet away from the truck. Townsend then asked "{a}re you guys okay?" RP at 127. Jellison replied that they were fine, but then Harkins slumped over his arm and Jellison realized that Harkins had been shot. Jellison jumped out of the truck and yelled to Townsend "[O] my God, you shot him. What the hell are you doing?" RP at 128. Townsend said that it was an accident.

Townsend asked if Harkins was still alive. Jellison noticed that Harkins was still breathing and that his eyes were open, staring at him. They argued about taking Harkins to the hospital but Townsend insisted that they could not do so since the police would never believe that the shooting was an accident. Jellison asked why the police would not believe them if it was an accident and Townsend reminded Jellison of their prior criminal histories.1 Townsend then approached the driver's side of the truck, looked inside, and raised the gun up to "the general area where the head was laying...." RP at 130. Townsend said "God forgive me," and pulled the trigger again. Id.

Townsend moved Harkins body over to the passenger seat and Jellison drove the truck back to the gate where Townsend dumped the body nearby in the dense woods. Jellison and Townsend drove back to Townsend's house and told Townsend's roommate, Mike Drury, that Harkins had been accidentally shot. Later, Townsend moved Harkins' truck and burned it. He took the gun with him to Yakima.

Several days after Harkins' death, Yakima police arrested Townsend for armed robbery and placed him in the Yakima County jail. While in custody, Townsend contacted Harkins' father and told him that he had information regarding his 18 year old son's death. In exchange for a promise of "help" with his armed robbery charges, Townsend provided substantial information, including the general location of Harkins' body.

The State charged Townsend with first degree murder, second degree murder, second degree arson, and first degree theft. At a pre trial hearing, and again during voir dire, there were references to the death penalty. The first discussion occurred during a motion in limine.

[PROSECUTOR]: Your Honor, I have one {motion in limine}. I think it's important and typically on first degree murder cases, the Court has done this in the past, that the Court inform the jury that this is not a death penalty case.
[COURT]: I will....
RP at 11.

Another reference to the death penalty occurred in the presence of the jury at the outset of voir dire.

[PROSECUTOR]: Alright. You understand this is a criminal case, a very serious criminal case. And I'll indicate to you right now ... I would ask the Court's indulgence. This is a first degree murder case. This case does not involve the death penalty. I think it's important that all the jurors understand that at this point in time.
THE COURT: Thank you ... I had intended to let the jury know that I'd forgotten to indicate because when you do hear the term first degree murder, a lot of people think automatically about a death penalty. This is not a case in which the death penalty is involved and will not be a consideration for the jury.
[PROSECUTOR]: Okay, so that concept of anxiety or anticipation is not involved in this particular case. Matter of fact, under the laws of the State of Washington, the only type of murder case that involves the death penalty is aggravated first degree murder. This is not an aggravated first degree murder. This is first degree murder.

Suppl. Partial Report of Proceedings at 2. Defense counsel did not object to any of the comments.

At the conclusion of trial, the jury found the petitioner guilty of first degree murder, second degree arson, and first degree theft. The trial judge imposed an exceptional sentence of 800 months, approximately one and one-half times the standard range. On appeal, the petitioner principally asserted that his counsel was ineffective when he failed to object to statements about the death penalty. The Court of Appeals, Division Two, found that the statements were not erroneous, rejecting a contrary holding in a recent case from Division One, State v. Murphy, 86 Wash.App. 667, 937 P.2d 1173 (1997), review denied, 134 Wash.2d 1002, 953 P.2d 95 (1998).2 We accepted review to settle the conflict.


As a general rule, in any claim of ineffective assistance of counsel, the "[c]ourts engage in a strong presumption counsel's representation was effective." State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995); State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987). "Competency of counsel is determined based upon the entire record below." McFarland, 127 Wash.2d at 335,899 P.2d 1251. To establish ineffective assistance of counsel a defendant must prove deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re Personal Restraint of Rice, 118 Wash.2d 876, 888, 828 P.2d 1086,cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992). To prove deficient performance, a defendant must demonstrate that the representation fell below an objective standard of reasonableness under professional norms and that there is a reasonable probability that, but for counsel's error, the result would have been different. Rice,118 Wash.2d at 888-89,828 P.2d 1086.

Under the first prong of the Strickland test, we begin by determining whether instructions to the jury regarding punishment is erroneous in a noncapital trial. Townsend argues that his trial counsel should have objected to the jury instructions because they were erroneous in citing Division One decision in State v. Murphy, 86 Wash.App. 667, 937 P.2d 1173 (1997), review denied, 134 Wash.2d 1002, 953 P.2d 95 (1998). In Murphy, the prosecution charged the defendant with first-degree and second-degree murder. During voir dire, the judge attempted to allay potential juror fears and added an additional instruction to the usual instruction found in Washington Pattern Jury Instructions: Criminal (WPIC) 1.02 (2d ed.1994).

I would advise you that this case does not involve a death penalty. You have nothing whatever to do, however, with any punishment that may be imposed in case of a violation of the law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.

Id. at 669, 937 P.2d 1173; see WPIC 1.02.

On appeal, Murphy argued that since the jury is not to consider punishment, an instruction to the jury regarding the death penalty was error. Division One agreed. Acknowledging that other jurisdictions have allowed the jury to be informed that the death penalty is not involved in a case, see State ex rel. Schiff v. Madrid, 101 N.M. 153, 679 P.2d 821 (1984), the court nevertheless was persuaded that in Washington "punishment is irrelevant to the jury's task." Murphy, 86 Wash.App. 667, 670, 937 P.2d 1173 (citing State v. Todd, 78 Wash.2d 362, 474 P.2d 542 (1970)); State v. Forbes, 43 Wash. App. 793, 795, 719 P.2d 941 (1986). Relying on language from Todd, which held that when a judge places "undue emphasis" on certain factors, including sentencing considerations, the jury will most likely take them into account, the court concluded that the judge's...

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