State v. Whelchel
| Decision Date | 06 December 1990 |
| Docket Number | No. 56809-0,56809-0 |
| Citation | 801 P.2d 948,115 Wn.2d 708 |
| Parties | STATE of Washington, Respondent, v. Stephen C. WHELCHEL, Petitioner. En Banc |
| Court | Washington Supreme Court |
Paul Klasen, Grant County Prosecutor, Jerald R. Hamley, Deputy, Ephrata, for respondent.
Seattle-King County Public Defender Robert W. Goldsmith, Seattle, amicus curiae for petitioner on Behalf of Washington Defender Assn.
Seth R. Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Everett, amici curiae for respondent.
At issue in this case is whether the first degree murder conviction of the defendant, Stephen C. Whelchel, should be reversed because the trial court admitted into evidence tape-recorded statements made by two codefendants who refused to testify at his trial. We affirm the defendant's conviction, but on a different basis than did the Court of Appeals in its unpublished opinion in this case. 1
On October 15, 1986, one Robert Niverson told the Grant County Sheriff that a body was buried by Moses Lake. Officers discovered the body of Emargo McKee later that day. She had been stabbed and beaten. After a friend told Emargo's husband, Jerry McKee, that her body had been found, McKee went to the Moses Lake Police Department to file a missing persons report. When confronted with evidence of Emargo's murder, McKee admitted having been at the murder scene along with Jeffrey Flota, the defendant Stephen Whelchel, and two female juveniles, hereafter referred to as Nancy and Beth. McKee denied actually taking part in his wife's murder, however.
All five of these individuals were arrested on October 16. After the defendant's and Flota's arrest, a search of the car they were driving turned up a knife along with Emargo's purse in a box of clothing on the backseat. Following their arrests, all except the defendant Whelchel gave statements The following description of Emargo's murder is derived primarily from Nancy's and Beth's testimony at the defendant's trial.
to the police describing Emargo's murder. McKee's statements of October 16 and 17 were tape-recorded, as was Flota's October 16 statement
On Wednesday, September 24, 1986, 16-year-old Nancy was staying at Beth's house. Late that night, the defendant Whelchel came over and took them to the McKee apartment. The McKees had been married 6 months. The young women were planning to go to California with the McKees, the defendant, and Jeff Flota. Beth was the defendant's girl friend; Nancy was Flota's girl friend. The four of them stayed with the McKees in their 1-room apartment until September 26. That night Nancy and the defendant argued with Emargo; then the McKees left the apartment for an hour or so. Upon their return, McKee came up to the apartment alone. At that time, the defendant either asked or told him "tonight's the night". Emargo came up to the apartment later, after apologizing to the defendant.
At the defendant's suggestion, the group walked down to Moses Lake at about 3 a.m. Flota and the defendant each carried a taped, reinforced table leg. The legs had been used during an unrelated earlier incident at Flota's home. The defendant also wore what Beth described as a hunting knife. Flota, McKee and the defendant separated from the others and played a game of "rock, scissors and paper" to see who would kill Emargo. Flota "won" the game but said he couldn't bring himself to kill her.
The defendant had everyone form a circle and hold hands. He then broke the circle, saying he had to go to the bathroom. As the defendant passed behind Emargo, he struck her on the head with the table leg, knocking her to the ground. Nancy ran away, and McKee followed her. Beth testified that before McKee left, the defendant handed him the knife, but McKee gave it back, saying he couldn't do it. The defendant continued to beat Emargo. Flota attempted to leave, but the defendant called him The Grant County Prosecuting Attorney charged all five suspects with first degree murder. Nancy pleaded guilty in juvenile court to rendering criminal assistance and agreed to testify against McKee, Flota, and the defendant (all of whom were adults). Beth, also a juvenile, pleaded guilty to first degree murder in exchange for the prosecuting attorney's promise not to prosecute her as an adult; she also agreed to testify against the three male codefendants.
back and insisted that he put Emargo in a "sleeper hold". Flota came back and held Emargo for about 5 minutes. The defendant then stabbed Emargo at least twice, and Beth beat her with the table leg. After Flota and the defendant dropped Emargo's body into some bushes, the five returned to the McKee apartment. McKee and the defendant dumped the table legs in the countryside the next day, and a few days later McKee and Flota returned to the murder site to bury Emargo's body
The defendant's trial was severed from that of McKee and Flota. A jury found both McKee and Flota guilty of first degree murder on January 31, 1987. Following their convictions, the trial court granted defendant's motion for a change of venue. His trial was held in King County, with a judge of the Superior Court from Grant County presiding.
Prior to trial, the defendant moved to exclude the tape-recorded statements made by McKee and Flota. (Both McKee and Flota claimed their constitutional privilege against self-incrimination and refused to testify against the defendant.) The trial court denied the motion to exclude, finding McKee and Flota unavailable to testify and concluding that their statements were admissible as statements against penal interest under Evidence Rule 804(b)(3) and not violative of the defendant's confrontation clause rights.
At trial, Nancy and Beth testified according to the facts outlined above. The jury also heard McKee's and Flota's tape-recorded statements which were basically to the same effect as the testimony of the two eyewitnesses. The State also called a number of witnesses who testified that the defendant had admitted murdering Emargo. Witness The defendant also testified at the trial. He admitted that he was at the McKee apartment with the others but said he left to go home at about 1:30 a.m. on September 27. He testified that it was not until the next day that he learned about Emargo's murder from McKee. According to the defendant's testimony, McKee told him that Beth repeatedly hit Emargo, and that Flota put a choke hold on her and she went limp. He testified that McKee then told the defendant that he had stabbed Emargo. The defendant further testified that he then decided to help his friends get rid of the evidence, and agreed to wash Beth's and McKee's bloody clothing at his house. He said that he and McKee also drove out into the country where they threw the table legs away.
Turina Liebrecht testified that when the defendant and McKee came to her home in late September, the defendant said "we killed" Emargo. Her sister, Audrey McClelland, testified that the defendant also told her "we killed" Emargo. Witness Steve Kirkendoll, a friend of the defendant's, testified that the defendant told him before Emargo's death that he wanted her killed because she was a nag. Witness Douglas Crozier testified that he and the defendant attended a party on October 11 during which the defendant "told me that he had killed somebody and that he would do it again for a friend and asked me [801 P.2d 951] if I was a friend." Witness Tracy Weaver testified that the defendant told him at the same party that "him and his friends killed Jerry's wife." Witness Mary Mosley was at the Moses Lake alternative high school in September 1986 where, according to her testimony, she heard the defendant say to Flota, "we're going to kill her." Witness David Joy, who was incarcerated in the county jail with the defendant before the latter's trial, testified that the defendant admitted killing Emargo McKee by clubbing her head
Members of the defendant's family testified as alibi witnesses for him. His mother testified that early in the morning of the 27th, she awakened to find the defendant at home watching television. When she got up at 6 a.m., she The State presented the testimony of Beth's mother and a Grant County deputy sheriff to rebut the defendant's alibi. These witnesses testified that, in response to a runaway complaint filed by Beth's mother, they went separately to the defendant's home on September 27 at around noon. Both stated that they talked to the defendant's parents and did not find the defendant at home. The defendant's father told the deputy sheriff and Beth's mother that his son did not live there. At 2:10 p.m. that afternoon, the deputy sheriff stopped the McKee car and found McKee and the defendant inside. The dispatch supervisor for Grant County 911 confirmed the deputy's testimony with dispatch records.
said, he was asleep in her living room and slept until late morning. Defendant's sister testified that she heard her mother and brother talking early in the morning of the 27th. Defendant's father also testified that his son was at home early on the 27th and slept until almost noon. When asked why they didn't give the authorities this information until a month before trial, defendant's mother said, "No one came to me", and his father added that "we felt that it was best to keep quiet until he had counsel and went through it."
The jury found the defendant guilty of first degree murder. The defendant appealed, and in an unpublished opinion the Court of Appeals affirmed his conviction. The defendant then sought discretionary review in this court on several issues. We granted review on the following single issue.
Did the trial court err by admitting into evidence the tape-recorded statements of two codefendants who refused to testify at the defendant's trial?
C...
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