State v. Whitaker

• Citation: 429 P.3d 512
• Decision Date: 05 November 2018
• Docket Number: No. 75924-8-I,75924-8-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. John Alan WHITAKER, Appellant/Cross-Respondent.

429 P.3d 512

STATE of Washington, Respondent/Cross-Appellant,

v.John Alan WHITAKER, Appellant/Cross-Respondent.

No. 75924-8-I

Court of Appeals of Washington, Division 1.

FILED: November 5, 2018

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121, for Appellant/Cross-Respondent.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Smith, J.¶ 1 John Whitaker appeals his conviction for aggravated first degree murder and conspiracy to commit murder for his role in the murder of Rachel Burkheimer. He alleges numerous errors and constitutional violations, none of which require reversal. We affirm.

FACTS

¶ 2 In 2004, a jury found John Whitaker guilty of aggravated first degree murder and conspiracy to commit murder for his involvement in the death of Rachel Burkheimer, which occurred in September 2002. This court affirmed his conviction on appeal. See State v. Whitaker, 133 Wash. App. 199, 135 P.3d 923 (2006). But that conviction was reversed in 2013 when this court granted Whitaker’s personal restraint petition because his right to a public trial was violated when six jurors were individually questioned in a closed courtroom during voir dire. In re Pers. Restraint of Whitaker, No. 61980-2-1, 2013 WL 3090825 (Wash. Ct. App. June 17, 2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/619802.pdf.

¶ 3 On remand in 2015, the State charged Whitaker with the same offenses. As in Whitaker’s first trial, the State presented evidence that Whitaker helped his friend John Anderson and several others kidnap and kill Burkheimer, who was Anderson’s ex-girlfriend. Whitaker helped to bind, hide, and transport Burkheimer. He helped to dig her grave, rob her, bury her, and destroy evidence of her murder. Although Whitaker testified in his first trial, he did not testify on retrial. With the exception of Whitaker’s testimony, the evidence presented by the State in the first trial was similar to that presented on retrial and is not repeated here.

¶ 4 The jury found Whitaker guilty of premeditated first degree murder, with an aggravating factor of kidnapping and a firearm enhancement, and conspiracy to commit first degree murder. During the trial, Whitaker moved for a mistrial several times, alleging prosecutorial misconduct, a violation of CrR 6.15, and a violation of his right to a unanimous jury. After trial, Whitaker moved for a new trial based on these issues and other newly identified issues. The trial court denied his motion and sentenced him to life without the possibility of parole on the first degree murder charge (plus 60 months for the firearm enhancement) and 240 months on the conspiracy charge. Whitaker appeals.

DURESS AS A DEFENSE TO AGGRAVATING FACTORS

¶ 5 Whitaker argues that the trial court erred when it refused to instruct the jury that duress is a defense to the aggravating factors of robbery and kidnapping. We disagree.

¶ 6 Jury instructions are sufficient if they permit each party to argue their theory of the case, do not mislead the jury, and, when read as a whole, properly inform the jury of the applicable law. Cox v. Spangler, 141 Wash.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). A trial court’s decision whether to give a particular instruction to the jury is a matter that we review for abuse of discretion. Stiley v. Block, 130 Wash.2d 486, 498, 925 P.2d 194 (1996). Refusal to give a particular instruction is an abuse of discretion only if the decision was "manifestly unreasonable, or [the court’s] discretion was exercised on untenable grounds, or for untenable reasons." Boeing Co. v. Harker-Lott, 93 Wash. App. 181, 186, 968 P.2d 14 (1998).

¶ 7 Under RCW 9A.32.030(1)(a), a defendant is guilty of first degree murder when, "[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person." If a defendant is charged with first degree murder under RCW 9A.32.030(1)(a), the aggravating factors in RCW 10.95.020 can increase the penalty for that offense. State v. Kincaid, 103 Wash.2d 304, 307, 692 P.2d 823 (1985) ("The statutory aggravating circumstances which, when present, raise premeditated first degree murder to aggravated first degree murder punishable by mandatory life imprisonment or death, are ‘aggravation of penalty’ factors which enhance the penalty for the offense, and are not elements of a crime as such."). According to RCW 10.95.020,

[a] person is guilty of aggravated first degree murder, a class A felony, if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a)... and one or more of the following aggravating circumstances exist:

....

(11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:

(a) Robbery in the first or second degree;

(b) Rape in the first or second degree;

(c) Burglary in the first or second degree or residential burglary;

(d) Kidnapping in the first degree; or

(e) Arson in the first degree[.]

¶ 8 Here, Whitaker was charged with first degree premeditated murder under RCW 9A.32.030(1)(a). Whitaker acknowledges that duress is not a defense to murder, but he argues that because RCW 9A.16.060 does not explicitly prohibit the use of a duress defense for aggravating factors, duress can be applied against the aggravating factors in RCW 10.95.020.

¶ 9 "The duress defense derives from the common law and is premised on the notion that it is excusable for someone to break the law if he or she is compelled to do so by threat of imminent death or serious bodily injury." State v. Mannering, 150 Wash.2d 277, 281, 75 P.3d 961 (2003) (citing ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 1059 (3d ed. 1982) ). "Faced with danger to his or another’s safety, the defendant is excused for choosing the lesser evil of perpetrating a crime, unless the crime involves killing an innocent person, which is never the lesser of two evils." State v. Harvill, 169 Wash.2d 254, 262, 234 P.3d 1166 (2010). RCW 9A.16.060 defines duress and states that

(1) In any prosecution for a crime, it is a defense that:

(a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and

(b) That such apprehension was reasonable upon the part of the actor; and

(c) That the actor would not have participated in the crime except for the duress involved.

(2) The defense of duress is not available if the crime charged is murder, manslaughter, or homicide by abuse.

(3) The defense of duress is not available if the actor intentionally or recklessly places himself or herself in a situation in which it is probable that he or she will be subject to duress.

(4) The defense of duress is not established solely by a showing that a married person acted on the command of his or her spouse.

Statutory interpretation is an issue of law that we determine de novo. Mannering, 150 Wash.2d at 282, 75 P.3d 961.

¶ 10 According to the plain language of the statute, duress may be a defense in the "prosecution for a crime." RCW 9A.16.060(1) (emphasis added.) The statute then goes on to explain the elements that must be met for duress to apply where a defendant participated in "the crime." RCW 9A.16.060(1)(a), (c). Under the plain language of the statute, the crime the defendant participated in, and for which the defense can be applied, must be the same crime for which the defendant is being prosecuted.

¶ 11 Here, Whitaker was prosecuted for first degree murder. He was not prosecuted for kidnapping or robbery—those were only alleged as aggravating factors to premeditated murder and do not establish a separate crime. Therefore, under the plain language of the statute, the defense of duress cannot be applied to those unprosecuted crimes alleged as aggravating factors. If the State charged Whitaker with kidnapping or robbery, he would have been entitled to a duress defense on those prosecuted crimes. But because that was not the case, the trial court did not abuse its discretion in denying Whitaker a duress instruction on the aggravating factors of kidnapping and burglary.

¶ 12 Whitaker relies on two out-of-state cases, State v. Getsy, 84 Ohio St. 3d 180, 702 N.E.2d 866 (1998), and State v. Bockorny, 124 Or. App. 585, 863 P.2d 1296 (1993), but neither leads us to reversal. In Getsy, the Supreme Court of Ohio considered whether duress could be a defense to felony murder, the underlying felony, or the "capital specifications," which included an aggravating factor of murder for hire. Getsy, 84 Ohio St. 3d at 198-99, 702 N.E.2d 866. The court held that duress is not a defense to felony murder and that there was insufficient evidence to support the use of the defense for the underlying felony or the capital specifications. Id. at 199, 702 N.E.2d 866. It stated, "Arguably, the defense of duress could have been asserted for the aggravating circumstance of murder for hire, but the evidence presented by the state, if believed, indicated that Getsy was the only one of the three who wanted the money." Id. The court did not explain why duress is "arguably" a defense for an aggravating factor. Because RCW 9A.16.060 indicates that the defense of duress must be applied to the crime prosecuted, Getsy is not persuasive.

¶ 13 In Bockorny, the defendant was charged with aggravated murder under Oregon Revised Statute (ORS) 163.115(1)(b), which is similar to first degree felony murder in Washington. 124 Or. App. at 587, 863 P.2d 1296. There, the issue was whether duress was available as a defense to the crimes underlying the felony murder charge. Id. at 588, 863 P.2d 1296. The court did not address the applicability of duress to aggravating factors. As such, Bockorny is not persuasive.

¶ 14 Finally, Whitaker argues that there was...