State v. Whitaker

• Decision Date: 17 April 2006
• Docket Number: No. 54834-4-I.,54834-4-I.
• Citation: 135 P.3d 923,133 Wn. App. 199
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. John A. WHITAKER, Appellant/Cross-Respondent.

Page 923

135 P.3d 923

133 Wn. App. 199

STATE of Washington, Respondent/Cross-Appellant, v. John A. WHITAKER, Appellant/Cross-Respondent.

No. 54834-4-I.

Court of Appeals of Washington, Division 1.

April 17, 2006.

Publication Ordered May 24, 2006.

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Emmelyn Hart-Biberfeld, Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, WA, John Rolfing Muenster, Muenster & Koenig, Seattle, WA, Day H. Bon, Tacoma, for Appellant/Cross-Respondent.

Seth Aaron Fine, Attorney at Law, Snohomish County Prosecutor Office, Everett, WA, Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, for Respondent/Cross-Appellant.

BECKER, J.

¶ 1 John Whitaker was convicted of aggravated murder and conspiracy to commit first degree murder. He was convicted for his participation in the kidnapping and killing of Rachel Burkheimer in Snohomish County, and sentenced to life in prison without the possibility of parole.

¶ 2 With respect to the primary issues he raises on appeal, we hold that despite extensive local publicity about the murder, no change of venue was called for; Whitaker upon arrest was properly advised of his right to counsel before he gave an incriminating statement; the trial court did not err in admitting an out of court statement by a coconspirator; and Whitaker did not preserve his claim that the "major participant" language in the aggravating factor instructions needed further definition. Whitaker had a fair trial, and we affirm his conviction and sentence.

FACTS

¶ 3 According to the State's evidence, John Whitaker helped his friend John Anderson and several others kidnap and kill Anderson's ex-girlfriend, Rachel Burkheimer, in September 2002. Whitaker helped to bind, hide, and transport Burkheimer. He helped to dig her grave, rob her, bury her, and destroy evidence of her murder.

¶ 4 Anderson and Whitaker were part of a group who called themselves the Northwest Mafia. The group, led by Yusef Jihad and Anderson, made money by selling drugs and robbing people. Whitaker was third in command, followed by Matthew Durham, Maurice Rivas, Tony Williams, and Matt Barth. Jihad made it clear that disloyalty to the group would be met with violence.

¶ 5 At one time, Whitaker and Anderson had lived with J.J. Brazwell. Brazwell moved out and then began dating Burkheimer. Anderson, her ex-boyfriend, was angry and jealous. Anderson and his friends decided that Brazwell was their enemy.

¶ 6 Burkheimer was still associating with members of the group. Word eventually reached Anderson and Jihad that Burkheimer was discussing the group's criminal activity with Brazwell and others. A day before she disappeared, Burkheimer invited Anderson and Jihad to a party. They became convinced that Burkheimer had tried to lure them to the party so Brazwell could kill them.

¶ 7 Jihad and Anderson decided to confront Burkheimer. The next day, they learned that she was with two of the group's members, Durham and Rivas, at another friend's house. They ordered Durham and Rivas to bring Burkheimer to the duplex where Jihad, Anderson, Whitaker and several of the others were staying. Burkheimer came willingly.

¶ 8 When Burkheimer arrived at the duplex, Anderson became angry. He punched Whitaker and Barth, who were laughing with Burkheimer. This nearly provoked a gunfight with Barth. Burkheimer tried to leave. Anderson threw her to the ground and punched her. Other members of the group turned up the music volume to drown out Burkheimer's screams. Whitaker helped to bind her feet, hands, and mouth with duct tape. He kicked her. Whitaker and Anderson carried Burkheimer into a free-standing garage next to the duplex.

¶ 9 The group held Burkheimer in the garage, bound, while various members of the group used cocaine and marijuana and discussed what to do with her. They considered ransoming her. Jihad said they should kill her, pointing his gun at her. Jihad threatened the others that "Loose ends get cut off", and told Durham and Rivas they could not leave. This went on for several hours.

¶ 10 The group was startled into action when Jihad's girlfriend Trissa Conner—who owned the duplex—came home. She demanded to be let into the garage. When eventually let in, Conner tried to free Burkheimer. After Anderson forced Conner to leave the garage, she threatened to call the police. Jihad convinced her not to do so. Back in the duplex, Conner ordered the group to leave. Two of the men left.

¶ 11 Anderson was still trying to decide what to do with Burkheimer. In earshot of Whitaker, Anderson said he could not strangle Burkheimer because he used to love her. Whitaker, Barth, and Jihad discussed planting Burkheimer's car at Brazwell's home. Whitaker then grabbed a large duffle bag and removed its contents. He took the bag into the garage. Someone forced Burkheimer into the bag, and Anderson and Whitaker carried the bag to Durham's Jeep.

¶ 12 Durham, Rivas, and Whitaker filled Durham's Jeep with gas and drove off, with Burkheimer still inside the duffel bag. Whitaker directed them where to go, following instructions he received over the telephone from Anderson and Jihad. They drove to a wooded area, offloaded the bag, and left Rivas there to watch Burkheimer while they went back to pick up Anderson. Rivas unzipped the bag and spoke with her. Convinced the men would kill her, Burkheimer asked Rivas to make sure they did not drown her.

¶ 13 When Whitaker and Durham returned with Anderson, they brought shovels and picks from the duplex. Durham drove the Jeep to a remote gravel pit east of Gold Bar. On Anderson's orders, Rivas, Whitaker and Anderson dug a shallow hole. They brought Burkheimer to the hole. Anderson ordered her to disrobe, to remove her jewelry, and get into the hole. Whitaker collected her belongings, Anderson shot Burkheimer several times, killing her.

¶ 14 Whitaker, Anderson, and Rivas buried the body. They returned to the duplex and left Anderson there. Anderson ordered them to get rid of the gun and Burkheimer's things. Whitaker, Rivas and Durham parked Burkheimer's car at Brazwell's house. Rivas and Durham dropped Whitaker off, then disposed of the other evidence in the car. Whitaker helped several of the others to clean the duplex. They burned a carpet they believed had evidence of the attack. They discussed alibis and leaving town.

¶ 15 The investigation into Burkheimer's disappearance eventually led to the duplex. Whitaker, Barth, and Jihad began living in hotels, then left for California. They were arrested in Los Angeles. Whitaker made incriminating statements to two FBI agents and later to a jail informant, Christian White.

¶ 16 The State charged Whitaker with aggravated first degree murder and conspiracy to commit murder. The State also charged seven of the other men involved, five of whom pleaded guilty. Whitaker's was the final case to go to trial. He testified at his trial and claimed his actions were motivated solely by fear of Anderson. He denied kicking or binding Burkheimer and denied directing Durham and Rivas where to go once they left with Burkheimer in the bag. He said he tried to convince the men several times to let Burkheimer go. He said he tried to leave the murder site but was ordered to stay by Anderson, who was armed. He was too upset to help bury the body. A jury found Whitaker guilty as charged. He appeals the conviction and sentence.

MOTION TO CHANGE VENUE

¶ 17 Whitaker moved for a change of venue. He argued that it would be impossible to seat an impartial jury in Snohomish County because of inflammatory pretrial publicity.

¶ 18 The State contends Whitaker failed to preserve this issue because after initially making the motion, he did not renew it. However, the trial court raised the issue again sua sponte just before opening statements. The court mentioned that the motion was still pending, and denied it. We conclude the issue was adequately preserved for review.

¶ 19 Due process requires that the accused receive a trial by an impartial jury free from outside influences, including prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

¶ 20 When a defendant shows that pretrial publicity has created a probability of unfairness or prejudice, a presumption arises that courts should reject claims by potential jurors that they can be impartial. Courts must examine the totality of the circumstances to determine whether such a presumption arises. The relevant question is not whether the community remembered the case, but whether the jurors at the trial had such fixed opinions that they could not judge impartially the guilt of the defendant. Jackson, 150 Wash.2d at 269, 76 P.3d 217. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751, (1961). The decision to grant or deny a venue motion is reviewed for abuse of discretion. State v. Jackson, 150 Wash.2d 251, 269, 76 P.3d 217 (2003).

¶ 21 In Irvin, a "pattern of deep and bitter prejudice" was shown to be present throughout the Indiana community, which was "clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box." Irvin, 366 U.S. at 727, 81 S.Ct. 1639. Before the trial began, eight out of Irvin's 12 jurors already thought he was guilty, although each juror seated promised to "be fair and impartial." The Supreme Court reversed the conviction. "Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight." Irvin, 366 U.S. at 728, 81 S.Ct. 1639. Whitaker contends that the trial court here likewise failed to apprehend a probability of prejudice from the pretrial publicity.

¶ 22 Appellate courts must independently review the record to determine whether the probability of prejudice is so apparent that...