State v. Wiatt, No. 30168-7-II (WA 4/26/2005)
| Decision Date | 26 April 2005 |
| Docket Number | No. 30168-7-II,30168-7-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. JERRY D. WIATT, JR., Appellant. |
Appeal from Superior Court of Thurston County. Docket No: 01-1-01136-1. Judgment or order under review. Date filed: 03/31/2003. Judge signing: Hon. Gary R Tabor.
Counsel for Appellant(s), Lenell Rae Nussbaum, Attorney at Law, Market Pl Two Ste 200, 2001 Western Ave, Seattle, WA 98121-2163.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Jerry D. Wiatt, Jr. appeals his 18 convictions that include second and third degree rape, sexual exploitation of a minor, voyeurism, and furnishing liquor to a minor. He also appeals his exceptional sentence. We reverse and remand five counts based upon an unlawful search, and we affirm the remainder of the convictions. Because we have reversed and remanded, we do not address the sentencing issue.
In December 1999, Wiatt purchased a house in Olympia, Washington. Wiatt was 26 years old. Wiatt shared his house with roommates to help pay the mortgage. Parties were held regularly at the house, and Wiatt and his roommates frequently provided alcohol to underage guests.
On July 9, 2001, A. Cruz contacted police and reported that she had been raped by Wiatt. She stated that she had not reported the incident earlier because she did not want any `drama' in her life and because she would soon be leaving Olympia to attend college. Clerk's Papers (CP) at 219. But the previous day, her friend, Nicole Smith, informed Ms. Cruz that she was on a videotape being `tag teamed' by two guys. CP at 219. Ms. Smith had learned this information from Nick Deor. Ms. Cruz stated that she was shocked. Later that evening, Ms. Cruz's friend, Huyn Thoong, called her and informed her that she had also heard about the videotape. Thoong told Ms. Cruz that an individual named Barry had viewed a videotape of her having intercourse `dogg{y} {style}.' CP at 219. At trial, Ms. Cruz testified that she then confided in her aunt, who took her to the emergency room and encouraged her to notify the police. Ms. Cruz further testified that she had not had consensual intercourse, was unaware that she had been videotaped, and had not granted anyone permission to tape her.
During separate pre-trial police interviews, Ms. Cruz, Thoong, and Annlee Hoy, another of Ms. Cruz's and Thoong's friends, provided information about the videotape. Each of them told police that their friends had informed them that Wiatt had either shown the tape to, or discussed it with, an individual named Barry. Based on this information, the police filed an application and affidavit for a search warrant to search Wiatt's home. The affidavit stated that Ms. Cruz informed police that Thoong told her that `Barry' had viewed a videotape of her having sexual intercourse; Hoy informed police that her friend, Ryan Carlson, told her that `Barry' had discussed the video with Wiatt; and Thoong informed police that she had `heard' that an individual named `Barry' had seen the video.
The court granted the search warrant, permitting police to search for and seize, bedding, clothing, lubricant, video recording equipment, videotapes, photographs, and any other evidence that a crime was committed. Detective Kenneth Clark executed the warrant and found a video camera inside a dresser in Wiatt's bedroom. A videotape was inside the camera. Detective Clark turned the camera on and observed a video recording of Wiatt and Ms. Cruz engaged in intercourse. Detective Clark also found other videotapes and a jar of lubricant in Wiatt's bedroom. Detective Clark seized all of these items.
Prior to trial, Wiatt moved to suppress the evidence obtained from the search of his residence. He argued that the affidavit did not establish probable cause for the search because the information about the videotape provided by Ms. Cruz, Thoong, and Hoy was based on hearsay and not first-hand knowledge. In addition, none of the women had provided Barry's last name, Specht. The court denied the motion, holding that, when taken as a whole, the information provided by the informants was reliable because each of their statements regarding the videotape corroborated the others' statements.
At trial, Ms. Cruz testified that on the evening of June 29, 2001, she and Thoong went to a party at Wiatt's home. At the time, Ms. Cruz was 17 years old and Thoong was 18 years old. Wiatt's younger brother, Jeff Wiatt, had invited them to the residence. Wiatt was not home when Ms. Cruz and Thoong arrived. Jeff, Ms. Cruz, and Thoong began playing a `drinking game.' CP at 7. Thoong told detectives that over the course of the evening, Ms. Cruz consumed at least 10 shots of vodka and a mixed alcoholic drink. Thoong also saw Ms. Cruz taking a drink directly from a bottle of vodka. Ms. Cruz told detectives that she had eaten very little during the day before the party and that she was taking medications with warnings not to consume alcohol.
Around 2:00 a.m., Wiatt; his sister, Tammy Wiatt; his cousin, Johan Lo; and several others arrived at Wiatt's residence. At trial, Ms. Cruz testified that when Wiatt returned home, she was `heavily intoxicated.' 1 Report of Proceedings (RP) (Oct. 23, 2002) at 81. Shortly thereafter, Tammy, Ms. Cruz, and Thoong decided to go into Wiatt's hot tub. Ms. Cruz testified that after that point, her memory of the evening is `blurry.' 1 RP at 81. Thoong testified that Ms. Cruz entered the hot tub wearing all of her clothing. They remained in the hot tub for approximately 15 minutes. Thoong got out of the hot tub first and then went to Ms. Cruz's car to check her cell phone messages and make some calls. A short time later, Tammy and Ms. Cruz left the hot tub. By then, Ms. Cruz was wearing only a shirt and bra. Wiatt brought her a white robe to put on. Ms. Cruz testified that she did not remember taking off her pants in the hot tub.
When Thoong returned, she did not see Ms. Cruz. Thoong asked where Ms. Cruz had gone and was told that she was upstairs in Wiatt's bedroom. Thoong went upstairs and found Wiatt's door locked. She began knocking on the door, yelling that Ms. Cruz was only 17 years old and demanding that Ms. Cruz leave the room. Thoong heard Ms. Cruz say her name twice, but Ms. Cruz did not come out of the room. Ms. Cruz testified at trial that she did not remember anything that occurred while she was in Wiatt's bedroom. After 20 minutes had passed, Thoong became very upset and called Hoy for help.
Hoy informed detectives that she was awakened by Thoong's call at 3:00 a.m. Thoong was `crying hysterically.' 4 RP (Oct. 28, 2002) at 664. Thoong told her that Ms. Cruz was drunk and would not come out of Wiatt's bedroom. Thoong wanted to leave and she `{didn't} know what to do.' CP at 225. Hoy informed Thoong that she would come pick them up. When Hoy arrived at Wiatt's residence, she saw Ms. Cruz standing outside in a white robe. Hoy went into the house to confront Wiatt. She told him that Ms. Cruz was only 17, that he had raped her, and that he was a `sick perverted f___.' CP at 227. During the confrontation, Wiatt's female friends began threatening to `beat' her up if she did not leave. CP at 227. She left the residence and went back outside to meet Ms. Cruz and Thoong. She told Ms. Cruz to get into her car, but Ms. Cruz refused to do so and went back into the house.
Hoy and Thoong waited in Hoy's car for approximately 15 minutes. They called Ms. Cruz's cell phone several times, asking her to leave the house and meet them outside. Each time Ms. Cruz told them that she was coming. Eventually they saw Wiatt's sport utility vehicle (SUV) pull up behind them. The SUV drove a short distance and then returned back to the house. Moments later, they saw Ms. Cruz drive past them in her Honda Accord. Hoy called Ms. Cruz and asked her to pull over, but Ms. Cruz continued driving. At trial, Hoy testified that Ms. Cruz was `swerving all over the road' and Thoong testified that her driving `was really scary.' 4 RP at 676; 2 RP (Oct. 23, 2002) at 251. Hoy followed Ms. Cruz on I-5 until they reached Ms. Cruz's exit. They continued to talk on their cell phones during the drive. Ms. Cruz's home is approximately 20 minutes from the Wiatt residence.
Hoy testified that as they approached Ms. Cruz's exit, Ms. Cruz called her and asked her not to pull into her driveway because she was worried that her mother would be `suspicious' if two cars pulled up. 4 RP at 676. Hoy left Ms. Cruz at her exit and drove back to her own home with Thoong. Ms. Cruz testified that she only vaguely remembered driving to her exit. She further testified that she remembers taking her off-ramp and someone calling her on her cell phone, telling her that she could not go into her home wearing a robe with no pants on.
The next thing Ms. Cruz remembered was waking up naked in Wiatt's bed, with Wiatt lying next to her. She testified that she had one memory of the previous evening: she remembered someone on top of her having sexual intercourse. She indicated to the person that she was in pain, and he mentioned something about using lubricant. Ms. Cruz also told detectives during an interview that she vividly remembered being `in so much pain' and that it `hurt so bad.' CP at 217. Ms. Cruz testified that when she woke up, she felt `numb' and that she was still slightly feeling the effects of the alcohol she had consumed the previous evening. 1 RP at 93. She got up, found her clothes and keys, and left.
Thoong told detectives that Ms. Cruz called her the following morning at about 8:30 a.m. Ms. Cruz told her that she had fallen asleep in her driveway. But Thoong and Hoy soon learned from another friend that Ms. Cruz had returned to Wiatt's residence. Thoong stated that she believed that Ms. Cruz `was scared to tell {them} . . . she went...
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