Opinion
No. 25213-2-III.
January 22, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-02321-2, Harold D. Clarke III, J., entered May 19, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Brown and Kulik, JJ.
Theodore Francis Stewart appeals his first degree murder conviction. He was convicted under both intentional and felony murder alternatives. Mr. Stewart contends that (1) there was insufficient evidence to convict him of felony first degree murder, because there was no showing that he and his accomplice, Raymond Nelson, murdered Diana Wideman for the intended purpose of burglary or robbery; (2) his due process rights under the federal and state constitutions were violated when the trial court failed to instruct the jury on unanimity as to the alternative means of committing first degree felony murder; (3) his rights against double jeopardy under the federal and state constitutions were violated because he was convicted of first degree murder under the intentional and felony alternatives; (4) the failure to electronically record his multiple interrogations denied him his right to due process under the Washington State Constitution; (5) he had ineffective assistance of counsel during the trial; and (6) a VHS tape containing his confession to the charged crimes was improperly admitted because it contained unauthenticated evidence.
Mr. Stewart's arguments, as they pertain to sufficiency of evidence of robbery and burglary and the lack of a unanimity instruction, are directed solely toward the felony murder conviction. There is overwhelming evidence of the felony alternative crimes of robbery, rape, and burglary; but even if Mr. Stewart was successful in arguing insufficiency of proof on those issues, and even if it were error not to give a unanimity instruction, the intentional premeditated murder conviction still stands. He raises no errors regarding the intentional first degree murder conviction other than as that conviction may be affected by failure to record his interviews, ineffective assistance of counsel, double jeopardy and error regarding the video tapes. Since we reject each of those arguments we affirm his conviction for first degree murder.
FACTS
On March 25, 2001, Spokane City Police Officers Tamie Johnson and Stormi Koerner arrived at Diana Wideman's apartment for a welfare check, after the apartment manager reported that Ms. Wideman had not been seen for two days. The officers found blood throughout the apartment and the deceased Ms. Wideman on her bed under a pile of clothes.
Evidence presented during trial indicated Ms. Wideman had been brutalized by repeated blows and stab wounds, had her clothes torn from her below the waist and died from asphyxiation.
Mr. Stewart, a resident of the apartment complex where Ms. Wideman lived, was one of many neighbors interviewed by the police in the early stages of the investigation. The original investigation did not result in an arrest. In 2003, after the original detectives investigating the murder had retired, Detective Minde Connelly took over and began a new investigation. Detective Connelly and Detective Tim Madsen again interviewed Mr. Stewart. He admitted he had been in Ms. Wideman's apartment a couple of days prior to her death. Mr. Stewart admitted that he later discovered Ms. Wideman's body in her apartment and conceded that his deoxyribonucleic acid (DNA) or other evidence might be in the apartment. He also admitted trying to wipe his fingerprints off a light switch and was smoking while in the apartment.
The detectives interviewed Mr. Stewart numerous times thereafter until finally, when confronted with DNA evidence involving Raymond Nelson and Mr. Nelson's confession, he also confessed. After taking over the investigation, the new detectives on the case submitted semen that was originally taken from the victim's body for DNA testing. It came back positive for Mr. Nelson. A cigarette found at the crime scene came back positive with Mr. Stewart's DNA.
In his confession, Mr. Stewart said that Mr. Nelson raped Ms. Wideman. Mr. Stewart admitted he participated in Diana Wideman's death. In his verbal confession, followed by a consensual video confession, he gave specific details of the murder and each of their roles. He was then charged with first degree murder.
The video taped confession was played for the jury and Mr. Stewart testified in his own defense. Mr. Stewart conceded that he was present when the crimes against Ms. Wideman took place, but largely blamed the offense on Mr. Nelson.
The jury found Mr. Stewart guilty of first degree murder while armed with a non-firearm deadly weapon under both the intentional and felony murder alternatives. The trial court imposed a standard sentence of 384 months, which included the non-firearm enhancement. This appeal followed.
ANALYSIS
A. Sufficiency of the Evidence
The standard of review for a challenge to the sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). Direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
An accomplice and principal are equally culpable regardless of which one actually commits the criminal act or the degree of participation of each. State v. McDonald, 138 Wn.2d 680, 688, 981 P.2d 443 (1999). First degree felony murder does not require a specific criminal mental state other than the one necessary for the predicate crime. State v. Frazier, 99 Wn.2d 180, 192, 661 P.2d 126 (1983). To prove that a murder occurred in the course of and in furtherance of one of the offenses set forth in the first degree felony murder statute, the State must establish an intimate and close connection in time and distance between the death and the underlying felony. State v. Dudrey, 30 Wn. App. 447, 450, 635 P.2d 750 (1981), review denied, 96 Wn.2d 1026 (1982).
Mr. Stewart claims that there was insufficient evidence to show an intent to commit a crime against a person or property while entering a building unlawfully, and to find that he committed first degree burglary. Mr. Stewart testified that he and Mr. Nelson set out to rob someone on March 22, 2001. They loaded Mr. Stewart's backpack with various items that could be used for robbery or burglary. They forced their way into Ms. Wideman's apartment and jointly assaulted and killed her. They wore gloves to the apartment and on the way out, took Ms. Wideman's television, and other items. Their preparations and acts all were consistent with the commission of a murder while engaged in burglary and robbery. Mr. Stewart does not contest the evidence of first degree rape. There was not just sufficient, but overwhelming evidence of the predicate crimes of first degree robbery, rape, and burglary. State v. Brown, 132 Wn.2d 529, 610, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). As was cogently stated in State v. Grimes, "[t]he concept of unlawful entry implies the existence of a guilty mind, which includes the intent to commit the criminal acts and the absence of any `mental pattern sufficient in law to exculpate' the one who performs the acts." State v. Grimes, 92 Wn. App. 973, 979, 966 P.2d 394 (1998) (quoting State v. Montague, 10 Wn. App. 911, 918, 521 P.2d 64, review denied, 84 Wn.2d 1004 (1974)).
We hold that there was sufficient evidence for a rational jury to find that all elements of first degree murder, both premeditated and based on felony murder alternatives, were proven beyond a reasonable doubt.
B. Jury Unanimity
Mr. Stewart argues that his conviction should be reversed because the jury was not instructed on the need for unanimity on the alternative rape, burglary, and robbery means of committing first degree murder.
Statutory interpretation is a question of law and the standard of review is de novo. State v. Posey, 161 Wn.2d 638, 643, 167 P.3d 560 (2007). Criminal defendants have a right to a unanimous jury verdict. U.S. Const. amend. VI, XIV; Const. art. I, § 21; see State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994) (recognizing the right of a criminal defendant to a unanimous jury verdict). The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. Green, 94 Wn.2d at 231-34; State v. Arndt, 87 Wn.2d 374, 376-78, 553 P.2d 1328 (1976).
As stated earlier, the overwhelming evidence of first degree rape, robbery, and burglary was sufficient to sustain the conviction of first degree felony murder. No jury unanimity instructions were required. See Arndt, 87 Wn.2d at 376-78.
C. Double Jeopardy
Mr. Stewart argues he was subjected to double jeopardy because he was convicted of premeditated first degree murder and first degree felony murder for the single murder of Ms. Wideman. Premeditated first degree murder under RCW 9A.32.030(1)(a), and first degree felony murder, RCW 9A.32.030(1)(c), are alternative means of committing the single crime of first degree murder rather than separate crimes. State v. Bowerman, 115 Wn.2d 794, 800, 802 P.2d 116 (1990); State v. Fortune, 128 Wn.2d 464, 467, 909 P.2d 930 (1996). Where there are alternative ways to commit a crime, it is permissible to charge both alternatives in the same count. Id. Mr. Stewart was convicted of one crime only, first degree murder. Double jeopardy is not implicated.
D. Electronic Recording
Mr. Stewart asserts that failure to record his multiple interrogations was a violation of his State constitutional right to due process. Federal courts have held that the United States Constitution does not mandate electronic recording of custodial interrogations. See United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977); see also United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005); United States v. Short, 947 F.2d 1445, 1451 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992).
Some states, Wisconsin, Minnesota and Alaska included, have mandated electronic recording under their supervisory powers.
A Division of this court held in 1991 that Washington's due process clause does not require electronic recording of custodial interrogations and that imposing such a requirement on a supervisory powers basis would be equivalent to legislating from the bench. State v. Spurgeon, 63 Wn. App. 503, 508-09 and n. 13, 820 P.2d 960 (1991) (citing Gaglidari v. Denny's Rest., Inc., 117 Wn.2d 426, 448, 815 P.2d 1362 (1991)), review denied, 118 Wn.2d 1024 (1992).
Mr. Stewart argues that since article I, section 3, the due process clause of the Washington Constitution, gives the citizens of Washington greater protection than the federal counterparts found in the fifth and fourteenth amendments, even though the federal courts hold otherwise, this State should make its own decision. We are invited to revisit the Gunwall analysis and legal conclusions reached in Spurgeon in light of a new understanding of the role of false confessions in wrongful convictions. We decline the invitation. Mr. Stewart does not cite any developments in Washington law or offer persuasive argument that Spurgeon is flawed and that a new analysis would bring about a different result. We agree with the law and reasoning announced in Spurgeon. Mandating "such a sweeping change in long standing police practice requires a more prudential approach where the legislature considers the matter prior to such a change occurring." Spurgeon, 63 Wn. App. at 508-09 and n. 13.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
Neither the constitution of this state, statute, court rule nor precedent requires electronic recording as urged by this defendant.
E. Ineffective Assistance of Counsel, Evidence Tampering
Mr. Stewart claims that his trial lawyer was ineffective and that the judge and deputy prosecutor conspired to tamper with the tape containing his confession. We cannot review these claims since Mr. Stewart's arguments are not supported by any specific legitimate factual basis from the record. RAP 10.10(c) (An appellate court will not consider an argument made in a statement of additional grounds for review, if it does not inform the court of the nature and occurrence of alleged errors.).
CONCLUSION
We affirm the trial court on all issues and uphold Mr. Stewart's first degree murder conviction.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J., Kulik, J. concur.