State v. Vidal , 82 Wash. 2d 74 ( 1973 )

Wright, J.

Defendant appeals from a conviction of the first-degree murder of a 13-year-old Tacoma, Washington boy on June 16,1970.

The arrest of the defendant occurred in the following manner. At approximately 8:12 p.m. on July 15, 1970, the chief of police of Osburn, Idaho received a call from the sheriff’s office in Wallace, Idaho informing him that there was a man at the Osburn fire station who wanted to talk to him. According to this police officer, the defendant told him that he wanted to confess to a murder in Tacoma, Washington. The police officer testified that he informed the defendant of his constitutional rights and then transported him to the office of the sheriff of Shoshone County, Idaho. The record shows that upon arrival at the sheriff’s office, the police chief told the sheriff’s jailer that the defendant wanted to confess to a murder in Tacoma, Washington. Subsequently, the defendant stated where the victim’s body was located. Immediately thereafter, the jailer read him his constitutional rights from a printed card, and the defendant was placed in jail. Since the defendant was indigent, an Idaho attorney was appointed.

Based upon a teletype message leading to the location of the victim’s body, a warrant was issued in Pierce County, Washington charging the defendant with second-degree murder; and a fugitive warrant was issued in Shoshone County, Idaho and the defendant was placed in custody in Wallace, Idaho.

After consulting with his Idaho appointed attorney, the defendant waived extradition and was returned via automobile to Tacoma, Washington by two Tacoma city police detectives. During this trip, defendant confessed to the murder of the 13-year-old Tacoma boy and told the officers the location of the body. Upon arrival in Tacoma, a written confession was prepared by a stenographer and signed by the defendant.

Counsel was appointed for the defendant after a determination that he was indigent, and he was arraigned in superior court, Pierce County, on a charge of first-degree murder.

Evidence brought out at the hearings to determine defendant’s competency and the admissibility of his confession, as well as evidence brought out at trial, show that the deféndant had been incarcerated in California institutions most of his life. On September 6, 1960, when he was about 10 years old, defendant was declared uncontrollable and sent to an institution after he had assaulted a boy with a rock. He was paroled from that institution on March 24, 1963. On May 13, 1963, defendant murdered a 7-year-old boy by stabbing him, and was placed in an institution whbre psychiatrists declared him extremely dangerous and criminally insane, recommending that he should never be paroled. On December 23, 1969, after requesting his own release, and despite some 23 psychiatric reports classifying him as criminally insane and extremely dangerous, the defendant was released. Within 6 months after his release, the defendant was involved in the killing in Tacoma, Washington, and 2 weeks later in Wallace, Idaho he killed yet another boy.

The trial court found the defendant competent to assist his counsel in his defense and further found that his confession was freely and voluntarily given and could be used as evidence against him. After his trial, the jury found the defendant sane and further found the defendant guilty of first-degree murder, with the special finding that the death sentence be imposed. Defendant, appeals from this conviction of first-degree murder.

The first issue-raised on appeal is whether the trial court erred in-finding that the defendant’s confession was freely and voluntarily given.

The defendant contends that his transportation from Idaho to Washington was a custodial interrogation with the purpose of eliciting information regarding the crime. He further allegés that he-did not have free access to a telephone and that his attorney was not present at all times during interrogation. And, citing Blackburn v. Alabama, 361 U.S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274 (1960) and Culombe v. Connecticut, 367 U.S. 568, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961), the defendant states that the confession of a defendant suffering from a mental disease or defect which impairs his ability to make a free or rational decision, or makes him inordinately sensitive to police interrogation, is inadmissible because of his infirmity.

The record is replete with evidence that the defendant was repeatedly advised of his constitutional rights and was represented by counsel. He was told of his constitutional rights by the chief of police of Osburn, Idaho. Again he was advised of his rights by the' sheriff’s office in Wallace, Idaho. A most distinguished attorney, a past president of the Idaho State Bar Association, was appointed legal counsel for the defendant prior to July 20, 1970. This attorney refused to give permission to the Tacoma detectives to question the defendant. Additionally, he made a careful check of all the circumstances before allowing the defendant to waive extradition. Also, the prosecuting attorney of Shoshone County, Idaho forbade the questioning of defendant by Idaho authorities and by the Tacoma officers. The first thing that the Tacoma detectives did when they saw the defendant in Idaho was to read the defendant the Tacoma Police Department Advisement of Rights Form.. In fact, the defendant was asked to read the first line out loud and sign the form — which defendant did. The Tacoma officers testified that during the trip from Idaho to Washington the defendant repeatedly, asked them if what he said could be used against him and that they advised him that anything he said could be used against him in a court of law. Counsel was appointed for the defendant in Washington.

Where a defendant has been adequately and effectively warned of his constitutional rights, it is unnecessary to give repeated recitations of such warnings prior to the taking of each separate in-custody statement. State v. Rowe, 77 Wn.2d 955, 468 P.2d 1000 (1970). Further, there is no constitutional protection prohibiting the prosecution or its agents from communicating directly with an arrested person represented by counsel. State v. Nicholson, 77 Wn.2d 415, 463 P.2d 633 (1969). The right to have retained counsel present at interrogations and to remain silent can be waived without an express or affirmative waiver; although there is a heavy burden on the state to show that the person’s statement was voluntary. State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968). The state has met this burden.

As to the second phase of this first issue raised on appeal, pretrial proceedings, conducted in accordance with Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966), determined defendant’s competency to stand trial. The record supports the trial court’s finding of competency and it will not be disturbed on appeal. See Lindbrook Constr., Inc. v. Mukilteo School Dist. 6, 76 Wn.2d 539, 458 P.2d 1 (1969); Noah v. Montford, 77 Wn.2d 459, 463 P.2d 129 (1969); Ocean Spray Cranberries, Inc. v. Doyle, 81 Wn.2d 146, 500 P.2d 79 (1972).

The second issue raised on appeal is whether the trial court erred in excluding three prospective jurors without an intensive, searching inquiry into their response that they could not inflict the death penalty in a proper case.

The defendant contends that the requirements of Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968) were not met in the instant case.

As discussed below, the death penalty under the existing statutes of this state has been abolished. Therefore, this issue is moot and this court will not decide questions which are moot or academic. Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 442 P.2d 967 (1968).

The third issue raised on appeal is whether the trial court erred in giving an instruction on “irresistible impulse”.

The defendant asserts that the inclusion of an instruction on irresistible impulse together with a previous instruction defining this state’s test for insanity added only confusion to the jury and injected into the trial something which had not been discussed before the jury.

The jury in this case heard that the defendant “has a very fast temper”; had impulsively murdered a 7-year-old boy when he was 13; had a strong urge to harm 7-year-old boys; had been diagnosed as an obsessive, compulsive personality; and that at times he is almost like a robot, etc. The psychiatrist called for the defendant said that when he saw the Tacoma boy, it was literally like pushing a button and that the emotional machinery existing in his mind was carried out in an almost automatic way and he was almost like a robot. This same psychiatrist described the defendant’s act of killing the Idaho boy by saying that the defendant’s impulses ran away with him and he immediately went on this bizarre act.

No error was committed by the trial court in giving an instruction on irresistible impulse for, in this regard, the facts of the present case are quite similar to those of State v. Cogswell, 54 Wn.2d 240, 339 P.2d 465 (1959) which held that an instruction that irresistible impulse is not insanity and therefore not a defense was justified where a psychologist and a psychiatrist, testifying for the defendant, had discussed his “control system” and his “ability to control”.

The fourth issue raised on appeal is whether the trial court erred in admitting two colored photographs of the body of the victim in a decomposed state.

The defendant contends the photographs were inflammatory and prejudicial. One of the two colored photographs in question shows the body of the victim as it was found at the scene of the crime. The other shows the body as it was placed on the coroner’s winding sheet for transportation from the scene.

State v. Hawkins, 70 Wn.2d 697, 425 P.2d 390 (1967) held that color photographs showing the victim’s body are admissible in a prosecution for murder.

Competent evidence is not prejudicial just because it is gruesome. State v. Farley, 48 Wn.2d 11, 290 P.2d 987 (1955); State v. Griffith, 52 Wn.2d 721, 328 P.2d 897 (1958).

Moreover, it seems unlikely that these two photographs would inflame the jury so as to prejudice its members concerning the defendant’s guilt or innocence, especially in view of the testimony of a psychiatrist called as a defense witness. This witness went into minute detail concerning descriptions related to him by the defendant of the murder of the Tacoma boy and that of the Idaho boy.

The admission or rejection of photographs lies largely within the sound discretion of the trial court, and in the absence of abuse of this discretion, the trial court’s ruling will not be disturbed on appeal. Mason v. Bon Marche Corp., 64 Wn.2d 177, 390 P.2d 997 (1964).

The fifth issue raised on appeal is whether the death penalty violates the United States Constitution and the Washington State Constitution.

The recent case of Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), has the effect of preventing the imposition of the death penalty under the existing statutes of the State of Washington. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972).

Accordingly, this case is hereby remanded for resentenc-ing in light of Furman v. Georgia, supra.

Hale, C.J., Finley, Rosellini, Hunter, Hamilton, and Stafford, JJ., concur.-