State v. Finch ( 1999 )

Sanders, J.

(concurring in part, dissenting in part) — I agree with the majority that Finch was unconstitutionally shackled; however, I cannot agree undermining the presumption of innocence is “harmless error” in the guilt phase of this proceeding. I would reverse, granting a new trial on all counts.

The majority concludes the error was harmless with respect to the guilt phase because the evidence of defendant’s guilt was “overwhelming.” I disagree with the majority in both theory and application.

In theory, it is the jury, and only the jury, which may determine the guilt of the accused. Unlike a civil case, we may not test a jury’s apparent improvident acquittal against a substantial, or even overwhelming, evidence standard. Indeed the annals of the criminal justice system are replete with jury acquittals returned notwithstanding overwhelming evidence of guilt. Since it is simply not our legal prerogative to reverse an acquittal for lack of eviden-tiary support, it seems inconsistent to uphold a conviction notwithstanding manifest constitutional error based upon how we, as appellate judges, would weigh evidence offered by witnesses we have neither seen nor heard.¹⁸

But even assuming, hypothetically, overwhelming evidence of guilt is sufficient to render even so fundamental a constitutional error as this merely harmless, I see several debatable links in the chain which binds Finch to the conclusion that he is guilty of a double aggravated murder. Our law is clear that a constitutional error is presumed to be prejudicial and the state bears the burden of proving the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985); State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980).¹⁹

With respect to Count I, the premeditated murder of Ron Modlin, I find particularly problematic proof of the alternative aggravators pursuant to court’s instruction number nine:

If you find the defendant guilty of premeditated murder in the first degree as charged in Count I, you must then determine whether any of the following aggravating circumstances exist:

(1) There was more than one person murdered and the murders were part of a common scheme or plan; or

(2) The murder was committed in the course of, in furtherance of, or in immediate flight from burglary in the first degree.

Clerk’s Eapers (CE) at 616. Rather it is the claim of this defendant that there was insufficient evidence, no evidence in fact, of a “common scheme or plan” so as to even merit presenting this aggravating factor to the jury for its deliberation. The law in this regard is sufficiently set forth by the majority at 835-37, to obviate the necessity of further citations to authority; however, suffice to say, rejecting defendant’s insufficiency argument by “[d]rawing all reasonable inferences in favor of the State,” Majority at 836, is hardly proof positive of the reciprocal proposition, that there were no reasonable inferences upon which the jury could reject the conclusion that each of the two killings were connected by “a larger criminal purpose.” Majority at 836.

Nor is the conclusion that the homicide of Modlin “was committed in the course of, or in furtherance of, or in immediate flight from burglary in the first degree,” forgone. Once again the majority analyzes the burglary aggravator in terms of whether there was “sufficient evidence” to present the issue to the jury, Majority at 837, rather than whether there was reasonable basis for an argument to the contrary. In this regard the jury was instructed:

A person commits the crime of burglary in the first degree when he or she enters or remains unlawfully in a dwelling with intent to commit a crime against a person or property therein, and if, in entering or while in the dwelling or in immediate flight therefrom, that person or an accomplice in the crime is armed with a deadly weapon or assaults any person therein.

CP at 617 (Instruction No. 10).

Finch argued that he did not enter or remain “unlawfully in a dwelling” because he

was privileged to enter the trailer because Thelma had never acted to exclude him and because she did not refuse him permission to enter on the night of the incident. In fact, by asking him not to bring the beer inside because her mother was present on August 15, 1994, Thelma impliedly invited him to come inside without it.

Br. of Appellant at 141-42.²⁰ Therefore, argues Finch, his entry into the trailer was not burglary and the aggravator was at least arguably not present.

Were the presumption of Finch’s innocence not destroyed by the shackling, I cannot say, beyond a reasonable doubt, that the jury would not have rejected both of these alleged aggravating factors.

The conviction of Finch for the aggravated premeditated murder of Officer Kinard (Count II) may also have resulted from destruction of the presumption of innocence to which the accused is constitutionally entitled.

Finch argued that the shot which took Kinard’s life was random and reckless rather than premeditated.²¹ The circumstances surrounding the killing at least lend some arguable basis for this claim since the distance between Finch and the officer was considerable for a pistol²² and the view of the officer was arguably obscured.²³ Moreover, the aggravating factor regarding common scheme or plan, as previously discussed, is definitely problematic.

Therefore, in a sense, I agree with the thrust of Justice Talmadge’s dissent that it is “illogical” (Talmadge, J., dissenting op. at 877) to conclude that the shackling error was prejudicial when it came to the penalty phase yet harmless in the guilt phase, although, unlike Justice Talmadge, I would consistently find the error prejudicial on both counts, rather than neither.

For these reasons I would reverse the conviction and remand for a new trial, and therefore dissent.

Johnson, J., concurs with Sanders, J.

18 United States v. Hasting, 461 U.S. 499, 516, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (Stevens, J., concurring) (“A federal appellate court should not find harmless error merely because it believes that the other evidence is ‘overwhelming’ .... ‘The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.’ ” (quoting Kotteakos v. United States, 328 U.S. 750, 763-64, 66 S. Ct. 1239, 1247, 90 L. Ed. 1557 (1946))).

Nor has the “overwhelming evidence” rule escaped scholarly criticism. For example, such rule provides no incentive for litigants, particularly the state in criminal cases, to avoid error, and a determination of overwhelming evidence “necessarily invades a process which our justice system reserves for the jury.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 290 (1995-96). See also Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995) (“The problem with harmless error arises when we as appellate judges conflate the harmlessness inquiry with our own assessment of a defendant’s guilt.”); Gregory Mitchell, Against “Overwhelming” Appellate Activism: Constraining Harmless Error Review, 82 Cal. L. Rev. 1335, 1340 (1994) (The overwhelming evidence test employed by appellate courts “undermines the jury’s function as the conscience of the community and intrudes on the Sixth Amendment right to trial by jury.” Moreover it is unreliable “because it establishes as factfinders persons in a poor position to examine facts.” Id. at 1367); David M. Skoglind, Harmless Constitutional Error: An Analysis of Its Current Application, 33 Baylor L. Rev. 961, 966 (1981) (The “other evidence” test results in disparate treatment among accused individuals for the same constitutional violation, with less deference paid to the Constitution in the case of “the person whose guilt is more evident.”); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 Colum. L. Rev. 79, 134 (1988) (Before an appellate court may conclude that evidence is “overwhelming,” it must resolve all evidentiary conflicts in defendant’s favor and “take account of the prosecution’s burden to prove guilt beyond a reasonable doubt.”); Marla L. Mitchell, The Wizardry of Harmless Error: Brain, Heart, Courage Required When Reviewing Capital Sentences, 4 Kan. J.L. & Pub. Pol’y 51, 52 (1994) (“But even a court which embraces the harmless error rule as a solution must understand that harmless error is a rare justification for death.”); Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125, 130 (Fall 1993) (“Harmless error analysis is not appropriate for ‘structural’ errors that affect the integrity of the entire process.”).

19 To the extent State v. Hutchinson, 135 Wn.2d 863, 887-88, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999), suggests the burden is on the defendant to show prejudice in the case of unconstitutional shackling, it relies on federal cases and is clearly contrary to our own precedent.

20 Thelma Finch testified, “No; I didn’t tell him that he shouldn’t come in.” Report of Proceedings (RP) at 291 (May 19, 1995).

21 The shots were rapid-fire in different directions: “. . . zigzag, just one after another.” RP at 322 (May 19, 1995 (Thelma Pinch)); “I [Finch] stuck the gun out the window and pulled the trigger.” RP at 1037 (May 25, 1995) (Detective Brad Pince testifying as to what Finch told him).

22 105 feet. RP at 1483-84 (May 30, 1995).

23 Through “a lot of shrubbery.” RP at 455 (May 22, 1995) (Sergeant Arnold Aljets).