State v. Furman

Andersen, C.J.

Michael Furman appeals his aggravated first degree murder conviction and death sentence. We affirm the conviction, vacate the death sentence, and remand for resentencing.

Facts of Case

Eighty-five-year-old Ann Presler was . brutally murdered in her home on April 27, 1989. A friend found her body the next morning. Detectives spoke with Mrs. Presler's neighbors, several of whom said they had seen Michael Furman walking door to door looking for work the day of the murder. Appellant initially denied visiting Mrs. Presler's house, but eventually admitted that he raped, robbed and murdered her.

According to his confession, appellant entered Mrs. Presler's house when she offered him $10 to wash her windows. When he ran out of glass cleaner, he went into the kitchen and asked Mrs. Presler for more. She suggested he use dish soap. He became angry and punched her in the head three times. She fell to the floor. He covered his hand with a rag, grabbed a coffee pot and hit her with the pot. He went to a bedroom, got a vase, returned, and hit her with the vase until it broke. He then went back to the bedroom, got another vase, returned and hit her with it until it too broke. He then raped her and then looked around the house for money. He found her purse. With his hand covered so he would not leave any fingerprints, he searched the purse and removed $30. He then went back into the bedroom and returned with a heavy crystal vase. He realized she was still alive, and he did not want her to be a witness, so he hit her with the crystal vase until he was certain she was dead. Appellant also mentioned that he smoked marijuana the morning of the murder, and he told police where they would find his marijuana pipe.

After taking appellant's confession, the officers obtained a search warrant for his home. During the search, the officers found the clothing appellant said he had been wearing on the day of the murder. They also found a marijuana pipe. The officers photographed and seized the pipe, which was then placed in the police evidence room. The pipe was later inadvertently lost.

Appellant was arrested on April 30,1989, 2 months before his 18th birthday. Because of his age, he was initially charged with the murder in juvenile court. Following a declination hearing, the case was transferred to superior court for appellant's prosecution as an adult. The State then filed a notice of intent to seek the death penalty.

After the charges were filed, appellant contacted the investigating detective several times and made additional incriminating statements. He subsequently moved to suppress those statements as well as the statements he made before the charges were filed. He also moved to dismiss the premeditation element of the aggravated first degree murder charge on the ground that the State's loss of the marijuana pipe denied appellant the opportunity to have it tested. The trial court denied both motions.

Trial began in January of 1990. The only disputed issue at trial was whether appellant premeditated the murder. He testified that he smoked one or two bowls of marijuana and two bowls of marijuana sprinkled with methamphetamine 30 to 45 minutes before going to Mrs. Presler's house. The drugs made him "high", which he described as a condition in which he knows what is going on, but feels different and acts without thinking. To support claims of diminished capacity and intoxication, defense counsel called two expert witnesses: Dr. Lloyd Cripe, a neuropsychologist, and Dr. Lawrence Halpem, a neuropharmacologist. Defense counsel had also arranged for appellant to be examined by a clinical psychologist, Dr. Bruce Olson. Dr. Olson did not testify before the jury, but did prepare a report which was then provided to Drs. Halpem and Cripe. That report contains the detailed description which appellant provided of his sexual history. Dr. Cripe testified that appellant has a severe personality disorder. In Dr. Gripe's opinion, because of this disorder and appellant's drug use, it is very improbable that the murder was a deliberate, reflected action.

Dr. Halpern testified regarding the effect of methamphetamine on the mind and expressed the opinion that appellant's use of methamphetamine made him unable to reflect or deliberate about the mechanics or consequences of his actions. Dr. Halpem also said appellant probably suffers from Cluver-Busi syndrome, which can cause a person to attempt sex with almost any person or even inanimate objects. According to Dr. Halpem, use of methamphetamine would tend to increase sexuality and decrease impulse control. Over defense counsel's objection, the State asked Dr. Halpem about the sexual history material contained in Dr. Olson's report.

The trial court instructed the jury on diminished capacity, but declined to give appellant's proposed instruction on voluntary intoxication. The jury found appellant guilty of aggravated first degree murder, unanimously agreeing that all five alleged aggravating factors had been proved. Following the penalty phase, the jury found the State had proved there were insufficient mitigating circumstances to merit leniency. Appellant was therefore sentenced to death.

Issues

Issue One. Did the juvenile court err in declining jurisdiction?

Issue Two. Did loss of the marijuana pipe violate appellant’s due process rights?

Issue Three. Did the trial court err in ruling on challenges for cause based on the jurors' views regarding the death penalty?

Issue Four. Did the trial court err in admitting appellant’s statements to the police?

Issue Five. Did the trial court err in admitting an "in life" photo of the victim?

Issue Six. Did the trial court err in allowing the prosecutor to cross-examine appellant's expert about appellant's sexual history?

Issue Seven. Did the trial court err in failing to give appellant's proposed instruction on voluntary intoxication?

Issue Eight. Did prosecutorial misconduct deny appellant a fair trial?

Issue Nine. May appellant be executed for a crime he committed while a juvenile?

Decision

Issue One.

Conclusion. The juvenile court did not err in declining jurisdiction.

A case filed in juvenile court may be transferred for adult criminal prosecution upon a finding that the declination of juvenile court jurisdiction would be in the best interest of the juvenile or the public. RCW 13.40.110(2). In making this determination, the juvenile court is to consider: (1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against persons or only property; (4) the prosecutive merit of the complaint; (5) the desirability of trial and disposition of the entire case in one court, where the defendant's alleged accomplices are adults; (6) the sophistication and maturity of the juvenile; (7) the juvenile's criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system.¹ All eight of these factors need not be proven; their purpose is to focus and guide the juvenile court's discretion.² The court's decision will be reversed only if there has been an abuse of that discretion.³

We find no such abuse. The juvenile court expressly considered each of the eight Kent (Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966)) factors and quite reasonably concluded that trying appellant as an adult would be in the best interests of the public. Appellant was charged with aggravated murder, the most serious offense which can be committed in this state. In view of appellant's confession, the charge had obvious prosecutorial merit. Perhaps most importantly, the crime occurred less than 2 months before appellant's 18th birthday. If he had been tried as a juvenile, he could have been confined only for the 3 years remaining until his 21st birthday.⁴ He could not, therefore, have served even the juvenile standard range penalty for the offense. The services available during that time are clearly inadequate to protect the public.

Issue Two.

Conclusion. Loss of the marijuana pipe did not violate appellant's due process rights.

Appellant contends that loss of the pipe precluded him from having it tested, which might have shown he used meth amphetamine as well as marijuana. He claims the loss of evidence to support his diminished capacity/intoxication defense violated his due process rights under the analysis in State v. Wright, 87 Wn.2d 783, 557 P.2d 1 (1976) and State v. Vaster, 99 Wn.2d 44, 659 P.2d 528 (1983). As we explained in State v. Straka, 116 Wn.2d 859, 883, 810 P.2d 888 (1991), the federal constitutional analysis in those cases is no longer valid in light of the Supreme Court's decisions in California v. Trombetta, 467 U.S. 479, 488-89, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984) and Arizona v. Youngblood, 488 U.S. 51, 57-58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). We have not yet decided if the state constitution requires adherence to the analysis in Vaster and Wright.⁵ We will consider whether to apply our state constitutional provisions more strictly than parallel federal provisions only when we are asked to do so,⁶ "and even then only if the argument includes proper analysis of the six 'interpretive principles' outlined in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986)."⁷ Appellant offers no such argument. We therefore confine our analysis to the federal constitution.

"Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense."⁸ "To meet this standard of constitutional materiality, evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Citation omitted.)⁹ The pipe possessed no apparent exculpatory value when it was lost. Although appellant had mentioned using the pipe to smoke marijuana, he did not claim to have been impaired by that use, nor did he mention methamphetamine use at all. Moreover, his detailed descriptions of the murder indicated no mental impairment.¹⁰

If evidence did not possess an apparent exculpatory value when it was lost or destroyed, but was nevertheless "potentially useftd", failure to preserve that evidence constitutes a violation of due process if "a criminal defendant can show bad faith on the part of the police".¹¹ Appellant conceded at trial that there is no evidence of bad faith.

Issue Three.

Conclusion. Our vacation of appellant's death sentence moots his argument regarding the trial court's rulings on the challenges for cause.¹²

All of the challenged rulings were based on the jurors' views on the death penalty. Erroneous rulings on challenges for cause related to such views have "no bearing on the validity of [the] conviction."¹³

Issue Four.

Conclusion. The trial court did not err in admitting appellant's statements to the police.

In determining the voluntariness of a juvenile's confession, the court must consider the totality of the circumstances, including the juvenile's age, experience, and capacity to understand the warnings given him.¹⁴ According to the trial court's unchallenged findings, appellant was iree to leave when he made his first statement.¹⁵ It was not, therefore, necessary to inform him of his constitutional rights at that time.¹⁶ Appellant was informed of his constitutional rights, as required by Miranda,¹⁷ following his initial statement and before he made any additional incriminating statements. Appellant at no point asserted his Fifth Amendment right to counsel.¹⁸ Nor did he assert his right to remain silent.¹⁹ Some of appellant's statements were made after the information was filed, and thus after his right to counsel attached under the Sixth Amendment and Const. art. 1, § 22 (amend. 10).²⁰ The detectives repeatedly advised appellant of that right, however, as did his attorney. Against the advice of counsel, appellant repeatedly contacted the detectives and made additional incriminating statements. This evidence clearly supports the trial court's finding that the statements were voluntary.²¹

Appellant contends that his confessions are involuntary, however, because the detective falsely told him that police had found evidence linking him to the murder and, later, gave him Coca-Cola and food. This contention is without merit. Misleading statements about the strength of the State's evidence dó not render an otherwise valid confession involuntary.²² A confession can be involuntary if the interrogating officers withhold food or water from the suspect, or offer food or water as an inducement to confess.²³ There is no evidence that appellant was ever deprived of food or drink or that either was offered as an inducement to confess. According to the trial court's unchallenged findings of fact, the detective offered appellant food and drink as an act of courtesy.

Issue Five.

Conclusion. The trial court did not err in admitting an "in life" picture of the victim.

"In life" pictures are not inherently prejudicial, particularly where as here the jury has seen "after death" pictures of the victim's body.²⁴ The trial court's ruling admitting such a photograph will not be reversed absent a showing of a manifest abuse of discretion.²⁵ We find no such abuse here. The trial court did not allow the State to present the in-life picture until it could be tied to some issue other than simply the victim's identity, which was not challenged. The picture was ultimately admitted to identify the broken eyeglasses which were found in the victim's sink after her death, and which she was wearing in the picture. The trial court reasonably concluded that the picture's relevance for that purpose outweighed any possible prejudicial effect.²⁶

Issue Six.

Conclusion. The trial court did not commit reversible error in allowing the prosecutor to cross-examine Dr. Halpem about appellant's sexual history.

The sexual history information had been provided by appellant himself to Dr. Olson, who prepared a report which was then given to Dr. Halpem to assist him in reaching the conclusions he presented at trial. Dr. Halpem testified that he read the report and relied on the sexual history, at least to some extent, in reaching some of his conclusions. An expert may be required to disclose the facts or data underlying his opinions. ER 705. Otherwise inadmissible evidence may be admissible to explain the expert's opinion or to permit the jury to determine what weight it should be given.²⁷

Appellant contends that the evidence should have been excluded under ER 403 because its relevance was outweighed by its prejudicial effect. Appellant understates the relevance of his sexual history. Dr. Halpem testified that appellant's use of methamphetamine increased his sexual drive and diminished his capacity to premeditate the murder. The validity of that conclusion is undermined if appellant committed sexually violent acts before he began using methamphetamine, as his sexual history indicated.

Moreover, we are vacating appellant's death sentence on other grounds, and any possible error in the admission of the sexual history evidence was harmless as to the conviction itself. The erroneous admission of "bad acts" evidence is not of constitutional dimension, and thus requires reversal only if there is a reasonable probability the error affected the verdict.²⁸ The only disputed issue in the guilt phase was whether appellant premeditated the murder. The clearest evidence on that question was appellant's confession. He described repeatedly leaving the room, getting new weapons, and returning to continue the attack. He also related using cloths to prevent leaving fingerprints. Finally, he said he hit the victim with the crystal vase because she was still alive and he did not want her to be a witness. Particularly in view of this confession, which describes a clearly premeditated mturder, committed by a person fully aware of the consequences of his actions, there is no reasonable probability that admission of the sexual history evidence affected the guilt phase verdict.²⁹

Issue Seven.

Conclusion. The trial court did not err in failing to give appellant's proposed instruction on voluntary intoxication.

Appellant offered two substantially overlapping defenses — diminished capacity and voluntary intoxication. Diminished capacity is a mental condition not amounting to insanity which prevents the defendant from possessing the requisite mental state necessary to commit the crime charged.³⁰ Voluntary intoxication is not a defense, as such, but a factor the jury may consider in determining if the defendant acted with the specific mental state necessary to commit the crime charged.³¹ If there is substantial evidence to support either of these theories, the jury should be given instructions which allow the defendant to argue the defense.³² If the claim of diminished capacity is premised wholly or partly on the defendant's voluntary consumption of drugs or alcohol, however, one instruction can be adequate to permit the defendant to argue defendant's theory of the case. State v. Hansen, 46 Wn. App. 292, 730 P.2d 706, 737 P.2d 670 (1987). In Hansen, the Court of Appeals held that an instruction on voluntary intoxication was adequate to allow the defendant to argue the claim of diminished capacity based on drug intoxication. In much the same manner, the diminished capacity instruction which appellant's jury received was adequate to permit him to argue that drug use and other factors made him unable to premeditate the murder. The trial court's failure to give a separate instruction on voluntary intoxication did not impair appellant's ability to argue his theory of the case.

Issue Eight.

Conclusion. None of the claimed guilt phase prosecutorial misconduct prejudiced appellant's right to a fair trial, and appellant's challenge to the prosecutor's penalty phase conduct is mooted by our vacation of the death sentence.

Appellant bears the burden of establishing both the impropriety of the prosecutor's conduct and its prejudicial effect.³³ Since we áre vacating the death sentence, appellant cannot show he was prejudiced by any misconduct which may have occurred during the penalty phase of the case. The vast majority of the claimed acts of misconduct occurred in that phase of the trial. The prosecutor's allegedly improper guilt phase questioning of appellant's expert appears to have been raised only to support appellant's claim of an overall pattern of prosecutorial misconduct.

We have reviewed the entire transcript of the questioning of appellant's expert. Both the nature of that questioning and the strength of the State's evidence are quite different than in State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984), on which appellant relies. The two cases are similar only in that the defendant called expert witnesses to support a claim of diminished capacity. It was undisputed in Reed that the defendant was extremely intoxicated when he killed his wife.³⁴ Here, by contrast, several neighbors who saw appellant shortly before the murder noticed no impairment, and he admitted in his confession that he killed the victim because he did not want her to be a witness. Additionally, the prosecutor in Reed asked the jury not to believe the defense experts because they were "city doctors" from outside the community.³⁵ That clearly improper argument cannot realistically be compared to the prosecutor's cross examination here. The prosecutor was not suggesting the jury should disbelieve appellant's expert because of who he was or where he came from, but because his opinions were not credible. A prosecutor has wide latitude in drawing and expressing reasonable inferences from the evidence.³⁶ While the manner in which the prosecutor expressed those inferences here cannot be commended, the inferences themselves were not improper. Nor is the manner in which they were drawn so prejudicial as to affect the verdict or deprive appellant of a fair trial.³⁷

Issue Nine.

Conclusion. Neither the declination statute nor the death penalty statute authorizes imposition of the death penalty for crimes committed by juveniles.

The United States Supreme Court has upheld imposition of the death penalty against defendants who were 16 or 17 when their crimes occurred. Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989). The issue in Stanford was not whether a state statute authorized that penalty, however. Kentucky and Missouri state courts had applied their state statutes in that manner and had upheld the defendants' death sentences. The issue before the Supreme Court was whether application of those statutes in that manner violated the Eighth Amendment. Before any constitutional issue is raised here, we must first conclude that Washington statutes authorize imposition of appellant's death sentence.³⁸

The "trial court's sentencing authority is limited to that expressly found in the statutes."³⁹ Our criminal laws apply to children as young as 8 years old. RCW 9A.04.050; State v. Q.D., 102 Wn.2d 19, 685 P.2d 557 (1984). The juvenile court may decline jurisdiction and transfer any case for prosecution to adult court, if the appropriate legal criteria are satisfied, regardless of the age of the juvenile. RCW 13.40.110(2). The penalty for aggravated murder, in cases prosecuted in adult court, is either death or life imprisonment without the possibility of release or parole. RCW 10.95.080. Thus, if these statutes authorize imposition of all adult penalties against juveniles transferred to adult court, a child as young as 8 could theoretically be tried as an adult and sentenced to death or life without parole for aggravated murder. One youth has in fact been convicted of that offense and sentenced to fife in prison without parole for a crime he committed at age 13.⁴⁰ If the State there had sought the death penalty, RCW 10.95.070(7) would have allowed the jury to consider the defendant's youth as a mitigating factor, but the death penalty statute does not require the jury to treat any mitigating factor alone as sufficient to merit leniency.⁴¹

Admittedly, it is .unlikely the State would seek, or the jury would return, a death sentence against an extremely young defendant. The significant factor, however, is that such verdicts would be possible if our statutes were interpreted to authorize imposition of the death penalty for crimes committed by juveniles. The 4-justice plurality in Thompson v. Oklahoma, 487 U.S. 815, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988) concluded that the death penalty cannot be imposed against defendants who were 15 or younger when the crime occurred because the death penalty serves no valid retributive or deterrent purpose in such cases. In her concurrence, Justice O'Connor concluded, more narrowly, that defendants under 16 when their crimes were committed "may not be executed under the authority of a capital punishment statute that specifies no minimum age at which the commission of a capital crime can lead to the offender's execution."⁴² Under either view, our statutes would clearly be unconstitutional as applied to defendants 15 or younger if interpreted to authorize imposition of the death penalty following decline of jurisdiction in juvenile court. RCW 13.40.110 authorizes juveniles to be tried as adults, but does not mention the death penalty. RCW 10.95 authorizes imposition of the death penalty, but does not refer to crimes committed by juveniles. Most critically, neither statute sets any minimum age for imposition of the death penalty.

" '[Wjherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.' "⁴³ We cannot rewrite the juvenile court statute or the death pen-ally statute to expressly preclude imposition of the death penally for crimes committed by persons who are under age 16 and thus exempt from the death penalty under Thompson.⁴⁴ Nor is there any provision in either statute that could be severed in order to achieve that result. The statutes therefore cannot be construed to authorize imposition of the death penalty for crimes committed by juveniles. Absent such authorization, appellant's death sentence cannot stand.⁴⁵

Appellant's aggravated first degree murder conviction is affirmed. The death sentence is vacated, and the case is remanded for imposition of a sentence of life in prison without the possibility of release or parole.

Brachtenbach, Dolliver, Durham, Smith, Guy, and Johnson, JJ., concur.

1 State v. Holland, 98 Wn.2d 507, 515, 656 P.2d 1056 (1983) (citing Kent v. United States, 383 U.S. 541, 566-67, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966)); State v. Massey, 60 Wn. App. 131, 803 P.2d 340, review denied, 115 Wn.2d 1021 (1990), cert. denied, 499 U.S. 960 (1991).

2 State v. Toomey, 38 Wn. App. 831, 833-34, 690 P.2d 1175 (1984), review denied, 103 Wn.2d 1012, cert. denied, 471 U.S. 1067 (1985); In re Hernandez, 15 Wn. App. 205, 548 P.2d 340 (1976); In re Burtts, 12 Wn. App. 564, 575, 530 P.2d 709, review denied, 85 Wn.2d 1014 (1975).

3 In re Harbert, 85 Wn.2d 719, 538 P.2d 1212 (1975); Toomey, 38 Wn. App. at 834.

4 RCW 13.40.300(1).

5 See State v. Ortiz, 119 Wn.2d 294, 831 P.2d 1060 (1992).

6 State v. Yates, 111 Wn.2d 793, 799 n.8, 765 P.2d 291 (1988).

7 State v. Motherwell, 114 Wn.2d 353, 368, 788 P.2d 1066 (1990); accord, State v. Worrell, 111 Wn.2d 537, 539 n.1, 761 P.2d 56 (1988); State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988).

8 California v. Trombetta, 467 U.S. 479, 488, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984).

9 Trombetta, 467 U.S. at 489.

10 Also, in at least one statement to the police, appellant said he used the pipe to smoke marijuana after the murder. Thus, even if the pipe had been tested and shown to contain that drug, it would have proved nothing about appellant's mental state at the time of the offense.

11 Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988).

12 Appellant raises several additional issues involving penalty phase evidentiary rulings and jury instructions and the death penalty statute. These issues are also mooted by our vacation of appellant's death sentence.

13 Morgan v. Illinois, _U.S._, 119 L. Ed. 2d 492, 509 n.11, 112 S. Ct. 2222 (1992). Accord, Witherspoon v. Illinois, 391 U.S. 510, 522 n.21, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). See also Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986) (process of death qualifying jury does not result in conviction-prone panel); State v. Irizarry, 111 Wn.2d 591, 596, 763 P.2d 432 (1988) (same).

14 Fare v. Michael C., 442 U.S. 707, 712-13, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979); Dutil v. State, 93 Wn.2d 84, 87, 606 P.2d 269 (1980).

15 A11 of the trial court's CrR 3.5(c) findings of fact are unchallenged and therefore verities on appeal. State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981).

16 Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976) (Miranda warnings required if suspect is taken into custody or deprived of his freedom of action in any significant way).

17 Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).

18 See Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Minnich v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990) (police may not interrogate suspect who has asserted Fifth Amendment right to counsel, unless counsel is present or the suspect initiated the communication).

19 See Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975); State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005 (1987) (police must scrupulously honor suspect's right to remain silent).

20 Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); State v. Earls, 116 Wn.2d 364, 373, 805 P.2d 211 (1991).

21 State v. Petitclerc, 53 Wn. App. 419, 425, 768 P.2d 516 (1989).

22 Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969) (false statement that fellow suspect had incriminated defendant insufficient to make otherwise voluntary confession inadmissible); State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973) (same where officer misstated admissibility of codefendant's confession).

23 Brooks v. Florida, 389 U.S. 413, 19 L. Ed. 2d 643, 88 S. Ct. 541 (1967).

24 State v. Rice, 110 Wn.2d 577, 599-600, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989).

25 Rice, 110 Wn.2d at 599-600.

26 See Rice, 110 Wn.2d at 600; ER 403.

27 Group Health Coop. of Puget Sound, Inc. v. Department of Rev., 106 Wn.2d 391, 400, 722 P.2d 787 (1986).

28 State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982).

29 Robtoy, 98 Wn.2d at 44.

30 State v. Ferrick, 81 Wn.2d 942, 944, 506 P.2d 860, cert. denied, 414 U.S. 1094 (1973); State v. Edmon, 28 Wn. App. 98, 103-04, 621 P.2d 1310, review denied, 95 Wn.2d 1019 (1981).

31 RCW 9A.16.090; State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987).

32 State v. Griffin, 100 Wn.2d 417, 419, 670 P.2d 265 (1983).

33 State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991); State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986); State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff'd, 970 F.2d 614 (9th Cir. 1992), cert. denied, 113 S. Ct. 1363 (1993).

34 State v. Reed, 102 Wn.2d 140, 142, 684 P.2d 699 (1984).

35 Reed, 102 Wn.2d at 143.

36 Hoffman, 116 Wn.2d at 94-95.

37 Hughes, 106 Wn.2d at 195 (defendant must show there is a substantial likelihood the misconduct affected the verdict thereby depriving defendant of a fair trial) (quoting Mak, 105 Wn.2d at 726).

38 State v. Tingdale, 117 Wn.2d 595, 599, 817 P.2d 850 (1991); State v. Maxwell, 114 Wn.2d 761, 771, 791 P.2d 223 (1990); State v. Ng, 110 Wn.2d 32, 36-37, 750 P.2d 632 (1988) (constitutional issues should not be reached unless absolutely necessary).

39 State v. Theroff, 33 Wn. App. 741, 744, 657 P.2d 800, review denied, 99 Wn.2d 1015 (1983). Accord, In re Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980).

40 State v. Massey, 60 Wn. App. 131, 803 P.2d 340, review denied, 115 Wn.2d 1021 (1990), cert. denied, 499 U.S. 960 (1991).

41 See RCW 10.95.060(4).

42 Thompson v. Oklahoma, 487 U.S. at 857-58.

43 World Wide Video, Inc. v. Tukwila, 117 Wn.2d 382, 392, 816 P.2d 18 (1991) (quoting State v. Browet, Inc., 103 Wn.2d 215, 219, 691 P.2d 571 (1984)), cert. denied, 112 S. Ct. 1672 (1992).

44 Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986) (court may not "read into a statute those things which it conceives the Legislature may have left out unintentionally").

45 Carle, 93 Wn.2d at 33; Theroff, 33 Wn. App. at 744.