State v. Putman

61 Wn. App. 450 (1991) 810 P.2d 977

THE STATE OF WASHINGTON, Respondent,
v.
CHESTER R. PUTMAN, JR., Appellant. In the Matter of the Personal Restraint of CHESTER R. PUTMAN, JR., Petitioner.

Nos. 10744-9-II; 13504-3-II.

The Court of Appeals of Washington, Division Two.

May 28, 1991.

Bertha B. Fitzer, for appellant (appointed counsel for appeal).

Patrick D. Sutherland, Prosecuting Attorney, and Gary R. Tabor, Deputy, for respondent.

PETRICH, J.

In this appeal, which has been consolidated with his personal restraint petition, Chester R. Putman, Jr., challenges his judgment and sentence imposed following jury verdicts of second degree burglary, RCW 9A.52.030 (Laws of 1975, 2d Ex. Sess., ch. 38, § 7), one count of felony murder in the first degree, RCW 9A.32.030(1)(c) (Laws of 1975, 2d Ex. Sess., ch. 38, § 3), and one count of premeditated murder in the first degree with aggravating circumstances, RCW 9A.32.030(1)(a) (Laws of 1975, 2d Ex. Sess., ch 38, § 3). He was sentenced to life without parole for the premeditated murder count.

His primary contention is that he is effectively denied his right of appeal by the absence of a verbatim report of the suppression hearing proceedings, in which the murder weapon was ruled admissible, and of the closing arguments. He claims he was unable to correct or question the trial court's narrative report, which was created essentially from the prosecutor's notes. He also contends that he was denied effective assistance of counsel; that evidentiary errors prejudiced his case; and that the procedural aspects of the law, whereby the sentence of life without parole is imposed, violate due process by needlessly chilling a defendant's constitutional rights to plead not guilty and demand a jury trial.

We affirm.

In 1981, a jury convicted Chester R. Putman, Jr. (Terry) of murdering Henry and Laverne Rumberger and burglarizing their computer store.^[1] The evidence reveals that Terry beat the Rumbergers to death; he also strangled Laverne Rumberger. He apparently beat them with a pry bar, part of which was found at the scene.

David Putman, Terry's brother, was an employee of the Rumbergers' computer store at the time. After the murders, a friend of David's informed the police that David and Terry had planned to burglarize the computer store. Search warrants were issued. The police found missing computer equipment stored in Terry's attic. They also found parts of a pry bar on Terry's father's property, in the pit of an outdoor privy, which matched the part of the pry bar found at the scene.

David and Terry were then arrested. David, who was in Reno at the time of the murders, was charged and later convicted of two counts of second degree felony murder.

LACK OF VERBATIM REPORT OF PROCEEDINGS

Putman argues that the narrative report of proceedings is insufficient to support review of his argument that the evidence of the murder weapon, the pry bar, should have been suppressed because there was no source, independent of Terry's illegally obtained confession, to support the issuance of the search warrant.

Due process of law requires that we have "a record of sufficient completeness" for review of the errors raised by a criminal defendant. Draper v. Washington, 372 U.S. 487, 9 L.Ed.2d 899, 83 S.Ct. 774 (1963); State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963). In Larson, the appellate counsel, not having represented the defendant at trial, was unable to obtain adequate appellate review because he could not determine whether the narrative statement of facts was sufficiently complete nor could he determine what errors to assign.

[1] Putman's case is distinguishable from Larson, which dealt with a lack of a record of proceedings before a jury. Here, we are not concerned with the record of jury proceedings but only with matters submitted to the court to determine admissibility of evidence. We have before us the narrative report of proceedings prepared by the State from its contemporary notes of the hearing, the trial court's written findings of fact and conclusions of law, and the verbatim report of the trial court's detailed oral ruling on the motion.^[2] This is a record of sufficient completeness to allow our review. See Larson, 62 Wn.2d at 67.

[2] Putman also argues that the record is inadequate because the lack of verbatim and narrative report of proceedings of the closing arguments prevents him from determining and demonstrating prejudice from prosecutorial misconduct and ineffective assistance of counsel. Regarding the prosecutorial misconduct argument, if he had the verbatim record, Putman would have to show that the prosecutor's comments were improper and that a substantial likelihood existed that the comments affected the jury. State v. Neslund, 50 Wn. App. 531, 561-62, 749 P.2d 725, review denied, 110 Wn.2d 1025 (1988). It would have been very difficult for Putman to show this because the jury was instructed that it should disregard any remark or argument made by either counsel that was not supported by the evidence or the law. Further, it seems likely that no prejudicial prosecutorial conduct occurred because Putman's trial counsel probably would have remembered it. We note that Putman's counsel on appeal has not attempted to supplement the record with an affidavit by the trial judge stating whether an objection regarding prosecutorial misconduct was made during the closing arguments. See State v. Keller, 65 Wn.2d 907, 400 P.2d 370 (1965).

[3] As for ineffective assistance of counsel, Putman would have to show that his counsel's conduct was deficient and that it changed the outcome of the trial. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105 Wn.2d 1013 (1986). The record from the rest of the trial demonstrates that the assistance of Putman's counsel was more than adequate; this, in addition to the mitigating instruction, convinces us that there was no ineffective assistance of counsel.

[4] Consequently, we find that we have "a record of sufficient completeness" even though we lack the verbatim or narrative report of the closing arguments because we have a sufficient report of the substantive portion of trial proceedings, because there is no claim by trial counsel or the defendant that a specific remark or conduct by the prosecutor amounts to misconduct, and because a mitigating instruction was given.

APPLICATION OF THE EXCLUSIONARY RULE

[5, 6] Further, we are satisfied that Putman could not have successfully challenged the admissibility of the murder weapon even if no independent source supporting the search warrant existed. Putman could not challenge the search or seizure under the Fourth Amendment because he did not have a legitimate expectation of privacy in the area searched or the property seized. See Rawlings v. Kentucky, 448 U.S. 98, 65 L.Ed.2d 633, 100 S.Ct. 2556 (1980); State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980). Putman had no Fourth Amendment privacy rights in the area searched because it was owned by his father or in the item seized because Putman had abandoned it.

[7] We also find that the exclusionary rule does not apply under the Fifth Amendment in this case. The exclusionary rule is normally applied to suppress secondary evidence obtained from a violation of the Fourth Amendment: "Evidence is inadmissible as ``fruit of the poisonous tree' where it has been gathered by exploitation of the original illegality." State v. Aydelotte, 35 Wn. App. 125, 131, 665 P.2d 443 (1983). See also Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). However, the Washington Supreme Court has recently decided under federal constitutional law that the exclusionary rule may also apply under the Fifth Amendment. State v. Wethered, 110 Wn.2d 466, 475, 755 P.2d 797 (1988). Even so, evidence derived from a confession given without Miranda warnings need not be suppressed absent a direct Fifth Amendment violation or actual coercion. Wethered, 110 Wn.2d at 475. Here, Putman does not assert that the police used actual coercion or otherwise to overcome his will in obtaining his confession on August 25, 1981, and his statements on October 1, 1981. Putman's confession and statements were inadmissible because they were given without Miranda warnings. Thus, the exclusionary rule does not apply to suppress evidence of the murder weapon because there was no direct Fifth Amendment violation or actual coercion.

Affirmed.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WORSWICK, C.J., and MORGAN, J., concur.

NOTES

[1] The excessive delay in this appeal is the result of the trial court's failure to forward the notice of appeal to the Court of Appeals and the trial counsel's lack of diligence in pursuing the appeal. We have accepted review pursuant to RAP 5.4.

[2] Arrayed against this conscientious effort to provide an adequate record is the implausible response of Putman's trial counsel that the lapse of time precludes him from commenting on the accuracy or inaccuracy of the proposed narrative report. Putman similarly responds that the lapse of time and his illness prevents him from commenting. Putman's counsel on appeal also claims that she was unable to obtain any correction of the proposed narrative from the trial judge; however, the record reflects that she contacted the trial judge only once. The record does not reflect whether counsel on appeal requested copies of the judge's trial notes or whether she submitted the narrative report to the trial judge for his comments. We note that Putman has the duty to cure defects in the record with an affidavit from the trial court, if possible. State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123, review denied, 104 Wn.2d 1010 (1985).