Friday, March 2, 2001
COLVILLE -- Lawyers for 16-year-old William Lembcke,
accused of murdering his parents, sister and a brother in a dispute over
chores, want his taped confession thrown out.
Court-appointed defense attorneys Paul Wasson and
Patty St. Clair also want to suppress all evidence that deputies
gathered when they searched the Lembcke family home.
A transcript of a tape-recorded statement Lembcke
gave officers was placed in the Stevens County Superior Court file
during a hearing Wednesday over defense objections.
Lembcke told officers that his angry father had
threatened to kick him out of the house for not helping gather firewood.
Pressed for a better explanation for the shootings,
Lembcke said in the transcript that his reasons included "not being able
to go anywhere," "my dad being mean," and "working all the time with my
dad."
"I have to do a lot of stuff for my mom, and my
sister's never home," he added.
Lembcke faces trial in June on four counts of
aggravated first-degree murder for the deaths of his parents, Robert and
Diana Lembcke; his 18-year-old sister, Jolene, and his 12-year-old
brother, Wesley, on Dec. 23.
If convicted, Lembcke faces a mandatory life sentence
without possibility of parole.
County Deputy Prosecutor Dave Bruneau presented
evidence that officers repeatedly advised Lembcke of his constitutional
rights and got signed statements that he understood them.
But Wasson suggested that officers should have read
Lembcke his rights sooner as they investigated the reported
disappearance of the rest of his family.
Judge Larry Kristianson put off the hearing until
April 23 so defense lawyers can present psychiatric evidence. Lembcke
has pleaded innocent by reason of insanity or diminished capacity.
Sheriff's Detective Ben Paramore revealed at the
hearing that Jolene Lembcke was nude from the waist down and Robert
Lembcke was covered with just a towel when officers found their bodies
in a roadside ditch.
No explanation was offered in court.
The transcript showed Lembcke's father was angry
because the youth wasn't helping gather firewood. Lembcke adds in the
transcript that his father "was threatening to kick me out and send me
back to Martin Hall."
Martin Hall is a juvenile-detention center near
Spokane. Lembcke had been there two months earlier, when he pleaded
guilty to burglarizing a neighbor's home and stealing $25 in coins and a
silver bar.
"I got mad and, when he went in the shower, I loaded
the guns," Lembcke said in the transcript.
He said he sat on his father's bed and thought about
whether to open fire when his father got out of the shower.
After he shot his father in the back of the head,
Lembcke said his mother "just couldn't say anything, scared, I guess."
So were his sister and brother, Lembcke said.
Both of them tried to hide on the living room floor,
he said.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 20500-2-III
STATE OF WASHINGTON, Respondent
v.
WILLIAM LEE LEMBCKE, Appellant
Appeal from Superior Court of Stevens County
Date filed: 08/27/2001
KATO, J. - William Lembcke, a juvenile, was convicted
of four counts of aggravated first degree murder. Claiming the
court erred by refusing to suppress his statements to police and
evidence discovered during a search of the family home, Mr. Lembcke
appeals. He also contends the court abused its discretion by
excusing a juror without first holding a hearing. We affirm.
In December 2000, four members of the Lembcke family
were reported missing. The Stevens County Sheriff's Office contacted
William Lembcke in an attempt to locate his family. Mr. Lembcke
eventually confessed to killing his father, mother, brother, and sister.
The State charged him with four counts of aggravated first degree murder.
He was convicted on all counts and sentenced to life imprisonment
without possibility of parole. This appeal follows.
Mr. Lembcke first claims the court erred by admitting
evidence obtained through a search of the Lembcke home. Andy
Davenport was the brother of Diane Lembcke, William's mother. Mr.
Davenport had not seen four of the members of the Lembcke family for
several days, even though he shared a driveway with them.
On December 29, 2000, William Lembcke told Clint, his
older brother, who did not live at home, that the family had gone to
California to visit a sick relative. Clint asked other relatives
if they knew anyone in the family who was sick, but none did. Both
Andy and Clint went into the Lembcke home where they saw, among other
things, the wallet of Robert Lembcke and Diane's purse. Mr.
Davenport contacted the police and asked them to check things out.
Deputies Paul Murray and Duane Johnson conducted a 'welfare
check' in the early morning hours of December 30, 2000. Clerk's
Papers at 99. When the deputies arrived at the Lembcke home,
William was trying to leave in a pickup. Deputy Murray pulled into
the driveway first, parked his car, and was followed by Deputy Johnson
and then Mr. Davenport. The manner in which these three cars were
parked effectively blocked the driveway.
Mr. Lembcke had three passengers in his pickup.
Deputy Murray told him they were concerned about his family and their
whereabouts. Mr. Lembcke said he did not know where they were, but
the deputies could go into the house to look around.
Deputy Murray asked if he could look in the bedroom
of Mr. Lembcke's parents. He consented. The deputy found the
parents' wallet and purse and identification.
While Deputy Murray was looking in the bedroom,
Deputy Johnson noticed what looked like blood on the hot water tank and
washing machine. Given the circumstances, the deputies conferred.
They decided to ask Mr. Lembcke to sign a consent form and read him his
Miranda1 warnings as a precautionary measure. Mr. Lembcke
consented to a further search and did not ask for a lawyer.
Upon further investigation, Deputy Johnson saw blood
on a light fixture and what appeared to be fresh paint on the ceiling
with dark stains showing through. He also saw bits of flesh on a
kitchen ornament.
The deputies decided to go outside and speak with the
passengers in the pickup. They then saw blood in the bed of the
vehicle. At this point, they arrested Mr. Lembcke and stopped
searching the home.
Before trial, Mr. Lembcke moved to suppress the
evidence found during the search. After a hearing, the court
determined the police were acting in their community caretaking function
and Mr. Lembcke was not seized until he was arrested. Accordingly,
suppression was unwarranted. Mr. Lembcke challenges this ruling.
We review the trial court's denial of a motion to
suppress by examining whether substantial evidence supports the
challenged findings and whether those findings support the trial court's
conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d
298 (2001), review denied, 145 Wn.2d 1016 (2002).
Mr. Lembcke's argument centers on whether the
deputies exceeded the scope of the 'community caretaking function'
exception to the warrant requirement by 'seiz{ing}' him when they first
arrived at the house. Br. of Appellant at 21.
The community caretaking function allows for limited
invasion of Fourth Amendment privacy rights when necessary to render aid
or assistance or make routine checks on health and safety. State
v. Kinzy, 141 Wn.2d 373, 386, 5 P.3d 668 (2000), cert. denied, 531 U.S.
1104 (2001). An officer may invoke the community caretaking
exception if (1) he subjectively believes that someone likely needs
assistance for health or safety reasons; (2) a reasonable person in the
same situation would believe the same; and (3) he has a reasonable basis
to associate the need for help with the place he searched. State
v. Johnson, 104 Wn. App. 409, 415, 16 P.3d 680, review denied, 143 Wn.2d
1024 (2001). Whether an encounter under this exception is
reasonable depends upon a balancing of the individual's interest in
freedom from police interference against the public's interest in having
the police perform a community caretaking function. Kinzy, 141 Wn.2d
at 387.
Clearly, the deputies here responded to the Lembcke
house under the community caretaking function. Responding to a
report that the members of the Lembcke family had not been seen for
several days, the deputies were trying to locate them to see if they
were safe. The requirements for the exception were met. The
initial contact at the Lembcke home was proper.
Mr. Lembcke claims the deputies exceeded the scope of
the community caretaking function exception because they seized him when
they arrived at the house. The test for whether a seizure has
occurred is a purely objective one, looking to the actions of the law
enforcement officer. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681
(1998). The person asserting a seizure has the burden of proving a
disturbance of his or her private affairs. Id. at 510.
A person is seized if he or she is restrained by
physical force or show of authority. Kinzy, 141 Wn.2d at 388.
The relevant inquiry is whether ''a reasonable person would have felt
free to leave or otherwise decline the officer's requests and terminate
the encounter.'' Id. (quoting State v. Thorn, 129 Wn.2d 347, 352,
917 P.2d 108 (1996)).
'Examples of circumstance that might indicate a
seizure, even where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the
officer's request might be compelled. . . . In the absence of some
such evidence, otherwise inoffensive contact between a member of the
public and the police cannot, as a matter of law, amount to a seizure of
that person.'
Young, 135 Wn.2d at 512 (quoting United States v.
Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497
(1980) (citations omitted)). The only restraint or show of authority was
the manner in which the deputies parked their cars in the driveway.
The evidence does not show that the deputies approached Mr. Lembcke in a
threatening manner. There was no display of a weapon. There
is no indication the deputies' actions suggested that compliance with
their requests would be compelled. In these circumstances, a
reasonable person would have felt free to leave or to decline the
officers' requests and terminate the encounter. The court properly
concluded Mr. Lembcke was not seized.
Under the community caretaking function exception, if
an individual has not been 'seized,' balancing an individual's interests
against the public's usually results in favoring action by the police.
Kinzy, 141 Wn.2d at 387. If a person has been seized, his or her
interest in being free from police intrusion is no longer minimal.
Id. at 388. When conducting a balancing test in these situations,
courts must cautiously apply the community caretaking function exception
because there is a real risk of abuse in allowing even well-intentioned
stops to assist. Id. Because Mr. Lembcke was not seized, his
personal interests were minimal. Therefore, the public's interest in
having the police exercise their community caretaking function
outweighed Mr. Lembcke's own personal interests.
Under the community caretaking function exception, a
police officer may conduct a noncriminal investigation so long as it is
necessary and strictly relevant to the performance of this function.
Id. at 388. The noncriminal investigation must end when reasons
for initiating the contact are fully dispelled. Id. That is
exactly what happened here. The deputies entered the house in an
attempt to determine where the Lembcke family might be. In doing
so, they noticed blood stains and other signs that a crime might have
occurred. Their actions were within the scope of the community
caretaking exception. The court did not err by denying the motion
to suppress.
Mr. Lembcke next contends the court erred by
admitting statements he made to detectives. The deputies initially
read Mr. Lembcke his Miranda warnings as a precautionary measure around
1:37 a.m. After noticing blood stains in the house and pickup,
they arrested Mr. Lembcke. Around 4:00 a.m, Detectives Paramore
and Baskin arrived and arranged to have Mr. Lembcke transported to the
Stevens County Jail. There, he was again advised of his rights and
he waived them. After taking his oral statement, detectives
recorded a statement in which Mr. Lembcke revealed what had happened at
his house; how he killed his family; and where he had taken the bodies.
After the detectives went to recover the bodies, they noticed some
discrepancies between the evidence and Mr. Lembcke's statements.
The detectives reinterviewed him at that time.
Before a court will admit a defendant's custodial
statements, the State must prove by a preponderance of the evidence that
the defendant was advised of his Miranda rights and made a voluntary,
knowing, and intelligent waiver of those rights prior to making the
statement to police. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966); State v. Braun, 82 Wn.2d 157, 160-61, 509 P.2d
742 (1973).
Mr. Lembcke asserts that he was in custody from the
moment the deputies arrived at his house. However, he was not
seized until the officers detained and arrested him. At this point
he received Miranda warnings. Mr. Lembcke concedes that the
warnings as read were proper. Therefore, the only issue is whether Mr.
Lembcke's waiver of those rights was effective.
An accused may waive his Miranda rights if the waiver
is knowing, intelligent, and voluntary. State v. Bradford, 95 Wn.
App. 935, 944, 978 P.2d 534 (1999), review denied, 139 Wn.2d 1022
(2000). When considering the validity of a waiver, two
determinations must be made. State v. Corn, 95 Wn. App. 41, 57,
975 P.2d 520 (1999). 'First, the relinquishment of the right must
be voluntary in that 'it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception.'' Id. at 57-58 (quoting
Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410
(1986)). 'Second, the waiver must be made with 'full awareness of
both the nature of the right being abandoned and the consequences of the
decision to abandon it.'' Id. at 58 (quoting Burbine, 475 U.S. at
421).
Whether a juvenile has effectively waived his Miranda
rights also depends upon the totality of the circumstances surrounding
the interrogation. Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct.
2560, 61 L. Ed. 2d 197 (1979); Dutil v. State, 93 Wn.2d 84, 87, 606 P.2d
269 (1980). These circumstances include the juvenile's age, intelligence,
background, and his capacity to effect a voluntary waiver. State
v. Jones, 95 Wn.2d 616, 625, 628 P.2d 472 (1981). 'If a juvenile
understands that he has a right, after he is told that he has that right,
and that his statements can be used against him in a court, the
constitutional requirement is met.' Dutil, 93 Wn.2d at 90.
Review of the record indicates that Mr. Lembcke's
waiver of his rights was valid. When he confessed, he had received
the Miranda warnings twice. The detectives who gave him the
warnings the second time went over each right with Mr. Lembcke, making
sure he understood. Two psychiatrists testified Mr. Lembcke had
the capacity to understand his rights. Although it had been a long
night, the detectives testified Mr. Lembcke was oriented, alert, and
attentive. The State met its burden of showing by a preponderance
of the evidence that Mr. Lembcke's waiver was knowing, voluntary, and
intelligent. The court did not err.
Mr. Lembcke also contends the court improperly
excused a juror. Jury selection began in Okanogan County on August
16, 2001. The court explained to the jury pool why a jury was
being selected from Okanogan County rather than Stevens County.
The court also explained the time commitment involved and indicated it
was aware the circumstances might make serving impossible for some.
J. B. was selected as Juror No. 3. During
selection, she did not voice any problems or concerns she had about
being able to serve.
On August 20, the court informed counsel and Mr.
Lembcke that it had excused Juror No. 3 because her father became ill
over the weekend. An alternate juror would replace her. Over
Mr. Lembcke's objection to the ex parte dismissal of this juror, the
trial began. We review a court's decision to remove a juror for an
abuse of discretion. State v. Ashcraft, 71 Wn. App. 444, 461, 859
P.2d 60 (1993).
RCW 2.36.100 permits the court to excuse an otherwise
qualified potential juror for reasons of undue hardship, extreme
inconvenience, public necessity, or any other reason deemed sufficient
by the court. CrR 6.5 allows the court to replace a juror with an
alternate juror, before the submission of the case to the jury, if the
juror becomes unable to serve.
Although CrR 6.5 does not specifically require a
hearing, some sort of formal proceeding is indeed contemplated by the
rule. Ashcraft, 71 Wn. App. at 462. But such a proceeding is
only required when the case has already gone to the jury and the
alternates have been temporarily excused. State v. Johnson, 90 Wn. App.
54, 72, 950 P.2d 981 (1998). The purpose of a formal proceeding is
to verify that the juror is unable to serve and to demonstrate the
alternate is still impartial. State v. Jorden, 103 Wn. App. 221,
227, 11 P.3d 866 (2000), review denied, 143 Wn.2d 1015 (2001).
Because the case had not yet gone to the jury, a
formal proceeding was not required. Moreover, any error was
harmless. The jury had not heard any evidence at the time Juror
No. 3 was excused. The juror was replaced by an alternate.
There is no showing that excusing this juror prejudicially affected Mr.
Lembcke's trial. See State v. Easter, 130 Wn.2d 228, 242, 922 P.2d
1285 (1996) (If the court is convinced beyond a reasonable doubt any
reasonable jury would reach the same result absent the error, the error
is harmless.).
Affirmed.
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.