State v. Notaro

255 P.3d 774
CourtCourt of Appeals of Washington
DecidedMay 6, 2011
Docket39106-6-II
StatusPublished
Cited by23 cases

This text of 255 P.3d 774 (State v. Notaro) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Notaro, 255 P.3d 774 (Wash. Ct. App. 2011).

Opinion

255 P.3d 774 (2011)
161 Wash.App. 654

STATE of Washington, Respondent,
v.
Nicholas Louis NOTARO, Appellant.

No. 39106-6-II.

Court of Appeals of Washington, Division 2.

May 6, 2011.

*775 Lise Ellner, Attorney at Law, Vashon, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc, Tacoma, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 In 2009, a jury found Nicholas Notaro guilty of premeditated first degree murder, while armed with a firearm, for the murder of Joseph Tarricone. According to Notaro's admissions to a former co-worker and his 2008 confession to Pierce County Sheriff's detectives, Notaro killed Tarricone in 1978. When Tarricone visited Renee Curtiss, Notaro's sister, Notaro lured him into the basement of his (Notaro's) mother's Puyallup Canyon Road residence on the pretext of repairing a washing machine. Once in the basement, Notaro shot Tarricone twice in the back of the head. Curtiss, Notaro, and their mother then acquired a chainsaw, dismembered Tarricone's body, and buried it in the yard. In 2007, a construction company preparing to build a shopping center on the Canyon Road property discovered the human remains.

¶ 2 Notaro, who exercised his right not to testify at trial, appeals his conviction. He argues that (1) the trial court committed *776 reversible error when it allowed police to testify about statements that he made during a 2008 interview and (2) insufficient evidence supports the jury's premeditation finding. We disagree and affirm.

FACTS

¶ 3 Sometime during the summer or fall of 1978, all contact between Tarricone and his family abruptly ceased. At that time, Tarricone was dating Curtiss, who lived with her mother, Geraldine Hesse, on Canyon Road in Puyallup, Washington. Tarricone's daughter, Gina Chavez, filed a formal missing persons report with the Des Moines Police Department in 1979.

¶ 4 On June 4, 2007, a Sunrise Excavation employee uncovered skeletal human remains while excavating the land at the Canyon Road property where Hesse and Curtiss had lived. The Federal Bureau of Investigation (FBI) attempted to identify the human remains by comparing their mitochondrial deoxyribonucleic acid (DNA) with Tarricone's sister's mitochondrial DNA. Although the FBI could not identify the human remains definitively as Tarricone's, it also could not rule out that the remains were Tarricone's.[1] Subsequent investigations led the police to believe the remains were Tarricone's and that Curtiss and her family were involved with his disappearance and murder.

¶ 5 On March 25, 2008, the State charged Notaro with first degree murder under former RCW 9A.32.030(1)(a) (1976). At a CrR 3.5 hearing, Notaro argued that statements he made to detectives during a custodial interrogation should be suppressed because he made them without knowingly, voluntarily, and intelligently waiving his right against self-incrimination. Specifically, Notaro claimed that Detective Sergeants Denny Wood and Ben Benson[2] used deceptive interrogation tactics to induce statements from him. The trial court determined that nothing the detectives did overcame the voluntariness of Notaro's statements and that turning off a tape recorder during the interview was not improper or coercive. The trial court ruled that the detectives' testimonies about Notaro's statements made during both the taped and untaped portions of the police interview would be admissible at trial.

¶ 6 Notaro's jury trial began on February 12, 2009. The State presented 31 different witnesses, including Detectives Benson and Wood who testified about their interview with Notaro and statements that he made to them. Notaro chose not to testify at trial.

¶ 7 Detectives Wood and Benson testified that they interviewed Notaro on March 24, 2008. The detectives read Notaro his Miranda[3] rights, but they did not initially tell Notaro the reasons for the interview. Except for a few minutes at the beginning of the interview, Notaro's initial statement was tape recorded. During this taped part of the interview, Notaro said that in the late 1970s he traveled to Seattle for a few days after being released from the hospital following an appendectomy. Notaro also discussed moving to Seattle in 1989, and working at Winchell's Donuts in Puyallup. He acknowledged a friendship with a Winchell's co-worker, Arlene Tribbett.

¶ 8 The detectives testified that, after a break, they resumed interviewing Notaro, but they did not continue taping his statement because he seemed "very nervous" with *777 the tape recorder on. 4 Report of Proceedings (RP) at 478. At this point, the detectives told Notaro that they were investigating Tarricone's death and about the human remains discovered at the Canyon Road property where his mother and Curtiss were living at the time Tarricone disappeared. Notaro denied that either of his sisters were involved in the murder and said that his mother (who had since died) killed Tarricone and placed his body in a freezer because Tarricone would not leave Curtiss alone. Notaro said he bought a chainsaw at K-mart and dismembered the body in the basement, giving the head to his mother to dispose of separately. Notaro said he cut up the body because it made the body easier to carry upstairs to bury in the yard.

¶ 9 At trial, the detectives testified that they told Notaro his story was not credible and that mothers call their sons to deal with problems, they do not shoot people themselves.[4] According to the detectives, Notaro then changed his story. He told the detectives that his mother had called him about Tarricone harassing Curtiss. When Tarricone came to the house, Notaro asked Tarricone for help with the washing machine in the basement. Notaro told the detectives that he followed Tarricone into the basement, shot him in the back of the head twice, and then went to K-mart and bought a chainsaw to cut up the body. Notaro denied his sisters' involvement in the cover-up of the slaying, saying that only his mother held a tarp while he dismembered the body.

¶ 10 According to Detective Wood, Notaro also stated that he found the gun he used to kill Tarricone inside the Canyon Road house. But Alaska State Trooper Gary Tellep testified that on September 21, 1978, when he worked part-time in the sporting goods department at a Fairbanks JC Penney, he sold Notaro a Smith & Wesson revolver.

¶ 11 Carol Barnett, director of medical records at Alaska's Fairbanks Memorial Hospital, testified that hospital records showed that Notaro was admitted for an appendectomy on September 18, 1978, and discharged on September 21. Shirley Hamel, Notaro's employer at the time, testified that she saw Notaro in Alaska after his surgery on September 23. Notaro called Hamel on September 25, saying he had to go to Seattle and asked her to retrieve his car from the Fairbanks airport. Hamel next saw Notaro approximately one week later when she returned his car to him.

¶ 12 Tribbett, a co-worker of Notaro's at a Puyallup Winchell's Donut shop in the late 1980s, testified that when they worked together Notaro told her that in 1978, at his sister's request, he helped his sister kill her fiance. Tribbett testified that Notaro said he was in Alaska when his sister asked him to kill her fiance, that he flew from Alaska to Puyallup for the killing, and that he shot the man in the back of the head in the basement of a house off of Canyon Road.

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Bluebook (online)
255 P.3d 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-notaro-washctapp-2011.