Opinion
No. 28372-7-II c/w 29149-5-II
Filed: August 5, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-1-04043-3 Judgment or order under review Date filed: 01/18/2002
Counsel for Appellant(s), Lamone Blue (Appearing Pro Se), Airway Heights Correction Center, Doc No. 786998, P.O. Box 1839, Airway Height, WA 99001-1839.
Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Lamone T. Blue appeals his convictions of two counts of robbery in the first degree. He argues that he was improperly denied his right to cross-examine a deputy about the date of a photo that was used in a photo montage, that the evidence is insufficient, and that his trial counsel was ineffective. In a consolidated Personal Restraint Petition (PRP), he argues that his offender score was not properly calculated. We affirm the direct appeal and dismiss the PRP.
On April 9, 2000, between 1:00 and 2:00 a.m., Richard F. Fortin, Jr., Darrin Roberts, and '[a] few others' were `hang[ing] out' in the parking lot of a skating rink when an `older' car, perhaps a `mid-80's blue Lincoln, blue or maybe darker,' pulled in. Someone yelled that a theft had taken place as the older dark-colored car drove away. Fortin and Roberts jumped into Fortin's car and gave chase.
RP at 74.
RP at 75.
RP at 77, 140.
Fortin and Roberts followed the older car into a church parking lot, where both cars stopped. Fortin and Roberts got out and began yelling.
They were asking whether the other car's occupants had `jacked someone back at the parking lot, and what was it, and why.' According to Fortin, a person then got out of the older car, took a gun from the trunk, `walked really quick right up to' Fortin, and held a gun to Fortin's chest. Fortin was face-to-face with the person for one to two minutes. The gunman and another person from the older car took Fortin's and Robert's wallets, as well as cell phones from Fortin's car. Fortin and Roberts returned to the skating rink and called the police.
RP at 83-84.
Shannon Carroll was the older car's driver. On April 10, 2000, the police were told he might have been involved. When Detective Harai contacted him three days later, he identified his passengers as Carlos Walker, Psyche, and Short Dog. He did not know Psyche's real name, but he was able to describe Psyche.
Believing that Blue might be Psyche, Harai constructed a photo montage that included a photo of Blue that was taken on April 11, 2000, two days after the incident. At that time, Blue was in jail on an unrelated offense.
On May 17, 2000, Harai showed the montage to Carroll. Carroll `pointed out the photograph of Lamone Blue saying that that closely resembled the person that he believes is Psyche, but he said he couldn't make a positive ID pick.' Carroll also said Psyche had `GD' tattooed on his arm and Blue has such a tattoo.
RP at 256-57.
Harai met with Blue on May 18, 2000. Initially, Blue denied knowing Carroll but admitted certain details about the incident that Harai had not disclosed. Later, Blue admitted knowing Carroll but denied participating in the robbery.
On July 7, 2000, Harai showed the photo montage to Fortin and Roberts. Fortin identified Blue within '[s]econds' and Roberts identified him `very quickly.'
RP at 258.
RP at 259.
On August 29, 2000, the State charged Blue with the first degree robbery of Fortin (Count I) and the first degree robbery of Roberts (Count II).
At trial in August of 2001, Fortin, Roberts, and Carroll all testified. Fortin identified Blue as the perpetrator but said Blue's hair looked different now than during the robbery; back then, `it looked a lot shorter . . . and it looked like it was kept in braids that went back to the side.' Fortin said he had been in eye contact with the gunman, but he could not say for how long because he had been focused mainly on the gun. Roberts identified Blue, saying he was about '90 percent sure.' Carroll said Blue was `probably' the person he knew as Psyche, although he was not sure.
RP at 88-89.
Before trial, Blue had successfully obtained an order barring evidence that he had been in jail on April 11, the date of the photo that Harai later used in the montage. During trial, defense counsel asked Harai to give the date the photo had been taken. The State objected, arguing in part that if the defense could show the date of the photo, the State should be allowed to show that Blue was in jail on that date. The trial court sustained the objection.
On August 31, 2001, the jury found Blue guilty as charged. He later stipulated to an offender score of 10, and the trial court imposed standard-range sentences of 171 months.
I.
The first issue is whether the trial court erred by not allowing Blue to show the date of the photo that Harai used in the montage. Blue argues that he was prejudiced because several witnesses had suggested his appearance was different at trial than at the time of the incident, and the date would have tended to rebut an inference that he had changed his hairstyle in an attempt to confuse the witnesses.
The photo of Blue showed his hair in braids and close to his head, just like the descriptions given by the suspects. Assuming that his hair looked different at trial, he could have changed it at any time between April 11, 2000, when the photo was taken, and August 2001, when trial commenced. We are unable to see how proof that his hair was different on April 11, 2000, either supports or rebuts a suggestion that he was trying to confuse witnesses at trial, but even if it does, its exclusion could not possibly have affected the verdict. We perceive no error, but even assuming error occurred, it was obviously harmless beyond all doubt.
We also reject Blue's effort to cast any error as constitutional. If there was any error at all, it involved relevance and nothing more.
II.
The next issue is whether the evidence is sufficient to support a finding that Blue was the gunman who robbed Fortin and Roberts. The test is whether a rational trier of fact taking the evidence in the light most favorable to the State could find each element of the crime beyond a reasonable doubt. Fortin testified that Blue was the gunman, and Roberts testified to being '90 percent sure' Blue was the gunman. When Harai showed Blue's photo to Fortin and Roberts before trial, Fortin identified Blue within '[s]econds' and Roberts `very quickly.' Carroll testified that Psyche had a `GD' tattoo and that Blue had such a tattoo. Taking this evidence most favorably to the State, a rational trier could find beyond a reasonable doubt that Blue was the gunman. We conclude the evidence was sufficient.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RP at 258-59.
III.
The next issue is whether Blue's trial counsel rendered ineffective assistance by not moving for dismissal at the close of the State's case. To prove ineffective assistance, Blue must show not just deficient performance, but also resulting prejudice. As just discussed, the State presented sufficient evidence. The trial court would have denied a motion to dismiss if one had been made, and Blue has not shown prejudice.
State v. McFarland, 127 Wn.2d 322, 333-34, 899 P.2d 1251 (1995).
City of Tacoma v. Durham, 95 Wn. App. 876, 882, 978 P.2d 514 (1999) (defendant proves prejudice by showing `reasonable probability that the motion would have been granted').
IV.
The next issue is whether Blue's offender score was correctly calculated. Apparently arguing that a single assault conviction was improperly counted twice, he states that `they charge me with the same crime twice Asst 2 07/12/00 Asst 2 07/12/00.' Apparently arguing that two juvenile offenses were improperly counted, he adds, `Plus my juvenile they give me two points also.'
Personal Restraint Petition (PRP) at 3.
PRP at 3.
Blue stipulated to an offender score of 10, which the trial court then used. There is no transcript of the hearing at which that stipulation was offered and accepted. Although the judgment and sentence shows that Blue was sentenced for two convictions for `Asst 2' committed on July 12, 2000, and that those convictions were included in his offender score, it does not show whether the assaults were on the same or different victims, whether he was sentenced consecutively or concurrently, or anything else about the circumstances. Although the judgment and sentence shows that Blue was sentenced for a juvenile conviction of `Asst 2' on January 2, 1998, it does not show how many points were thereby included in his offender score. This record does not show error.
Although Blue makes a number of other claims in his pro se brief, none has enough merit to warrant discussion.
The direct appeal is affirmed, and the consolidated PRP is dismissed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and SEINFELD, JJ., concur.