Opinion
No. 22655-7-III.
March 27, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-1-00790-3, Robert D. Austin, J., entered January 23, 2004.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling Dooris PS, WA.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Affirmed in part and remanded by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Brown, J.
Benjamin Brockie appeals his convictions of two counts of first degree robbery, fifteen counts of first degree kidnapping, and two counts of threats to bomb or injure property. He contends the court erred by denying his motion to suppress and the evidence was insufficient to support the kidnapping convictions. Contending the court improperly sentenced Mr. Brockie below the standard range, the State cross-appeals. Mr. Brockie also claims error in his statement of additional grounds for review. We affirm the convictions, but remand for resentencing.
On October 13, 2001, Matthew McCall, a Pizza Hut employee, was taking out the trash when a man confronted him. The man held a large handgun. He pulled a black nylon mask over his face and forced Mr. McCall to the cash register. He then ordered Leah Scarcello, another employee, to remove money from the register and place it in a bag. The man told Mr. McCall and Ms. Scarcello to get on the floor, crawl to the mop room, and count to 100. He then told them he would shoot them if they called the police.
Mr. McCall and Ms. Scarcello described the man to police as being either Black or Hispanic, 6'2' in height, between 230-250 pounds, and approximately 20-25 years old. Ms. Scarcello also said the man used derogatory words such as "fuck, nigger and bitch" in reference to them. Clerks Papers (CP) at 31, 66.
On February 22, 2002, a man entered an Inland Northwest Bank branch with a black semiautomatic handgun. The man was wearing a dark-blue hooded sweatshirt, white tennis shoes, black gloves, black or blue athletic pants, and a black nylon mask. The man pointed the gun at the tellers and spoke to them in "black street gang slang." CP at 34. He ordered the tellers to put $100 and $50 bills into a nylon duffle bag. The man also told them to crawl to the vault area of the bank. The tellers placed approximately $38,000 in the bag. The man then said there was a bomb outside the bank. He threatened to detonate the bomb if the police were called. The man was described as being 6' to 6'2" in height and approximately 200-225 pounds.
On March 5, 2002, a man wearing a dark blue, hooded sweatshirt and a nylon-style mask entered a Safeway Federal Credit Union with a handgun. He ordered everyone in the credit union to go into an office and then told the credit union manager to go into the vault. The manager placed $25,000 in $100, $50, $20, $10 and $5 bills into a blue canvas gym bag. The man told everyone in the credit union not to call the police for 10 minutes. He said there were two bombs outside and a sniper watching the credit union. The man then left and ran into heavy traffic. Witnesses told the police that the man used a lot of obscenities, spoke in a manner similar to "black street gang slang," and repeatedly called them "niggers." CP at 35.
On March 7, 2002, Detective George Benevidez contacted Mr. McCall to show him a photomontage. The detective told him he was not obligated to choose a person from the montage and the suspect may not even be in the lineup. Mr. McCall looked at the photos for 30 seconds. He then said the photo of Mr. Brockie "kind of looked like him" because the eyes and goatee were similar. CP at 67. Mr. McCall asked when the photo was taken. The detective said it "could have been taken at any time before or after the robbery." Id. Mr. McCall looked at the montage again and pointed to Mr. Brockie's photo. He then said "[t]hat's the guy. . . . I remember his eyes." Id.
On March 8, 2002, Mr. Brockie was put under surveillance. He was arrested after police watched him drive past a Sterling Savings bank branch three times. In Mr. Brockie's car, police saw in plain view a blue nylon style duffle bag, a semiautomatic gun, a dark-blue sweatshirt, and black heavy nylon pantyhose on the front passenger seat.
Mr. Brockie was charged by amended information with 3 counts of first degree robbery, 17 counts of first degree kidnapping of the victims of each robbery, 2 counts of threats to bomb or injure property, and 1 count of attempted first degree robbery. One count of first degree robbery and two counts of first degree kidnapping involving the Pizza Hut robbery were later severed.
Prior to trial, Mr. Brockie filed a motion to suppress evidence. He argued Mr. McCall's identification of him through the photomontage should be suppressed because the photo identification procedure used was impermissibly suggestive. The court denied the motion. The case proceeded to jury trial. Mr. Brockie denied involvement in the crimes. He testified he received $5,153 on his income tax return and $1,000 from an insurance company for damage to his car. On February 24 and 25, 2002, he used this money to gamble at a casino and won over $20,000.
The jury found Mr. Brockie guilty of 2 counts of first degree robbery, 15 counts of first degree kidnapping, and 2 counts of threats to bomb or injure property, but not guilty on the attempted first degree robbery charge.
On the basis of the multiple offense policy, the court sentenced Mr. Brockie to an exceptional sentence below the standard range. The court sentenced Mr. Brockie to concurrent sentences of 129 months each for the two first degree robbery convictions, 68 months each for the two threats to bomb or injure property convictions, 100 months for the kidnapping convictions pertaining to the Safeway Federal Credit Union robbery and 100 months for the kidnapping convictions pertaining to the Inland Northwest Bank robbery for a total of 397 months. The court's written findings of fact stated:
The Court found that an exceptional sentence was warranted in this case as the low end of the standard range, which was 812 months, was not something that the facts of the crime merited and further that such a sentence was not appropriate under the multiple offense police of the Sentencing Reform Act. Specifically, the standard range sentence was clearly excessive under the multiple offense policy of the Sentencing Reform Act.
The Court further finds that first degree robbery is a most serious offense as is first degree kidnapping. As such, the standard range sentence as envisioned by the Sentencing Reform Act, calls for consecutive sentences under such circumstances. Specifically, the low end of the standard range, which is 812 months, exceeds sentences imposed for persons convicted of other most serious offenses, including but not limited to murder.
The Court further finds that in each situation, there was no physical injury to any of the victims. However, there was significant mental trauma and horror to each of the victims, which was amply displayed during their testimony at trial.
CP at 454-55. This appeal follows.
Mr. Brockie contends the court erred by denying his motion to suppress. He argues the court should have suppressed the photomontage identification because it was impermissibly suggestive.
"On appeal of a superior court's suppression order, we review only those factual findings to which the appellant has assigned error." State v. O'Day, 91 Wn. App. 244, 247, 955 P.2d 860 (1998). Because Mr. Brockie has not assigned error to any findings, we accept as verities the court's determination as to the "factual events and happenings," but independently examine the legal issues raised by those findings. Id. We, however, give great significance to the trial court's conclusions. State v. Ozuna, 80 Wn. App. 684, 691, 911 P.2d 395, review denied, 129 Wn.2d 1030 (1996).
A photographic identification procedure violates due process if, under the totality of the circumstances, the procedure was "`so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"
State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). Even a suggestive photo lineup is admissible, however, unless its corrupting effect outweighs other factors probative of the reliability of the witness's identification. State v. Burrell, 28 Wn. App. 606, 610, 625 P.2d 726 (1981). To make this determination, "the appellate court must balance the reliability of the witness against the harm of the suggestiveness, considering the totality of the circumstances." State v. Cook, 31 Wn. App. 165, 172, 639 P.2d 863, review denied, 97 Wn.2d 1018 (1982). The court should consider "(1) the opportunity of the victim to observe the subject at the time of the crime, (2) the witness'[s] degree of attention, (3) the accuracy of the witness'[s] prior description, (4) the level of certainty at the confrontation, and (5) the length of time between the crime and confrontation." Id.
Mr. Brockie argues that Mr. McCall described the suspect as being either African-American or Hispanic, but the photo lineup only contained pictures of men of "possible Hispanic descent." He also argues that Mr. McCall only had a limited opportunity to view the suspect's face and had never provided police with a description of the suspect's facial features or facial hair.
But here, Mr. McCall had the opportunity to view the suspect before he even put on his mask and thus had a significant opportunity to view the person he believed had committed the crime. Although he identified Mr. Brockie after some five months, this passage of time alone is not so lengthy as to compromise Mr. McCall's reliability. Even if the lineup's containing men of potential Hispanic descent made it suggestive, there was no substantial likelihood of irreparable misidentification under the circumstances. Nothing in the record shows that the photographic identification procedure was unreasonably suggestive or otherwise tainted. The court did not err by denying the motion to suppress.
Mr. Brockie next contends the evidence was insufficient to support the kidnapping convictions. Specifically, he argues that under State v. Korum, 120 Wn. App. 686, 86 P.3d 166 (2004), aff'd in part, rev'd in part on other grounds, 157 Wn.2d 614, 141 P.3d 13 (2006), his kidnapping convictions should have merged with his robbery convictions because there was no evidence any restraint to the victims caused a separate and distinct injury from the restraint inherent in the armed robberies.
In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The elements of a crime may be established by either direct or circumstantial evidence; one type is no more valuable than the other. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202, appeal dismissed, 434 U.S. 898 (1977). "Credibility determinations are within the sole province of the jury and are not subject to review." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Assessing discrepancies in trial testimony and weighing the evidence are also within the sole province of the fact finder. State v. Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990).
In Korum, 120 Wn. App. at 707, Division Two of this Court determined that convictions for first degree kidnapping incidental to a first degree robbery merged with the robbery conviction. But in State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005), our Supreme Court held that first degree kidnapping, even when incidental to first degree robbery, did not merge with a robbery degree.
In Louis, the defendant robbed a jewelry store and bound the hands and feet of the two owners, covered their eyes and mouths with duct tape, and coerced them into a bathroom. Id. at 566-67. He was convicted of one count of first degree kidnapping and one count of first degree robbery for each victim. Id. at 567.
On appeal, the defendant argued that his convictions for kidnapping and robbery merged because the kidnappings were simultaneous and incidental to the robbery. Id. at 570. The Supreme Court, however, determined the crimes did not merge because proof of one was not necessary to prove the other. Id. at 570-71. Specifically, it held that proof of kidnapping is not necessary to prove first degree robbery and proof of first degree kidnapping requires only the intent to commit robbery, not the completion of robbery. Id. at 571. Louis controls. Mr. Brockie's kidnapping convictions for first degree kidnapping and first degree robbery do not merge.
To convict Mr. Brockie of first degree kidnapping, the State had to prove beyond a reasonable doubt that he intentionally abducted the victims with intent to facilitate commission of any felony or flight thereafter. RCW 9A.40.020(1)(b). "Abduct" is defined as restraining "a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force." RCW 9A.40.010(2). "Restrain" means "to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty." RCW 9A.40.010(1).
The evidence established that during the Inland Northwest Bank robbery, Mr. Brockie pointed a gun at the tellers and ordered them into the vault area. After the tellers placed the money in his bag, he told them that there was a bomb outside the bank and he would detonate the bomb if they called the police. Likewise, during the Safeway Federal Credit Union robbery, Mr. Brockie ordered everyone in the credit union to go into an office. He then told them not to call the police for 10 minutes. He said there were two bombs outside the credit union and a sniper watching from a neighboring house. Based on this evidence, the jury could reasonably find that Mr. Brockie intentionally abducted the victims with the intent to facilitate the commission of first degree robbery. The evidence was sufficient to support the first degree kidnapping convictions.
In its cross appeal, the State contends the court's findings do not support an exceptional sentence below the standard range. A court may impose a mitigated exceptional sentence if it finds there are substantial and compelling reasons justifying an exceptional sentence. RCW 9.94A.535. "A court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence." RCW 9.94A.535(1). One mitigating factor used to impose an exceptional sentence is the multiple offense policy. Id. Under RCW 9.94A.535(1)(g), a trial court can impose an exceptional sentence downward when "[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010."
To reverse an exceptional sentence, we must find that (a) [e]ither the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4). A trial court may depart from the standard range sentence when there are multiple offenses if the effects of the first criminal act and the cumulative effects of subsequent criminal acts are nonexistent, trivial, or trifling. State v. Hortman, 76 Wn. App. 454, 461, 886 P.2d 234 (1994), review denied, 126 Wn.2d 1025 (1995). The State argues the court failed to find the effects of the criminal acts on the kidnapping victims were trivial or nonexistent.
Here, nothing in the record shows that the effects of the first degree robbery counts and the cumulative effects of the subsequent first degree kidnapping counts were "nonexistent, trivial or trifling." Indeed, the court recognized in its written findings of fact to support the exceptional sentence downward that there was "significant mental trauma and horror to each of the victims." CP at 455. That there was "no physical injury" as indicated by the court, does not lessen the seriousness of the offenses. Id. The court's findings do not justify a mitigated exceptional sentence on the basis of the multiple offense policy. Remand for resentencing within the standard range is required.
In his additional grounds for review, Mr. Brockie first contends the prosecutor committed misconduct by charging him with 15 counts of first degree kidnapping. Mr. Brockie was charged with 17 counts of first degree kidnapping to correspond with the victims of the Pizza Hut and bank robberies. Two of these counts were later severed. The prosecutor was entitled to seek these charges against Mr. Brockie. Louis, 155 Wn.2d at 571. There was no misconduct. Mr. Brockie further contends the prosecutor committed misconduct during trial. To obtain reversal of a conviction on the basis of such prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). A prosecutor's remarks "must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Mr. Brockie claims the prosecutor committed misconduct by expressing an opinion as to his guilt. During the cross examination of Mr. Brockie, the prosecutor asked "[h]ow is it that a person who makes minimum wage with a little in their bank account, can acquire and gamble such large amounts? If you know Mr. Brockie?" Report of Proceedings (RP) at 659. This question was not an improper opinion on guilt. The question was simply in reference to Mr. Brockie's previous testimony that he had won substantial amounts of money by gambling at a casino. The prosecutor did not commit misconduct.
Mr. Brockie next contends the prosecutor committed misconduct in two instances during closing arguments. A prosecutor has wide latitude in arguing facts in evidence and drawing reasonable inferences from them during closing arguments. See State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985). Otherwise improper remarks are not grounds for reversal when they are invited, provoked, or occasioned by defense counsel, and when the comments are in reply to or retaliation for his acts and statements, unless they go beyond the scope of an appropriate response. State v. Davenport, 100 Wn.2d 757, 761, 675 P.2d 1213 (1984).
He argues the prosecutor committed misconduct by misstating the law during closing argument that when Mr. Brockie committed the bank robberies, he committed the separate crime of kidnapping against each of the victims in both incidents. But under Louis, the crimes of robbery and kidnapping do not merge and are not incidental to each other. The prosecutor did not misstate the law.
Mr. Brockie also argues the prosecutor committed misconduct when he expressed his personal opinion. During closing arguments, the prosecutor stated:
Now, the defendant claims he started out with $6,000. Well, how do we jump to $10,000? And by my calculation, the defendant is on a losing streak and not a winning streak at the casino.
And you can either believe that he is the luckiest man alive, or that he committed the robberies, and that is where he got the large amount of money to go gamble with.
RP at 843. The prosecutor's statements were a characterization of the evidence presented at trial. These statements did not contain a clear and unmistakable expression of the prosecutor's personal opinion. There was no misconduct.
Mr. Brockie next contends the court erred by admitting evidence of the nylons because the evidence was not properly authenticated. He argues that a detective put his hand inside the nylons for the jury in his first trial, which resulted in a hung jury. The evidence was then subsequently sent to two other forensic scientists and thus subject to contamination when transferred from agency to agency.
But the record is silent as to what occurred during Mr. Brockie's first trial. Because this issue refers to matters outside the record, it cannot be considered on appeal. It can, however, be raised in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
We affirm the convictions, but remand for resentencing.
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.
WE CONCUR:
Sweeney, C.J.
Brown, J.