Opinion
No. 35030-1-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00397-7, Roger A. Bennett, J., entered June 22, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Penoyar, J.
Vernon Lee Haffner appeals the judgment and sentence entered on a jury verdict finding him guilty of first degree burglary (Count 1) and attempted first degree robbery (Count 2). Haffner contends that (1) the trial court erred in admitting his statements to detectives because they did not video or otherwise electronically record his interrogation; and (2) his sentence on Count 2 exceeds the statutory maximum. In his pro se Statement of Additional Grounds (SAG), Haffner also asserts that his counsel was ineffective. We affirm Haffner's conviction and reverse and remand for correction of his sentence within the appropriate statutory maximum.
RAP 10.10.
FACTS
On January 27, 2006, at around 2 a.m., two men yelling "Cops! Cops!" kicked in the back door of Tim Cossel and Brent Jones's home in Vancouver, Washington. 1 Report of Proceedings (RP) at 42. While Cossel struggled with the first intruder, Jones struggled with the second. When he managed to pull off the intruder's bandana, Jones got a good look at his face. Losing the battle, the intruders eventually ran out the back door leaving behind a piece of a plastic gun and a backpack containing zip ties and duct tape.
Three weeks later, Clark County Sheriff's Detective Gordon Conroy interviewed Cossel and Jones. Conroy showed them a photo laydown containing several photos, including one of Haffner. Neither victim was able to make a positive identification.
Before trial, Haffner's counsel moved to exclude any incourt identification testimony from the victims. In court, when Jones identified Haffner as his assailant, Haffner renewed his objection. The trial court denied the motion to exclude the testimony, finding that Jones had made no prior out-of-court identification and that no overly suggestive conduct had been shown to taint Jones's identification testimony.
At trial, Jones indicated that he was 75 percent sure Haffner was one of the intruders. On cross-examination, Jones testified that Haffner "looks extremely similar to the man that was in my room that night." 1 RP at 83. Jones also testified that he was unable to identify Haffner from the photo laydown because the photos were "really poor quality." 1 RP at 84. When asked to quantify his statement that he was 75 percent certain that Haffner was one of the intruders, Jones stated that "I'm fairly certain" of Haffner's identity. 1 RP at 88.
A jury found Haffner guilty as charged and the trial court sentenced him to a total of 128 months confinement and 18 to 36 months community custody. Haffner appeals.
Discussion
Recording Interrogations
Haffner asserts that the trial court should have excluded testimony regarding his statements to investigating officers because they failed to electronically record their custodial interrogation of him. Haffner argues that article I, section 3 of the Washington Constitution affords greater protection than both the Fifth and Fourteenth Amendments to the United States Constitution and he urges us to interpret Washington's due process clause to require electronic recordings of interrogations.
Haffner contends that the entire interrogation should have been recorded by video to preserve visual aspects of the interrogation, including body language and demeanor. Haffner argues that this preservation is "highly relevant to presenting an accurate record of the interrogation." Br. of Appellant at 20 n. 6. Haffner states that, alternatively, any electronic recording — whether video or audio — of the entire interrogation should be required.
Federal courts have long held that the United States Constitution does not mandate electronic recording of custodial interrogations. See United States v. Coades, 549 F.2d 1303, 1305 (9th Cir. 1977) (rejecting defendant's request that the court adopt a rule requiring confessions to police be recorded because "such a rule" was a matter for consideration by Congress, not the courts). See also United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005) (citing United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004), cert. denied, 544 U.S. 968 (2005)); United States v. Short, 947 F.2d 1445, 1451 (10th Cir. 1991) (similar conclusion), cert. denied, 503 U.S. 989 (1992). Likewise Washington courts have held that such recordings are not required under the state constitution's due process clause. State v. Spurgeon, 63 Wn. App. 503, 505, 820 P.2d 960 (1991), review denied, 118 Wn.2d 1024 (1992). See In re Pers. Restraint of Matteson, 142 Wn.2d 298, 310, 12 P.3d 585 (2000); State v. Wittenbarger, 124 Wn.2d 467, 480, 880 P.2d 517 (1994); State v. Ortiz, 119 Wn.2d 294, 303, 831 P.2d 1060 (1992) (there are no material differences between the "nearly identical" provisions of the Fifth Amendment and state's article 1, section 3). See also RCW 9.73.090(1)(b) (not requiring recording of all custodial interrogations, but merely setting out requirements for any interrogation that is recorded).
To support his argument that we should refuse to follow long-standing federal and state precedent, Haffner cites to various non-binding authority, none of which demonstrates a flaw in the analysis of the controlling cases. Thus, we follow Spurgeon, holding that Washington's due process clause does not require electronic recording of custodial interrogations. Sentencing
In an alternative argument, Haffner urges us to exercise our "supervisory power" and "fashion" an exclusionary remedy mandating an electronic recording rule. But we agree with Division One, "such a sweeping change in longstanding police practice" requires "more prudential approach" where "the Legislature consider[s] the matter prior to such a change occurring." Spurgeon 63 Wn. App. at 508-09 n. 13 (quoting Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 448, 815 P.2d 1362 (1991)).
Haffner contends, and the State concedes, that Haffner's sentence on Count 2 exceeded the statutory 10-year maximum for attempted first degree robbery, a class B felony. Haffner was convicted of attempted first degree robbery. First degree robbery is a class A felony, with a maximum term of life imprisonment. RCW 9A.56.200(2); RCW 9A.20.021(1)(a). But an attempt to commit first degree robbery is a class B felony with a maximum sentence of 10 years. RCW 9A.28.020(3)(a), (b); RCW 9A.20.021(1)(b).
Haffner's judgment and sentence correctly indicates that the maximum sentence for the attempted first degree robbery offense is 10 years. But the trial court imposed a sentence of 128 months on Count 2 (attempted robbery), 116 months on Count 1 (first degree burglary), for a total of 128 months plus a community custody period of 18 to 36 months because Haffner's offender score was 13, greater than the top of the range. As to Count 2, the standard range sentence of 128 months plus a community custody term of 18 to 36 months clearly exceeds the ten-year (120 month) statutory maximum for attempted first degree robbery.
We are aware that first degree burglary is a class A felony with a maximum sentence of life, and that the trial court directed that Haffner's burglary and robbery sentences be served concurrently. Nevertheless, Haffner's maximum sentence for Count 2, attempted first degree robbery, is ten years (120 months). Thus, the sentence the trial court imposed on this count exceeded its authority.
A trial court may not impose a sentence providing for a term of confinement, community supervision, community placement, or community custody that, when added together, exceeds the statutory maximum for the crime. RCW 9.94A.505(5). See State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005) (vacated the sentence and remanded for resentencing a sentence exceeding the statutory maximum); State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004). Thus, we remand to the trial court for resentencing to a term that does not exceed the statutory maximum.
Ineffective Assistance of Counsel (SAG)
In his SAG, Haffner argues that his trial counsel was ineffective for failing to (1) move for "certain" jury instructions; (2) object to Jones's out-of-court identification; and (3) object to the police photo laydown. See RAP 10.10.
We presume that trial counsel's representation was effective. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To overcome this presumption, Haffner must show that his trial lawyer's performance was deficient and that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). And Haffner must show that this deficient performance was so inadequate that there is a reasonable probability that the result would have differed. If so, Haffner was prejudiced and our confidence in the outcome of the trial is undermined. Strickland, 466 U.S. at 694. But if legitimate strategic or tactical reasons for the challenged conduct appear in the record, the presumption of effective assistance of counsel stands. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
A. Photo Laydown and Out-of-Court Identification
Haffner challenges the trial court's decision allowing the victim to identify Haffner in court. Haffner claims that the identification was tainted by an impermissibly suggestive photo laydown and that allowing the tainted incourt identification violated his due process rights. But Haffner fails to point to any overly suggestive laydown procedures. And Haffner's trial counsel was not ineffective in this regard, as Haffner claims. Before, trial counsel moved to exclude Jones's identification and at trial he renewed the objection and tried to exclude Jones's incourt identification of the intruder. In addition, Haffner's trial counsel extensively cross-examined Jones and emphasized Jones's inability to identify Haffner's photo in the laydown and called into question the reliability of his incourt identification. Haffner's trial counsel also argued the unreliability of Jones's identification in his closing arguments.
See Neil v. Biggers, 409 U.S. 188, 193 n. 3, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (factors to consider when evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation).
Haffner has not shown that Jones's incourt identification violated due process or that his counsel's assistance was ineffective in this regard. Jones's testimony was tested through extensive cross-examination. Credibility determinations are for the trier of fact and are not subject to our review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004); State v. Hernandez, 85 Wn. App. 675, 672, 935 P.2d 623 (1997).
B. Jury Instructions
Although Haffner asserts that his counsel was ineffective for failing to request "certain jury instructions," because he does not state what jury instructions his trial counsel failed to propose, we are unable to review this claim. SAG at 2.
We affirm Haffner's convictions, accept the State's concession of error, and remand for resentencing on Count 2 to a term that does not to exceed the statutory maximum.
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.
HOUGHTON, C.J., PENOYAR, J., concur.