Opinion
No. 49282-9-I.
Filed: March 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-1-10284-1. Judgment or order under review. Date filed: 08/31/2001. Judge signing: Hon. Charles W Mertel.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Michael Peters robbed a children's clothing store at knifepoint. Because the trial court did not err in admitting evidence of a similar uncharged robbery, and Peters' other contentions are without merit, we therefore affirm his robbery conviction and his sentence under the Persistent Offender Accountability Act.
FACTS
At approximately 5:50 p.m. on August 30, 2000, Michael Peters entered Little Munchkins Too, a children's clothing consignment store in West Seattle. Lorraine Garcia, the owner, was working alone. Peters approached the counter and asked Garcia to give him all her money. She gave him a $1 bill, the only money left in the till, and tried to call 911, but Peters pulled out a knife and cut the phone cord. He then made Garcia open several boxes behind the counter and asked for her purse, but she refused to give it to him. Peters went behind the counter and removed about $10 to $13 in coins. He then backed out of the store, holding the knife and warning Garcia that if she told anyone, he would come back.
Sometime between 2 and 4 p.m. on September 3, 2000, a man, also alleged to be Peters, entered Payless Shoes in West Seattle. At the time, the store's two employees, Sotravy Ngeth and Elena Mazurtes, were in a back room eating lunch. Ngeth heard the doorbell and went to assist the customer. Peters had a brief discussion with Ngeth, before informing her that he was just going to buy some socks. Ngeth returned to the backroom. Mazurtes, who had returned to the register, rang up the socks. Peters then pulled out a knife and told her to open the till and give him the money inside, including coins. She did so. Peters then asked if there was more money in the store, and Mazurtes directed him to the back room. Once there, Peters questioned Ngeth about whether money from the store had been deposited, and asked for the money in her purse. He unplugged the phone, rummaged through some drawers, and told Ngeth and Mazurtes to go into the bathroom and stay there for at least five minutes.
Peters was charged with two counts of first degree robbery. A jury found him guilty of the Little Munchkins Too robbery, but could not reach a verdict on the Payless Shoes robbery. Peters was sentenced to life imprisonment without parole under the Persistent Offender Accountability Act.
DISCUSSION Speedy Trial Violation
Peters was arraigned 71 days after the filing of the information. He contends the court should have imposed a constructive arraignment date based on the date the information was filed.
A defendant who is detained or in jail or subject to conditions of release must be arraigned within 14 days after the date the indictment or information is filed in superior court. Former CrR 3.3(c)(1) (2000), amended effective September 1, 2003. If the defendant is not released from jail pending trial, he or she must be brought to trial no later than 60 days after arraignment. Id. Where a defendant is held in custody pending trial on another charge, that time is excluded from the time allowed for speedy trial and arraignment. Former CrR 3.3(g)(2) (2000), amended effective September 1, 2003.
The current rules have enlarged the periods excluded from the speedy trial computation to include arraignment, pretrial proceedings, trial, and sentencing on an unrelated charge. CrR 3.3(e)(2).
Where a `long and unnecessary' delay occurs in bringing a defendant who is amenable to process before the court, a constructive arraignment is set 14 days after the filing of the information, and the defendant must be brought to trial in timely fashion. State v. Huffmeyer, 145 Wn.2d 52, 57-58, 32 P.3d 996 (2001). The delay must be unnecessary; no constructive arraignment date arises `where the [S]tate acted with good faith and due diligence in attempting to bring the defendant before the court.' Id. at 58. Due diligence requires the State to do something to locate the defendant and bring him or her to trial once proceedings in alternate jurisdictions are complete. Id. at 63. Here, the State acted with due diligence, and the constructive arraignment rule did not apply.
The information in Peters' case was filed on October 19, 2000. Peters was then detained in Spokane on an unrelated escape charge. The trial court therefore continued Peters' arraignment on October 30. On November 21, the court continued arraignment until December 19 because Peters was `in Spokane Co. Jail pending trial on escape 1 charges.' Clerk's Papers at 245. On December 12, the court ordered Peters to be brought to King County, and continued arraignment to December 29 to allow time for the transport. Peters was arraigned on December 29. Counsel lodged a pro forma objection to the date of arraignment. On January 9, less than two weeks later, Peters waived his speedy trial right.
Peters contends the time in custody in Spokane should not be excluded from the speedy trial and arraignment calculation because time excluded under former Cr3.3(g)(2) does not include time spent waiting for sentencing. Peters points out that no actual evidence appears in the record as to the status of the charges pending in Spokane. In its requests for continuances, the State merely reported that Peters was in the Spokane County jail. The continuance orders, however, recite that Peters was being held pending trial; no evidence contradicts these recitals. They are therefore the only evidence pertinent to our review. The time at least up to November 21 was thus properly excluded under former CrR 3.3(g)(2).
When the State made its request for a transport order on December 12, it mentioned that Peters was housed at the Department of Corrections. RCW 36.63.255 requires transfer to the Department of Corrections within 30 to 40 days of sentencing to DOC custody. Peters thus argues that if he was in prison on December 12, the November 21 order was incorrect in reciting that he was in custody `pending trial.' This conclusion does not follow. The statutory time frame for transfer to the Department of Corrections may be waived, and the statute does not support a conclusive inference that 30 days passed between sentencing and Peters' transfer to Department of Corrections' custody. The record discloses no violation of Peters' speedy trial right.
CrR 8.3(b) Motion to Dismiss
Under CrR 8.3(b), criminal charges may be dismissed if a defendant makes a showing of governmental misconduct that prejudiced his right to a fair trial. If the State's inexcusable failure to act with due diligence causes material facts not to be disclosed to a defendant until shortly before a crucial stage in the litigation, it is possible that a defendant's right to a speedy trial or his right to be represented by adequately prepared counsel may be impermissibly prejudiced. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). A ruling on a CrR 8.3(b) motion is reviewed for abuse of discretion, and should not be overturned unless the decision was manifestly unreasonable. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
On May 8, shortly before the scheduled May 15 trial date, the State informed the defense of its intent to offer evidence of an uncharged robbery at trial. Both parties were aware of the evidence regarding the prior robbery. Peters contends the State's late decision to use this evidence constituted mismanagement and required dismissal under CrR 8.3(b). The State had affirmatively disavowed any intent to offer the evidence. Then on May 3, the State was informed of Peters' intention to call an expert on the reliability of eyewitness identification.
For a description of the uncharged robbery, see discussion of ER 404(b) evidence below.
At a hearing on May 4, the State again agreed it would not offer any ER 404(b) evidence in its case-in-chief `unless door is opened' by defense counsel. Clerk's Papers at 270. Then on May 8, the State advised the defense that it would offer the ER 404(b) evidence after all. On May 15, Peters moved for dismissal under CrR 8.3(b), or, in the alternative, for a continuance until May 21 to enable him to prepare for trial. The State advised the court its position changed when it reevaluated in light of Peters' endorsement of the witness. The court refused to dismiss, and granted a continuance.
Peters contends the need to respond to expert testimony was an insufficient justification for the late endorsement of the ER 404(b) evidence, particularly where the State knew the defense theory would be one of general denial. Peters' introduction of expert testimony, however, went to the reliability of eyewitness identifications that were a key element of the State's case. The State offered the evidence of an uncharged offense to support those identifications, and acted promptly after Peters endorsed its witness. The trial court did not abuse its discretion in denying Peters' CrR 8.3 motion.
Exclusion of African-American Jurors
A prosecutor's use of a peremptory challenge on the basis of race violates a defendant's right to equal protection. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). In order to contest a peremptory challenge, the defendant must first make out a prima facie case of racial motivation. To meet this burden, the defendant must show (1) that the peremptory challenge was exercised against a member of a constitutionally cognizable group, and (2) that this fact, considered along with other relevant circumstances, raises an inference that the prosecutor's challenge was based on the prospective juror's membership in that group. State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996) (citing State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992)).
If the defendant establishes a prima facie case, the burden shifts to the State to give a race-neutral explanation for the exercise of the peremptory challenge. Batson, 476 U.S. at 96-98; Luvene, 127 Wn.2d at 699. If, however, the prosecutor volunteers a race-neutral explanation before the trial court rules on whether the defendant has made out a prima facie case, and the trial court then rules on the ultimate question of racial motivation, the preliminary prima facie case evaluation is unnecessary. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Luvene, 127 Wn.2d at 699. A trial court's determination is accorded great deference on appeal, and will be upheld unless clearly erroneous. Hernandez, 500 U.S. at 364; Luvene, 127 Wn.2d at 699.
In this case, out of 45 prospective jurors, three were African-American. Of these, one was excused for medical reasons, and the other two were challenged by the State. Peters made a Batson challenge, to which the State responded by stating its reasons. The trial court denied the Batson challenge and excused the jurors. In its ruling, the court stated that Peters had not made out a prima facie case that the jurors had been excused solely on the basis of race.
Peters had made out a prima facie case, but the ruling denying the Batson challenge was correct. As the court noted, both jurors had voiced strong views on identification testimony. Both had refused to state they would convict a person based on the testimony of only one eyewitness. Juror 36 mentioned that there had been `a few cases lately of people that have spent many, many years in prison based on eyewitnesses of the victim being raped or whatever, and DNA has proved the person is innocent.' Report of Proceedings (RP) (June 4, 2001) at 87-88. In response to a hypothetical involving a victim's description of a suspect, Juror 13 stated, `There's a lot of white guys in this building with short dark hair, and to single him out by just that description, a white guy with short hair, I don't know if that's good enough.' RP (June 4, 2001) at 143-44. The prosecutor recalled that other jurors appeared offended by that remark. The jurors' comments support the State's concerns, particularly in a case where identity was to be the main issue. The trial court's ruling on Peters' Batson challenge was not clearly erroneous.
ER 404(b) Evidence
Peters' chief contention is that the trial court erred in admitting evidence of an uncharged robbery under ER 404(b). Bonnie Jansson and Megan Clark were working at a Hallmark store in Burien at about 6:45 pm on August 30, 2000. A man approached Jansson and asked for a humorous card. Jansson directed him to a section of the store and returned to stocking cards. The man eventually picked a card and walked toward the register, out of her sight. After Clark rang up the sale, the man pulled out a knife and told her to take the money out of two of the three cash registers. She gave him approximately $200 to $400. He backed up a few feet and warned her not to run out of the store screaming. He then turned and walked out, leaving the card on the counter. His fingerprint was on the card.
Evidence of other crimes may be admitted to prove identity or common scheme or plan. ER 404(b). `To admit evidence of other wrongs, the trial court must: (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify the purpose for which the evidence is sought to be introduced; (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. In doubtful cases, the evidence should be excluded.' State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002) (citing State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995); State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)). We review admission of evidence under ER 404(b) for abuse of discretion. Id.
The court admitted the evidence as relevant to establishing identity and/or a common scheme or plan. Peters contends that because the Hallmark robbery did not share unique characteristics with the charged offenses, it had no such relevance.
Peters also asserts that the court did not properly conduct the balancing test once it found the Hallmark incident relevant. He argues that because the court admitted this was a `hard call,' it should have applied the presumption in favor of exclusion. RP (May 31, 2001) at 10. But the court clearly weighed the probative value of the evidence against its prejudicial effect; it did not err in applying the fourth part of the ER 404(b) test.
Evidence of other bad acts introduced to show identity is usually relevant only if the method employed in the commission of both crimes is so unique that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged. Thang, 145 Wn.2d at 643 (citing State v. Russell, 125 Wn.2d 24, 66-67, 882 P.2d 747 (1994)). But `[e]ven when features are not individually unique, appearance of several features in the case to be compared, especially when combined with a lack of dissimilarities, can create sufficient inference that they are not coincidental, thereby justifying the trial court's finding of relevancy.' Id. at 644 (citing State v. Jenkins, 53 Wn. App. 228, 237, 766 P.2d 499 (1989) (pipe wrench burglaries, brown Camaros, and ground floor entries are not unique, but when combined with the crimes' other similarities, they created striking similarities sufficient for admission as evidence of identity)). Factors relevant to determining the similarity between crimes include geographical proximity, commission of the crimes within a short time frame, and the defendant's clothing or appearance. Thang, 145 Wn.2d at 643 (citations omitted). Evidence of prior conduct may also be admitted under ER 404(b) to establish a common scheme or plan if it reflects not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations. State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995).
Here, the trial court determined that the similarities between the crimes were sufficient to find the Hallmark incident relevant to both identity and common scheme or plan. The court noted that the Hallmark and Little Munchkins Too robberies took place within an hour of each other on the same day, eight miles apart. The Payless Shoes robbery occurred four days after the other two crimes, in the same general geographic area. All the robberies were committed with a knife; all the victims gave similar descriptions of the robber's appearance, clothing, and knife. The court acknowledged that these were not signature crimes, but found the similarities striking enough to create an inference that they were not coincidental. We agree. The court found that all three robberies were also relevant to a common scheme or plan of robbing small businesses unprotected by security cameras or guards, staffed by one or two female employees unlikely to resist, towards the close of the business day, when they were empty of customers (or nearly so). These features were sufficiently similar to suggest a general plan. The court's ruling did not constitute an abuse of discretion.
Peters points to aspects of the crimes cited by the court in its ruling, some of which were slightly inaccurate. The inaccuracies were minor, however, and there is nothing in the ruling to suggest these errors were determinative.
Peters also contends the evidence admitted under ER 404(b) exceeded that necessary to prove an essential ingredient of the crime. See State v. White, 43 Wn. App. 580, 587, 718 P.2d 841 (1986). Peters argues that the court admitted so much evidence on the Hallmark incident that it amounted to a trial on an uncharged crime. But Peters made no objection to the amount of ER 404(b) evidence admitted at trial.
Even if admission of the Hallmark evidence was improper, the error was harmless. An error under ER 404(b) is nonconstitutional in nature, so the question is whether it is reasonably probable the outcome of the trial was materially affected. State v. White, 43 Wn. App. 580, 587, 718 P.2d 841 (1986). The purpose of ER 404(b) is to prevent consideration of prior bad acts evidence as proof of a general propensity for criminal conduct. State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993). Here, Peters was not convicted of the Payless Shoes robbery, for which the eyewitness testimony was more tentative. This is a strong indication that the jury did not infer a general criminal propensity from the Hallmark evidence. Peters thus cannot show that admission of the Hallmark incident materially affected the outcome of his trial.
Peters also contends the trial court erred in refusing to give his proposed limiting instructions on the ER 404(b) evidence. But these instructions invited the jury to make determinations of relevancy and admissibility that are properly the sole province of the trial judge. See Hull v. Enger Const. Co., 15 Wn. App. 511, 518, 550 P.2d 692 (1976). The limiting instruction given was a correct statement of the law. The trial court did not err in refusing to give Peters' instructions. Witness Identification Evidence.
Peters challenges both the photomontage procedures and the subsequent in-court identification testimony. An out-of-court photographic identification meets due process requirements if it is "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, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968)). A defendant challenging a photomontage must first show that the identification procedure was suggestive, i.e., that it "directs undue attention to a particular photo." State v. Kinard, 109 Wn. App. 428, 433, 36 P.3d 573 (2001) (quoting State v. Linares, 98 Wn. App. 397, 403, 989 P.2d 591 (1999)), review denied, 146 Wn.2d 1022 (2002). If so, we must determine whether the suggestive procedure created a substantial likelihood of irreparable misidentification, considering the opportunity of the witness to view the suspect at the time, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Kinard, 109 Wn. App. at 434 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).
Peters contends the montage shown to Ms. Garcia was impermissibly suggestive because Peters' photo was the only one showing a man with parted lips, and Ms. Garcia testified that she relied on this facial feature in making her identification. In addition, when Ms. Garcia was shown a previous montage, she told a police officer that the man who robbed her had much fuller lips than anyone in the photos. Peters suggests this led the police to construct a montage that highly emphasized his lips.
The trial court concluded that there was no impermissible suggestiveness in the montage, and that the `fact that the defendant's lips were separated in the photograph was not inappropriate in any sense'. Clerk's Papers at 354. We agree. Each photo in the montage is distinctive; no one photograph draws attention to itself more than any other. The appearance of Peters' lips is not impermissibly suggestive.
Nor did the montage create a substantial likelihood of irreparable misidentification. During the robbery, Ms. Garcia was alone with the robber, face-to-face, for several minutes. She was particularly attentive because she had been robbed before. In addition to her description of Peters' lips, Ms. Garcia accurately described Peters' race, age, build, hair color, and complexion. In an earlier montage, Ms. Garcia recognized no one. In this montage, she was positive in identifying Peters. The montage occurred less than a month after the robbery. The montage did not create a substantial likelihood of irreparable misidentification.
After Ms. Garcia viewed the montage and made her selection, she was very frightened. A detective attempted to reassure her, and told her that the man she had identified was in custody in Spokane. The detective did not tell Ms. Garcia she had picked the right suspect. Peters maintains the detective's comment tainted Ms. Garcia's subsequent in-court identification. At trial, Ms. Garcia testified the detective's comment had no influence on her identification. The court did not abuse its discretion in admitting Ms. Garcia's in-court identification, and allowing the jury to determine what, if any, weight to give to the detectives' remark.
The trial court found that the detective's comments were consistent with RCW 7.69.030's statutory protections for victims' rights. As Peters points out, no statutory authorization exists for law enforcement to comment on a suspect's custody status during an identification procedure, regardless of an intent to reassure victims.
Sentencing
Peters was sentenced to life in prison without the possibility of parole under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. He argues that his sentence deprived him of his right to notice, a jury trial, and proof beyond a reasonable doubt in violation of the Fifth and Sixth Amendments to the United States Constitution and article I, sections 3. 21 and 3.22 of the Washington State Constitution. The Washington Supreme Court recently rejected these arguments in State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003). Peters also contends the POAA violates the ex post facto clause of the United States and Washington Constitutions and constitutes a bill of attainder. These issues were decided to the contrary in State v. Anghern, 90 Wn. App. 399, 344, 952 P.2d 195, 136 Wn.2d 1017(1998) (POAA is not an ex post facto law), and State v. Manussier, 129 Wn.2d 652, 665-66, 921 P.2d 473 (1996) (POAA does not constitute a bill of attainder).
Peters also contends that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 14 of the Washington State Constitution. In State v. Rivers, 129 Wn.2d 697, 712-15, 921 P.2d 495 (1996), the Washington Supreme Court examined whether a life sentence under the POAA based on a second degree robbery conviction constituted cruel punishment. Applying the proportionality test set out in State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980), the court held that the sentence imposed was not grossly disproportionate to the offense committed. Peters' prior strike convictions were all for first or second degree robbery. Under Rivers, Peters' sentence does not violate the constitutional prohibition against cruel punishment. Rivers, 129 Wn.2d at 715.
Peters also argues that because he was `inordinately polite' and took only $13, he is not the kind of violent offender at which the POAA is directed. Br. of App. at 53. But robbery is a serious violent offense, however politely the threat is made and however poor the victim.
Peters also argues that his sentence was based on prior convictions that were not proved by sufficient evidence and/or were facially invalid. To support a sentence under the POAA, the State must prove the existence of prior convictions by a preponderance of the evidence. State v. Vickers, 148 Wn.2d 91, 120, 59 P.3d 58 (2002). Sentencing documents from prior cases in defendant's name constitute prima facie evidence of the defendant's identity as the perpetrator. State v. Ammons, 105 Wn.2d 175, 190, 713 P.2d 719 (1986). If a defendant denies he is the offender named in the documents, other evidence such as `fingerprints, court personnel present at the prior adjudication, or institutional packets' should be accepted as independent evidence of the defendant's identity as the perpetrator of the prior crimes. Id.
Here, the certified copy of a judgment and sentence in a 1986 conviction for second degree robbery contained fingerprints conclusively shown to be Peters'. The State also offered a copy of a 1989 first degree robbery conviction, but the fingerprints on the judgment and sentence were not of comparison value. The State therefore submitted certified documents from the Department of Corrections and the Washington State Patrol containing fingerprints establishing that Peters served prison sentences for both prior convictions. The trial court did not abuse its discretion in admitting this as independent evidence that the prior offenses were Peters' prior offenses.
Peters also argues that his prior convictions were facially invalid because the plea statements failed to list all of the elements of the crimes. But absent affirmative evidence that a defendant was not informed of all the elements of his crime, a plea form that does not set forth all the elements of the crime is not invalid on its face. Ammons, 105 Wn.2d at 188-89. The evidence of Peters' prior convictions was sufficient to support a sentence of life without the possibility of parole under the POAA.
Affirmed.
COLEMAN and AGID, JJ., concur.