Opinion
No. 31249-2-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 02-1-01192-4. Judgment or order under review. Date filed: 11/21/2003. Judge signing: Hon. Russell W. Hartman.
Counsel for Appellant(s), Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Counsel for Respondent(s), Cami Gayle Lewis, Kitsap County Prosecutors Office, Ms 35, 614 Division St, Port Orchard, WA 98366-4681.
Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Richard Sauer appeals his convictions and sentences for first degree rape while armed with a deadly weapon, first degree kidnapping with a deadly weapon and sexual motivation, second degree assault, and taking a motor vehicle without permission. He argues that (1) because his kidnapping conviction merged with his rape conviction for sentencing purposes, imposition of a deadly weapon sentence enhancement on the kidnapping conviction constituted double jeopardy; (2) the State committed a Brady violation and denied him due process when it failed to inform him that the victim had subsequently forgotten whether her attacker was circumcised, in contrast to her previous statement that he was not circumcised; and (3) the trial court violated his Blakely right to a jury trial by imposing an exceptional sentence on the rape charge without having submitted the aggravating factor to the jury.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The State concedes that Sauer's deadly weapon sentence enhancement on the merged kidnapping charge violated double jeopardy. Accepting the State's concession, we remand for the trial court to vacate the deadly weapon sentence enhancement on the merged kidnapping charge; in all other respects, we affirm.
FACTS I. Rape
F.P. worked delivering newspapers at night to various businesses in the Port Orchard area. On July 31, 2000, F.P. unloaded newspapers at the Port Orchard QFC. Some time after midnight, a man she later identified as Richard Lynn Sauer approached her car, called out from across the parking lot to ask the time, continued to approach her car, and chatted with F.P. for approximately 15 minutes while she organized her newspapers. The parking lot was well lit and F.P. could clearly see Sauer.
Sauer told F.P. that his cousin had taken his truck, leaving him stranded, and that he needed a ride home. F.P. agreed to give Sauer a ride home.
Sauer directed F.P. to an unfamiliar street, and a dirt driveway with a chain link fence in front of it. Sauer got out of the car to move the fence. When he was unable to move the fence out of the way, he tried to lift it so F.P. could drive under it. But F.P. could not drive her car under the fence.
F.P. felt that she might be in danger. She picked up a pocketknife that she used to open newspaper bundles. When Sauer returned to the car, he reached over and took the knife from F.P.F.P. asked Sauer to leave the car.
Sauer did not leave. Instead, he used F.P.'s knife to cut off her clothing. Then he raped her, cutting her with the knife on her back, punching her in the face several times, pouring a bottle of alcohol over her, and hitting her in the side of her head with the empty bottle. After about an hour, Sauer threw F.P.'s clothes into the bushes, made her walk in her stocking feet as far as she could down the gravel driveway without looking back, and drove off in her car, leaving her wearing only socks at the end of the rural driveway.
F.P. ran to a nearby house to ask for help. The homeowners called 911. When medics and a sheriff's deputy arrived, F.P showed the deputy where the rape had occurred. F.P. related the details of the attack while the deputy drove F.P. to the hospital. At the hospital, a sexual assault nurse examiner treated F.P., documented her condition, and collected biological evidence in a rape kit. F.P. told the nurse examiner that her attacker was uncircumcised. Sauer, however, was circumcised.
II. Identification
During the following months, F.P. was unable to find her attacker among numerous photographic montages the police showed her.
Meanwhile, police found F.P.'s stolen vehicle with her bra inside, cut through the middle seam. They also located F.P.'s clothes in the bushes near the scene of the attack. Two years after the rape, Sauer submitted to a DNA sample, which Washington State Patrol Crime Laboratory tested and matched with DNA from F.P.'s rape kit vaginal swabs.
The prosecutor arranged for F.P. to attend Sauer's arraignment to determine whether she could identify him. As soon as Sauer was brought in to the courtroom with five other, defendants being arraigned, F.P. identified him as her attacker.
Ruling that Sauer was entitled to appointment of counsel under the Sixth Amendment, to protect his rights during this critical identification process, the trial court suppressed F.P.'s arraignment identification of Sauer. But after hearing F.P.'s testify about her ample opportunity to view her attacker, the trial court ruled that she could identify Sauer in open court at trial.
Two days before trial, the prosecutor met with F.P. to go over her testimony. When he told her that the circumcision issue would come up at trial, F.P. told the prosecutor that she could no longer recall whether or not her attacker was circumcised. The prosecutor did not inform defense counsel that F.P. had changed her previous position that her attacker was not circumcised.
Sauer's counsel first learned about F.P.'s unclear memory during her cross examination, when she testified that she did not remember having said that her attacker was uncircumcised, although she recalled thinking it sometime within the last year.
III. Procedure
The State charged Sauer with one count of first degree rape, with a special allegation that he was armed with a deadly weapon; first degree kidnapping, with deadly weapon and sexual motivation special allegations; second degree assault; and taking a motor vehicle without permission.
A jury returned guilty verdicts on all counts and affirmative special verdicts on the deadly weapon and sexual motivation special allegations.
Sauer moved for a new trial based on the State's failure to disclose that F.P.'s recollection of the attacker's circumcision status had changed before trial. Although defense counsel contended he would have approached cross examination differently if he had received advance notice, he did not explain how.
When the trial court asked defense counsel how cross examination would have been different, and counsel replied, `I can't tell the Court exactly what I would have done but I know that things changed apparently two days before.' Report of Proceedings (RP) (10/31/03) at 16-17. When the trial court then asked why counsel could not have cross examined F.P. about her change in story at trial, defense counsel replied, `Again, I can't go back to why — if you asked why didn't I or couldn't I? I suppose I could have.' RP (10/31/03) at 17.
The trial court remarked, `When the witness doesn't recall all you can do is go to the record and find the things where they actually made the statement and put them in front of the trier of fact, and you did that.' RP (10/31/03) at 17. Defense counsel stated he understood, and he responded, `[M]y approach certainly would have been reevaluated and very possibly changed had I known that she would have testified that way when she was so clear earlier.' RP (10/31/03) at 18. Still, defense counsel offered no particulars about how his cross examination would have differed in content.
The trial court ruled that F.P.'s change in testimony was material and that the State should have timely disclosed this change to the defense. The court also found that (1) Sauer had `succeeded in introducing all of the victim's prior inconsistent statements regarding circumcision and argued [his] theory of the case without impediment to the jury,' Clerk's Papers (CP) at 147; and, therefore, (2) because Sauer had made the same factual presentation to the jury as he would have made even if the State had timely disclosed the victim's changed recollection, there was no prejudice to Sauer. The trial court concluded that a new trial was not required and denied Sauer's motion.
The trial court ruled that Sauer's kidnapping conviction merged with his rape conviction and, therefore, for sentencing purposes, it would sentence Sauer only for the rape, second degree assault, and taking a motor vehicle without permission convictions. The trial court imposed: an exceptional sentence of 400 months for Sauer's rape conviction, with a 48-month deadly weapon enhancement; 84 months for the second degree assault and 29 months for taking a motor vehicle without permission, to run concurrently; and additional time for the deadly weapon enhancement on the merged kidnapping charge, resulting in a total sentence of 496 months. The record does not show that Sauer objected at the time of sentencing.
Sauer appeals. The State concedes that imposition of the deadly weapon enhancement on the merged kidnapping conviction was error.
ANALYSIS I. Prosecution's Failure to Disclose
Sauer argues that the State's failure to inform him about the victim's changed recollection of whether her attacker was circumcised denied him due process of law. We disagree.
We do agree, however, that the State has an obligation to disclose to the defense in a criminal prosecution all material exculpatory evidence in its possession. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). And this duty to disclose encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. In re Personal Restraint of Gentry, 137 Wn.2d 378, 396, 972 P.2d 1250 (1999). A `reasonable probability' is a probability sufficient to undermine confidence in the outcome of the trial. Gentry, 137 Wn.2d at 396. We review alleged Brady violations de novo. United States v. Woodley, 9 F.3d 774, 777 (9th Cir. 1993).
Sauer argues that (1) F.P.'s failure to remember her attacker's circumcision was material information critical to the defense; (2) had the State timely disclosed this information before trial, as required, then Sauer would have been prepared to impeach F.P.'s testimony more thoroughly and effectively; and (3) the State's failure to disclose undermines confidence in the outcome of the case. We agree with Sauer that the prosecutor should have timely disclosed F.P.'s changed recollection. But this defect is not determinative here.
Sauer has failed to show materiality, namely a `reasonable probability' that a more timely disclosure would have affected Sauer's ability to present his defense and, therefore, that the jury's verdict would have been different. Gentry, 137 Wn.2d at 396. First, the State identified Sauer as the attacker when his DNA matched the DNA found in the victim's vagina after the rape, proving that there was only one chance in 8.4 quadrillion that F.P.'s attacker was not Sauer. Second, F.P. positively identified Sauer at trial. Third, in spite of his late discovery of the victim's changed recollection, defense counsel extensively cross examined F.P. about her prior inconsistent statements that her attacker was uncircumcised, after she testified at trial that she could not remember. Fourth, as the trial court accurately noted at the hearing on Sauer's motion for a new trial, Sauer could not articulate how his impeachment of F.P. would have been different had the State timely disclosed the discrepancy.
Therefore, we agree with the trial court that the State's pre-trial failure to disclose F.P.'s changed recollection, though improper, did not undermine confidence in the outcome of the trial and did not warrant a new trial. Gentry, 137 Wn.2d at 396. Accordingly, we hold that there was no Brady violation, and we affirm the trial court's denial of Sauer's motion for a new trial.
II. Sentencing A. Deadly Weapon Enhancement on Merged Kidnapping Conviction
Sauer next argues that imposing a deadly weapon enhancement on the kidnapping conviction violated his constitutional protections against double jeopardy. The State agrees that, because the trial could and did not sentence Sauer on the merged kidnapping offense, it could not impose a deadly weapon sentence enhancement based on the kidnapping conviction.
Accepting the State's concession of error, we hold that the trial court erred in imposing a separate deadly weapon sentence enhancement on the kidnapping charge.
B. Exceptional Sentence on Remand
Sauer next argues that (1) the trial court erred in imposing an exceptional sentence based on judicially determined facts, contrary to the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L.E. 2d 403 (2004); and (2) we should remand for resentencing within the standard range because there is no constitutionally acceptable statutory provision for impaneling a jury on remand to determine whether aggravating factors sufficient to support an exceptional sentence exist. We disagree.
The trial court imposed an exceptional sentence on the following grounds: (1) Sauer's conduct manifested deliberate cruelty to the victim; (2) the operation of the multiple offense policy results in a presumptive sentence that is clearly too lenient in light of Sauer's offender score greater than nine and the resulting `free,' i.e. unpunished, crimes of second degree assault and taking a motor vehicle without permission; and (3) the current offenses demonstrated Sauer's rapid recidivism. Significantly, the court concluded, `Any of these aggravating factors alone would have justified the court's imposition of an exceptional sentence.' CP at 153 (emphasis added).
At the time of sentencing, Sauer had an offender score well above the maximum of nine. Under the applicable statutory sentencing scheme, his second degree assault and taking a motor vehicle without permission sentences were presumed to run concurrently with his rape sentence, thus resulting in the first two crimes going unpunished as `free crimes.'
The State notes that although Sauer's offender score must be reduced because of the merger of the kidnapping and rape charges, his offender score was originally miscalculated at 18. The State contends that Sauer's offender score should have been 20 and that after subtracting three points for the merged kidnapping, it would be 17.
Regardless of whether Sauer's offender score is 17 or 18, however, it is well above the recognized statutory maximum of nine for the purposes of `free crimes' analysis. See State v. Van Buren, 123 Wn. App. 634, 651, 98 P.3d 1235 (2004).
In State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d 319 (1991), our Supreme Court held that a defendant who is already at the upper limit of the sentencing grid `should receive a greater punishment if he commits more than one current crime.' Otherwise, a defendant in such circumstances receives no punishment for one or more of his current offenses, resulting in so-called `free crimes.' State v. Van Buren, 123 Wn. App. 634, 651, 98 P.3d 1235 (2004). Such circumstances prompt the trial court to inquire whether there are substantial and compelling reasons justifying an exceptional sentence. As our Supreme Court held in State v. Smith, This inquiry is automatically satisfied whenever `the defendant's high offender score is combined with multiple current offenses so that a standard sentence would result in `free' crimes — crimes for which there is no additional penalty.'
123 Wn.2d 51, 56, 864 P.2d 1371 (1993) (emphasis added) (quoting Stephens, 116 Wn.2d at 243).
We have recently rejected similar Blakely challenges and affirmed similar exceptional sentences based on offender scores in excess of nine and the operation of the multiple offense policy. In Van Buren, we reasoned that Blakely does not affect our statutory free crimes analysis, based on determining the defendant's offender score, and, therefore, it does not require weighing evidence, determining credibility, or making a finding of disputed facts by any fact-finding body, including a jury. Van Buren, 123 Wn. App. at 653.
Van Buren, 123 Wn. App. 634; accord, State v. Alkire, 124 Wn. App. 169, 100 P.3d 837 (2004).
Here, the trial court applied the free crimes analysis and specifically concluded that this aggravating factor alone supported an exceptional sentence. As we held in Van Buren, Blakely does not require submission of this exceptional sentencing factor to a jury. Accordingly, we find no error in the trial court's imposition of an exceptional sentence based on Sauer's prior crimes, his offender score, and the fact that some of his crimes would go unpunished without imposition of an exceptional sentence.
We need not, therefore, address Sauer's argument that we should remand for resentencing within the standard range. We note, however, that even if it were necessary to remand for resentencing, we would direct the trial court to empanel a jury to determine the aggravating factors for an exceptional sentence. See State v. Fero, ___ Wn. App. ___, 104 P.3d 49, 58 (2005), adopting Division One's analysis in State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004) (Washington courts have inherent authority to empanel juries to consider aggravating factors).
We remand to the trial court to vacate the deadly weapon enhancement on the merged kidnapping conviction. In all other respects, we affirm Sauer's convictions and exceptional sentences.
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.
QUINN-BRINTNALL, C.J. and VAN DEREN, J., concur.