Opinion
No. 34309-6-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05095-4, Bryan E. Chushcoff, J., entered January 13, 2006.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, University Place, WA 98466-4495.
Counsel for Respondent(s), Michelle Luna-green, Pierce Co Pros Attorney, Tacoma, WA 98402-2171.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
James S. Anderson appeals his conviction of first degree robbery, arguing that the trial court erroneously admitted lay opinion testimony, that insufficient evidence supported his conviction, that the State withheld exculpatory evidence, that the State's key witnesses committed perjury, and that he received ineffective assistance of counsel. We affirm.
Facts
On April 8, 2004, a group of young black men robbed a Tacoma Safeway. Jerry Medacco was working the nightshift at about 4:00 a.m. when the robbery occurred. About 20 minutes after he saw the men come into the store, one of them put a revolver to his back and said, "This is a robbery." Report of Proceedings (RP) at 221-22. Another man directed Medacco to the front of the store where a third man stood at the register with a gun shoved in his pants and a fourth stood by the door. Medacco heard the man at the register tell store manager Patty Delespine to open it, and Medacco saw her remove at least $1,000 from the till. The man then took Delespine over to the safe located in a small office and said, "If you don't open the safe, we're going to take you with us." RP at 224. Neither Delespine nor Medacco knew the combination to the safe.
After being ordered to the back of the store, Delespine and Medacco waited a few minutes before calling the police. Officers responded immediately and took statements from the two employees. The only additional evidence they obtained from the scene was surveillance videotapes revealing images of three men.
After viewing one videotape and talking to the employees, Tacoma Police Officer Joshua White identified three suspects: Suspect No. 1 was wearing a fishing hat, gray coat and dark pants; Suspect No. 2 was wearing a white coat, dark pants and a green baseball cap; and Suspect No. 3 was wearing a white baseball hat, blue hooded sweatshirt and blue pants. The police subsequently isolated images of the suspects from the Safeway surveillance videotapes and printed them as photographs.
From late March to May 2004, the police investigated a series of armed robberies throughout Pierce County and ultimately concluded that the same people were involved. Anderson's name came up during that investigation, but Medacco was unable to pick him out of a photo montage.
Eventually, officers arrested a group of individuals suspected in the robberies during a traffic stop. Two of them, Robert Hunt and Marlon Brewer, came forward with information regarding the robberies.
Detective Jerry Reidburn questioned Brewer, and he provided specific details that the general public would not have had about the robberies. Reidburn showed him some of the video surveillance photographs from the Safeway robbery and Brewer identified "Murdock" as one of the individuals pictured. RP at 366-67. Brewer was then shown a booking photo of Anderson and identified him as "Murdock." RP at 367. Brewer mentioned Anderson only with reference to the Safeway robbery and said he had gotten his information from Antoine Goolsby, one of the other participants. After determining that Brewer's information was reliable, the detectives made a deal with him.
Robert Hunt also cooperated with the police. When shown the same photographs from the Safeway robbery, Hunt identified one of the men as Anderson and informed police that Anderson went by the street name of "Murdock" or "Dock." RP at 370-71.
The State charged Anderson with first degree robbery based on the April 8 robbery of the Safeway store. Anderson represented himself at trial.
Medacco and Delespine testified but were unable to identify Anderson as one of the robbers. Anderson did not object to the admission of Exhibits 26 through 44, which were photographs of the suspects taken from the Safeway surveillance videotapes.
Brewer testified that he decided to cooperate with detectives because "[e]verything is on tape. Sooner or later somebody was going to break down." RP at 431. Brewer identified Anderson in court as "Murdock." RP at 436-37. He met Anderson after the Safeway robbery while driving around with Antoine Goolsby. At that time, Anderson had a scruffy beard. When shown Exhibit 27, one of the Safeway photographs, Brewer initially expressed uncertainty as to whether one of the two men shown was Anderson or Goolsby, but when he realized that Goolsby was wearing the fishing hat and rings as shown on Exhibit 30, he clarified that Anderson was pictured on Exhibit 27.
Hunt also testified for the State and identified Anderson in court as the person he knew as "Dock" and "Murdock." RP at 485, 495. He met Anderson in early April when he went over to Goolsby's house to have some work done on his car. When Hunt talked to Anderson about making money, Goolsby suggested that Hunt come do robberies with them. Hunt saw Anderson, Goolsby, "BG," and "Mitch-Mitch" hanging out a few days later at a car wash. RP at 502. A week after their first meeting, Hunt met with the same group at another friend's home. The others asked Hunt if he had ever made $1000 in five minutes. Anderson and BG talked about a Safeway robbery on Sixth Avenue the day before, and Anderson, BG, and Goolsby had a stack of money. Hunt also saw a collection of clothing belonging to Goolsby that people could use in the robberies.
Hunt testified that he knew Anderson and BG were involved in the Safeway robbery because they showed him the money. He also knew Mitch-Mitch participated because he knew what he looked like. He testified that Goolsby was also involved. Hunt identified BG and Anderson as the two men shown in Exhibit 27, and BG and Mitch-Mitch as the two shown in Exhibit 30. Hunt also identified Anderson as the sole person depicted in Exhibits 42, 43, and 44, as shown by his white cap and facial hair.
Hunt recalled Anderson's hair at the time of the offense as being "low" or short, with a stubby beard and mustache. RP at 498-99. He explained that Anderson's appearance had changed since the time of the robbery because he was now clean shaven and bald.
The sole defense witness was Anderson's girlfriend, Hasani Ballard-Martinez. Martinez testified that Anderson was asleep in bed with her in California in the early morning hours of April 8, 2004. She cooked dinner for him that evening and the next day they drove to Los Angeles to see her mother. She testified that she and Anderson exchanged letters while he was in jail and he let her know that April 8 was an important date. Martinez added that Anderson was in the Los Angeles County Jail from April 1 to April 6, 2004.
The jury convicted Anderson as charged. Before sentencing, the court received an anonymous phone call implicating another man in the robbery. The transcript of the call, copies of which were sent to the parties, provided as follows:
Hi, this is an anonymous phone call. I just want to say that Christopher Wayne Washington is the person who robbed the Safeway store on 4/8/04 around 3:45 a.m. in the morning at the 626-6201 Sixth Avenue, Tacoma, for the Safeway store, and Christopher Wayne Washington is now in jail or prison for that robbery.
And I also want to say that James S. Anderson is innocent. He did not do the robbery for the Safeway store. Christopher Wayne Washington is the man you want for the robbery.
Thank you.
Clerk's Papers (CP) at 111. When Anderson asked for a continuance so that the matter could be investigated, the State announced that it had some information about Washington. The State explained that Washington's true name was Wayne Christopher Washington, Junior, and that he was connected to Goolsby. Washington had pleaded guilty to robbing a bank the previous summer but was not at that time forthcoming about his link with Goolsby. The State contended that there was no way that Anderson and Washington could be confused because Washington was at least 15 years older, was roughly 100 pounds heavier, and was missing two fingers on his left hand. The State did not know where Washington had been in April of 2004. When the court stated that an investigation would be appropriate, Anderson requested an attorney. The court appointed counsel and continued the sentencing hearing.
When court reconvened, Anderson's attorney had not yet learned of Washington's real name and was unsure of his role in representing Anderson. He also had been unable to get any information regarding Christopher Wayne Washington. Anderson then said that he wanted once again to represent himself, with his attorney acting only as standby counsel. The court continued sentencing and gave Anderson another two months to investigate the Washington matter. The issue was dropped when standby counsel subsequently reported that he could find no one in Department of Corrections' custody under either name.
Anderson received a standard range sentence. He now appeals.
Analysis I.
The initial issue is whether the trial court erred in denying Anderson's motion to suppress Brewer's testimony.
Anderson moved to suppress Brewer's statements on the basis that Brewer was not at the Safeway during the robbery and that his statements regarding the robbery were hearsay. To better understand Anderson's motion, the trial court asked Anderson what about Brewer's statements should be suppressed. Anderson replied, "Just his whole statement against me because based upon the suspect, Marlon Brewer, was not at the robbery, and how is he going to talk about something that he wasn't there?" RP at 43. The trial court denied the motion, ruling that it was up to the jury to determine whether Brewer was correct in identifying Anderson as one of the suspects shown on the surveillance tapes.
Appellate counsel argues that Anderson's motion was sufficient to trigger an analysis of ER 701 and ER 602, which prohibit lay opinion testimony that is not based on the first-hand knowledge of the witness. Anderson made no mention of the rules of evidence in moving to suppress Brewer's testimony. See Walker v. State, 121 Wn.2d 214, 218, 848 P.2d 721 (1993) (party who objects on one ground at trial may not raise a different ground on appeal). But, because Anderson did object to Brewer's lack of personal knowledge regarding the matters to which he testified, we will address the arguments he raises on appeal in support of his motion to suppress.
The testimony at issue is Brewer's identification of Anderson as one of the suspects shown in the photographs taken from the surveillance videotapes. The admission of opinion evidence lies within the discretion of the trial court. State v. Weygandt, 20 Wn. App. 599, 606, 581 P.2d 1376 (1978). ER 701 permits lay opinion testimony when rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994), aff'd, State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996). A lay witness may give an opinion as to the identity of a person in a surveillance photograph if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. Hardy, 76 Wn. App. at 190 (citing United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984)). In Hardy, Division One held that because a police officer had known the defendant for several years, he was in a better position than the jury to identify Hardy in the "somewhat grainy" videotape. In addition, the "photograph" at issue was a videotape, and the officer who had seen Hardy in motion was better able to identify him than the jury who had only seen Hardy motionless in court. Hardy, 76 Wn. App. at 191. The court disagreed that the officer's opinion regarding the identity of the man in the videotape invaded the province of the jury. The jury was free to disbelieve the officer, thus leaving the ultimate issue of identification to the jury. Hardy, 76 Wn. App. at 191.
In arguing that the trial court erred in admitting Brewer's identification testimony, Anderson relies on State v. Jamison, 93 Wn.2d 794, 613 P.2d 776 (1980). Jamison did not consider or rely on the Rules of Evidence, and for that reason Hardy did not find its analysis controlling. Hardy, 76 Wn. App. at 190 n. 1. Even if we consider Jamison, however, we find Brewer's testimony admissible.
In Jamison, the court criticized the admission of testimony from two counselors who identified the defendant as the robber shown in some surveillance photographs. Jamison, 93 Wn.2d at 798-99. The court found no evidence that the photographs failed to clearly or accurately depict the robber, or that the defendant's appearance had changed or had been altered prior to trial. Jamison, 93 Wn.2d at 799. Consequently, the counselors' opinion testimony was an impermissible invasion of the jury's province. Jamison, 93 Wn.2d at 799.
By contrast, there was evidence that Anderson had changed his appearance between the time that Brewer first met him and the time of trial. Moreover, the photographs taken from the surveillance tapes were not of the best quality, and Anderson's appearance was partially obscured by his hat and by the camera angle.
Anderson also argues that Brewer's testimony is inadmissible under ER 602, which bars statements that purport to relate facts but which are based only on the reports of others. State v. Smith, 87 Wn. App. 345, 351, 941 P.2d 725 (1997). Anderson contends that because Brewer was not a participant in the robbery, any opinion as to whether or not Anderson was depicted in the surveillance videotapes would not have been based on Brewer's perceptions as required by ER 602. We disagree. The State provided sufficient evidence to support the conclusion that Brewer could identify Anderson, and we see no violation of ER 602. See State v. Vaughn, 101 Wn.2d 604, 611, 682 P.2d 878 (1984) (under ER 602, witness must testify concerning facts he has personally observed).
Because there was some basis for concluding that Brewer was more likely to correctly identify Anderson from the surveillance photographs than was the jury, the trial court acted within its discretion in admitting his identification testimony. See United States v. Pierce, 136 F.3d 770, 775 (11th Cir. 1998).
In a related issue, Anderson argues that admitting Brewer's and Hunt's identification testimony was a trial irregularity that denied him his constitutional right to a fair trial. Having addressed the admissibility of Brewer's testimony in the context of his motion to suppress, we will not again discuss that evidence. Anderson apparently attempts to overcome his failure to object to Hunt's testimony at trial by elevating its admission to an error of constitutional dimension. See RAP 2.5(a)(3). We do not see the trial court's admission of lay opinion testimony as a "trial irregularity." See State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987) (finding trial irregularity where witness referred to matter excluded by motion in limine); State v. Weber, 99 Wn.2d 158, 164-65, 659 P.2d 1102 (1983) (finding trial irregularity where witness volunteered information that had been ordered suppressed). We therefore find that Anderson waived this issue by failing to object below. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985).
II.
Anderson argues next that the evidence was insufficient to support his conviction for first degree robbery.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
A person commits robbery if he unlawfully takes personal property from another against that person's will and uses force to retain possession of the property or to prevent or overcome resistance to the taking. RCW 9A.56.190. A person commits first degree robbery if, in the commission of a robbery or in immediate flight therefrom, he displays what appears to be a firearm or other deadly weapon. RCW 9A.56.200(1)(a)(ii).
When viewed in the light most favorable to the State, the evidence shows that Anderson was an associate of a group involved in a series of armed robberies that occurred in the spring of 2004. Hunt recalled that he saw Anderson in early April at Goolsby's house. When Hunt complained about not making enough money, Goolsby suggested that he come do robberies with them. A few days later, Hunt saw Anderson at a car wash with Goolsby, Mitch-Mitch, and BG. Hunt then saw Anderson a day after the Safeway robbery talking about it with BG and Goolsby, and Hunt also saw a large amount of cash in the men's possession. The others asked Hunt if he had ever made $1,000 in five minutes. Hunt also saw a collection of clothing available for people to use in the robberies. Brewer and Hunt agreed that Anderson was depicted in Exhibit 27, one of the surveillance photographs.
As Anderson points out, his girlfriend provided him with an alibi, and Brewer gave inconsistent testimony regarding the identity of the suspects in Exhibits 27 and 30. Brewer and Hunt also contradicted each other's identification of one of the suspects in Exhibit 30: Brewer said the photograph depicted BG and Goolsby; Hunt said it showed BG and Mitch-Mitch. Brewer explained his confusion about the photographs, however, and the jury observed all of these witnesses and evaluated their credibility — decisions we do not review.
III.
Anderson raises three additional issues in his pro se statement of additional grounds. See RAP 10.10. He argues first that the State withheld exculpatory evidence that could have exonerated him. The evidence at issue concerns the subject of the anonymous phone call, Christopher Wayne Washington. Anderson contends that the State knew that Washington was at liberty at the time of the Safeway robbery, and he asserts that informing the defense of this fact might have led to an investigation that would have cleared him. Anderson alleges that the State withheld evidence of his innocence and kept the facts regarding Washington secret, and that it knew Washington was depicted in the Safeway photographs instead of him.
The record does not support these allegations. When the transcript of the anonymous phone call was discussed in court, the State explained that Washington had pleaded guilty to bank robbery in the summer of 2004 and that it had no idea of his whereabouts before then. Washington refused to "open up" about his association with Goolsby, and there would have been no reason for the State to report anything about Washington to the court before trial began. Moreover, both Brewer and Hunt identified all three suspects shown in the Safeway photographs, and Anderson's current assertion that the State knew Washington was one of the suspects shown is not persuasive.
Anderson next contends that Brewer and Hunt committed perjury and that Brewer's testimony was based on hearsay. We note first of all that the trial court sustained his hearsay objection to Brewer's testimony. Where the court admitted additional hearsay without objection, such evidence may be considered for its probative value. State v. Whisler, 61 Wn. App. 126, 139, 810 P.2d 540 (1991). Anderson's perjury argument basically asks us to review the record and conclude that these witnesses testified falsely. In his closing argument, Anderson also accused Brewer and Hunt of committing perjury, but the jury apparently rejected his accusation. The jury is in the best position to assess the credibility of the witnesses and we will not now second-guess that assessment.
In a related argument, Anderson contends that the jury's questions during deliberations regarding his California incarceration show that it was not persuaded by the State's evidence. The jury sent three questions to the court on a single sheet of paper:
Is there any evidence of his time in jail in California?
Is there a release date of jail in California, regarding the April 1st arrest date?
Is there evidence or testimony or records we can view/review that give James Anderson's arrest in California in April 2004 and the date he was released?
CP at 79. Anderson wanted to inform the jury that he had been arrested on March 19, but the court reminded him that he had only solicited testimony from his witness regarding his incarceration in the Los Angeles County Jail from April 1 to 6. The State and standby counsel agreed that the court should remind the jury to base its decision on the evidence submitted. The court wrote to the jury that "[y]ou have received all of the evidence — testimony and exhibits — admitted in this case." CP at 79.
Anderson now complains that the jury did not have the records it needed to show that he was incarcerated in California from March 19 to April 6, 2004, and he attaches documents in support of that argument to his brief. This court cannot consider evidence outside the record. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) (on direct appeal, appellate court will not consider matters outside the record). Finding no error in the record before us, we will not consider this issue further.
Finally, Anderson asserts that his standby counsel was ineffective because he failed to conduct an adequate investigation into the anonymous phone call. Generally, defendants who are afforded the right to self-representation cannot claim ineffective assistance of counsel for the obvious reason that they become their own counsel and assume complete responsibility for their own representation. State v. McDonald, 143 Wn.2d 506, 512, 22 P.3d 791 (2001). An exception exists where a conflict of interest exists between defendant and standby counsel. McDonald, 143 Wn.2d at 512. We find no such conflict in the record before us, and Anderson's claim that his counsel was ineffective fails.
Affirmed.
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.
HUNT, J., PENOYAR, J., concur.