Opinion
No. 21371-4-III.
Filed: February 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-1-00679-8. Judgment or order under review. Date filed: 08/16/2002. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Suppression of a lineup for identification does not rule out an in-court identification. But the in-court identification must be based on information independent of the suppressed lineup. State v. Redmond, 75 Wn.2d 62, 64-66, 448 P.2d 938 (1968). Here, the trial judge found that the bank employees' in-court identifications of Luke McDonald Hunton were sufficiently removed from the identifications made at a previous lineup the judge had suppressed. That finding is amply supported by this record. We also conclude there is ample evidence to support the elements of robbery. We reject the remainder of Mr. Hunton's assignments of error and affirm his conviction.
FACTS
Mr. Hunton robbed a Wells Fargo Bank and then the same branch of a Washington Trust Bank twice. He wore sunglasses and a baseball cap and calmly demanded `hundreds, 50s and 20s.' Report of Proceedings (RP) at 1020, 1354, 1507-08. At trial an employee from each bank identified Mr. Hunton as the robber. And bank employees saw Mr. Hunton with a car that other witnesses connected to him in the first and last robberies. Another witness gave Mr. Hunton the New York Yankees baseball cap that he wore when he robbed Washington Trust. She also recognized the shirt the robber was wearing in security photographs as one she had seen Mr. Hunton wear.
Three Washington Trust employees identified a plaid jacket in court that was seized from Mr. Hunton's sister's house. The robber wore the same or similar jacket. These same employees testified that the person who robbed the branch the first time was the same person who robbed it the second.
An acquaintance of Mr. Hunton's drove him to the bank on the day of the second robbery at Washington Trust. He asked to borrow her sunglasses before going in. Mr. Hunton returned $20 he had borrowed from her earlier when he got back to the car after he robbed the bank. She and another occupant of the car later reported to the `Secret Witness' program. Mr. Hunton tried to rent an apartment on the day of this robbery. He flashed a number of $50 bills. Others saw him with a large number of $20 bills. He said he needed the apartment for only two weeks `until he got out of town.' RP at 1708. The landlord refused to rent to him. At trial, Mr. Hunton represented himself at his own insistence.
DISCUSSION In-Court Identification
Mr. Hunton challenges the witnesses' identifications of him in court. He argues that bank employees Tara Brandt, Mary Kaplan, Jessica Niederkleine, and Desirae Beeler were not able to identify him in a photomontage, and yet `many' of these witnesses were allowed to make an in-court identification. Appellant's Br. at 16-17.
First, neither Ms. Brandt (who was called as a defense witness) nor Ms. Beeler made in-court identifications. They were not even asked to do so. See RP at 1390-1413, 1349-68. This argument does not then apply to them. Second, Ms. Niederkleine made an in-court identification only when Mr. Hunton asked if she thought he was the bank robber. Mr. Hunton cannot now object to a witness's direct answer to a question that he asked. Third, Ms. Kaplan testified at the evidentiary hearing that she did identify Mr. Hunton from a photomontage. RP at 303. Mr. Hunton's claim is then unsupported by this record.
The actual exchange was as follows:
Q. Having seen me today, seen how I act, and — could you in any way say that I am the man that robbed your bank?
A. Can I? I can answer that?
THE COURT: He asked it.
Q. (By Mr. Hunton) Yes, you can.
A. Yes, I think it's you.
Q. You think it's me because of what?
A. I think because the feeling I got of the person that walked in the bank is the same feeling I get when you walk in a room and when I walked in the room for the interview when I saw you, I know that it's you.
Q. You know that it's me?
A. I know that it's you.
Q. Because of the feeling you get from me?
A. (Nods assent.)
RP at 1537-38.
Mr. Hunton next argues that the in-court identification was unduly suggestive. The issue is whether his in-court presence can be construed as an `impermissibly suggestive' procedure, which created a substantial likelihood of irreparable misidentification that would call into question the reliability of the in-court identification. See State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977); State v. Shea, 85 Wn. App. 56, 59-60, 930 P.2d 1232 (1997); State v. McDonald, 40 Wn. App. 743, 746, 700 P.2d 327 (1985). An in-court identification is not inherently suggestive when a witness has previously identified the defendant, and the witness making that identification is subject to cross-examination and observation by the jury. Finally, Mr. Hunton did not object to the court's ruling on this question at trial.
United States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984) (where the mere fact that the defendant is seated at the defense table while an in-court identification is made is `[t]he only suggestive circumstance identified by defendant,' then this `circumstance alone is not enough to establish a violation of due process'); see State v. Kinard, 39 Wn. App. 871, 874, 696 P.2d 603 (1985) (`Where an in-court identification is challenged and there is no issue of impermissibly suggestive procedures, the question of reliability goes only to the weight of the testimony and not its admissibility.').
Mr. Hunton next argues that the in-court identifications were tainted by a lineup, the results of which the court suppressed. Pretrial Mr. Hunton moved to prohibit the three witnesses who identified him in the suppressed lineup from identifying him in court. The three witnesses identified at the hearing were Kathy Anderson, Toni Flagler, and Mary Kaplan. Because there is nothing in the record to show that Ms. Anderson identified Mr. Hunton in a physical lineup or even participated in one, we need not address his objection to her identification.
A post-indictment lineup is a critical stage in prosecution at which the accused must be given the opportunity to be represented by counsel. The denial of a suspect's constitutional right to counsel at a pretrial lineup requires suppression of the identification in the State's case in chief against the defendant. Gilbert v. California, 388 U.S. 263, 272-73, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). But an in-court identification which stems from an independent source — one other than the pretrial lineup conducted in violation of the suspect's Sixth Amendment rights — will not be excluded. Hilliard, 89 Wn.2d at 439-40. As such, the witness may make an in-court identification if the prosecution shows by clear and convincing evidence that the in-court identification has a basis independent of the pretrial procedure. State v. Redmond, 75 Wn.2d 62, 65, 448 P.2d 938 (1968). That way the evidence is examined "by means sufficiently distinguishable to be purged of the primary taint" rather than a product of exploitation of the original illegality. Id. (quoting oral decision of trial court). An in-court identification has an independent source when the court finds that the witness can identify the defendant in court by remembering the events of the crime itself without relying upon the tainted pretrial event. See State v. Coburn, 10 Wn. App. 298, 306-07, 518 P.2d 747 (1973).
Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also State v. Martz, 8 Wn. App. 192, 195, 504 P.2d 1174 (1973) (declining to promulgate a state rule with respect to lineup procedures).
Several factors are relevant in determining whether the testimony had an independent source, including:
[1] the witness's prior opportunity to observe the suspect, [2] the existence of any discrepancy between any preconfrontation description and the defendant's actual description, [3] any prior identification of another person, [4] any prior identification of the defendant by photograph, [5] failure to identify the defendant on a prior occasion, [6] the lapse of time between the alleged act and the identification, and [7] whether the witness previously knew the defendant.
State v. Smith, 36 Wn. App. 133, 138, 672 P.2d 759 (1983) (citing Wade, 388 U.S. at 241).
The State argues that the factors for reliability are not significant to this analysis. The trial judge recited on the record that he had considered the appropriate factors. RP at 969 (citing State v. Traweek, 43 Wn. App. 99, 104, 715 P.2d 1148 (1986) (reliability factors); Shea, 85 Wn. App. at 59 (analysis for suggestibility)). And here, the trial judge reviewed the testimony of each witness at the pretrial hearing and identified an independent basis for the in-court identification. RP at 969. That is a decision then based on substantial evidence. See Redmond, 75 Wn.2d at 66.
Sufficiency of Evidence
Mr. Hunton next contends there was insufficient evidence to support the charges or convictions for three counts of second degree robbery because the State did not present evidence that he displayed a weapon or threatened the tellers. He also claims there is insufficient evidence identifying him as the robber. He argues that the court should have dismissed the robbery charges or reduced them to theft after the State presented its case in chief. Alternately, he challenges the sufficiency of the evidence to support his conviction.
A defendant may challenge the sufficiency of the evidence at several junctures: before trial, at the end of the State's case in chief, at the end of the evidence, after the verdict, and on appeal. State v. Jackson, 82 Wn. App. 594, 607-08, 918 P.2d 945 (1996). The evidence is reviewed using the most complete factual basis available at the point in time the sufficiency challenge is raised. Id. at 608-09.
Robbery requires the unlawful taking of `personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.' RCW 9A.56.190. The degree of force is not relevant, but the force or fear `must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.' Id.
It is not necessary for one to display a weapon or make overt threats to a bank teller. State v. Collinsworth, 90 Wn. App. 546, 553, 966 P.2d 905 (1997). Where a bank robber makes a `clear, concise, and unequivocal demand for money' and the seriousness of his intent is understood by the teller, the evidence is sufficient to support a bank robbery conviction. Id. Here, all three tellers expressed fear when the robber demanded the money. RP at 1025, 1355-57, 1508. This is sufficient evidence of a threat necessary for a robbery conviction. Mr. Hunton also claims that the tellers' identifications of him are insufficient. But a bank employee at each bank identified Mr. Hunton as the robber.
Persistent Offender Accountability Act
Mr. Hunton argues that the state and federal constitutions require that the predicate convictions for the imposition of the Persistent Offender Accountability Act sentence be charged in the information and proven to the jury. The Washington State Supreme Court resolved these issues in State v. Smith. Mr. Hunton would have us adopt the dissenting opinion. It is, of course, not the law. Roberts v. Dudley, 140 Wn.2d 58, 75 n. 13, 993 P.2d 901 (2000). Neither the state nor federal constitution requires that the fact of Mr. Hunton's prior convictions be decided by a jury and determined beyond a reasonable doubt. State v. Smith, 150 Wn.2d 135, 156, 75 P.3d 934 (2003), petition for cert. filed, U.S.L.W. (U.S. Jan. 14, 2004) (No. 03-8423). Mr. Hunton also argues that sentencing him to life imprisonment without parole is excessive when compared to his crimes of second degree robbery. But this constitutional challenge to the Persistent Offender Accountability Act has been considered and rejected. State v. Rivers, 129 Wn.2d 697, 714-15, 921 P.2d 495 (1996).
150 Wn.2d 135, 75 P.3d 934 (2003), petition for cert. filed, U.S.L.W. (U.S. Jan. 14, 2004) (No. 03-8423).
PRO SE ISSUES Failure to Dismiss Standby Counsel
Mr. Hunton contends the court erred by denying his first motion to discharge his standby counsel, Jay Ames, because he had filed a civil rights lawsuit against Mr. Ames and Mr. Ames was represented by the prosecutor's office.
When the court appoints standby counsel for a pro se defendant, the defendant has a right to have standby counsel who is conflict-free. State v. McDonald, 143 Wn.2d 506, 512-13, 22 P.3d 791 (2001). Failure to make an inquiry into a possible conflict of interest between a pro se defendant and his standby counsel is reversible error. Id. at 513. In McDonald, the trial court refused to dismiss standby counsel after the prosecutor's office was assigned to represent standby counsel in an action by the pro se defendant against him. Id. at 513-14.
In this case, contrary to Mr. Hunton's contention, the prosecutor's office was never involved in Mr. Ames' representation during his standby representation of Mr. Hunton. The court specifically made that inquiry of both the prosecutor and Mr. Ames. RP at 185, 202-03. As such, there was no actual conflict of interest. Mr. Ames was ultimately dismissed as standby counsel due to `irreconcilable differences' and personality conflicts between Mr. Hunton and Mr. Ames not, as Mr. Hunton claims, for an actual conflict of interest. RP at 443.
Because there was no actual conflict of interest between Mr. Hunton and his standby counsel at any point of the representation, the court did not err by dismissing Mr. Ames on that basis.
Late Appointment Of New Standby Counsel.
Mr. Hunton next complains that the court denied him his right to `effective and meaningful assistance' of standby counsel by appointing new standby counsel, Richard Sanger, on the eve of trial. Statement of Additional Grounds for Review (filed Mar. 5, 2003) at 6. He claims that Mr. Sanger himself stated that he was not competent to fulfill his duties. And Mr. Hunton was forced to proceed with Mr. Sanger because the court dismissed Mr. Ames one day before the scheduled trial.
Criminal defendants have a constitutional right to waive counsel's assistance and represent themselves at trial. State v. DeWeese, 117 Wn.2d 369, 375, 816 P.2d 1 (1991). A pro se defendant may be entitled to have standby counsel provide technical assistance in the courtroom, but there is no absolute right to such an appointment. Id. at 379; State v. Christensen, 40 Wn. App. 290, 295 n. 2, 698 P.2d 1069 (1985). `Standby counsel's role is not to represent the defendant, however, but to provide technical information, and `to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987) (quoting Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). `A defendant may not manipulate the right to counsel for the purpose of delaying or disrupting trial.' DeWeese, 117 Wn.2d at 379.
Here, as the trial court correctly noted, Mr. Hunton was not entitled to standby counsel at all. RP at 510. And Mr. Hunton asked that Mr. Ames be dismissed as standby counsel at the time that he did, and on two prior occasions. The court ultimately granted Mr. Hunton's request after the trial judge determined that the relationship had reached an impasse when Mr. Hunton accused Mr. Ames of hiding his paperwork or otherwise sabotaging his self-representation at an evidentiary hearing. RP at 443-44. Mr. Hunton refused a continuance of more than one week. RP at 510; Clerk's Papers (CP) at 671. He cannot now be heard to complain about circumstances which he created.
Further, contrary to Mr. Hunton's assertion, Mr. Sanger did not say he was incompetent to act as standby counsel. Mr. Sanger said he wanted it noted on the record that in light of his late appointment, he did not feel competent to provide Mr. Hunton with strategy advice. RP at 509. He also stated he did not feel sufficiently up to speed to take over if the situation required it. RP at 510.
Mr. Hunton waived his right to counsel. The court found that the waiver was knowing and intelligent. RP at 4. He does not complain that the waiver was somehow invalid. Representation by standby counsel is not subject to an effective assistance of counsel analysis. McDonald, 143 Wn.2d at 512. And even if it were, Mr. Hunton would be required to show prejudice. Mr. Hunton does not claim that he asked Mr. Sanger for advice and Mr. Sanger was not able to give it. Nor does Mr. Hunton claim that the situation required Mr. Sanger to take over and he could not.
Mr. Hunton was not denied adequate standby counsel following the court's granting of his motion to appoint new standby counsel.
Dismissal For Police Misconduct
When the court dismissed Mr. Ames as standby counsel, Mr. Hunton asked the court that he be allowed a private conference with his investigators so he could assess his case. The trial court offered its jury room. However, Mr. Hunton claims that two sheriff's deputies entered the jury room and refused to leave upon his request. Mr. Hunton assigns error to the court's denial of his motion to dismiss, which he based on this alleged intentional intrusion and eavesdropping by the police.
A trial court's decision to dismiss charges for governmental misconduct is reviewed for abuse of discretion. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). Such abuse occurs when the trial court's decision is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985). Here, the trial court made findings of fact and conclusions of law. CP at 715-18. It found that Mr. Hunton requested a meeting with his investigators to discuss their continued involvement following the court's granting of his motion to dismiss Mr. Ames as standby counsel. The trial judge offered his jury room for the meeting. The transport officers contacted their sergeant to obtain approval for the arrangement. The sergeant allowed the arrangement, but required both officers to be present for security reasons. Neither transport officer shared any information regarding the conversation between Mr. Hunton and his investigators. The trial judge ultimately held that there was a legitimate reason for the presence of the transport officers in the jury room. See State v. Granacki, 90 Wn. App. 598, 600, 959 P.2d 667 (1998). Those concerns were safety, order, and to prevent escape. The court also determined that there was no evidence any State agent gained any information due to the officers' presence in the jury room. And there was no evidence to show that anyone representing the State was aware of Mr. Hunton's trial strategies. Finally, there was nothing to show that the officers' presence gave the State an unfair advantage.
In Granacki, cited by Mr. Hunton, the court specifically found that the lead detective intentionally read defense counsel's notes and that the explanation he gave in an evidentiary hearing about reading the notes was not credible. Id. at 601. Therefore, the court dismissed the case. That is not what occurred here. The judge believed the officers' testimony that they did not hear anything and the judge believed that the officers' presence was for a legitimate purpose.
Mr. Hunton cites State v. Cory, where sheriff's deputies used a concealed microphone to eavesdrop on conversations between the defendant and his attorney. State v. Cory, 62 Wn.2d 371, 376, 382 P.2d 1019 (1963). Here, Mr. Hunton voluntarily continued a private conversation with his defense team knowing the officers were present.
Finally, Mr. Hunton cites State v. Garza as support for the notion that the deputies needed to justify their presence with a specific security threat. State v. Garza, 99 Wn. App. 291, 994 P.2d 868 (2000). But that is not what Garza requires. In Garza, a county jail conducted a search of inmates' cells and seized materials when officers discovered that bars on the windows had been cut. The officers were looking for evidence of an escape plan. The officers went through the inmates records and seized their materials for over 32 days as the inmates' trial dates were looming. The appellate court observed that the examination of the inmates' legal materials could intrude on the inmates' right to effective representation and due process. Id. at 296. It ultimately remanded the case so that the trial court could determine whether the security concerns justified the `extensive intrusion' into the inmates' private attorney-client communications. Id. at 300. Here, the trial court specifically found that the transport officers were present for legitimate safety, order, and escape reasons. And the level of the intrusion on this occasion did not rise to that in Garza.
The trial court did not abuse its discretion in denying the motion to dismiss on the grounds of intentional intrusion and eavesdropping by the police.
Prosecutorial Misconduct
Mr. Hunton claims that the prosecutor failed to surrender exculpatory evidence until mid-trial, willingly and knowingly used and allowed false testimony from the prosecutor's witnesses, and used deceptive prejudicial trial tactics to promote false identification of Mr. Hunton from one of the prosecution's witnesses.
In order to prevail on a prosecutorial misconduct argument, "the defendant must establish both improper conduct by the prosecutor and prejudicial effect." In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481, 965 P.2d 593 (1998) (Pirtle II) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995) (Pirtle I)). "Prejudice is established only if there is a substantial likelihood the instances of misconduct affected the jury's verdict." Pirtle II, 136 Wn.2d at 481-82 (quoting Pirtle I, 127 Wn.2d at 672). The defendant bears the burden of establishing impropriety and prejudicial impact when considering the entire context of the record and circumstances at trial. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). Absent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered. Id.
Discovery Abuses. Mr. Hunton claims that the prosecutor did not timely provide exculpatory evidence including information and materials regarding another individual suspected of the robberies, as well as other exculpatory information. Mr. Hunton may have a point. However, the factual basis for his claim cannot be examined on the record before this court. See State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991) (review is limited to the appellate record).
Use of Perjured Testimony. A conviction that is obtained through the knowing use of perjury is fundamentally unfair and must be set aside if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. In re Pers. Restraint of Benn, 134 Wn.2d 868, 936, 952 P.2d 116 (1998) (citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The defendant must show that the State knowingly used perjured testimony. Id. at 937. These constitutional challenges are reviewed de novo. Fusato v. Wash. Interscholastic Activities Ass'n, 93 Wn. App. 762, 767, 970 P.2d 774 (1999).
Mr. Hunton essentially argues that because certain witnesses testified to something other than what was in the police reports, the prosecutor knowingly used their false testimony. Mr. Hunton cannot show that there was perjured testimony in the first instance. Nor is there a factual basis in the record to support a claim that any such evidence was knowingly presented.
Promotion of False Identification. Mr. Hunton asserts that the prosecutor used `deceptive prejudicial trial tactics to promote false identification' of Mr. Hunton from Ms. Beeler. Statement of Additional Grounds for Review at 20.
Before Ms. Beeler was examined at trial, a bench conference was held in which the prosecutor assured Mr. Hunton that he would not seek an in-court identification of the witness. Then, during direct examination, the prosecutor referred to the robber as `this defendant' or `the defendant' in his questioning of this witness six times. RP at 1356-67. Mr. Hunton objected after the prosecutor's fifth reference to `the defendant' during examination. RP at 1368. However, neither the nature of his objection nor the nature of the judge's ruling is entirely clear.
Mr. Hunton cannot show that the first five references were flagrant and ill-intentioned, and there was no request for a curative instruction. It would be difficult for Mr. Hunton to show prejudice in any event, since any prejudice would be outweighed by the tremendous amount of identification evidence against him.
Even if there were improprieties evident from this record, Mr. Hunton would fail to show prejudice considering the evidence against him.
CONCLUSION
There was ample evidence of a threat and identification to support the charges and convictions for three counts of second degree robbery. Because the witnesses had an independent basis sufficiently purged of the taint from the unlawful lineup procedure, the court properly denied Mr. Hunton's motion to prevent the witnesses from making an in-court identification. Mr. Hunton's Persistent Offender Accountability Act sentence was not improper.
Because there was no actual conflict of interest between Mr. Hunton and Mr. Ames, his first standby counsel, the court did not err by denying Mr. Hunton's initial request to dismiss him. And when the court did finally dismiss Mr. Ames on Mr. Hunton's request, Mr. Hunton was not denied meaningful and effective assistance of standby counsel by granting the request. It was not error to deny Mr. Hunton's motion to dismiss on the basis that police intentionally intruded or eavesdropped on his conversations. Nor is the record sufficient for Mr. Hunton to show prosecutorial misconduct for discovery violations, use of false testimony, or promotion of misidentification.
The convictions are affirmed.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and KURTZ, J., concur.