Opinion
No. 63959-5-I.
March 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Skagit County, No. 08-1-00878-8, Michael E. Rickert, J., entered July 15, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler and Lau, JJ.
Brian Lane appeals his judgment and sentence for first degree theft. Despite his arguments to the contrary, his showup identification shortly after the theft did not create a substantial likelihood of misidentification. The admission of evidence about that showup at trial did not violate his right to due process. In a statement of additional grounds, Lane claims that the trial court abused its discretion by giving an accomplice liability instruction that was not supported by the evidence. He also claims that the State misstated the law on accomplice liability during arguments to the jury. Neither argument warrants reversal.
The State cross-appeals. It argues that the trial court had no authority to give Lane credit for time served from the date of his arraignment on this conviction because he was serving time on an unrelated conviction during his arraignment and trial. The State contends the sentence is partially concurrent and partially consecutive. These claims are without merit.
We affirm the judgment and sentence.
At 12:54 p.m. on August 8, 2008, Burlington police responded to a theft report at Sears in the Cascade Mall. Two employees, Jonathan Haberly and Belinda Richards, witnessed the theft and provided police with a description of the two male suspects. Haberly also provided the license plate number of the red Isuzu Rodeo that they used to drive away. The employees said that two females were waiting in the car when the males joined them.
About an hour later, a Mount Vernon police officer noticed a vehicle matching the exact description given by the Sears employees at an AM/PM gas station/mini-market. Police detained the occupants of the vehicle: two males — Brian Lane and Reynold James — and three females — Marie Washington, Bridgett Finkbonner, and Courtney Solomon.
Officers conducted a showup identification where Haberly identified Lane as one of the two males that committed the theft. Richards identified James as the other person who committed the theft and Solomon as one of the getaway car occupants. Police impounded and searched the car. They found almost $1,900 in Sears merchandise with the tags still attached.
Several months later, the State arraigned Lane in Skagit County Superior Court on first degree theft. He moved to suppress evidence of the showup identification at trial, arguing that it was impermissibly suggestive and created a substantial likelihood of irreparable misidentification in court. The trial court denied the motion.
At trial, Haberly and Richards testified about the showup identification. Additionally, several police officers testified about the showup identification. A jury convicted Lane as charged.
At sentencing, the State sought imposition of an exceptional sentence. It also opposed giving Lane credit for time served on this first degree theft charge from the date of his arraignment. Disagreeing, the trial court sentenced Lane to 57 months, to run from February 19, 2009, the date of his arraignment. The court ordered that sentence to run concurrently with the sentence on an unrelated Whatcom county conviction for second degree theft that Lane was serving during this theft trial.
Lane appeals, and the State cross-appeals.
SHOWUP IDENTIFICATION
Lane argues that the showup identification was unnecessarily suggestive and the admission of evidence about it at trial violated his due process rights. We disagree.
Showup identifications are not per se impermissibly suggestive. Whether there is a due process violation depends on the totality of the circumstances. "The key inquiry in determining admissibility of the identification is reliability." Factors probative of reliability include:
State v. Guzman-Cuellar, 47 Wn. App. 326, 335, 734 P.2d 966 (1987) (citing Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986)).
Rogers, 44 Wn. App. at 515 (citing Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); State v. Kraus, 21 Wn. App. 388, 391-92, 584 P.2d 946 (1978)).
Id. at 515-16 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)).
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil, 409 U.S. at 199-200.
A defendant bears the burden of demonstrating that the identification procedure was impermissibly suggestive. The likelihood of misidentification, if present, violates the defendant's right to due process of law. This court reviews de novo alleged violations of due process.
State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
Neil, 409 U.S. at 197-98.
In re Detention of Fair, 167 Wn.2d 357, 362, 219 P.3d 89 (2009).
Here, Officer Jeremy Craimer asked Haberly and Richards to accompany him to a showup to "identify the suspects." When they arrived, Lane, James, Washington, Finkbonner, and Solomon were all lined up in front of a police car. There were six officers present from both the Burlington and Mount Vernon police departments. The red Isuzu Rodeo was also parked at the AM/PM and was visible to the witnesses during the showup. Haberly identified Lane and Richards identified James as the individuals that took the clothing from Sears. Richards also identified Solomon as the individual driving the Rodeo. Haberly and Richards made the identifications in one another's presence.
Applying the factors of reliability here, under the totality of the circumstances the identification was admissible. Although Officer Craimer's statement, the presence of the Rodeo, and the fact that the witnesses were not separated during the identifications indicate that the procedure was somewhat suggestive, each reliability factor was met. The reliability of the identification outweighs any alleged harm of suggestiveness of the procedure.
First, Haberly had an opportunity to view the suspect at the time of the theft. He witnessed two men with their arms full of shorts and shirts run out of Sears and into a Rodeo. He was able to observe the make, color and license plate number of the getaway car.
Second, there was evidence that Haberly was paying attention. As noted above, he saw the men leave the store with armfuls of clothing. He provided a description of the type of clothing taken and the make, color and license number of the getaway vehicle.
Third, at 1:10 p.m., approximately 15 minutes after the theft, Haberly gave a written statement to Officer Kyle Campo. He described the suspects as "2 males dark complexion[,] one had short moehawk [sic]. . . ." He noted that they jumped into a red Rodeo with the license plate number 930 WLT. In Officer Campo's written report, he indicated that Haberly described the suspects as two Hispanic males. Although Lane and the other suspects are Native American, Lane did have a mohawk at the time of the theft and their vehicle fit the description and plate number reported by Haberly.
Fourth, Haberly identified Lane at the showup with certainty. After the showup Haberly made a statement that he "was able to identify the man with the moehawk [sic] and darker complexion as definitely being one of the theifs [sic] who ran out of Sears with a full armload of clothes."
Clerk's Papers at 32 (emphasis added).
Finally, very little time passed between the crime and the showup. According to police reports, the theft was called in at 12:54 p.m. Around 3:00 p.m., Officer Craimer took Haberly and Richards to the AM/PM for the showup. On these facts, the reliability of Haberly's identification of Lane outweighs the harm of suggestiveness. Therefore, the identification was properly admitted.
When police arrived at the AM/PM, Lane was wearing a hat. Lane argues that the removal of his hat before the showup contributed to the suggestiveness of the procedure because it made him look more like the suspect. But, because the reliability of the identification outweighed the harm of any suggestiveness in the procedure, this argument is not persuasive.
Lane argues that none of the reliability factors were satisfied. We disagree. Before trial, the court held a Criminal Rule 3.6 hearing on Lane's motion to suppress. Testimony was given and the trial court made the following factual determinations regarding the reliability factors:
a. The witnesses had the time and opportunity to view the suspects;
b. There is nothing to indicate they did not pay attention;
c. The witnesses' previous description of the suspects was accurate, describing two individuals with darker complexion and their hair styles;
d. There was no lack [of] certainty; and
e. The identification having occurred two hours after the theft was not a particularly long period of time.
Clerk's Papers at 37.
We review a finding of fact that is incorrectly designated as a conclusion of law for substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth.
Hoel v. Rose, 125 Wn. App. 14, 18, 105 P.3d 395 (2004) (citing Willener v. Sweeting, 107 Wn.2d 388, 393-94, 730 P.2d 45 (1986)).
Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).
Lane argues that Haberly had an insufficient opportunity to view him at the scene of the crime. He relies on State v. Thorkelson and State v. Booth. InThorkelson, two of the three witnesses could only tentatively identify the defendant and the third could not identify him at all. In Booth, the court upheld identification evidence as reliable. This argument fails because there was substantial evidence, as detailed above, that Haberly had the time and opportunity to view Lane. Neither case cited by Lane requires a different result.
25 Wn. App. 615, 611 P.2d 1278 (1980).
36 Wn. App. 66, 671 P.2d 1218 (1983).
Thorkelson, 25 Wn. App. at 619.
Booth, 36 Wn. App. at 71.
Next, Lane argues that Haberly did not testify that he was "especially attentive" during the crime and that his perception was likely affected by stress or fear. But, based on our analysis above, there was substantial evidence that Haberly paid attention during the theft, so this argument is not persuasive.
Lane also argues that the description provided by Haberly was vague and inconsistent with Lane's actual appearance and thatState v. Maupin and State v. McDonald require a more detailed description. InMaupin, the witness gave a very detailed description of the suspect. But, nothing in that case suggests that less detail results in an unreliable identification. InMcDonald, the court held that the identification was unreliable because the witness' description of the suspect's clothing was significantly different than the defendant's clothing at the identification. More importantly, the witness did not pick the defendant in a subsequent line up. In contrast, Haberly's description of Lane did not suffer from the same defect and he was certain in his later identification of Lane. As such, Maupin andMcDonald are not persuasive. And, as described above, there was substantial evidence that Haberly's description of Lane was accurate. The fact that Haberly could not precisely identify Lane's race is immaterial.
63 Wn. App. 887, 822 P.2d 355 (1992).
40 Wn. App. 743, 700 P.2d 327 (1985).
Maupin, 63 Wn. App. at 897.
McDonald, 40 Wn. App. at 747.
Id.
See Maupin, 63 Wn. App. at 897 (holding identification reliable even though witness was uncertain of suspect's race).
Finally, Lane argues that the two hour lapse between the theft and the showup allowed Haberly's memory of the event to dim and weighs heavily against reliability. This assertion is simply not supported by the case law. Accordingly, we reject it.
See Simmons v. U.S., 390 U.S. 377, 385, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) (one day delay reliable because witnesses' memories were still fresh);Neil, 409 U.S. at 201 (lapse of seven months not unreliable where witness made no previous identification at any prior showups, lineups, or photographic showings);Brathwaite, 432 U.S. at 115-16 (identification within two days of crime reliable where description given within minutes of crime); State v. Springfield, 28 Wn. App. 446, 448, 624 P.2d 208 (1981), overruled in part on other grounds by State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005) (a 17 hour delay is not unduly long); State v. Burrell, 28 Wn. App. 606, 611, 625 P.2d 726 (1981) (four day lapse between crime and identification not unreliable);Rogers, 44 Wn. App. at 516 (six hour delay within permissible range); State v. Traweek, 43 Wn. App. 99, 104, 715 P.2d 1148 (1986) (forty-eight hour delay between crime and lineup not unreliable); Maupin, 63 Wn. App. at 897 (two day lapse between crime and identification not unreliable).
SENTENCING Credit for Presentence Confinement
In its cross-appeal, the State first argues that the trial court violated RCW 9.94A.505(6) by sentencing Lane to 57 months on his first degree theft conviction, with credit for presentence time served. We disagree.
The fundamental objective in interpreting a statute is to ascertain and carry out the legislature's intent. If a statute's meaning is plain on its face, then the court must give effect to that plain meaning. Under the plain meaning rule, such meaning is derived from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question. The meaning of a statute is a question of law that we review de novo.
Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
Id.
Id. at 11-12.
Okeson v. City of Seattle, 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003).
On August 8, 2008, the date Lane committed the first degree theft for which he was convicted in this case, RCW 9.94A.505(6) stated:
The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.
The statute's purpose is to avoid constitutional violations. In Reanier v. Smith, the supreme court explained that a court must give credit for time served before trial in order to comply with the double jeopardy, due process, and equal protection clauses of the constitution:
State v. Williams, 59 Wn. App. 379, 382, 796 P.2d 1301 (1990) (citing former RCW 9.94A.120(12) recodified without change as RCW 9.94A.505(6) in 2001).
83 Wn.2d 342, 517 P.2d 949 (1974).
Fundamental fairness and the avoidance of discrimination and possible multiple punishment dictate that an accused person, unable to or precluded from posting bail or otherwise procuring his release from confinement prior to trial should, upon conviction and commitment to a state penal facility, be credited as against a maximum and a mandatory minimum term with all time served in detention prior to trial and sentence.
Id. at 346.
This statute requires the trial court, at sentencing, to give a defendant credit for presentence time actually served only on the charged offense. But nothing in its plain language prohibits a court from imposing a concurrent sentence that gives credit for time served on a charged offense.
See State v. Stewart, 136 Wn. App. 162, 165 n. 1, 149 P.3d 391 (2006) (holding that the statute requires a defendant to be given credit solely for presentence time actually served on a charged offense, but expressly declining to decide whether crediting a sentence for time served on other offenses was proper).
Whether a trial court may impose a concurrent or consecutive sentence is governed by RCW 9.94A.589(3). At the time of Lane's sentencing, RCW 9.94A.589(3) stated that:
[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
(Emphasis added.)
A trial court has "unfettered discretion" to impose concurrent or consecutive sentences under this statute.
In re Pers. Restraint of Long, 117 Wn.2d 292, 305, 815 P.2d 257 (1991).
Here, when Lane committed the first degree theft that is the subject of this case on August 8, 2008, he was not then " under sentence for conviction of [any] felony ," as the statute states. On November 15, 2008, he committed what was later adjudged to be second degree theft in Whatcom County. The superior court in that county sentenced him to 22 months following that conviction.
In January or February 2009, Lane requested a transfer from confinement in Whatcom County to Skagit County to stand trial for the first degree theft charge in this case. He was arraigned on February 19, 2009.
On July 15, 2009, the trial court sentenced Lane to 57 months for the first degree theft conviction, giving him credit for time served since February 19, 2009. This was over the State's objection to giving any credit for presentence time that Lane served on the first degree theft charge. The court further directed that this sentence be served concurrently with the Whatcom County sentence for second degree theft.
Under these circumstances, the trial court did not abuse its discretion. Lane was not under sentence for the Whatcom County offense (or any other offense) when he committed the current first degree theft offense on August 8, 2008. RCW 9.94A.589(3) expressly authorizes the imposition of a concurrent sentence under these circumstances.
Reading RCW 9.94A.589(3) and RCW 9.94A.503(6) together, and harmonizing them as we must, the State's argument that RCW 9.94A.503(6) bars this sentence is untenable. The court properly exercised its discretion under RCW 9.94A.589(3) to impose this concurrent sentence and direct that it would run from the date of Lane's arraignment on the first degree theft charge.
Johnson v. King County (Metro Transit), 148 Wn. App. 220, 226, 198 P.3d 546 (2009).
The State argues that State v. Williams andState v. Davis require a different result. We disagree.
59 Wn. App. 379, 796 P.2d 1301 (1990).
69 Wn. App. 634, 849 P.2d 1283 (1993).
In both cases, a defendant challenged his sentence on the grounds that he was entitled to credit for time served before sentencing. In Williams, this court held that the defendant was not entitled to credit because he was not detained solely for the offense charged. Rather, he was also being detained because his parole was suspended. Furthermore, Williams only addressed former RCW 9.94A.120(12), now codified as RCW 9.94A.505(6), but did not address how this statute should be interpreted in light of RCW 9.94A.589(3). Because RCW 9.94A.589(3) provided the court discretion to impose a concurrent sentence here,Williams is not persuasive.
Williams, 59 Wn. App. at 380; Davis, 69 Wn. App. at 641.
Williams, 59 Wn. App. at 382-83.
Id. at 382.
In Davis, the defendant argued that he was entitled to credit for time served in Montana on an unrelated charge. Again, because the presentence confinement was not solely related to the offense charged, the court held that Davis was not entitled to credit on his sentence. But, the court did give Davis credit for the time he served beginning on the date of his arraignment in Washington and neither party challenged the sentence on that basis. Because Davis did not squarely confront the issue in this case, it is not persuasive.
Davis, 69 Wn. App. at 641.
Id.
Hybrid Sentence
The State also argues that the trial court violated RCW 9.94A.589(3) by imposing a hybrid sentence on Lane. We disagree.
A hybrid sentence is one that is partially consecutive and partially concurrent. RCW 9.94A.589(3) requires a trial court to make an "either-or" choice between a concurrent or consecutive sentence. The question is whether the 57 month sentence for first degree theft, which the court ordered to run from the date of Lane's arraignment, is a hybrid sentence.
See State v. Grayson, 130 Wn. App. 782, 783, 125 P.3d 169 (2005).
Id. at 785-86.
The State characterizes this sentence as a hybrid sentence as follows:
The trial judge sentenced [Lane] to 57 months in prison, but backdated the commencement date of the sentence to February 19, 2009, the date of his arraignment. Mr. Lane was serving his 22 months sentence at that time, essentially allowing Mr. Lane to receive credit from February 19, 2009 to July 15, 2009 on both the Whatcom felony conviction and the instant conviction. The trial
court sentenced Mr. Lane to a hybrid sentence in doing so. The logic of the State's characterization is not apparent. This sentence is a concurrent sentence, no more and no less. The court ordered 57 months of continuous confinement on this conviction. That the court ordered this sentence to run from the date of arraignment on the charge does not somehow convert this concurrent sentence, or any part of it, to a consecutive sentence.
Cross Appellant's Supplemental Brief at 4 (emphasis added).
The State relies on two cases, neither of which requires a different result. In State v. Grayson, the trial court imposed a 144-month sentence on the defendant, to run concurrent to a sentence on which the defendant was already serving time. But, the court ordered that the last 12 months of the sentence run consecutively to the other sentence. This court reversed the partially concurrent, partially consecutive sentence because it violated RCW 9.94A.589(3) and remanded to the trial court for resentencing.
130 Wn. App. 782, 125 P.3d 169 (2005).
Id. at 785.
Id.
Id. at 786.
Here, there is no segmenting of the 57 month sentence as inGrayson. Lane's sentence is to be served without any segmenting. Thus, this case is distinguishable fromGrayson.
In State v. Smith, this court again remanded a hybrid sentence for resentencing. There, the defendant received both Drug Offender Sentencing Alternative (DOSA) and non-DOSA sentences. The trial court ordered the in-custody portion of Smith's DOSA sentence to run concurrently with his non-DOSA sentence. But, it ordered the community custody portion of his DOSA sentence to run consecutively to the non-DOSA sentence. Based upon Grayson, this court held that Smith's sentence violated the statute because it was partially concurrent and partially consecutive.
142 Wn. App. 122, 173 P.3d 973 (2007).
Id. at 129.
Id. at 126.
Id. at 127-28.
Id. at 128.
Id.
Nothing like the facts in Smith happened here. The entire sentence is to be served without segmenting the time. The fact that the time began to run on the date of arraignment does not alter the analysis.
We note that the State cites no persuasive authority in support of its novel argument. Moreover, it does not appear that the State responds, in any way, to the argument that RCW 9.94A.589(3) controls here. Accordingly, we reject the State's arguments as unpersuasive.
STATEMENT OF ADDITIONAL GROUNDS
Lane argues that there was insufficient evidence to support the court's accomplice liability instruction. He also argues that the State improperly explained to the jury during final argument that it must find him guilty of assisting with " a crime" rather than " the crime," contrary to WPIC 10.51 and the holding in State v. Roberts. This is essentially a prosecutorial misconduct claim. Neither argument is persuasive.
142 Wn.2d 471, 14 P.3d 713 (2000).
Evidence of Accomplice Liability
A party is entitled to a jury instruction if it has offered substantial evidence to support the instruction. We review a trial court's decision to give jury instructions for an abuse of discretion.
Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
Id.
In order for a jury to convict a defendant based on a theory of accomplice liability, it must find that either the defendant (1) solicited, commanded, encouraged or requested another to commit the crime charged, or (2) aided or agreed to aid another person in planning or committing the crime charged.
RCW 9A.08.020 (emphasis added).
Here, there was sufficient circumstantial evidence that the men aided each other because both got into the same vehicle after the theft and the stolen goods were comingled when later found by the police. Three eye witnesses testified that Lane and James exited the store together and left in the same vehicle. And, although some of the items taken were still on their hangers, the goods found by police were neatly stacked with all of the hangers removed. Therefore, there was substantial evidence that Lane and James aided one another in planning and committing the theft. The court did not abuse its discretion in giving the accomplice liability instruction.
Lane argues that State v. Rotunno, In re Wilson, State v. Amezola, andState v. Luna are persuasive. In each of those cases, an accomplice liability instruction was improper because there was no evidence that the defendant was ready to assist in the crime charged. Because eye witnesses observed Lane taking clothing from the store, these cases are not persuasive. Lane cites several other cases in his SAG, none of which are on point.
95 Wn.2d 931, 631 P.2d 951 (1981).
91 Wn.2d 487, 588 P.2d 1161 (1979).
49 Wn. App. 78, 741 P.2d 1024 (1987).
71 Wn. App. 755, 862 P.2d 620 (1993).
See State v. Elliott, 114 Wn.2d 6, 18, 785 P.2d 440 (1990) (holding that accomplice liability is not a lesser include offense); State v. Modest, 88 Wn. App. 239, 250-51, 944 P.2d 417 (1997) (holding that there was sufficient evidence of accomplice liability to convict the defendant); State v. Quinn, 43 Wn. App. 696, 703, 719 P.2d 936 (1986) (holding that jury instructions on accomplice liability were proper where defendant had knowledge of an agent's improper actions).
Prosecutorial Misconduct
Prosecutorial misconduct requires a "showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial." The defendant bears the burden of showing both prongs of prosecutorial misconduct.
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).
Id.
Lane argues that the State's explanation of accomplice liability to the jury was improper under State v. Roberts and State v. Cronin. They are distinguishable. Here, the jury instruction on accomplice liability stated:
142 Wn.2d 471, 14 P.3d 713 (2000).
142 Wn.2d 568, 14 P.3d 752 (2000).
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
Clerk's Papers at 66 (emphasis added).
This instruction is consistent with governing law and WPIC 10.51.
But, during closing argument, the State told the jury that a "person is legally accountable for the conduct of another when he or she is an accomplice of that person during the commission of a crime. " This is contrary to WPIC 10.51 and similar to the language that was improper in Roberts and Cronin.
Report of Proceedings (May 19, 2009) at 233 (emphasis added).
Roberts, 142 Wn.2d at 488-89;Cronin, 142 Wn.2d at 576-77.
Notwithstanding this inconsistency between the court's written instruction and the State's misstatement of it during oral argument, there is no reversible error because Lane has not proved that it was prejudicial. A jury is presumed to follow the court's written instructions. They are also told that the oral arguments are just that. Because the written instructions were correct, we presume that the jury relied on those and not the prosecutor's misstatement of the standard.
State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973 (2010) (citing State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008)).
We affirm the judgment and sentence.
WE CONCUR: