Opinion
No. 23923-3-III.
Filed: April 27, 2006.
Appeal from Superior Court of Spokane County. Docket No: 03-1-03381-3. Judgment or order under review. Date filed: 03/01/2005. Judge signing: Hon. Robert D. Austin.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Counsel for Respondent(s), 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.
UNPUBLISHED OPINION
James R. Parmelee challenges his convictions for two (of the three) counts of first degree robbery and two counts of second degree assault. He contends that the trial court erred when it found that the detectives did not make any promises to coerce him to confess. He also argues that there is insufficient evidence to support the robbery convictions and that his second degree assault convictions should be merged into his first degree robbery convictions. We conclude that the record supports the trial court's finding that the detectives did not make any promises to Mr. Parmelee in return for his confession. There is sufficient evidence to support his convictions and the convictions do not merge since they involve separate victims. We therefore affirm the trial court.
FACTS
James R. Parmelee admitted to Detective Dave Madsen and Detective Troy King that he robbed three businesses — Corral West, Payless Shoes, and Victoria's Espresso. He told Detective Madsen `he used a Beretta firearm when committing these robberies.' Clerk's Papers (CP) at 275.
Witnesses were present during each of the robberies. Lana Erickson and Angela Boseth were present during the Corral West robbery. Heather Thomas and Jessica Reynolds were present during the Payless Shoes robbery. Kelsie Lounder, Melissa Springer, and Danielle Harley were present during the Victoria's Espresso robbery.
The State charged Mr. Parmelee by amended information with three counts of first degree robbery. The State also charged Mr. Parmelee with six counts of second degree assault. The case was tried to the court sitting without a jury. The court found Mr. Parmelee guilty in a bench trial of three counts of first degree robbery and four counts of second degree assault.
Mr. Parmelee moved for reconsideration. The court considered his motion and concluded that his convictions for count I (first degree robbery) and count IV (second degree assault) merged since they involved the same victim. It also concluded that Mr. Parmelee's convictions for count III (first degree robbery) and count VII (second degree assault) merged since they involved the same victim. The court ordered that Mr. Parmelee's second degree assault convictions in counts IV and VII be set aside. It affirmed the remaining convictions for three counts of first degree robbery and two counts of second degree assault.
DISCUSSION Voluntariness of Confession
Mr. Parmelee argues that his confessions were a product of impermissible promises and misrepresentations made by police. And the court should have suppressed those statements.
We review a trial court's findings of fact following a motion to suppress for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997); State v. Hughes, 118 Wn. App. 713, 722, 77 P.3d 681 (2003). `Substantial evidence is that which persuades a fair-minded, rational person of the [truth of the] finding.' Hughes, 118 Wn. App. at 722. We review only those findings to which error has been assigned. Broadaway, 133 Wn.2d at 130; Hughes, 118 Wn. App. at 722. Unchallenged findings of fact are verities on appeal. Broadaway, 133 Wn.2d at 131, 133; Hughes, 118 Wn. App. at 722. We review a court's conclusions of law to determine whether they are supported by the findings. Hughes, 118 Wn. App. at 722. We may re-label a trial court's findings and conclusions if they are improperly labeled. State v. Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986).
A defendant must provide a separate assignment of error for each finding of fact he challenges. State v. Estrella, 115 Wn.2d 350, 355, 798 P.2d 289 (1990). But even where the defendant fails to assign error to a specific finding we will entertain the challenge if the nature of the challenge is clear and the challenged finding is set forth in the appellate brief. Id.
A confession is voluntary if it is made after a defendant has been advised of his rights and he `knowingly, voluntarily and intelligently waives those rights.' State v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210 (1996) (emphasis added). Voluntariness is measured by the totality of the circumstances, including any promises or misrepresentations. Broadaway, 133 Wn.2d at 132; Aten, 130 Wn.2d at 663-64; Hughes, 118 Wn. App. at 722. We will look at the relationship between the promise and the confession. Ultimately the question is whether a defendant's free will was overridden by the representations or promises. Broadaway, 133 Wn.2d at 132; Hughes, 118 Wn. App. at 722.
Mr. Parmelee assigns error to the trial court's finding that his confession was not coerced. But the court's determination that the confession was not coerced is a conclusion of law and not a finding of fact. Niedergang, 43 Wn. App. at 658-59. Mr. Parmelee does not assign error to any of the court's actual findings of fact. He does, however, argue that his confessions were a product of impermissible promises and misrepresentations. The trial court did find that `[t]he detectives made no promises to the defendant.' CP at 267.
Detective King interviewed Mr. Parmelee. Mr. Parmelee agreed to answer Detective King's questions. Detective King did not `make any promises to [Mr. Parmelee], in return for his statements.' Report of Proceedings (RP) at 21. He simply answered Mr. Parmelee's `questions about what would happen if he was charged here versus [Portland (for other crimes)].' RP at 46. He `explained to [Mr. Parmelee] the process about being extradited from one state to another.' RP at 46.
This evidence easily supports a finding that no promises were made and that in turn supports the court's conclusion that the confession was voluntary. Broadaway, 133 Wn.2d at 130-31; Hughes, 118 Wn. App. at 722.
Sufficiency of the Findings
Mr. Parmelee next contends that there is insufficient evidence to support his convictions.
We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The challenge represents an admission of the truth of the State's evidence and all reasonable inferences. Id. We will affirm where the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
If a trial court enters findings of fact and the defendant does not assign error to those findings, they become verities on appeal. State v. Rodgers, 146 Wn.2d 55, 61, 43 P.3d 1 (2002).
First degree robbery requires the use of a deadly weapon in the commission of a robbery or in immediate flight therefrom. RCW 9A.56.200(1)(a)(i), (ii).
Mr. Parmelee argues that there is insufficient evidence to `connect' him with the robberies. He is then challenging the trial court's conclusions of law that he is the guilty party. He does not assign error to any of the court's findings of fact. The court's findings are then verities on appeal. Rodgers, 146 Wn.2d at 61. The question is whether the court's findings support its conclusions of law. Id.
The court found that Mr. Parmelee admitted to Detective Madsen and Detective King that he robbed the Payless Shoes store. The court found that Ms. Thomas and Ms. Reynolds saw the robbery and described the man's clothing. Finally, the court found that Ms. Reynolds saw a man take $50 from the store.
On the Victoria's Espresso conviction, the court made the following findings: Mr. Parmelee admitted to Detective Madsen and Detective King that he robbed Victoria's Espresso. Ms. Lounder, Ms. Springer, and Ms. Harley saw a man rob the store. The man entered the store and said: `This is a robbery, put the money in the bag.' CP at 275. And he was armed with a gun.
Mr. Parmelee told Detective Madsen `he used a Beretta firearm when committing these robberies.' CP at 275.
These unchallenged findings easily support Mr. Parmelee's convictions for first degree robbery of Payless Shoes and Victoria's Espresso. Rodgers, 146 Wn.2d at 61; Salinas, 119 Wn.2d at 201.
Double Jeopardy — Merger
Mr. Parmelee next argues that the trial court erred when it failed to merge his first degree robbery convictions (counts I and III) with his second degree assault convictions (counts V and VIII).
This is a question of law and so our review is de novo. State v. Zumwalt, 119 Wn. App. 126, 129, 82 P.3d 672 (2003), aff'd sub nom. State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005).
Two crimes merge — here second degree assaults into first degree robberies — when proof of one is necessary to prove the other. Zumwalt, 119 Wn. App. at 130. So, for example, if the assaults here were the necessary elements of proof for the robberies they then merge with the robberies. Id. at 130-32.
The court convicted Mr. Parmelee for the crimes of first degree robbery (count 1) and second degree assault (count V) that occurred on August 20, 2003. Ms. Erickson was the victim of the robbery and Ms. Boseth was the victim of assault. The court also convicted Mr. Parmelee for the crimes of first degree robbery (count III) and second degree assault (Count VIII) that occurred on September 20, 2003. Ms. Lounder was the victim of the robbery and Ms. Harley was the victim of the assault.
Each of the crimes involved a different victim. State v. Vladovic, 99 Wn.2d 413, 421-22, 662 P.2d 853 (1983). A separate injury was caused to each of the victims. Id. A different set of facts was then required to convict Mr. Parmelee of each of the crimes. Freeman, 153 Wn.2d at 776-77; Vladovic, 99 Wn.2d at 421-22; Zumwalt, 119 Wn. App. at 130. These crimes do not then merge. Vladovic, 99 Wn.2d at 422.
ADDITIONAL GROUNDS FOR REVIEW Ineffective Assistance of Counsel
Mr. Parmelee next argues his lawyer was ineffective.
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). Mr. Parmelee must overcome a strong presumption that his lawyer's performance was reasonable. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); Shaver, 116 Wn. App. at 382. He must show that `defense counsel's representation . . . fell below an objective standard of reasonableness.' McFarland, 127 Wn.2d at 334-35; Shaver, 116 Wn. App. at 382. This must be shown based upon the trial record. McFarland, 127 Wn.2d at 335. A lawyer's performance is not ineffective if that conduct is justified by strategic or tactical reasons. Id. at 336. And Mr. Parmelee must show that he was prejudiced by the deficient representation — that the result would have been different. Id. at 334-35.
Mr. Parmelee argues that he received ineffective assistance of counsel since the court denied his lawyer's motion for a continuance. Statement of Additional Grounds for Review (Additional Grounds) at 1; RP at 2-14. His counsel argued that he needed time to contact additional witnesses. Mr. Parmelee argues that his case went to trial `without several of [his] alibi and other defense witnesses being interviewed or subpoenaed.' Additional Grounds at 1. Mr. Parmelee does not, however, tell us who those witnesses are or what they would have said. McFarland, 127 Wn.2d at 335. He has not then shown that `the result of the proceeding would have been different' had these witnesses been allowed to testify. McFarland, 127 Wn.2d at 335.
Mr. Parmelee also argues that he received ineffective assistance of counsel since defense counsel failed to question the State's witnesses about the `vague nature of their identification' of Mr. Parmelee. Additional Grounds at 1. It is, however, a trial strategy not to seek out additional incriminating information. Mr. Parmelee has not shown that his counsel's performance was deficient. McFarland, 127 Wn.2d at 334-35; Shaver, 116 Wn. App. at 382.
Conflicting Evidence
Mr. Parmelee challenges the fact that there is conflicting evidence in the record. But again we give deference to the trier of fact since the judge is in the best position to evaluate conflicting evidence, witness credibility, and the weight to be assigned to the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We do not retry factual issues. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997).
We affirm.
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 KATO, J., concur.