Opinion
No. 39742-1-II.
April 12, 2011.
Appeal from a judgment of the Superior Court for Clark County, No. 08-1-00813-4, Robert A. Lewis, J., entered September 2, 2009.
Affirmed by unpublished opinion per Penoyar, C.J., concurred in by Hunt and Johanson, JJ.
Christopher Austin Perkins appeals his convictions of attempted first degree robbery, attempted first degree burglary, and first degree assault, all with firearm enhancements. He claims that the trial court erred in not requiring the State to disclose investigative records relating to the lead detective's misconduct and in not allowing him to present evidence that one of the other perpetrators was convicted. He claims that trial counsel's failure to request a jury instruction regarding his statements to the police denied him his right to effective assistance of counsel. He also claims that the sentencing court erred in not finding that the robbery and assault convictions were the same criminal conduct. Finally, pro se, Perkins challenges the sufficiency of the evidence. Finding no reversible error, we affirm.
A violation of RCW 9A.08.020(3), RCW 9A.56.200(1)(a)(i), RCW 9A.28.020.
A violation of RCW 9A.08.020(3), RCW 9A.52.020(1)(a) and RCW 9A.28.020.
A violation of RCW 9A.08.020(3), RCW 9A.36.011 and (1)(a).
Violations of RCW 9.94A.602, 9.94A.533.
As used in RCW 9.94A.589.
Facts
Shortly after midnight on May 17, 2008, Gary Atkinson was awakened by a loud pounding on his door. When he opened the door, he saw two men pointing guns at him. One man told him, "Get down, get down." 1 Report of Proceedings (RP) at 43. Although the men wore bandanas over their noses and mouths and beanies over their heads, Atkinson recognized one as Gary Alexander because of his voice, his eyes, and the teardrop tattoo under his eye.
Atkinson pushed on the door to close it, but the men succeeded in pushing it open. Atkinson then pushed his way out past the men and he heard one say, "We'll shoot, we'll shoot." 1 RP at 44. Atkinson then heard two gunshots and felt one bullet strike him in the back. Atkinson fled to his neighbor's apartment, entered, and turning back saw the two assailants running into his carport.
While waiting for an ambulance, Atkinson told the police that he recognized one of the men but did not want to say who it was. Later, at the hospital, he identified Alexander from a photo montage.
The police arrested Alexander, Perkins, and Lester Griffin. While at first denying he was involved, Alexander later implicated Perkins and Griffin, claiming that they went to Atkinson's door and he waited in the car.
Griffin invoked his rights to silence and an attorney and did not speak with the police. Perkins agreed to an interview and spent four hours with Detective Jeffrey Wilken. At first, Perkins denied being involved. Later he admitted being involved but said that he waited in the car, and finally, he explained that he and Griffin were the assailants and Alexander was in the car.
One reason that Perkins's story changed was that Wilken confronted Perkins with surveillance video from a nearby gas station and mini-mart. These cameras captured Alexander, Perkins, and Griffin within blocks of Atkinson's home and just minutes before the attempted robbery transpired.
Perkins explained that they fled to a nearby apartment complex where Alexander was supposed to be waiting with the car. Along a fence line where Perkins said he and Griffin had stashed the guns and clothing, the police recovered a glove containing Griffin's DNA. When he heard police sirens, Alexander fled with the car so Perkins and Griffin went to an apartment where Griffin knew someone and could call for a ride. The police recovered two .380 caliber casings from Atkinson's porch, a .40 caliber gun from Griffin's apartment, and two army-style jackets from Alexander's apartment consistent with Atkinson's description of his assailants.
Alexander agreed to testify against Griffin and Perkins in exchange for lesser charges and a 48-month sentence (rather than the 208 month sentence he faced if he went to trial). A jury found Griffin guilty and, subsequently, he invoked his 5th Amendment right and would not testify at Perkins's trial.
Although Atkinson testified that Alexander was one of the assailants, the State's theory at trial was that Alexander waited in the car while Griffin and Perkins went to Atkinson's apartment to rob him. Perkins presented witnesses who claimed he was with them in Portland about the time of the attempted robbery. Perkins testified that after they left the mini-mart at 11:59 p.m., Griffin dropped him off at WinCo where he met up with some friends who drove him to Portland. He testified that when he learned that Griffin and Alexander were planning a robbery, he told them he wanted nothing to do with it and that is when he made arrangements with his friends to pick him up at WinCo and go to Portland. Perkins claimed that Alexander picked him up in Portland the next afternoon and Alexander told Perkins the details of the attempted robbery. Alexander told Perkins that if he was arrested, he was going to tell the police that the three of them were involved and that Perkins needed to agree because he owed him. Perkins explained that Alexander was a known gang member who had likely killed someone, and he was afraid that Alexander would hurt his family if he did not tell the police Alexander's version of the events.
The jury found Perkins guilty of all three charged offenses and found by special verdicts that Perkins was armed with a firearm at the time. The sentencing court declined Perkins's request that it treat all three offenses as same criminal conduct. The sentencing court acknowledged that the attempted burglary and robbery were likely same criminal conduct but it relied on the burglary anti-merger statute to count them separately. The sentencing court then imposed a total confinement period of 423 months' incarceration, which included 180 months for firearm enhancements. Perkins appeals.
Analysis
I. Disclosure
Perkins first argues that the trial court erred in not requiring the State to disclose evidence that Wilken had been suspended from the Vancouver Police Department based on sexual harassment allegations. The trial court reviewed the undisclosed documents in camera, and it ruled that these documents were not material to the case, would be inadmissible for impeachment as prior acts of misconduct, and granted the State's motion to exclude them.
Post-trial, Perkins filed a motion for arrest of judgment or a new trial, again seeking disclosure of the facts relating to Wilken's suspension. By that time, a corrections officer had filed a civil suit against Wilken, Wilken had resigned, and an article had been published about the lawsuit in a local newspaper, disclosing many of the details.
Perkins argues that this was improper because evidence can be material without being admissible and may have led to additional evidence or other defense theories that he could have used to discredit the police investigation. He argues that his key theory at trial was that Wilken's investigation failed to explain why Wilken accepted Alexander's explanation of events. This theory was that when Atkinson positively identified Alexander, knew Alexander from prior contacts, and recognized Alexander's tattoo, only an incompetent investigation would lead to the conclusion that Alexander had not been present during the robbery. He argues that suppressing of the material investigative notes leading to Wilken's suspension undermined the integrity of the jury's verdict. Kyles v. Whitley, 514 U.S. 419, 445, 115 S. Ct. 1555, 131 L. Ed 2d 490 (1995).
The duty to disclose material evidence to the defense is rooted in due process, which "requires disclosure only of evidence that is both favorable to the accused and `material either to guilt or to punishment." United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). The defendant must show that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (quoting Bagley, 473 U.S. at 682).
The sexual harassment investigation regarding Wilken had no bearing on the investigation in Perkins's case. Following a pretrial suppression hearing, the trial court found that Perkins's statements during the interviews were uncoerced, voluntarily given, and therefore admissible. Second, the internal investigation concerned Wilken's behavior toward a single co-worker and did not implicate the quality or thoroughness of his investigations or his interviewing techniques. We find no error in the trial court's decision to grant the State's motion to not disclose the internal police investigative records to the defense.
II. Exclusion of Griffin's Conviction
Perkins next claims that the trial court erred in not allowing him to introduce evidence that Griffin was convicted for his participation in this robbery. Perkins argues that because Atkinson identified two men as involved, identified Alexander as one, and Griffin was convicted of being the other, this evidence would have bolstered his claim that he was not present.
Before the trial court admits other suspect evidence, the proponent must connect it to the crime with "`such a train of facts or circumstances as tend clearly to point out someone besides the [accused] as the guilty party.'" See State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992) (quoting State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932)). Mere evidence of another's motive, or motive coupled with threats, is inadmissible unless accompanied by evidence connecting the other person with the crime charged. State v. Clark, 78 Wn. App. 471, 478, 898 P.2d 854 (1995). We review the trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).
The trial court excluded the evidence, reasoning:
THE COURT: Well again, Counsel, I recall the testimony in some detail. The victim positively identified Mr. Alexander as the person being there. Mr. Alexander positively stated that he was not the person who went up to the door, that he was an accomplice away from the scene. So Mr. Griffin's conviction doesn't resolve that issue one way or the other. The fact that Mr. Griffin's conviction — is convicted doesn't mean Mr. Alexander was or was not at the door, or that Mr. Perkins was or was not there. It doesn't — they don't have anything to do with each other.
1 RP at 16.
Alexander, Atkinson, and Perkins's statements to Wilken all described two perpetrators as committing the robbery. Both Alexander and Perkins testified that Griffin was involved. That he was convicted is of little significance as the only issue at trial was whether the perpetrator with Griffin was Perkins or Alexander. Perkins argued extensively that the jury should believe Atkinson's testimony that Alexander was the perpetrator. The State argued that Atkinson was mistaken, had only a momentary look at one of the perpetrators, and that the jury should believe Alexander's testimony and Perkins' statements to Wilken. Additionally, there was ample evidence that all three men were involved and all three therefore were equally culpable. Under these circumstances, we agree with the trial court that the fact of Griffin's conviction did not tend to disprove that Perkins was one of the perpetrators. We find no abuse of discretion.
III. Effective Assistance of Counsel
Perkins next claims that defense counsel's failure to request a jury instruction regarding his admissions to Wilken deprived him of his right to effective assistance of counsel. Specifically, he argues that counsel should have requested WPIC 6.41, which states: "You may give such weight and credibility to any alleged out-of-court statements of the defendant as you see fit, taking into consideration the surrounding circumstances." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.41, at 196 (3d ed. 2008) (WPIC).
Perkins sought to prove at trial that Wilken's interrogation techniques, which involved using profanities, threats, and other coercive practices, made his admissions unreliable. He argued that the absence of a video camera suggested an opportunity for physical intimidation. And Perkins testified that he found Wilken's body language and demeanor threatening. Perkins argued in closing that none of his versions spoke the truth and that the final statement resulted from his fear of Alexander, a gang member who had apparently committed murder. Perkins intimated that there was more to the story than was being told about the Wilken and Alexander relationship but that whatever it was, it made their version of events suspect.
In light of these circumstances, Perkins now argues that it was incumbent on defense counsel to ask for a WPIC 6.41 instruction. He argues that no tactical reason existed not to request the instruction and the failure to do so prejudiced him. Further, a defendant is entitled to this instruction if requested. State v. Smith, 36 Wn. App. 133, 141, 672 P.2d 759 (1983).
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
Even assuming there was no tactical reason for not requesting the instruction, there is no possibility that giving such an instruction would have changed the trial outcome. The jury heard the audio taped interview in which Perkins gave three different versions of his involvement and it heard his testimony and his alibi witnesses' testimony that placed him in Portland the evening of the attempted robbery. The jury also saw surveillance video that placed Perkins with the other two suspects minutes before the attempted robbery. Further, defense counsel presented his theory that Wilken coerced and manipulated Perkins, had something questionable going on with Alexander, and that Perkins's fear of Alexander explained why he confessed to the offenses. Clearly, the jury rejected this theory and it was not because defense counsel failed to request a WPIC 6.41 instruction. Perkins's claim of ineffective assistance of counsel fails. See Strickland, 466 U.S. at 687 (A reviewing court need not address both prongs of the test if the defendant makes an insufficient showing on one prong. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.).
IV. Same Criminal Conduct
Perkins argues that the trial court erred in finding that his convictions for assault and attempted robbery did not amount to same criminal conduct. He claims that the assault was committed in furtherance of the attempted robbery and not for a separate and distinct purpose and therefore his objective intent for both was the same.
Offenses amount to the "same criminal conduct" if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). We review a sentencing court's decision that two offenses are not same criminal conduct for an abuse of discretion. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
It is undisputed that these two offenses occurred at the same time, same place, and against the same victim. Assault and robbery have different statutory intents. Thus, we look to whether the two offenses shared the same objective criminal purpose. See State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990) ("Intent, in this context, is not the particular mens rea element of the particular crime, but rather is the offender's objective criminal purpose in committing the crime."); see also State v. Davis, 90 Wn. App. 776, 782, 954 P.2d 325 (1998) (assault "furthered" burglary because defendant pointed gun at victim when she threatened to call police to stop burglary). The proper inquiry includes but is not limited to "the extent to which one crime furthered the other, whether they were part of the same scheme or plan and whether the criminal objectives changed." State v. Calvert, 79 Wn. App. 569, 578, 903 P.2d 1003 (1995).
Compare State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990) (intent of robbery is to acquire property), with State v. Rivera, 85 Wn. App. 296, 300, 932 P.2d 701 (1997) ( mens rea of first degree assault is the `intent to inflict great bodily harm') (quoting State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994)). And see RCW 9A.56.190 and RCW 9A.36.011.
Here, it is reasonable to infer that the gunman shot Atkinson in furtherance of the robbery. When Atkinson first opened the door and saw the armed men, the gunman stated, "Get down, get down." 1 RP at 43. When Atkinson pushed his way out the door and was down one step, the gunman said, "We'll shoot, we'll shoot." 1 RP at 44. Atkinson then said that he took one more step down and then heard a shot and then a second gunshot and a bullet struck him in the back.
It is also reasonable to infer that the gunman shot Atkinson in the back as he was fleeing after the attempted robbery failed. In this case, his objective criminal purpose changed froMcommitting robbery to shooting Atkinson. If the facts are sufficient to support either finding, then the matter lies within the trial court's discretion, and we will defer "to the trial court's determination of what constitutes the same criminal conduct when assessing the appropriate offender score." State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990). We find no abuse of discretion here.
V. Sufficiency of the Evidence
In his Statement of Additional Grounds, Perkins claims that the State failed to prove the elements of the offenses beyond a reasonable doubt. He notes that there was no eye-witness identification of him and no physical evidence placing him at the scene.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), 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).
Here, taking the evidence in the light most favorable to the verdicts, there is ample evidence to support the convictions. Perkins's confession alone provides that basis. Combining that with Alexander's testimony and the surveillance tapes provides time and proximity, places him with the other perpetrators, and provides motive.
We affirm.
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. and Johanson, J., concur.