|
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
40801-5 |
| Title of Case: |
State Of Washington, Respondent V. Michael Anthony Lar, Appellant |
| File Date: |
04/24/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Lewis County Superior Court |
| Docket No: | 10-1-00055-5 |
| Judgment or order under review |
| Date filed: | 05/26/2010 |
| Judge signing: | Honorable Nelson E Hunt |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Christine Quinn-Brintnall |
| David H. Armstrong |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | John A. Hays |
| | Attorney at Law |
| | 1402 Broadway St |
| | Longview, WA, 98632-3714 |
Counsel for Respondent(s) |
| | Sara I Beigh |
| | Lewis County Prosecutors Office |
| | 345 W Main St Fl 2 |
| | Chehalis, WA, 98532-4802 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 40801-5-II
Respondent,
v.
MICHAEL ANTHONY LAR, UNPUBLISHED OPINION
Appellant.
Hunt, J. -- Michael Anthony Lar appeals his jury convictions for first degree burglary,
first degree kidnapping, and first degree attempted robbery. He argues that (1) the trial court
violated his state and federal constitutional rights when it refused to suppress evidence obtained
after police arrested him without a warrant in a "high risk"1 stop; (2) he received ineffective
assistance when defense counsel failed to file a timely motion to suppress evidence flowing from
Lar's allegedly unlawful arrest and from his allegedly coerced statements; (3) the trial court
violated his right to a fair and impartial jury trial when it denied his motion to excuse a juror who
had failed to disclose that he was acquainted with a State witness; and (4) the trial court erred in
sentencing him to life in prison under the Persistent Offender Accountability Act (POAA)2
1 Verbatim Report of Proceedings (VRP) (March 26, 2010) at 136.
2 Chapter 9.94A RCW.
No. 40801-5-II
because the State did not produce substantial evidence that he had two prior bank robbery
convictions. In his Statement of Additional Grounds (SAG), Lar asserts that the trial court erred
during voir dire by conducting an "inadequate inquiry" into the possible prejudicial effect that
adverse pretrial publicity might have had on the jury pool. SAG at 1. We affirm.
FACTS
I. Burglary, Kidnapping, and Attempted Robbery
A. Credit Union
Around 6:30 am on January 25, 2010, Holly Weitz arrived at the Twin Star Credit Union
in Centralia to begin her opening shift as a bank teller. When Weitz approached the bank's
parking lot, she saw fellow employee Esperanza Mejia-Tellez waiting in her vehicle. The credit
union's opening procedures required Weitz to call Mejia-Tellez on her cell phone and then to
enter the building, turn off the security system, turn on the bank's lights, and eventually tell Mejia-
Tellez by cell phone that she could safely enter the building.
After Weitz parked her car, she established a cell phone connection with Mejia-Tellez,
entered the credit union's side entrance, and disarmed the alarm. She heard a noise that sounded
like "wind" coming from the assistant manager's office. Verbatim Reports of Proceedings (VRP)
(March 25, 2010) at 23. She went to investigate, pushed open the door to the office, turned on
the light, and saw a man wearing dark clothing with a ski mask over his face crouched in the
corner. According to Weitz, the man was about 6'3" tall and approximately 60 years old.
Although the mask covered most of his face, Weitz noticed his unusually blue eyes and white
stubble on his upper lip. He appeared to be holding a handgun in his right hand and a knife in his
2
No. 40801-5-II
left hand. The man, later identified as Michael Anthony Lar, rushed toward Weitz and hit her on
the back of the head with a metal object, which she believed was his handgun. Weitz screamed
and dropped her cell phone. Lar held his gun to the back of her head, placed his knife on her
throat, told her not to touch her cell phone, and threatened to take her hostage if she "screwed"
anything up for him. VRP (March 25, 2010) at 26.
Weitz explained that she needed to talk to Mejia-Tellez, who otherwise would
immediately call the police. Lar handed Weitz her cell phone. Weitz tried to call Mejia-Tellez
four or five times, but she was so upset that she misdialed and was unable to get a call through.
Lar took Weitz to the side entrance of the building and told her to stick her head outside and to
wave for Mejia-Tellez to come inside, while pointing his gun at Weitz's head and telling her,
"[Y]ou better not [f*ck] this up, [b*tch or] I'll take you with me." VRP (March 25, 2010) at 29.
Weitz opened the side door and waived her cell phone at Mejia-Tellez, beckoning her inside.
Mejia-Tellez did not respond because she had already called the police. Weitz noticed
Centralia Police Officer Neil Hoium with a gun, approaching on the right side of the credit union.
Holding her thumb and index finger in the shape of a "gun," Weitz mouthed silently to Hoium that
a male intruder inside had a gun. VRP (March 25, 2010) at 111. Hoium grabbed Weitz's arm
and pulled her out of the doorway. According to Hoium, a male figure inside the credit union
appeared out of the shadows holding what appeared to be a .45 caliber handgun. Hoium fired
two shots at the man, who disappeared from view.
B. Arrest
About five minutes later, officers established a perimeter around the credit union; they
3
No. 40801-5-II
then spent several hours trying to establish communication with Lar, whom they believed was
inside. Eventually two SWAT teams stormed the building, but Lar was not there. Police officers
searched the bank and the surrounding area with a K-9 unit, which found no trace of the suspect
and no additional evidence. Processing the scene inside the credit union, detectives found a
broken window in the assistant manager's office, blood on the window frame and wall, and glass
shards with what appeared to be blood on them below the window.
Later that same evening, Kimberly Ronnell observed a man walking down the street near
her house a couple blocks from the credit union: He was "average" size with blonde or grayish
hair, wearing a dark jacket and jeans, limping, holding his side, and looking "groggy." VRP
(March 26, 2010) at 68. As Ronnell pulled into her front driveway, the man asked her to call him
a taxi so he could go to Olympia; she did. A few minutes later, taxi driver Joey McKnight picked
up Lar in front of Ronnell's house. Lar was wearing jeans and a coat and carrying a gray shoulder
bag; he insisted on sitting in the back seat. According to McKnight, Lar wore black gloves, which
he did not remove, even when paying for his fare. Lar told McKnight that he had hurt his arm in a
car accident in Chehalis; but he did not ask to stop for treatment, even when McKnight picked up
another passenger at the Centralia hospital on the way to Olympia. After delivering Lar to
"Peppers,"3 a bar in downtown Olympia, McKnight noticed that Lar was carrying a pair of bloody
jeans and duct tape; McKnight called the Centralia Police Department, to which he had provided
tips, and provided a description of Lar.
Around 8:45 pm, Lar walked into the Phoenix Inn, four blocks from Peppers, and asked
3 VRP (March 26, 2010) at 77.
4
No. 40801-5-II
the front desk attendant, Emma Alexander, to call him a taxi to go to Seattle or as "far north as
possible." VRP (March 26, 2010) at 82. According to Alexander, Lar was wearing black
workout pants, leather shoes, a dark navy-blue jacket, and a black glove on his right hand. He
had blood splotches on his clothing, a pair of denim jeans wrapped around his right arm, and a roll
of duct tape. Lar told Alexander that he had injured his arm in a car accident in Chehalis.
Although Lar appeared to be in extreme pain, he repeatedly told Alexander not to call paramedics
to assist him because he did not have health insurance. Alexander arranged for a taxi to take Lar
to Sea-Tac Airport. Around 9:05 pm, a white taxi with a red top picked Lar up at the inn. Lar
conversed with the taxi driver for about five minutes before entering the cab.
Another Phoenix Inn employee, Crystal Schultz, called the Olympia Police Department
and provided a description of Lar and the taxi. At approximately 9:15 pm, six or seven blocks
from the inn, Olympia Police Officer Jacob Brown spotted a taxi matching this description, drove
behind the taxi, and noticed a white male with "lightish or gray hair" crouched in the back seat.
VRP (March 26, 2010) at 135. Earlier in the day, the Olympia Police Department had briefed
Brown about the attempted Centralia credit union robbery; and dispatch had informed him that
they suspected the man Schultz had reported to have been involved. Brown called for backup.
The Olympia police shut down the street, conducted a "high risk" stop, pulled Lar out of
the taxi at gunpoint, and put him face down on the sidewalk. VRP (March 26, 2010) at 136.
According to Brown, Olympia police "detained" Lar and put him in handcuffs. VRP (March 26,
2010) at 143. Centralia police officers, also present, (1) observed that Lar had "blue"4 eyes; that
4 VRP (March 26, 2010) at 44.
5
No. 40801-5-II
he was wearing "layers,"5 including black sweats and a jacket; that he appeared to have wounded
his arm; and that he was holding duct tape and a pair of jeans; (2) "arrested" Lar; and (3) took
him to the Olympia police station, where police confiscated several layers of his clothing and
photographed his injuries. Because Lar had gunshot wounds to his arm and to his hip, they had
him transported to the hospital.
C. Investigation
Lar spent several days hospitalized under heavy sedation, restrained to his bed. As he
drifted in and out of consciousness that first evening, Centralia police officers discussed with him
aspects of the attempted robbery without first reading him Miranda6 rights. At one point, Lar
told Detective Carl Buster that he did not want to talk; and Buster stopped discussing the case
with Lar. Later, however, according to Officer Gary Byrnes, before the officers engaged in any
overt questioning, Lar volunteered the following information: (1) he was "going to prison for the
rest of his life"7; (2) he was not mad at the officer who had shot him; and (3) if the girl at the
credit union had done what he had told her, none of this would have happened.
Early the next morning, at approximately 1:00 am, Byrnes read Lar his Miranda rights for
the first time at the hospital. According to Byrnes, Lar indicated that he understood his rights,
said that he did not want any attorneys to visit him, reiterated that he was not angry at the officer
who had shot him, described how he had carried out the attempted robbery and how he had
5 VRP (March 26, 2010) at 46.
6 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
7 VRP (March 10, 2010) at 12.
6
No. 40801-5-II
eluded the police, and explained that he had hidden in the bushes near at the north end of the
credit union until around 6:00 pm, when the police left. Lar also explained that he then had
buried his gun across the street from the credit union, had looked for but could not find his lost
car keys, and had caught a taxi to Olympia. Lar drifted in and out of sleep while he had this
conversation with Byrnes, repeatedly pushing an intravenous pain medication button.
Later that day, Centralia police officers returned to the credit union to look for more
evidence. Using canine dogs to track Lar's scent, they discovered a black ski mask and an
electronic key fob for a Cadillac in the bushes. On the credit union's exterior wall, they found a
red spot that appeared to be blood; they also found a straw of grass saturated in blood and two
glass shards. Later tests revealed that the blood on one of the glass shards matched Lar's DNA
profile.
Buried in the bushes on the property across the street from the credit union, officers found
a knife with a three-inch blade and a black BB gun that looked like a pistol. Three or four blocks
away, officers found a white Cadillac with Montana plates registered to Lar's wife; its doors and
lights activated when they pressed a button on the key fob that they had found in the bushes
outside the credit union. After obtaining a search warrant, the police found Lar's wallet inside the
Cadillac.
II. Procedure
The State charged Lar with first degree burglary, first degree kidnapping, and attempted
first degree robbery, with deadly weapon sentence enhancements. The State also notified Lar that
it would request life in prison without parole under the Persistent Offender Accountability Act
7
No. 40801-5-II
("POAA").8
8 RCW 9.94A.555.
8
No. 40801-5-II
A. Pretrial Motions
Following a CrR 3.5 hearing to determine the admissibility of Lar's statements to the
police officers at the hospital, the trial court ruled that Lar had been "in custody"9 at the hospital
and suppressed all of the statements that Lar had made to the officers because (1) Lar's heavy
medication rendered his pre-Miranda statements involuntary; (2) after the police read him his
Miranda rights, Lar did not knowingly and voluntarily waive them; and (3) the officers violated
Lar's Fifth Amendment10 rights when they continued questioning him after he invoked his right to
remain silent during questioning about a different offense.11
Lar did not move to suppress the BB gun and knife. But he did move to suppress his
medical records, which police officers had seized from the hospital without a warrant. The court
granted the motion. Lar later moved to suppress all evidence that the police had obtained
following his warrantless detention, arrest, and subsequent search. Lar argued that the police
lacked probable cause or reasonable suspicion to stop his taxi and, therefore, the State needed to
show an exception to the warrant requirement before any evidence flowing from his detention and
arrest was admissible. The trial court refused to hear this untimely motion because Lar had not
9 Clerk's Papers (CP) at 62.
10 U.S. Const. amend. V.
11 At the hospital around "mid-day" on January 26, a detective from Ellensburg had read Lar his
Miranda rights and then had spoken to Lar about an unrelated crime; apparently, Lar had invoked
his right to remain silent. CP at 61. Centralia police officers then questioned Lar about the
Centralia bank robbery, believing that Lar had not, however, invoked his right to remain silent
about the attempted credit union robbery that they were investigating.
9
No. 40801-5-II
filed it by the time of the omnibus hearing.12 When the State rested its case, Lar renewed his
motion to suppress this evidence, and the trial court again denied it.
On the eve of trial, Lar moved for a continuance and waived his speedy trial rights after
learning that the Centralia Police Department had allegedly issued a press release to newspapers,
radio stations, and television stations in Lewis County and surrounding areas. The media reported
that DNA evidence linked Lar to the Centralia credit union robbery and to an earlier bank robbery
at the same credit union, and that he might have committed seven other bank robberies in western
states. Lar expressed concern that this information could affect the jurors in his trial. The trial
court denied Lar's motion, noting that (1) it was "totally speculative" about what information
would be available to prospective jurors and whether it would affect any juror's ability to be fair
and impartial in his trial; and (2) the parties could deal with the publicity during voir dire. VRP
(March 23, 2010) at 7. The trial court asked the parties to remind it to inquire about the publicity
during voir dire if it forgot to ask.13
B. Trial
During voir dire, the trial court apparently read the State's witness list and asked the
jurors if they were acquainted with any of the State's witnesses. Juror 32 initially indicated that
12 The trial court also commented that the motion was "generic" and that Lar could have
submitted it at an earlier date. VRP (March 24, 2010) at 20.
13 The parties did not designate a verbatim report of the jury selection proceedings as part of the
record on appeal. See VRP (March 24, 2010) at 8. Nevertheless, nothing in the record suggests
that the trial court failed to question the jury pool about the pretrial publicity as planned. The
record also shows that the trial court instructed the empanelled jury not to read or to listen to any
publicity about the case. See VRP (March 24, 2010) at 12.
10
No. 40801-5-II
he did not know any of the State's witnesses, and the parties accepted him as the eighth member
of Lar's jury panel. According to the clerk's notes, Lar exercised four of his six peremptory
challenges during voir dire. The parties accepted twelve jurors and two alternates for the jury
panel.
During noon recess on the second day of trial, Lar's counsel observed juror 32 greet a
person whom counsel realized was State witness Joey McKnight, the taxi driver who had
transported Lar from Centralia to Olympia. Counsel immediately notified the trial court, and the
parties questioned the juror out of the presence of the other jurors. Juror 32 testified that (1)
McKnight was "the boyfriend of a former girlfriend of [juror 32's] stepson," (2) he did not know
McKnight very well, (3) he (juror 32) had originally indicated that he did not know any of the
State's witnesses because he did not know McKnight's last name, (4) he had not spoken to
McKnight in over six months, and (5) he would not give McKnight's testimony more weight than
other witnesses' testimonies. VRP (March 25, 2010) at 57. Lar moved to excuse juror 32,
arguing that he would have used one of his two remaining peremptory challenges to strike juror
32 during voir dire had he known about the juror's acquaintance with McKnight. Ruling that
juror 32 had sufficiently shown that he could be fair and impartial, the trial court denied Lar's
motion.
C. Verdict and Sentencing
The jury found Lar guilty of all three charges, committed while armed with a deadly
weapon. At sentencing, the State presented two certified copies of Lar's 1985 and 1997 federal
judgment and sentences and asked the trial court to sentence Lar to life in prison without the
11
No. 40801-5-II
possibility of parole under the POAA. Jennifer Tien authenticated the documents, testifying that
she was a federal probation officer familiar with Lar's criminal record and had supervised him
following his earlier federal convictions, beginning in October 2008. The 1985 judgment and
sentence showed that the federal court had sentenced a "Michael Anthony Lar" on two counts of
armed bank robbery; the 1997 judgment and sentences on two separate cases similarly showed
that the federal court had sentenced a "Michael Anthony Lar" on one count of armed bank
robbery and one amended count of armed bank robbery.14
Lar objected to admission of these prior federal judgment and sentences, arguing that the
State had not provided a sufficient foundation to show that he had committed these crimes.
Overruling Lar's objection, the trial court admitted the documents as court records and sentenced
Lar to life in prison without the possibility of parole under the POAA. Lar appeals his convictions
and sentence.
ANALYSIS
I. Pretrial Publicity
In his SAG, Lar contends that (1) during voir dire, the trial court erred by conducting an
"inadequate inquiry" into the prospective jury pool's familiarity with adverse pretrial publicity
from the local news and radio stations the day before jury selection; and (2) the "probability of
prejudice" was so great that it requires reversal of his conviction. SAG at 3 (quoting United
States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986)). We disagree.
Trial courts have broad discretion to determine how best to conduct jury voir dire. State
14 The State appears to have amended this conviction in 2001 to "armed bank robbery."
Sentencing Ex. 2; see also VRP (May 26-27, 2010) at 12.
12
No. 40801-5-II
v. Davis, 141 Wn.2d 798, 826, 10 P.3d 977 (2000). The trial court's exercise of discretion is
limited "only when the record reveals that the [trial] court abused its discretion and thus
prejudiced the defendant's right to a fair trial by an impartial jury." Davis, 141 Wn.2d at 826
(emphasis added). Absent an abuse of discretion and a showing that the rights of an accused have
been substantially prejudiced, we will not disturb on appeal a trial court's ruling on the scope and
content of voir dire. Davis, 141 Wn.2d at 826. Where trial-related publicity creates a probability
of prejudice, the defendant is denied due process of law if the trial court does not take sufficient
steps to ensure a fair trial. State v. Wixon, 30 Wn. App. 63, 67, 631 P.2d 1033, review denied, 96
Wn.2d 1012 (1981).15 Such is not the case here.
Lar did not designate a transcript of voir dire as part of the record on appeal.16 Thus, we
cannot review specific questions that the trial court and counsel asked prospective jurors about
their exposure to Lar's pretrial publicity. The record that we do have before us, however, shows
that (1) the trial court expressly planned to question the jury pool about their familiarity with the
publicity; (2) to assure that this inquiry happened, the trial court specifically asked both counsel to
remind it to ask such questions if it forgot; (3) Lar was represented by counsel at the pretrial
hearing where the publicity was discussed and during jury selection and, therefore, presumably
15 We found no probability of prejudice where (1) Wixon's counsel had the opportunity to make
"general inquiries" of the prospective jurors about their familiarity with the pretrial publicity, (2)
counsel chose not to do so, and (3) he did not exercise all of his peremptory challenges. Wixon,
30 Wn. App. at 70-71.
16 RAP 9.2 (b) provides: "A party should arrange for the transcription of all those portions of the
verbatim report of proceedings necessary to present the issues raised on review."
13
No. 40801-5-II
followed through with this voir dire component17; and (4) at the end of voir dire, Lar had two
unused peremptory challenges, which he could have used to excuse any remaining jurors that he
believed might have been tainted by pretrial publicity.18 That Lar chose not to exercise these
remaining peremptory challenges suggests that he was satisfied of the jury's freedom from such
pretrial publicity taint.
Lar is not required to include in his SAG citations to the record. Nevertheless, "the
appellate court is not obligated to search the record in support of claims made in a
defendant/appellant's statement of additional grounds for review." RAP 10.10(c). The record
before us contains no support for Lar's assertions that the trial court failed to inquire about
potential jurors' exposure to adverse pretrial publicity and that such failure prejudiced him. On
the contrary, as we set forth above, the record supports an opposite conclusion.
II. Motion To Excuse Juror
Lar next argues that, in denying his motion to excuse juror 32 on the second day of trial,
the trial court violated his right to a fair and impartial jury, guaranteed by the Sixth Amendment to
the United States Constitution and article I, section 22 of the Washington Constitution. He
contends that (1) juror 32 failed to disclose during voir dire his acquaintance with a State witness;
(2) had he (Lar) known this fact during voir dire, he would have used one of his remaining
17 Lar does not assert that his trial counsel rendered ineffective assistance by failing to make sure
that the trial court asked the jury venire about pretrial publicity. Moreover, "[t]here is a strong
presumption that [trial] counsel's performance was reasonable." State v. Kyllo, 166 Wn.2d 856,
862, 215 P.3d 177 (2009); see also State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
18 We note that Lar does not assert nor does the record suggest that the trial court refused to
excuse for cause any juror exposed to and affected by the pretrial publicity.
14
No. 40801-5-II
peremptory challenges to remove juror 32; and (3) because there were two alternates available in
the jury box when the trial court denied his motion, excusing juror 32 would not have delayed the
trial. The State responds that the juror sufficiently demonstrated that he could be fair and
impartial in trying Lar's case and, therefore, the trial court did not abuse its discretion in denying
Lar's motion. We agree with the State.
A. Standard of Review
We review for abuse of discretion a trial court's decision about whether to excuse a juror.
State v. Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009). A trial court abuses its discretion
when it bases its decision on untenable grounds or reasons. Depaz, 165 Wn.2d at 852. The
question for the trial court is whether the challenged juror can set aside preconceived ideas and try
the case fairly and impartially. Ottis v. Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747,
752-53, 812 P.2d 133 (1991). The trial court has authority to find facts before deciding to
dismiss a juror as unfit under RCW 2.36.110; the trial court also weighs the credibility of the
challenged juror based on its observations. State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866
(2000), review denied, 143 Wn.2d 1015 (2001). We defer to the trial court's factual
determinations in such matters. Jorden, 103 Wn. App. at 229.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a defendant the right to a trial by an impartial jury. State v.
Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995). A defendant is entitled to a fair trial, not a
perfect one. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845,
78 L. Ed. 2d 663 (1984).
15
No. 40801-5-II
To invalidate the result of a . . . trial because of a juror's mistaken, though honest
response to a [voir dire] question, is to insist on something closer to perfection
than our judicial system can be expected to give.
McDonough, 464 U.S. at 555. "The motives for concealing information may vary, but only those
reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial."
McDonough, 464 U.S. at 556. A juror's failure to speak during voir dire about a material fact
can also amount to juror misconduct. Allyn v. Boe, 87 Wn. App. 722, 729, 943 P.2d 364 (1997).
But there is no such misconduct alleged or shown here.
B. Juror 32's Ability To Try Case Fairly and Impartially
Because Lar did not arrange for transcription of voir dire, we do not have that part of the
record before us. Nevertheless, it appears that, as Lar asserts, (1) during voir dire, the trial court
asked the prospective jurors if they were acquainted with any State witnesses, juror 32 did not
respond, and he was accepted for the jury; (2) on the second day of trial, Lar moved to excuse
juror 32 after his counsel saw this juror greet State witness McKnight in the hallway; and (3)
counsel questioned juror 32, who explained that he did not know McKnight well ("the boyfriend
of a former girlfriend of [juror 32's] stepson"19), had not spoken to him in over six months, would
not be influenced by this acquaintance, had not known McKnight's last name to respond during
voir dire, and would not give McKnight's testimony more weight than the other witnesses.
Satisfied that this juror was unbiased, the trial court denied Lar's motion to excuse him.
But Lar does not contend that juror 32 committed misconduct in failing to disclose during
voir dire that he had a passing acquaintance with McKnight or in sharing during jury deliberations
19 VRP (March 25, 2010) at 57.
16
No. 40801-5-II
any personal views about the witness's credibility. Nor does Lar claim that juror 32 was biased
against him or that juror 32 intentionally disobeyed the trial court's instructions not to speak to
witnesses. On the contrary, the record shows that juror 32 did not realize that his stepson's
former girlfriend's boyfriend, whose surname (McKnight) he did not know, was a State witness
during voir dire or when juror 32 greeted him in the hallway on the second day of trial because
McKnight did not testify as a State witness until the third day of trial.
Lar appears to argue that, because he had two unused peremptory challenges when the
jury was empanelled, (1) he could have used one challenge to excuse juror 32 during voir dire if
he had known about the juror's acquaintance with McKnight; (2) the trial court deprived him of
his right to exercise a peremptory challenge when it denied his motion to remove juror 32 on the
second day of trial; and (3) therefore, automatic reversal is required. Lar's reliance on State v.
Bird, 136 Wn. App. 127, 148 P.3d 1058 (2006), is misplaced: During jury selection, the trial
court miscalculated the number of Bird's remaining peremptory challenges, thereby denying him
an available challenge to which he was entitled. Bird, 136 Wn. App. at 131-32. Under those
circumstances, our court held that the trial court's erroneous denial of a peremptory challenge left
an objectionable juror on the jury, which required reversal without a showing of prejudice. Bird,
136 Wn. App. at 134. The facts here differ significantly: The trial court neither miscalculated
Lar's peremptory challenges nor denied Lar's use of them during voir dire; rather, Lar simply did
not use them all. And it was not until the second day of trial that Lar moved to excuse Juror 32,
allegedly to exercise an "available peremptory challenge," after the trial court found no reason to
excuse him for cause and to replace him with an alternate juror. Br. of Appellant at 33. Contrary
17
No. 40801-5-II
to RAP 10.3(a)(6), Lar cites no authority for his proposition that he is entitled to exercise
peremptory challenges after the jury has been selected, sworn, and empanelled and the trial has
begun. Thus, we do not further address this argument.
We turn instead to the question of whether the trial court abused its discretion when it
found juror 32 did not exhibit any "prejudice" and could continue to try the case fairly and
impartially, and it denied Lar's motion to excuse this juror. VRP (March 25, 2010) at 60. Under
RCW 2.36.110, the trial court has a duty
to excuse from further jury service any juror, who in the opinion of the judge, has
manifested unfitness as a juror by reason of bias, prejudice . . . or by reason of
conduct or practices incompatible with proper and efficient jury service.
(Emphasis added). The trial court fulfilled this duty here. Away from the other jurors, counsel
questioned juror 32 about his relationship with McKnight. Juror 32 testified that he had not
known and, therefore, not recognized McKnight's name when the court read the witness list
during voir dire; that McKnight was a "boyfriend of a former girlfriend of [his] stepson,"20 with
whom he had not spoken in over six months; and that McKnight's testimony would not have any
effect on his ability to serve as a juror and cause him to give McKnight's testimony more weight
than that of other witnesses. The trial court found that juror 32 had not exhibited any "prejudice,"
that he had "answered the questions appropriately," and that there was not a "legal basis" for
excluding him. VRP (March 25, 2010) at 60. Deferring to the trial court's broad discretion in
such findings and rulings, we find no abuse in denying Lar's motion to excuse Juror 32 during the
second day of trial.
20 VRP (March 26, 2010) at 57.
18
No. 40801-5-II
III. Evidence
Lar next argues that the trial court erred in denying his motion to suppress evidence that
police unlawfully seized after they detained, arrested, and searched him without a warrant. The
State responds that (1) the trial court did not abuse its discretion in denying Lar's CrR 3.6 motion
as untimely under the Lewis County Local Rules; and (2) even if the trial court had ruled on the
merits of Lar's motion, he would not have prevailed. We agree with the State.
We review for abuse of discretion a trial court's admission of evidence. State v. Finch,
137 Wn.2d 792, 810, 975 P.2d 967 (1999). A trial court abuses its discretion when its decision is
manifestly unreasonable or is based on untenable reasons or grounds. State v. C.J., 148 Wn.2d
672, 686, 63 P.3d 765 (2003). A trial court's evidentiary error that does not result in prejudice to
the defendant is not grounds for reversal. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d
1120 (1997). "[E]rror is not prejudicial unless, within reasonable probabilities, the outcome of
the trial would have been materially affected had the error not occurred." State v. Tharp, 96
Wn.2d 591, 599, 637 P.2d 961 (1981). Where an error violates a constitutional mandate, we
apply the more stringent "harmless error beyond a reasonable doubt" standard. State v.
Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). In addition, we can affirm the trial
court on any ground the record supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795
(2004).
Assuming then, without deciding, that the trial court should not have ruled Lar's motion
untimely, any error was harmless because the record shows that the challenged seizure of
evidence was legal. Generally, warrantless searches and seizures are per se unreasonable and
19
No. 40801-5-II
violate the Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution, unless the State shows that an exception to the warrant requirement
applies.21 Such exceptions include exigent circumstances, searches incident to a valid arrest,
inventory searches, seizure of objects in plain view, and Terry22 investigative stops. State v.
Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
Under both Terry and Washington case law, a police officer may stop a person for
investigative purposes without a warrant if the officer has reasonable suspicion that the person has
been involved in criminal activity. Terry, 392 U.S. at 27.23 To justify a Terry stop and an
investigatory detention, an officer must have "specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at
21; see also State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986). Articulable suspicion means
"a substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107
Wn.2d at 6. When evaluating the reasonableness of an investigative stop, we consider the totality
of the circumstances, including the officer's training and experience, the location of the stop, and
the conduct of the person detained. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).
An informant's tip may justify an investigative stop if the tip
possesses sufficient indicia of reliability, i.e., the circumstances suggest the
informant's reliability or there is some corroborative observation which suggests
the presence of criminal activity or that the information was obtained in a
reasonable fashion.
21 State v. Duncan, 146 Wn.2d 166, 171-72, 43 P.3d 513 (2002).
22 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
23 See also State v. Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991).
20
No. 40801-5-II
Kennedy, 107 Wn.2d at 7. Although an anonymous informant's accurate description of a vehicle
alone is "not [sufficient] corroboration or indicia of reliability" for an investigative stop,24 our
Supreme Court has upheld an investigative stop based on two informant tips where the officer had
experience with the crime investigated and corroborated some of the informants' factual
information before he conducted the stop. Kennedy, 107 Wn.2d at 8-9. Here, as in Kennedy, the
Centralia and Olympia police departments received telephone tips from two citizens (McKnight
and Schultz), describing the same suspicious man with visible injuries who had traveled from
Ronnell's house (near the Centralia credit union) to Olympia; based on these tips, the police
suspected that this was the same man who had burglarized and attempted to rob the Centralia
credit union with a knife and a gun earlier that day.
After receiving a call from dispatch that the suspect was last seen leaving Olympia's
Phoenix Inn in a white taxi with a red top, Officer Brown independently corroborated the tips:
Six or seven blocks from the Phoenix Inn, he saw a taxi with the same logos dispatch had
described, pulled up behind the taxi, and observed, crouched in the back seat, a white male with
"lightish or gray hair"25 who matched the descriptions of the Centralia robbery suspect and the
suspicious person from the Phoenix Inn. At this point, Officer Brown and other Olympia and
Centralia police officers had sufficient evidence to form a reasonable suspicion that the man in the
taxi, Lar, had been involved in the attempted robbery to justify conducting an investigative
24 State v. Lesnick, 84 Wn.2d 940, 943, 530 P.2d 243 (1975).
25 VRP (March 26, 2010) at 135.
21
No. 40801-5-II
stop.26 They also had reason to believe that he was armed and dangerous and to treat the stop as
"high risk."27 Olympia police conducted a "high risk" stop of Lar's taxi, with their weapons
drawn.28
Centralia police officers independently corroborated the citizen tips as they took note of
Lar's physical characteristics, his bloody jeans and duct tape, and his probable gunshot wounds,
which, taken together with the totality of circumstances, gave the officers probable cause to arrest
Lar. See State v. Lee, 147 Wn. App. 912, 922, 199 P.3d 445 (2008), review denied, 166 Wn.2d
1016 (2009) (applying totality of circumstances test to Terry stops). After arresting Lar for the
burglary and the attempted credit union robbery, they searched his person incident to arrest and
26 Lar relies on State v. Meckelson, 133 Wn. App. 431, 135 P.3d 991 (2006), from Division Three
of our court, to argue ineffective assistance of counsel. Br. of Appellant at 22-26. This reliance
is similarly misplaced based on its distinguishing facts. Unlike the officer in Meckelson, here,
Officer Brown did not pull Lar's taxi over for a "pretextual" traffic stop or because he believed
Lar might have committed some generalized crime that the police had yet to discover.
Meckelson, 133 Wn. App. at 436. On the contrary, the officers were pursuing this particular
suspect for a particular crime; and, when they stopped Lar's taxi, they reasonably suspected that
that he had committed the attempted credit union robbery in Centralia and that he was armed with
a knife and a gun. Consistent with Kennedy, the officers did not pull Lar's taxi over until Officer
Brown had independently corroborated the citizens' tips.
27 The officers knew the following facts: (1) A white male, approximately 6' 3" and 60 years old
with gray or light-colored hair, had displayed a knife and a gun while attempting to rob a credit
union in Centralia earlier in the day; (2) he had threatened to take the robbery victim hostage; (3)
he had been seen wearing bloody clothing and may have been shot; (4) he had recently traveled by
taxi to Olympia, where he had last been seen leaving the Phoenix Inn in a white taxi with a red
top; (5) shortly after receiving the dispatch description of the taxi, Officer Brown saw a taxi
matching the description six or seven blocks from the Phoenix Inn; and (6) the man Officer Brown
observed in the back seat of the taxi matched the description of the robbery suspect.
28 That officers point weapons at a suspect they believe to be dangerous does not automatically
convert an investigative stop to an arrest. State v. Belieu, 112 Wn.2d 587, 604, 773 P.2d 46
(1989).
22
No. 40801-5-II
seized evidence from Lar, including the blood-stained clothing and duct tape that both citizens
had reported he had been carrying. State v. O'Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003)
(valid search incident to arrest if there is probable cause to arrest and an "actual custodial arrest"
takes place). The police later used a court order to obtain Lar's DNA and compared it to one of
the blood-stained glass shards found at the credit union.
We hold that, because the initial stop, subsequent arrest, search incident to arrest, and
seizure of evidence were legal, the trial court would have been justified in denying Lar's motion to
suppress had it ruled on the merits. Accordingly, we affirm the trial court's denial of Lar's motion
to suppress on this alternative ground.
IV. Effective Assistance of Counsel
Lar also argues that he received ineffective assistance when his trial counsel failed to file a
timely motion to suppress evidence seized after his warrantless detention and arrest and a motion
to suppress the BB gun and the knife that the police found after they "coerced" his statements at
the hospital. Br. of Appellant at 26.
A. Standard of Review
We review de novo ineffective assistance of counsel claims.29 To establish ineffective
assistance of counsel, a defendant must show both that his counsel's performance was deficient
and that this deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d
80 (2004). A defendant must meet both prongs; failure to show either prong will end our inquiry.
29 State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).
23
No. 40801-5-II
State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
The threshold for deficient performance is high; a defendant must overcome "'a strong
presumption that counsel's performance was reasonable.'" State v. Grier, 171 Wn.2d 17, 33, 246
P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).
"'When counsel's conduct can be characterized as legitimate trial strategy or
tactics, performance is not deficient.' Conversely, a criminal defendant can rebut
the presumption of reasonable performance by demonstrating that 'there is no
conceivable legitimate tactic explaining counsel's performance.' Not all strategies
or tactics on the part of defense counsel are immune from attack. 'The relevant
question is not whether counsel's choices were strategic, but whether they were
reasonable.'"
Grier, 171 Wn.2d at 33-34 (citations omitted) (quoting Kyllo, 166 Wn.2d at 863; State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); Roe v. Flores-Ortega, 527 U.S. 470,
481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
B. Failure To File Timely Motion To Suppress Evidence Seized Following Arrest
The State concedes that Lar's counsel was deficient in failing to file timely his motion to
suppress the evidence flowing from Lar's warrantless detention and arrest: his identity, his
clothing, his statements, his DNA, the police officers' observations that Lar had probable gunshot
wounds, and the BB gun and knife. We accept the State's concession that counsel was deficient
in failing to file the motion to suppress within the timeframe specified by the court rules.
Therefore, we address the second prong of the ineffective assistance test -- prejudice: Lar must
demonstrate that, but for his counsel's deficient performance, there is a reasonable probability that
the outcome of the trial would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d
467, 487, 965 P.2d 593 (1998). Because we have already held that the record supports the
24
No. 40801-5-II
seizure of evidence incident to Lar's arrest, we cannot say there is a reasonable probability that
the trial court would have granted counsel's motion to suppress had he timely filed it or that the
result of the trial would have been different. Because Lar has not shown prejudice, his ineffective
assistance of counsel claim fails.
C. Failure To Move To Suppress BB Gun and Knife
Lar also argues that he received ineffective assistance when his counsel failed to move to
suppress the BB gun and the knife, which the police discovered by allegedly exploiting his
"coerced statements" at the hospital.30 Br. of Appellant at 26. Because Lar has not shown that
this failure shows his counsel's performance was deficient, we disagree.
The trial court suppressed all of Lar's statements to the officers at the hospital, including
his statements about where he had hidden the BB gun and the knife. Clerk's Papers (CP) at 62.
Lar's counsel did not, however, move to suppress the BB gun and knife, which police later found
and seized after learning their locations from Lar. As a matter of legitimate strategy, Lar's trial
counsel may have wanted the BB gun in evidence to argue in closing that it was not a real gun
and, thus, not a "deadly weapon," thereby partially negating one element of Lar's first degree
burglary31 and attempted first degree robbery32 charges, as well as the deadly weapon sentencing
30 The State does not address Lar's second ineffective assistance claim based on counsel's failure
to move to suppress the BB gun and knife as fruits of Lar's illegal hospital interrogation.
31 RCW 9A.52.020(1) provides:
A person is guilty of burglary in the first degree if, with intent to commit a crime
against a person or property therein, he or she enters or remains unlawfully in a
building and if, in entering or while in the building or in immediate flight therefrom,
the actor or another participant in the crime (a) is armed with a deadly weapon, or
(b) assaults any person.
(Emphasis added).
25
No. 40801-5-II
enhancements33 on all counts.
Because the officers found and seized the BB gun and the knife at the same time, it
appears unlikely that Lar could have moved to suppress only the knife while keeping the BB gun
before the jury. Moreover, Weitz had already described the knife in her testimony about Lar's
robbery attempt at the credit union, and she had pointed it out for the jury when they viewed the
credit union's surveillance video. Consistent with his argument that the BB gun was not a
"deadly weapon," defense counsel also argued in closing that the knife's blade was "less than
three inches" long and, thus, it, too, was not a "deadly weapon." VRP (March 31, 2010) at 48.
Because Lar has not shown the absence of a legitimate strategic reason for counsel's decision not
to move to suppress the BB gun and knife, he fails to meet the deficient performance prong of his
ineffective assistance of counsel claim. Grier, 171 Wn.2d at 33; State v. McFarland, 127 Wn.2d
322, 336, 899 P.2d 1251 (1995). Accordingly, we need not address the second, prejudice prong
in holding that Lar has not shown ineffective assistance of counsel on this ground.
32 RCW 9A.56.200(1) provides:
A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight therefrom, he or she:
(i) Is armed with a deadly weapon; or
(ii) Displays what appears to be a firearm or other deadly weapon; or
(iii) Inflicts bodily injury; . . .
(Emphasis added).
33 Former RCW 9.94A.533(4) (2009). The Legislature amended this statute in 2011, but the
changes do not affect the issues in this case.
26
No. 40801-5-II
V. Persistent Offender Sentence
Lastly, Lar argues that the trial court erred in sentencing him to life in prison without the
possibility of parole under the POAA because the State did not submit "substantial evidence" that
he had two prior convictions for bank robbery.34 Br. of Appellant at 35. Lar contends that Tien's
testimony that he (Lar) was the defendant named on the two federal felony judgment and sentence
documents was insufficient proof of his prior convictions because (1) although familiar with Lar's
criminal record, Tien had not been physically present when the federal court sentenced Lar for his
earlier crimes; and (2) her testimony was insufficient to prove that he was the same Michael
Anthony Lar named in the documents because the State presented no fingerprint comparisons or
testimony from a person who had been physically present at the sentencings for these prior
convictions. These arguments fail.
We review de novo a sentencing court's offender score calculation and its interpretation of
the POAA. State v. Knippling, 166 Wn.2d 93, 98, 206 P.3d 332 (2009); State v. Birch, 151 Wn.
App. 504, 515, 213 P.3d 63 (2009). To establish a defendant's criminal history for POAA and
Sentencing Reform Act of 198135 sentencing purposes, the State must prove the existence of his
prior convictions by a mere preponderance of evidence.36 Although this burden of proof requires
34 Lar does not argue that he had a Sixth Amendment right to a jury trial before the trial court
sentenced him under the POAA. Therefore, we do not address this issue in our opinion.
35 Ch. 9.94A RCW.
36 Knippling, 166 Wn.2d at 100; State v. Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001)
(citing State v. Thorne, 129 Wn.2d 736, 782, 921 P.2d 514 (1996), abrogated on other grounds
by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)), cert.
denied, 535 U.S. 996 (2002); RCW 9.94A.500(1).
27
No. 40801-5-II
"some showing that the defendant before the court for sentencing and the person named in the
prior conviction[s] are the same person," when the prior convictions at issue are under the same
name as the defendant before the sentencing court, identity of names is sufficient proof of this
requirement.37 State v. Ammons, 105 Wn.2d 175, 190, 713 P.2d 719, 718 P.2d 796, cert. denied,
479 U.S. 930 (1986).
A defendant may rebut such showing by declaring under oath that he is not the person
named in the prior convictions. Ammons, 105 Wn.2d at 190. Only then does the burden shift
back to the State to prove by independent evidence -- such as fingerprints, testimony from court
personnel present at the prior adjudication, or institutional packets -- that the defendant before the
court for sentencing and the defendant named in the prior conviction are the same person.
Ammons, 105 Wn.2d at 190. If, however, a defendant files no such declaration, the identity of the
names alone is sufficient to include the prior conviction in the defendant's offender score.
Ammons, 105 Wn.2d at 190; see also State v. Priest, 147 Wn. App. 662, 670, 196 P.3d 763
(2008), review denied, 166 Wn.2d 1007 (2009).
Under the POAA, the trial court must sentence a persistent offender to life in prison
without the possibility of parole. Knippling, 166 Wn.2d at 98; RCW 9.94A.570. A "persistent
offender" is someone who, at sentencing for a most serious offense conviction, has previously
been convicted on two separate occasions of most serious offenses under RCW 9.94A.525.38 A
37 We acknowledge that "'[t]he best evidence of a prior conviction is a certified copy of the
judgment.'" State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002) (quoting State v. Ford, 137
Wn.2d 472, 480, 973 P.2d 452 (1999)).
38 Former RCW 9.94A.030(34)(a) (Laws of 2009 ch. 28 § 4).
28
No. 40801-5-II
"[m]ost serious offense" includes "[a]ny felony defined under any law as a class A felony or
criminal solicitation of or criminal conspiracy to commit a class A felony." Former RCW
9.94A.030(29)(a) (2009). As we have just noted, the State submitted certified copies of a
"Michael Anthony Lar['s]" two earlier federal judgment and sentences for two prior "most serious
offense[s]" -- a 1985 conviction for two counts of armed bank robbery and two 1997 convictions
for armed bank robbery and bank robbery. Sentencing Ex. 1, 2. Lar submitted no declaration
under oath that he was not the person named in these judgment and sentences. Therefore, under
Ammons and the POAA's sentencing rules, governed by the SRA,39 the State's reliance on Lar's
name to prove that he was the same Michael Anthony Lar named on the two federal judgment and
sentences was sufficient proof by a preponderance of the evidence that he was the same
defendant.40 We hold, therefore, that the State presented sufficient evidence of Lar's two prior
39 The Washington Supreme Court has held that, under the POAA, the State must prove the
existence of a defendant's prior convictions by only a preponderance of the evidence. Thorne,
129 Wn.2d at 784. Thus, the State can use certified copies of his judgment and sentences to
prove to the trial court a defendant's prior convictions; if the defendant contests his identity, the
State can submit his fingerprints to prove his identity. Thorne, 129 Wn.2d at 783.
40 Lar's reliance on State v. Hunter, 29 Wn. App. 218, 627 P.2d 1339 (1981), to support his
insufficiency argument fails. Br. of Appellant at 35-37. Hunter did not involve proof of prior
convictions for POAA sentencing purposes; rather, it involved proof of a prior conviction as an
element of the charged crime of attempted first degree escape, namely that Hunter had been in jail
on a felony conviction at the time of his attempted escape. Hunter, 29 Wn. App. at 221-22. We
held that (1) where a former judgment is an element of the substantive crime charged, identity of
the name alone in a judgment and sentence is not sufficient proof of the identity of the person
charged to warrant submitting the prior conviction to the jury; and (2) the State must submit
independent evidence that the defendant is the same person named on the prior conviction.
Hunter, 29 Wn. App. at 221-22. In contrast, for purposes of sentencing under the POAA, a
defendant's prior convictions are not "elements" of any criminal offense; therefore, the State need
not prove their existence beyond a reasonable doubt. Wheeler, 145 Wn.2d at 120; Thorne, 129
Wn.2d at 779, 784.
29
No. 40801-5-II
most serious offenses and that the trial court did not err in sentencing Lar to life in prison without
the possibility of parole under the POAA.
We affirm Lar's convictions and sentence.
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 in accordance with RCW 2.06.040, it
is so ordered.
Hunt, J.
I concur:
Armstrong, P.J.
I concur in result only:
Quinn-Brintnall, J.
30
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