Opinion
No. 34577-3-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-01473-5, Brian M. Tollefson, J., entered March 3, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Trevor D. Pruitt appeals his convictions of first degree robbery (one count) and attempted first degree robbery (two counts) with deadly weapon enhancements. He claims that he was denied a fair trial because defense counsel provided ineffective assistance by allowing into evidence otherwise inadmissible hearsay and in proposing deadly weapon special verdict instructions inconsistent with the information charging him with the offenses. He also claims that the evidence was insufficient to support a deadly weapon allegation for two of the robberies. We affirm.
Facts
The charges in this case arose from two separate incidents occurring on October 30, 2004.
In the first incident, Paul Smith had returned to his Milton home from grocery shopping between 6:00 and 7:00 p.m., and turned around when he heard footsteps approaching as he was stepping onto his front porch. A man with his face covered told Smith to hand over his wallet. Smith thought it was a prank, said no, and tried to open the front door. The man slapped Smith's hand away from the door and Smith told him to knock it off. When the man slapped Smith's hand away again, Smith told him to knock it off or he was going to lay him down on the porch. Smith then turned to the man, who was carrying a knife with a 4-to 5-inch blade, and knocked him off the porch. The man tripped over a pumpkin, fell to the ground, got up, and ran away.
In the second incident, 14-year-old Derrick Hummer and his brother-in-law, Michael Drawdy, were vacuuming Drawdy's pickup truck at Mr. Sudsy's Car Wash in Puyallup around 8:00 p.m. when two men approached the truck from different sides and forced Hummer and Drawdy face down on the seat. Hummer, who was on the passenger side, looked up and saw the man pushing him. The man told Hummer, "Don't turn around, or I'll gut you." Report of Proceedings (RP) (Feb. 7, 2006) at 98. Hummer then felt a sharp object pushed into his back. The man searched Hummer's pockets, asked for money or drugs, but found nothing. Neither Hummer nor Drawdy could see the face of the man who pushed Drawdy down on the driver's side of the truck. The man told Drawdy, "Give me all of your money, all of your jewelry." RP (Feb. 7, 2006) at 149. The man then shoved a hard object into his back and said, "Don't turn around, or I'll shoot." RP (Feb. 7, 2006) at 149. Drawdy opened his wallet, took out his last $15, and handed it to the man. The man replied, "That's all you have, you broke ass." RP (Feb. 7, 2006) at 152. The two men then left, telling Hummer and Drawdy, "Don't turn around. Don't look at us." RP (Feb. 7, 2006) at 152. Hummer heard them say, "Don't turn around. We'll kill you. Stay here." RP (Feb. 7, 2006) at 103. Drawdy immediately called the police.
Smith suspected that Pruitt was involved in the first incident. Smith knew Pruitt, they worked together at the time, and Pruitt knew that Smith would have money because October 30 had been a pay day. About three weeks after the attempted robbery, Smith confronted Pruitt. According to Smith, Pruitt was very apologetic and almost in tears while he apologized. Milton Police Detective Sergeant Michael Wada talked with Pruitt on March 7, 2005. Pruitt initially denied any involvement, implicating his cousins Ronnie and John Beeler. But when Detective Wada told Pruitt that he had talked about the robbery with Ronnie Beeler, Pruitt admitted that he had been angry with Smith and told Beeler that he wished someone would beat up Smith. Pruitt then said, "I didn't know that Ronnie was going to rob Paul. He must have done that on his own." RP (Feb. 8, 2006) at 54. And he said, "I told Ronnie to beat Paul up, kick his ass." RP (Feb. 8, 2006) at 55. Pruitt also admitted that he drove Beeler to and from the scene.
Smith's daughter, Jillian Smith, saw the man on the porch with her father and eventually recognized him as Ronnie Beeler. In mid-November, she confronted Beeler and he admitted that he had tried to rob her father. Beeler regretted what he had done and wanted to apologize to her father. He did not implicate Pruitt.
In March 2005, Puyallup Police Detective Tamera Pihl learned that a suspect had been identified in the Mr. Sudsy's incident, had confessed, and had identified Pruitt as his co-defendant. Detective Pihl then compiled a photomontage and showed it to Hummer. According to Detective Pihl, it took only a few seconds for Hummer to identify Pruitt as the man who tried to rob him at the car wash. Hummer testified at trial that he immediately recognized Pruitt from the photomontage.
The State charged Pruitt with attempted first degree robbery of Smith while armed with a deadly weapon, a knife. It charged him with first degree robbery of Dawdry while armed with a deadly weapon, a knife. And it charged him with attempted first degree robbery of Hummer while armed with a deadly weapon, a knife. The jury returned guilty verdicts on all counts and found in all three instances that Pruitt was armed with a deadly weapon at the time. The court imposed concurrent standard range sentences with consecutive deadly weapon enhancements for a combined 116 months' incarceration.
RCW 9A.56.190, .200(1)(a)(ii); RCW 9A.28.020; RCW 9.94A.602, .510, .530.
RCW 9A.56.190, .200(1)(a)(ii); RCW 9.94A.602, .510, .530.
RCW 9A.56.190, .200(1)(a)(ii); RCW 9A.28.020; RCW 9.94A.602, .510, .530.
Analysis I. Effective Assistance of Counsel
Pruitt first claims that he was denied his right to effective assistance of counsel because his attorney (1) elicited hearsay testimony from Detective Pihl that Beeler had confessed and identified him as an accomplice in the Mr. Sudsy's robbery; and (2) proposed deadly weapon instructions that allowed the jury to find that he or his accomplice was armed with either a knife or a firearm when the information limited the charge to only that of a knife. To demonstrate that counsel was ineffective the defendant must show that counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. In addition, the defendant must show that such conduct caused actual prejudice, i.e., 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 presume that counsel 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). A. Hearsay
Defense counsel's cross-examination of Detective Pihl focused on the procedures she used in assembling the photomontage and in how she lacked any investigative knowledge that Pruitt was a suspect:
DEFENSE COUNSEL: And what type of follow-up investigation have you done on this case?
DETECTIVE PIHL: I received word that there was a suspect identified, interviewed, and that confessed, and had also identified Mr. Pruitt as the co-defendant — or codefendant — or co-suspect in that case. That's how I identified Mr. Pruitt.
. . .
DEFENSE COUNSEL: And isn't it true that the photomontage was created as a result of another officer telling you who they thought was a suspect in this case?
DETECTIVE PIHL: They sent me a transcription of a confession by another person.
DEFENSE COUNSEL: Objection, Your Honor, non-responsive.
THE COURT: Objection sustained.
. . .
DEFENSE COUNSEL: Isn't it true that you did no independent investigation to determine who the suspect in this case was?
DETECTIVE PIHL: Not until after a suspect was named.
DEFENSE COUNSEL: So then it is true that you did not do any independent investigation on this case, the attempted robbery or the robbery in Puyallup, before the other officer told you who he thought was a suspect?
DETECTIVE PIHL: I would say that's correct.
. . .
DEFENSE COUNSEL: How long is the narrative portion of your report, Detective?
DETECTIVE PIHL: It may be a little more than half a page.
DEFENSE COUNSEL: Half a page. It's an armed robbery and the detective who assigned the case to herself has half a page of narrative.
. . .
DEFENSE COUNSEL: And isn't it true that the first time you looked at this case was on or about the 20th of March?
DETECTIVE PIHL: It says March 17th is the first date that I have written down in the narrative.
DEFENSE COUNSEL: March 17th. And what did you do on March 17th?
DETECTIVE PIHL: I got a call from Detective Wada saying that the other suspect confessed and identified Pruitt as the second suspect.
. . .
DEFENSE COUNSEL: Isn't it true that everything you've done here has been as a result of Detective Wada giving you information?
DETECTIVE PIHL: As far as initially naming a suspect, correct.
RP (Feb. 8, 2006) at 148, 155-56, 170-71. During redirect examination, defense counsel did not object to the following:
PROSECUTOR: Did you feel that there was anything else that you had to do once you received information that Beeler had confessed to the robbery and identified the defendant as the co-suspect?
DETECTIVE PIHL: Other than showing the montage and him being picked out, no.
RP (Feb. 8, 2006) at 173.
Citing Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), Pruitt argues that eliciting Beeler's statements allowed the jury to hear inadmissible hearsay evidence, which clearly prejudiced him. As Beeler was unavailable and not subject to prior cross-examination, his statements implicating Pruitt should not have been admitted at trial.
The State responds that Beeler's statements were not admitted for the truth of the matter asserted and therefore were not hearsay. It reasons that defense counsel's strategy was to discredit the investigation, show that Detective Wada conducted an incomplete investigation, and show that Detective Pihl did no independent investigation to ascertain whether Pruitt was an appropriate suspect.
We agree. The recitation set out above shows that defense counsel elicited this testimony for a non-hearsay purpose and as part of his strategy to discredit the police investigation. As a matter of legitimate trial tactics, this cannot form the basis for a claim that counsel was ineffective. In any case, how Pruitt became a suspect pales next to Detective Pihl's and Hummer's testimony that Hummer immediately recognized Pruitt in the photomontage as the one who tried to rob him. We find no reversible error.
B. Jury Instructions
All three counts of the amended information charged Pruitt with being "armed with a deadly weapon, other than a firearm, to-wit: a knife." Clerks Papers (CP) at 19-21. Defense counsel's proposed special verdict instruction, which the court gave to the jury, allowed the jury to find that Pruitt was armed with either a firearm or a knife. It provided, in part:
A firearm is a deadly weapon. A knife having a blade longer than three inches is also a deadly weapon. A deadly weapon is also an implement or instrument which has the capacity to inflict death and, from the manner in which it is used, is likely to produce or may easily produce death. Whether a knife having a blade less than three inches long is a deadly weapon is a question of fact that is for you to decide.
CP at 73, 108.
The State concedes that the jury instructions differed from the charging document but it argues that as long as the jury instructions charge the elements of the offense, the additional language in the information is mere surplusage that we can ignore.
In State v. Stritmatter, 102 Wn.2d 516, 688 P.2d 499 (1984), the court found as surplusage language in the information charging the defendant with receiving and purchasing steelhead from Violet Starr where the larger charge was that he failed to keep a record of the number of steelhead he received and purchased. Stritmatter, 102 Wn.2d at 523. Stritmatter argued that the State failed to prove that he purchased any fish from Violet Starr because the evidence at trial was that he had an agency relationship with her. Stritmatter, 102 Wn.2d at 523-24. The court rejected this argument, reasoning that this was surplus language the State did not have to prove and that the information neither confused nor misled Stritmatter in preparing his defense. Stritmatter, 102 Wn.2d at 524.
The Stritmatter court relied on State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967). In Miller, the information charged Miller with committing second degree assault with a .38 caliber revolver. The court declared this fact, using a .38 caliber revolver, surplusage to the charge and something the State did not have to prove. Miller, 71 Wn.2d at 146.
Pruitt relies on three inapposite cases. In State v. Rhinehart, 92 Wn.2d 923, 602 P.2d 1188 (1979), the State charged Rhinehart with possessing a stolen 1974 Ford Bronco but the evidence at trial showed that he possessed only some stolen automobile parts. The court found that Rhinehart was not adequately informed of the charge he faced and reversed. In State v. Theroff, 95 Wn.2d 385, 622 P.2d 1240 (1980), the amended information failed to notify the defendant that he faced a deadly weapon enhancement so the court remanded for resentencing, holding that the State failed to provide adequate notice. And in State v. Lyon, 96 Wn. App. 447, 979 P.2d 926 (1999), the deadly weapon jury instruction allowed the jury to consider weapons other than a wooden closet rod specified in the information. But as the court reversed on other grounds, it did not address the issue, cautioning the State to remedy this potential problem in the future by amending the information.
The record reveals nothing to show that defense counsel's decision to propose this instruction caused undue prejudice to Pruitt. The Smith robbery involved only a knife. The Mr. Sudsy's robbery involved both a knife and a firearm. Pruitt's defense was that he did not participate and that Detective Wada conducted a vindictive and incomplete investigation. Even assuming error, there was no prejudice. The State provided adequate notice that Pruitt faced a deadly weapon sentence enhancement. Whether the instrument used was a knife or a firearm is inconsequential.
II. Sufficiency of the Evidence
Pruitt also challenges the sufficiency of the evidence to support the deadly weapon special verdicts from the Mr. Sudsy's robberies. He claims that Hummer could not describe what he felt in his back, it never punctured his skin, and he never saw a weapon. He claims that Drawdy could describe the object shoved into his back only as a hard metal object. He had a bruise but could not describe the object's width. He also never saw a weapon. 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). 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).
Taking the evidence in the light most favorable to the State, as we must, it was sufficient for a jury to find that both men were armed. Not only did both Hummer and Drawdy feel hard metal objects pushed into their backs but the robber told Hummer, "Don't turn around, or I'll gut you." RP (Feb. 7, 2006) at 98. The jury could credit this testimony and find that Pruitt was using a knife to facilitate the attempted robbery. The other robber told Drawdy, "Don't turn around, or I'll shoot." RP (Feb. 7, 2006) at 149. Again the jury could credit this testimony and find that Pruitt's accomplice was using a gun to facilitate the robbery. Then, as the men were leaving the scene, Hummer heard them say, "Don't turn around. We'll kill you. Stay here." RP (Feb. 7, 2006) at 103.
The evidence was sufficient to support the special verdicts. See State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984) (State need not produce actual weapon to prove that the defendant was armed during offense); State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980) (witness testimony and circumstantial evidence sufficient).
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 QUINN-BRINTNALL, J., concur: