STATE v. GREEN, 146 Wn. App. 1059 (2008)

No. 60333-7-I.The Court of Appeals of Washington, Division One.
September 22, 2008.

Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-00322-6, Charles R. Snyder, J., entered June 7, 2007.

UNPUBLISHED OPINION

PER CURIAM.

A jury convicted Forrest Green of robbery in the first degree. The bank’s security cameras recorded this robbery. The trial court admitted statements Green made about the robbery, and defense counsel did not present expert testimony on the reliability of eyewitness testimony. As a result, Green claims his rights under the Fourth Amendment and article I, section 7
of the Washington Constitution were violated and he was denied effective assistance of counsel. Because the State’s other evidence was overwhelming, admission of Green’s statements, if error, was harmless. And because defense counsel’s performance was not deficient, Green has not shown ineffective assistance of counsel. We affirm.

FACTS
On February 24, 2007, a man walked into the Costcutter branch of the Bank of America in Bellingham and gave the teller a note saying that he was robbing her. Teller Michaella Bennett started to write on the note to ask whether she could go into the back of the bank to get money, but the man took the note. He put a clear plastic bag containing an aluminum foil box on the counter. Bennett put approximately $16,000 into the bag, and the man left the bank.

Through investigation, Detective Glen Hutchings identified Green as the bank robber and obtained a warrant for his arrest. Detective Hutchings received information that Green was living in the Maple Falls/Paradise area. He called Raymond Wilson, a bail recovery agent who had contacts in that area. Detective Hutchings told Wilson that there was a warrant for the arrest of Forrest Green in the bank robbery, and asked Wilson to pass on any information he might obtain about Green.

Wilson went to Paradise and began investigating. He came into contact with a man from Oregon named Denzel who knew Green. Wilson agreed to meet Denzel in Oregon. He called Detective Hutchings, said that he was going to Oregon to follow up on information regarding Green’s whereabouts, and invited Detective Hutchings to accompany him. Detective Hutchings declined to do so. He informed Wilson that he could not authorize him to go to Oregon and that Wilson was not representing the City of Bellingham. Wilson said that he had authority to make an arrest under his license as a bail recovery agent. Detective Hutchings and Wilson discussed the fact that banks typically issue rewards, but Detective Hutchings said that the bank had not offered a reward at that time.

Wilson went to Oregon, arrested Green, and immediately returned to Washington. During the drive, Green made statements to Wilson regarding the bank robbery. Wilson called Detective Hutchings several times during the trip, and turned Green over to Detective Hutchings upon arriving at the Bellingham Police Department.

Before trial, Green moved to suppress the statements he had made to Wilson on the basis that Wilson was a state agent and had not given him Miranda[1] warnings. The trial court denied the motion, finding that Detective Hutchings did nothing more than ask Wilson to give him information about Green’s location and that Wilson had no authorization from the detective to go to Oregon in pursuit of Green.

After hearing testimony regarding the statement and receiving other evidence, the jury found Green guilty of first degree robbery. Green appeals.

DISCUSSIONAdmission of Green’s Statement

Green contends that the trial court erred in admitting statements he made to Wilson during the drive to Bellingham. He argues that his arrest was unlawful because Wilson was acting as a state agent and had no authority to arrest him in Oregon. Because the arrest was unlawful, the statements should have been suppressed as fruit of the unlawful arrest.

“The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution protect individuals from unreasonable searches and seizures by the government.”[2] When the government engages in an illegal search, the fruits of the search must be suppressed.[3] Even evidence obtained by a private citizen must be suppressed when that citizen has acted as an instrumentality or agent of the state.[4]

Green argues that Wilson was a state agent because he had no financial incentive to make the arrest since no reward was offered at that time. In addition, Detective Hutchings knew that Wilson was going to Oregon to find Green and ratified Wilson’s actions by failing to alert the Oregon authorities of Wilson’s illegal actions and benefiting from them by obtaining custody of Green when Wilson delivered him to the Bellingham Police Department. We decline to decide whether Wilson acted as a state agent and whether the trial court erred in admitting evidence of Green’s statements to Wilson because it is clear from the record that the error, if any, was harmless.

“Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.”[5] Although Green’s statements to Wilson included admissions that he committed the robbery and details about the robbery, the other evidence was overwhelming. Most importantly, there were photographs taken from the bank video surveillance camera of Green during the robbery. The photos are clear, and show Green standing in line and at the teller’s counter. They show unobstructed views of Green’s face, and he is not wearing a mask or any other disguise.

In addition Michaela Bennett, the bank teller Green robbed, Kelli Vossbeck, another teller, Sheryl Jones, who lived next to the trailer Green rented after the robbery and had lunch with Green on one occasion, and Ed Prudence, who sold Green a truck after the robbery, positively identified him in court. Ed Prudence testified that Green paid for the truck with $5,800 cash that was wrapped in tin foil and used an assumed name for the transaction. And employees of a casino where Green gambled after the robbery testified that he did not claim a jackpot he won because he did not produce picture identification. Given the photos of the robbery in progress, the eyewitness identifications, and the other evidence, any error in admitting Green’s statements to Wilson was harmless.

Ineffective Assistance of Counsel

Green contends that trial counsel provided ineffective assistance in failing to present evidence of the unreliability of eyewitness identification. To establish a claim of ineffective assistance of counsel, the defendant has the burden of proving both that trial counsel’s performance was deficient and that the deficiency prejudiced the defense.[6] If either part of the test is not satisfied, the ineffective assistance of counsel argument fails.[7] A defendant proves deficient performance by showing that counsel’s representation fell below an objective standard of reasonableness.[8] The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different.[9] There is a strong presumption that counsel’s representation was effective.[10]

When eyewitness testimony is a key element in the State’s case, the defense may present expert witness testimony to help the jury to evaluate the evidence, especially where the victim and defendant are of different races, the defendant displayed a weapon during the crime, or the victim was under stress.[11]
Bennett and Green were of the same race, and Green did not display a weapon during the robbery. While Bennett admitted that she was frightened during the robbery, she did not hesitate in identifying Green himself in court as well as from the bank surveillance photos. Vossbeck was not aware that the robbery occurred until after it was over, so the stress of fear was not a factor in her identification. There is nothing to indicate that expert testimony would have aided the jury in this case.

While the eyewitness identifications were important, they were not the key elements in the State’s case. One of the most damning items of evidence in this case was the photographic evidence of the robbery in progress. The jury was able to see this evidence and Green’s booking photo showing him without glasses or long hair or a beard, as well as to see him in the courtroom. We agree with the State that, in light of the nature of the evidence, defense counsel may reasonably have decided not to pursue expert witness testimony, choosing instead to attempt to undermine the eyewitnesses through cross-examination.

We conclude that defense counsel’s performance did not fall below the standard of reasonableness. We need not address the prejudice portion of the test, and conclude that defense counsel’s representation was not ineffective.

Affirmed.