STATE v. HALL, 136 Wn. App. 1015 (2006)

No. 57046-3-I.The Court of Appeals of Washington, Division One.
December 11, 2006.

Appeal from a judgment of the Superior Court for King County, No. 04-1-07309-6, Linda Lau, J., entered October 3, 2005.

Affirmed in part, reversed in part, and remanded
by unpublished per curiam opinion.

Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, 98122.

Andrew Peter Zinner, Nielsen, Broman Koch, PLLC, Seattle, WA, 98122-2842.

David Dontae Hall (info Only) (Appearing Pro Se), Washington State Penitentiary, Walla Walla, WA, 99362.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, Seattle, WA, 98104.

Michael Paul Mohandeson, King Co Pros Office, Seattle, WA, 98104-2390.

Concurring: STEPHEN J DWYER, H JOSEPH COLEMAN, SUSAN AGID.

Honorable Linda Lau.

PER CURIAM.

David Hall appeals from his conviction and sentence of four counts of first degree robbery, one count of attempted first degree robbery, and one count of second degree assault. The State correctly concedes that the second degree assault conviction merged into one of the first degree robbery convictions. Hall’s pro se statement of additional grounds for review is without merit. Accordingly, we remand to the trial court to vacate Hall’s conviction of second degree robbery and otherwise affirm.

Hall and his codefendant Thaddeus Lewis were charged with multiple counts of robbery arising out of five armed robberies of convenience stores in August 2004. In the first four incidents, Hall displayed a firearm, demanded money, and collected cash from store personnel while Lewis acted as lookout. Lewis was not charged in relation to the fifth incident, during which Hall, acting alone, actually fired his handgun, striking the wall near a shopkeeper’s head.

Upon Lewis’s arrest, he told police Hall had recruited him to assist with the robberies. He said Hall told him that if they were captured he should claim he was high on PCP and seeing demons to create an insanity defense. Lewis led police to the weapon Hall carried during the robberies. Lewis eventually agreed to testify for the State against Hall in exchange for a plea bargain to a recommended sentence of 15 months for three counts of second degree robbery. Some months before the expected trial date, the State offered Hall a less favorable plea deal of three counts of first degree robbery and one count of attempted first degree robbery, each with a firearm enhancement. The State also provided notice of all charges on which it would proceed to trial if he declined. Hall repeatedly declined the offer.

Lewis’s trial testimony was corroborated by surveillance tapes of some of the robberies and the testimony of some of the victims. Hall testified in his defense that he committed the robberies under the influence of narcotics, some of which he had taken voluntarily and some of which he believed Lewis gave him. He maintained that Lewis had directed all of his actions, that he was hearing voices in his head during the robberies, and that his memory of events was largely blacked out. Dr. Murray Hart from Western State hospital testified for the State that intoxication even to the point of memory loss does not necessarily mean a person is unable to form a specific intent to commit an act while intoxicated. Hall was convicted.

Hall contends through counsel that his conviction of second degree assault in count IV must be vacated because it merged with one of the first degree robbery counts. The State concedes that remand is required for that purpose. Based upon our review of the record and State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005), we accept the State’s concession. Because the trial court properly declined to sentence Hall for the assault conviction and did not include it in the offender score for Hall’s other offenses, however, resentencing on the other convictions is not required.

Pro se, Hall first challenges the State’s charging scheme as a violation of due process, arguing the circumstances give rise to a presumption of prosecutorial vindictiveness. Our State Supreme Court, however, has recently agreed with the United States Supreme Court in rejecting the notion that “filing additional charges after a defendant refuses a guilty plea gives rise to a presumption of vindictiveness.” State v. Korum, 157 Wn.2d 614, 141 P.3d 13, 16-17 (2006). Here, as in Korum, there was no violation of due process because Hall was free to accept or reject the State’s offer and the prosecution had probable cause to believe Hall had committed all the charged offenses. Korum, 141 P.3d at 17-18. Similarly, Hall’s contention that the disparity in treatment between himself and Lewis violated equal protection fails because he does not make the necessary showing that he and Lewis were similarly situated, which in this setting requires a showing of “near identical participation”. State v. Handley, 115 Wn.2d 275, 290, 796 P.2d 1266 (1990).

Hall’s contention that his multiple firearm enhancements violate double jeopardy prohibitions, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), are identical to those we recently rejected in State v. Nguyen, No. 55443-3-I, 2006 Wash. App. LEXIS 1952 (Sept. 11, 2006).

Hall’s several claims of ineffective assistance either fail for a want of the necessary showing of deficient performance and resulting prejudice or are based on matters outside the record and therefore cannot be considered here. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).

Hall’s complaint that his counsel failed to present evidence that he and Lewis were in the illegal drug business does not establish deficient performance because the existing evidence allowed Hall’s counsel to obtain the intoxication instruction he sought and argue his theory of the case based on the testimony by Hall and other witnesses. Moreover, there was an obvious tactical reason to limit such potentially inflammatory evidence. Hall also takes issue with his attorney’s closing argument regarding the necessary specific intent element of robbery. But the record shows counsel made an extensive, cogent argument addressing that topic. And Hall’s claim regarding his counsel’s handling of an expert witness who was consulted for an evaluation depends on materials outside the record and thus cannot be considered here.

Hall’s claim that the trial court abused its discretion in suppressing the evidence that he and Lewis were drug dealers fails because both counsel properly agreed the evidence was properly excluded. See ER 403.

Finally, Hall contends the State failed to prove he acted with the necessary specific intent during each of the robberies. Viewing the evidence in the light most favorable to the State showed Hall parked a short distance from the stores to facilitate his flight, brought the gun and a bag for money, waited until other customers left, and wore multiple layers of clothing to change his appearance immediately upon leaving. This was substantial circumstantial evidence. Moreover, the jury was entitled to believe Lewis, whose testimony suggested Hall’s mental state defense was entirely manufactured. Taken together, the evidence supported a reasonable inference that Hall possessed the necessary specific intent to commit theft by means of threatened force. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995); RCW 9A.56.190.

Hall’s pro se claims are all without merit. We accept the State’s concession of error regarding count IV, remand for vacation of Hall’s conviction under that count, and in all other respects affirm the trial court.

FOR THE COURT:

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