692 P.2d 818 (Wash. 1985), 50600-1, Matter of Sauve

Docket Nº:50600-1.
Citation:692 P.2d 818, 103 Wn.2d 322
Opinion Judge:PEARSON
Party Name:In the Matter of the Personal Restraint Petition of Maurice SAUVE, Petitioner.
Attorney:Marston, Hodgins, Shorett, Gillingham, Hardman & Jones, David L. Shorett, Eileen P. Farley, Seattle, for petitioner., Norman K. Maleng, King County Prosecutor, Deborah Phillips, Deputy Pros. Atty., Seattle, for respondent.
Judge Panel:WILLIAM H. WILLIAMS, C.J., UTTER, BRACHTENBACH, DOLLIVER, DORE and DIMMICK, JJ., and SHIMAS, J. Pro Tem., concur.
Case Date:January 03, 1985
Court:Supreme Court of Washington
 
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Page 818

692 P.2d 818 (Wash. 1985)

103 Wn.2d 322

In the Matter of the Personal Restraint Petition of Maurice

SAUVE, Petitioner.

No. 50600-1.

Supreme Court of Washington, En Banc.

January 3, 1985

[103 Wn.2d 323]

Page 819

Marston, Hodgins, Shorett, Gillingham, Hardman & Jones, David L. Shorett, Eileen P. Farley, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Deborah Phillips, Deputy Pros. Atty., Seattle, for respondent.

PEARSON, Justice.

Petitioner Maurice Sauve challenges the constitutionality of his conviction on several counts of robbery and possession of stolen property. Petitioner claims the rule announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), should apply to his case and that consequently this court must declare the warrantless arrest and search conducted in his home unconstitutional. In addition, petitioner claims his right to confront witnesses against him was violated and that a conviction for robbery and possession of stolen property violates the double jeopardy provisions of the state and [103 Wn.2d 324] federal constitutions. Because petitioner is unable to

Page 820

show actual and substantial prejudice resulting from the warrantless arrest and search, the failure of one witness to testify, and the dual convictions, his petition is denied.

The salient facts are as follows. On May 5, 1978, after receiving a tip from an informant, Seattle police officers arrested petitioner in connection with several robberies which had occurred earlier that day. The arrest was made in petitioner's home with neither an arrest warrant nor a search warrant. Following his arrest, petitioner was searched, was advised of his rights and consented to a search of his home. During the search police found credit cards belonging to two of the robbery victims. The police also found a gun. On June 19 and 20, 1978, a suppression hearing was conducted to determine the admissibility of the credit cards and gun. The police officer who arrested and searched petitioner testified at this hearing but the officer who received the informant's tip and relayed it to the arresting officer did not. The trial judge ruled that the evidence was admissible. In June 1978, petitioner was convicted of 11 counts of first degree robbery, 2 counts of first degree kidnapping, 1 count of second degree assault, and 2 counts of second degree possession of stolen property. In January 1979, petitioner was found to be a habitual criminal and on February 20, 1979, he was sentenced. In March 1979, petitioner appealed his judgment and sentence to the Court of Appeals.

Prior to the appellate court hearing petitioner's appeal, this court decided State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980). In addition, the United States Supreme Court decided Payton v. New York, supra. Thereafter, pursuant to Holsworth, the Court of Appeals remanded the case to the trial court for a rehearing on matters concerning the habitual criminal charge. State v. Sauve, 28 Wash.App. 1032 (1981). On remand, the State abandoned the habitual criminal charges and on May 11, 1981, petitioner was resentenced to a maximum term of life with all counts to run concurrently. Petitioner appealed the May 1981 judgment [103 Wn.2d 325] and sentence and for the first time raised issues concerning the warrantless search. This appeal was dismissed by the Court of Appeals which held that because the warrantless arrest issues were not raised, but could have been raised in the first appeal, they cannot be considered in a second appeal. State v. Sauve, 33 Wash.App. 181, 652 P.2d 967 (1982). This court subsequently affirmed the appellate court's holding. State v. Sauve, 100 Wash.2d 84, 666 P.2d 894 (1983). Petitioner then renewed his challenges to the May 1981 judgment and sentence by filing a personal restraint petition with the Court of Appeals. The Court of Appeals then certified the case to this court.

I

Petitioner...

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