State v. Luvene

• Decision Date: 12 October 1995
• Docket Number: No. 60781-8,60781-8
• Citation: 127 Wn.2d 690,903 P.2d 960
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Sammie Lee LUVENE, Appellant.

Page 690

127 Wn.2d 690

903 P.2d 960

The STATE of Washington, Respondent, v. Sammie Lee LUVENE, Appellant.

No. 60781-8.

Supreme Court of Washington,

En Banc.

Oct. 12, 1995.

[903 P.2d 964]

Page 694

Nance & Iaria, Michael Iaria, Seattle, for appellant

Sammie Lee Luvene, Walla Walla, pro se.

John Ladenburg, Pierce County Prosecutor, Barbara L. Corey-Boulet, Deputy, Thomas C. Roberts, Deputy, Tacoma, for respondent.

ROBERT F. UTTER, Justice Pro Tem. ^*

Sammie Lee Luvene was convicted by a jury in Pierce County Superior Court of aggravated first degree murder, attempted first degree murder, and first degree robbery while armed with a deadly weapon. A special sentencing proceeding was held and Mr. Luvene

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was sentenced to death. This case is now before us on direct review of Mr. Luvene's death sentence. We affirm Mr. Luvene's conviction and overturn the sentence of death based upon the State's failure to file notice of intent to seek the death penalty within the 30-day period required by RCW 10.95.040(2). The State had an order prepared within the statutory period and the opportunity to file it timely in the superior court. It failed to do so through simple inadvertence and, therefore, cannot show good cause for its failure as is required by our decision in State v. Dearbone, 125 Wash.2d 173, 883 P.2d 303 (1994). The case is remanded for resentencing to life imprisonment without the possibility of release or parole

FACTS

On July 2, 1992, Carrol "Bud" Bond and Margaret Detrick were shot during a robbery at the Milton liquor store in Pierce County where they were employed. The crime took place at approximately 7 p.m., just after closing time. According to the testimony, the assailant entered the store at least 15 minutes earlier while several customers were making purchases. As other customers lingered in the store, the assailant placed his order for several bottles of alcohol. By the time the order had been bagged, the assailant was the only customer left in the store.

Ms. Detrick testified that she saw the assailant raise a black gun and shoot Mr. Bond twice. Ms. Detrick immediately fell to the floor and huddled in a crouched position. As she was on the floor, she was shot twice in the chest.

As Ms. Detrick pretended to be dead, the assailant jumped over the counter and attempted to open the cash register. Realizing he could not open it, the assailant took the entire register and left the store. He then returned and took the bottles of liquor he had ordered.

When Ms. Detrick heard a car drive away, she crawled to a telephone and called the police. The police arrived within 30 seconds, at 7:07 p.m. Ms. Detrick was found

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conscious and talking, but Mr. Bond appeared dead. When the aid crew from the fire department arrived shortly thereafter, they found a pulse on Mr. Bond, but it was soon lost and he died. Ms. Detrick described the assailant to the police as a stocky black male, approximately 5 feet 7 inches tall, with big lips, and wearing a green shirt

[903 P.2d 965] An intensive police investigation led them to suspect Sammie Lee Luvene. The police placed Mr. Luvene's picture in a photo montage and showed it to Ms. Detrick on July 8, 1992. She identified Mr. Luvene as the perpetrator of the crime, although she had earlier described the perpetrator as having longer hair than Mr. Luvene had in the photo. The police also showed the photo montage to Clifford Smith, one of the last customers to leave the store before the crime, and he also identified Mr. Luvene.

The next day, the police conducted a search of Mr. Luvene's apartment where he lived with his girlfriend, Billie Pickett, and her daughter, D'Tisha Pickett. The police found four bottles of liquor that matched the type stolen from the Milton liquor store. They also found two unfired .380 cartridges in D'Tisha Pickett's bedroom. The police, however, were unable to find any clothes matching those described by witnesses as having been worn by the assailant. Nor did they find the missing cash register or the gun used in the crime. Following the search, the police arrested Mr. Luvene at a nearby video store.

The trial began on April 5, 1993. The jury heard testimony from Ms. Detrick and three other witnesses who identified Mr. Luvene as the assailant. Billie and D'Tisha Pickett each testified that Luvene owned a black gun near the time of the crime, and Dalton "Dray" Gamboa, a neighbor, testified that Mr. Luvene had told him he had a .380-caliber handgun. A firearms expert testified that one of the cartridges found in Luvene's apartment had been cycled through the same gun as the three shell casings found at the crime scene. The jury also heard evidence that the manufacturer's lot numbers on the liquor

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bottles found in Mr. Luvene's apartment matched the lot numbers found in the inventory of the Milton liquor store, but there were no matching lot numbers found at the store where Mr. Luvene claimed the liquor was purchased. There was testimony from two witnesses who saw a car at the scene of the crime that may have been a black GEO Storm, and further testimony that Mr. Luvene was seen on the day of the crime driving Billie Pickett's black GEO Storm. Finally, the jury heard evidence concerning the unusually large amount of money Mr. Luvene suddenly possessed in the days following the crime

The defense case focused primarily on a theory of mistaken identity. The defense emphasized the discrepancies between the descriptions of the assailant initially given to police and the uncontroverted testimony regarding Mr. Luvene's actual appearance at the time of the crime. The most significant discrepancy was that while Mr. Luvene apparently always has worn his hair very short, several of the witnesses, including Ms. Detrick, initially described the assailant as having long hair. Two of the witnesses indicated the assailant had a "geri-curl" hairstyle. The defense also attempted to create a reasonable doubt concerning Mr. Luvene's guilt by implying that either Dalton Gray or Bernard Burns, D'Tisha Pickett's boyfriend, committed the crime.

On May 21, 1993, the jury found Mr. Luvene guilty of premeditated first degree murder with a robbery aggravating factor, attempted first degree murder, and first degree robbery while armed with a deadly weapon. The special sentencing proceeding began on June 16, 1993. Numerous friends and relatives testified that Mr. Luvene had a difficult upbringing but was a kind and caring person who had never before exhibited any violent tendencies. In addition, Margaret Detrick, the liquor store clerk who survived the shooting, testified that she wanted Mr. Luvene to be sentenced to life imprisonment without the possibility of parole. On June 20, 1993, after 3 days of

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deliberation, the jury returned its verdict, and on August 12, 1993, the trial court sentenced Mr. Luvene to death.

RIGHT TO SELF-REPRESENTATION AND SPEEDY TRIAL

Mr. Luvene's trial was initially scheduled to begin on March 8, 1993. On February 18, 1993, the trial court granted a continuance at the request of Mr. Luvene's attorney, Rogers Wilson. Mr. Wilson indicated that he needed additional time to interview witnesses and to begin preparation for the penalty phase. [903 P.2d 966] Mr. Luvene, however, strongly opposed any continuance, stating:

I've been here since July.... You know, I don't wanna sit here any longer. It's me that has to deal with this. If I'm prepared to go for myself, then that's me. You know, can't nobody tell me what I wanna do. They say I did this, so why not--if I wanna go to trial, why can't I go to trial on the date they have set for my life? I'm prepared. I'm not even prepared about that. I wanna go to trial, sir....

I don't wanna extend my time. This is out of my league for doing that. I do not want to go. If he's not ready to represent me, then forget that. But I want to go to trial on this date.

Report of Proceedings, at 72-73. Mr. Luvene contends that these statements represent an unequivocal request to proceed pro se and that by granting the continuance, the trial court denied him his state and federal constitutional rights to self-representation.

The right of criminal defendants to self-representation is guaranteed by the Sixth and Fourteenth Amendments to the federal constitution and article 1, section 22 of the state constitution. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); State v. Bebb, 108 Wash.2d 515, 524, 740 P.2d 829 (1987). However, the assertion of the right to proceed pro se must be unequivocal. Bebb, 108 Wash.2d at 524, 740 P.2d 829 (citing State v. Fritz, 21 Wash.App. 354, 360-61, 585 P.2d 173, 98 A.L.R.3d 1 (1978), review denied, 92 Wash.2d 1002 (1979)).

While Mr. Luvene did state that he was "prepared to go

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for myself", he also stated, "I'm not even prepared about that", and "[t]his is out of my league for doing that". Taken in the context of the record as a whole, these statements can be seen only as an expression of frustration by Mr. Luvene with the delay in going to trial and not as an unequivocal assertion of his right to self-representation.

Mr. Luvene also argues that by granting the continuance, the trial court denied him his right to a speedy trial. We have previously held, however, that a trial court may grant a continuance to allow the defense counsel opportunity to prepare for trial over the express objections of a defendant. State v. Campbell, 103 Wash.2d 1, 14-15, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985). The trial court, therefore, committed no error in granting the continuance.

EXERCISE OF PEREMPTORY CHALLENGE ON THE BASIS OF RACE

Mr. Luvene argues that the prosecutor's exercise of a peremptory challenge against one of the two African-Americans in the venire was done so on the basis of race and thereby violated Mr. Luvene's right to equal protection.

The use of a...