State Of Wash. v. Mcdaniel
| Decision Date | 28 April 2010 |
| Docket Number | No. 37323-8-II,37326-2-II.,37323-8-II |
| Citation | 155 Wash.App. 829,230 P.3d 245 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent,v.Maurice M. McDANIEL and Direce Christopher Marlow, Appellants. |
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Nancy P. Collins, Washington Appellate Project, Seattle, WA, Anne Mowry Cruser, Law Office of Anne Cruser, Vancouver, WA, for Appellants.
Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.
¶ 1 In this consolidated appeal, Maurice McDaniel appeals his convictions for attempted first degree murder,1 first degree robbery, 2 both with firearm enhancements, and first degree unlawful possession of a firearm.3 Direce Marlow appeals his convictions as an accomplice to McDaniel's first degree robbery, with a firearm enhancement, and first degree unlawful possession of a firearm. Both defendants argue that (1) the trial court erred by admitting hearsay evidence of their nicknames, thus violating their Sixth Amendment 4 right to confrontation; (2) the trial court abused its discretion by refusing to sever the unlawful possession of firearm charges; and (3) their counsel were ineffective. McDaniel also contends that the trial court abused its discretion by admitting evidence of his purported flight and by refusing his proposed premeditation jury instruction.5 Marlow contends that the evidence was insufficient to support an accomplice conviction for first degree robbery.
¶ 2 We hold that the trial court violated the confrontation clause in admitting evidence of McDaniel's nickname and abused its discretion in admitting evidence of his purported flight and resisting arrest. Because these errors were not harmless, we vacate McDaniel's convictions and remand for a new trial. We affirm Marlow's convictions.
¶ 3 Early in the morning, on July 29, 2006, Officer Stanley James of the Tacoma Police Department was on patrol in the south end of Tacoma, Washington. At 3:19 am, he heard four or five gunshots originate a few blocks away. As he drove in the general direction of the gunshots, radio dispatch notified him of a shooting at 45th Street and Lawrence Street-an area known for its high crime rate.
¶ 4 When James arrived on the scene, he saw an approximately 30 year old male with gunshot wounds to his abdomen. The man told police that he was Ricky Richardson, but law enforcement later identified him as Cashundo Banks. 6 Banks said that his assailants drove a dark colored sports utility vehicle (SUV).
¶ 5 Earlier that night, Banks drank a few beers and had recently used cocaine, methamphetamine, and marijuana. Around 3:00 am on July 29, Banks was riding his bicycle in the area, seeking to purchase marijuana, when he saw a parked Chevrolet Blazer with tinted windows that had two unfamiliar African American males sitting in the front seats.7 Banks approached the men in the SUV and asked if they had any marijuana for sale. The passenger said that he did and told Banks to follow them.
¶ 6 The vehicle drove one block up the street and Banks followed. When the door opened, the passenger exited the vehicle with a gun in his hands. Banks saw the gun and gave the passenger his money, but the passenger shot Banks repeatedly. Then the vehicle sped away.
¶ 7 Banks underwent emergency surgery for multiple wounds. His toxicology test was positive for cocaine, methamphetamine, and marijuana. He also had a blood alcohol level of .176. Nine days later, he left the hospital against medical advice, presumably to avoid arrest.
¶ 8 While investigating an unrelated crime, Detective Gene Miller of the Tacoma Police Department obtained a search warrant for telephone calls made to Marlow's telephone number between July 5, 2006, and September 5, 2006, by Verrick Yarbrough, an inmate at the Pierce County Jail. After listening to over 70 hours of taped conversation, Miller realized that three individuals were discussing a shooting on 45th Street. When Miller searched police records, he discovered only one reported shooting on 45th Street during that period-the July 29th shooting at 45th Street and Lawrence Street. On the tape, “Reese,” “Tony Guns,” and Yarbrough sounded as if they were bragging about the shooting and talked about the victim with callous disregard for the injuries they inflicted. Report of Proceedings (RP) (Dec. 4, 2007) at 772-73. After speaking to at least four people, Miller concluded that “Reese” was Marlow and that “Tony Guns” was McDaniel.
¶ 9 Miller spoke with Banks in jail on April 10, 2007, after police arrested him on unrelated charges. Banks described his assailants to Miller. Miller showed Banks two separate photomontages-one with Marlow and one with McDaniel. Banks identified Marlow as the driver of the vehicle and McDaniel as the shooter.
¶ 10 In May, Tacoma police conducted a stake out to arrest McDaniel on several warrants. They received information from a citizen witness that McDaniel and his girl friend had entered a vehicle. When the vehicle drove onto the road, with the girl friend driving, officers activated their emergency lights and pulled it over. As a police officer stepped out of his car, the vehicle sped away. Five marked patrol cars chased it at high speed and ultimately rammed the vehicle, bringing it to a stop. When McDaniel exited the vehicle from the passenger side, officers instructed him to show his hands and lie down, which he refused to do. Police forced him to the ground and arrested him. He did not throw punches or otherwise fight back.8
¶ 11 The State charged both Marlow and McDaniel with attempted first degree murder, first degree robbery, and first degree unlawful possession of a firearm. The attempted murder and robbery counts carried firearm enhancements.
¶ 12 During a hearing on a motion in limine before trial, Miller testified about his experience with gangs and his investigation of the 70 hours of recorded jail telephone calls between Yarbrough, “Reese,” and “Tony Guns.” The State argued that Miller had firsthand knowledge that Marlow was “Reese” and McDaniel was “Tony Guns” and that Miller should be able to testify to these nicknames. The trial court agreed with the State, rejecting the defendants' confrontation clause arguments.9
¶ 13 Both defense counsel unsuccessfully moved to sever the defendants' unlawful possession of firearms charges from the remaining charges, arguing that it would be unduly prejudicial if all counts were tried together. McDaniel's counsel unsuccessfully moved to exclude testimony regarding his arrest and purported flight.
¶ 14 The jury convicted McDaniel as charged. The jury convicted Marlow of first degree robbery, with a firearm enhancement, and first degree unlawful possession of a firearm. But the jury could not reach a verdict on Marlow's attempted first degree murder count and the trial court declared a mistrial on that count.
¶ 15 We consolidated Marlow's and McDaniel's appeals.
¶ 16 Marlow and McDaniel argue that the State violated their Sixth Amendment confrontation rights because Miller lacked personal knowledge that they used the names “Reese” and “Tony Guns,” respectively. They contend that Miller merely repeated testimonial out-of-court statements because he had interrogated and interviewed third parties, specifically to identify who used the nicknames he heard used on the jail telephone recordings. We hold that Miller had firsthand personal knowledge that Marlow was “Reese” but that Miller's testimony regarding McDaniel constituted testimonial evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny.
¶ 17 We review alleged confrontation clause violations de novo. State v. Kronich, 160 Wash.2d 893, 901, 161 P.3d 982 (2007).
¶ 18 Before trial, the State moved to admit the recorded jail telephone conversations and to designate Miller as a gang expert. During a motion in limine, Miller implied that he learned the defendants' nicknames through his investigation but he did not testify about the specific sources of his information. McDaniel's counsel objected based on, among other things, the confrontation clause:
And there are major confrontational clause problems that arise with Detective Miller testifying to information that he's learned from other people, because those people aren't over here to testify. Those people aren't available for the defense to cross-examine. For all we know, those people may have been just letting Detective Miller hear what they wanted him to hear, either to put him in the wrong direction or whatever. We don't know why those individuals told Detective Miller what they told Detective Miller. We don't even know what the exact words were that those other individuals used when they spoke with Detective Miller.
RP (Nov. 15, 2007 am) at 166.
¶ 19 The trial court overruled this argument:
[McDaniel's counsel] suggests that, well, maybe the people [Miller] was talking to were just leading him astray and all he's got is a whole bunch of faulty information, but I think the length of time [Miller]'s been involved with [his investigation] and the depth and number of people he's talked to has given him ample opportunity to kind of cross-reference what he's being told, and it would be pretty obvious if you are being led down a garden path when you have the breadth of information that he's got available. I don't find that this is like nuclear physics, where you would rely on treatises and experiments to form your basis of knowledge. This is real-life experience that is found best in the real world, so I find that this is both reliable, given the breadth and length of time that it's been available to him, and that it's the kind of thing that an expert would rely on to form an opinion. So, I do find that he has the requisite...
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