State Of Wash. v. Fitzpatrick
| Decision Date | 11 January 2011 |
| Docket Number | No. 39287-9-II,39287-9-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHN LANELL FITZPATRICK, Appellant. |
Hunt, P.J. — John Lanell Fitzpatrick appeals his convictions for first degree robbery1 and attempting to elude a pursuing police vehicle.2 He argues that (1) the evidence is insufficient to support his attempting to elude conviction, which was based on accomplice liability; and (2) the trial court abused its discretion by denying his motion to sever his trial from his joint jury trial with his codefendant, thereby denying him his right to a timely trial. We affirm.
Just before 5 a.m. on May 21, 2008, two men wearing dark clothing and knit caps withcutout eye holes entered a Vancouver area Shari's Restaurant. One of the men forced the cook and the pie maker to lie on the floor at gunpoint, while the other man had the hostess open the till. The second man emptied much of the till by grabbing bills and wadding them in his pocket and grabbing rolls of coins. The hostess heard at least one of the men speak; she also saw brown skin between his hat and his shirt, which led her to believe that at least one of the men was African American. After the second man pocketed the money, both men ran out of the restaurant and entered an idling black Lincoln Towncar driven by a third man. The Towncar left the parking lot, travelling at normal speed towards I-5. The hostess called 911 to report the robbery, and dispatch alerted the police.
Police responded and followed the Towncar onto the I-5 north. As the Towncar headed north, at least four police cars followed directly behind it. After several miles, Officer Yoder, in the police vehicle closest to the Towncar, used his overhead lights to signal to the driver to stop. When Ferguson did not stop, Officer Yoder used his siren to signal the Towncar to stop. The Towncar pulled off I-5 at the Ridgefield exit, ran a red light, and then drove slowly through a strip mall parking lot, where another officer saw the Towncar's driver, whom he later identified as Ferguson.
Rather than stopping in the strip mall parking area, Ferguson returned to I-5, driving the Towncar more quickly than before. As Ferguson merged the Towncar back onto I-5, an occupant in the Towncar threw a loaded handgun and a grayish colored knit cap with cut-out eyeholes from the driver's side window of the vehicle.
Police vehicles, several of which were officially marked and driven by uniformed officers, using lights and sirens to signal Ferguson to stop, pursued the black Towncar. But Ferguson drove erratically north on I-5 at speeds of up to 110 miles per hour, passing other vehicles in the right hand lane.
Near Longview, sheriff's deputies deployed a spike strip that deflated the Towncar's tires. But instead of stopping, Ferguson exited I-5 via an off-ramp into Longview at speeds up to 80 miles per hour, running at least two red lights, with pieces of the Towncar's tires hitting the pursuing police vehicles. When the Towncar "high-centered" (became stuck) on a traffic island at an intersection in Longview and stopped abruptly, 7 Report of Proceedings (RP) at 1246, officers observed three African-American men exit the Towncar and run away.
Many officers from various law enforcement agencies arrived and set up containment. Police took Fitzpatrick into custody first. Fitzpatrick was breathing heavily, as if he had been running. He denied having been in the Towncar or with the other men.
Officers next chased and detained Youngblood, who struggled and ended up on the ground. Underneath Youngblood, the officers discovered a black knit cap with eyeholes cut into it and a roll of nickels. Youngblood also had 85 bills in denominations of ones, fives, and a single ten-dollar bill wadded up in his pocket. The officers took Ferguson into custody last after finding him behind a sofa on the porch of a nearby house. Fitzpatrick, Ferguson, and Youngblood are all African-American men.
The police impounded and searched the Towncar with a warrant. In the interior, theyfound a roll of pennies and two pairs of white gloves, one pair of which were gardening gloves with blue piping. The Shari's Restaurant hostess had reported that one of the robbers wore white gloves with blue piping like the gardening gloves her mother used to wear.
During the investigation, a detective reviewed the dispatcher's logs to determine the amount of time that had passed between the first 911 call from Shari's and the time the police saw the black Towncar at the I-205/I-5 interchange. The time was just almost 15 minutes. Approximately $159.00 was missing from the Shari's till.
DNA testing matched Youngblood's DNA to that found on the interior of the black hat. But there was insufficient DNA material to test the other items taken into evidence.
The State jointly charged Fitzpatrick, Ferguson, and Youngblood with one count of first degree robbery, count 1; two counts of first degree kidnapping, counts 2 and 3; and one count of attempting to elude a pursuing police vehicle, count 4. The State also charged them with committing each of these four crimes while armed with a semi-automatic pistol, under RCW 9.94A.602 and RCW 9.94A.533(3).
On June 5, 2008, Fitzpatrick was arraigned and a joint trial date set for July 28, 2008. On July 10, Fitzpatrick signed a CrR 3.3 time-for-trial waiver and his trial date was reset for November 3 restarting the 60-day timely trial time clock. On October 27, over Fitzpatrick's objection, his counsel requested another continuance to provide adequate time for trial preparation. The trial court granted the continuance and set a new trial date for December 15.
At the December 11 trial readiness hearing, in anticipation of the December 15 trial date, Youngblood requested a continuance based on the DNA test results, which implicated him more than the other codefendants. Youngblood cited that he was facing life in prison and that he should at least have the opportunity to confront the witness against him.
Ferguson opposed the continuance; citing [State v.] "Enriquez, "3 he argued that the trial court should consider severing Youngblood's case. 2 RP (Dec. 11, 2008) at 204. Ferguson's counsel further noted that if the trial court granted a continuance, his schedule could not accommodate a rescheduled date until "early February." 2 RP (Dec. 11, 2008) at 205. Fitzpatrick also opposed the continuance and asked to go forward with the trial date set on the following Monday (the original trial date of December 15).
The State opposed any severance. Noting the tough spot for Youngblood facing life imprisonment, judicial economy, the State's position on severance, scheduling conflicts for Ferguson's attorney, and the Christmas holiday, the trial court denied the motion to sever and reset the trial's start date for February 9, 2009.
Trial for the three joined co-defendants, including Fitzpatrick, began on February 9. The jury found all three defendants guilty of first degree robbery and attempting to elude a pursuingpolice vehicle.4 The jury also found that each defendant had been armed with a firearm during the robbery.
Fitzpatrick appeals.
Fitzpatrick argues that insufficient evidence supports his conviction as an accomplice for attempting to elude a police vehicle because (1) only the driver can commit this crime; (2) there was no evidence that Fitzpatrick acted to solicit, to command, to encourage, or to request the driver not to stop for the pursuing police; and (3) Fitzpatrick was a victim of Ferguson's attempt to elude police and, therefore, cannot be an accomplice.5 These arguments fail.
The standard of review for determining whether sufficient evidence supports a conviction is "whether, after viewing the evidence in a light most favorable to the State, any rational trier offact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Reviewing courts defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To prove attempting to elude a pursing police vehicle, the State must prove that the defendant was the "driver of a motor vehicle who willfully fail[ed] or refuse[d] to immediately bring [his] vehicle to a stop and who [drove his] vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop." RCW 46.61.024(1). "Attempt to elude," as used in RCW 46.61.024, is given its ordinary meaning of "try" to elude and is unrelated to criminal attempt; thus, there is no requirement that the State prove intent to elude. State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994).
Under RCW 9A.08.020(3)(i)-(ii), an accomplice is one who, "[w]ith knowledge that it will promote or facilitate the commission of the crime... encourages... or aids" another person in committing a crime. In other words, an accomplice associates himself with the venture and takessome action to...
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