State Of Washington
| Decision Date | 27 April 2010 |
| Docket Number | 38373-0-II.,No. 38377-2-II,38377-2-II |
| Parties | STATE of Washington, Respondent,v.Wade William PIERCE, Appellant.In re Personal Restraint Petition of Wade William Pierce, Petitioner. |
| Court | Washington Court of Appeals |
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John A. Hays, Attorney at Law, Longview, WA, for Appellant.
Lance M. Hester, Attorney at Law, Tacoma, WA, for Petitioner.
Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.
¶ 1 Wade William Pierce appeals Lewis County Superior Court's denial of his motion for post-judgment relief under CrR 7.8. In addition, he contends that the trial court violated his constitutional rights against double jeopardy when it imposed firearm enhancements where the use of a weapon is an element of the underlying crime. In a statement of additional grounds (SAG),1 Pierce contends that he was denied his constitutional right to effective counsel and he was denied a fair trial due to prosecutorial misconduct. In addition, Pierce raises several issues in his consolidated personal restraint petition (PRP),2 including a contention that the trial court erred by imposing firearm enhancements rather than deadly weapon enhancements. We hold that the trial court properly denied Pierce's motion for a new trial. But we further hold that the trial court erred when it imposed firearm enhancements on his convictions because there is insufficient evidence to establish that Pierce was armed with an operable firearm during the commission of the crimes. Finally, in the unpublished portion of this opinion, we hold that Pierce's remaining contentions have no merit. Accordingly, we affirm, grant in part, deny in part, and remand to the trial court for resentencing without firearm enhancements findings, which rest on insufficient evidence.
¶ 2 On December 31, 2003, an intruder awoke Jerry and Rosita Coble by shining a flashlight on them in their bed. The intruder was holding what appeared to be a handgun. The Cobles covered their heads as directed while the intruder ransacked and robbed their home. Both Jerry and Rosita 4 believed they saw a second person in the living room during the invasion.
¶ 3 Once the intruders left, Rosita looked outside and saw what she believed to be a small, black, two-door car leaving the driveway. She later saw a similar car at the police evidence garage and learned that it belonged to Pierce.
¶ 4 Police investigators photographed shoe prints found in snow outside the Cobles' home. The investigators noted that the tire tracks in the driveway appeared to have been made by “mud-and-snow type tire[s].” Clerk's Papers (CP) (No. 38377-2-II) at 308. They were unable to recover any usable fingerprints from the Coble home. Later, the Cobles reported that the bandits stole cash, electronics, jewelry, a jewelry box, luggage, a videocassette recorder (VCR) and satellite receiver, and other personal items from their home.
¶ 5 On February 7, 2004, Jack Cartwright saw Pierce briefly at a local tavern. Pierce left shortly after a brief interaction with Cartwright's companion, Norma Woodard. When Cartwright returned home that evening, he discovered that someone had broken into his house and stolen six guns, along with items belonging to his daughter. Police investigators were unable to recover any usable fingerprints from Cartwright's home, but they did find two very distinct sets of footprints. They also photographed tire tracks in Cartwright's driveway.
¶ 6 Lewis County Sheriff's Detective Bruce Kimsey began investigating Pierce as a suspect in the Coble and Cartwright break-ins after receiving a Crime Stoppers' tip. He contacted Pierce at his residence on March 25, and asked some questions about the burglaries. Pierce's mother, Wanita Hidalgo, overheard part of the questioning.
¶ 7 Hidalgo testified that Pierce lived next to her until his ex-wife evicted him in April 2004. Pierce's ex-wife then informed Hidalgo that all of Pierce's things must be removed from the house. Hidalgo, her husband, and a few other people removed things from the house and brought them over to Hidalgo's residence. Hidalgo said it was CP (No. 38377-2-II) at 309.
¶ 8 Pierce always had access to Hidalgo's garage, and he stored some things there. Hidalgo came to suspect that some of the items in her house were stolen. On April 19, Hidalgo called the sheriff. With Hidalgo's written consent, Detective Kimsey searched her property. In Hidalgo's spare bedroom and in the garage, Kimsey found items taken from Cartwright and the Cobles, including Cartwright's shotgun. The police recovered other guns from Hidalgo's house, but other than the shotgun, they were not able to identify them as Cartwright's.
¶ 9 The following day, Hidalgo called 911 because she believed Pierce was on her property. She thought she saw him drive his car behind her house. Detective Kimsey and Inspector Smith went to Hidalgo's property. Smith contacted Pierce and interviewed him. When Kimsey arrived, he interviewed Pierce in the back of his police car. The officers arrested Pierce. The officers were unable to locate Hidalgo on the property that day. Kimsey secured the property, including the back of the house. He spotted Pierce's black Ford Probe and, through the window, he saw a suitcase that appeared to be luggage stolen in one of the burglaries. Kimsey impounded the car and later obtained a warrant to search it and the containers found therein.
¶ 10 Inside the car, they found more items stolen from the Cobles. Zipped inside the passenger seat, they found a .22 Ruger pistol and a magazine with multiple bullets. They also found about 90 grams of methamphetamine, a scale, a syringe, and about a dozen small plastic bindles. They found a set of work boots with tread matching the tread pattern of one of the sets of footprints outside the Coble house. When Detective Kimsey went to Pierce's house, he saw a set of tires with tread that appeared to match the tracks in the Cobles' driveway.
¶ 11 In a later interview, Pierce told Detective Kimsey that he had seen the shotgun under Cartwright's bed when Woodard had previously given him a tour of Cartwright's house. Pierce also said that he had seen Cartwright's firearms during this tour and that was why his fingerprints would be on Cartwright's guns. The police never recovered fingerprints from the guns. The guns they found at Hidalgo's house turned out not to belong to Cartwright.
¶ 12 The State charged Pierce with first degree burglary of the Cartwright residence (count I), theft of five firearms taken from Cartwright (counts II-VI), and possession of a stolen firearm (count VII). For the Cobles incident, the State charged Pierce with first degree robbery (count VIII), first degree burglary (count IX), two counts of second degree assault (counts X and XI), and first degree theft (count XII). Finally, the State charged Pierce with unlawful possession of a controlled substance with intent to deliver (count XIII).
¶ 13 In a pretrial motion, Pierce moved to suppress all evidence discovered on April 21, 2004. Following briefing and argument by both parties, the trial court denied Pierce's motion. It ruled that the officers were legally on Hidalgo's property under the “community safety exception.” CP (No. 38373-0-II) at 15-16.
¶ 14 After trial, the jury convicted Pierce on all counts. The special verdict forms asked the jury whether Pierce was “armed with, or in possession of a firearm at the time of the commission of the crime.” CP (No. 38373-0-II) at 19, 21, 23, 25, 27, 29, 37. By these special verdicts, the jury found that Pierce was armed with a firearm during the burglaries (counts I and VIII), during the possession of a controlled substance (count XIII), and during the first degree robbery (count IX), two counts of second degree assault (counts X and XI), and first degree theft (count XII).
¶ 15 Pierce appealed. We considered Pierce's contentions that (1) the information was deficient, (2) the evidence was insufficient for many of the counts,5 (3) he was denied the right to a unanimous jury verdict on the burglary and assault charges because the evidence was insufficient to support one or more of the alternative means of committing those offenses, (4) the jury instruction defining knowledge was improper, (5) the trial court improperly calculated his offender score, and (6) the firearm enhancement was improper. In an unpublished opinion filed on October 10, 2006, we affirmed all of Pierce's convictions except the stolen firearm conviction, which we reversed because the information on that charge was deficient. We remanded Pierce's case for resentencing with instructions to vacate and dismiss without prejudice the possession of a stolen firearm charge. We issued our mandate terminating review on October 11,2007.
¶ 16 On May 14, 2008, Pierce filed a motion for post-trial relief under CrR 7.5, contending that newly discovered 911 call evidence warranted a new trial. In a later reply brief filed on June 11, 2008, Pierce amended his motion for new trial and argued that he was entitled to post-trial relief under CrR 7.8 based on the same newly discovered 911 call evidence. On August 8, 2008, after briefing and argument, the trial court denied his motion for a new trial.
¶ 17 The trial court resentenced Pierce on September 12, 2008. At the sentencing hearing, Pierce raised various issues regarding the firearm enhancements and merger of his two second degree assault convictions into the first degree robbery conviction. Specifically, his counsel stated:
For the Coble matter, our request is that under the Taylor[[6] and Freeman[7] cases to merge into two offenses rather than three. We believe we can do nothing about there being two assaults and it cannot therefore get merged down to one, believe me, I've tried to find any authority...
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