STATE OF WASHINGTON v. HUERECA, S. 39755-9-I

• Decision Date: 26 April 1999
• Docket Number: NOS. 39755-9-I,39852-1-I,S. 39755-9-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT, v. CARLOS E. HUERECA, AND EPHRAIM R. SMITH AND EACH OF THEM, APPELLANTS.

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; CARLOS E. HUERECA, AND EPHRAIM R. SMITH AND EACH OF THEM, APPELLANTS.
[3]	NOS. 39755-9-I 39852-1-I Consolidated Cases
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of King County Docket No: 95-1-06553-4 Judgement or order under review Date filed: 12/03/1996 Judge signing: Hon. Faith Ireland
[6]	April 26, 1999
[7]	Counsel: Counsel for Appellant(s) Suzanne L. Elliott Attorney At Law Suite 1300 Hoge Building 705 Second Avenue Seattle, WA 98104 Eric J. Nielsen Nielsen Broman & Assoc. Pllc 810 3rd Ave, Ste 320 Seattle, WA 98104-1622 James R. Dixon Nielsen Broman & Assoc. Pllc 810 3rd Ave Ste 320 320 Central Building Seattle, WA 98104 Kelly V. Curtin Ste 298 10115 Greenwood Ave N Seattle, WA 98133 Nielsen Broman & Associates Pllc 810 Third Avenue 320 Central Building Seattle, WA 98104 Counsel for Respondent(s) Erin Riley 1204 E Crandall Ave Salt Lake Cit, UT 84106 Daniel J. Soukup King Cnty Pros Office 516 3rd Ave Rm W 554 Seattle, WA 98104 Prosecuting Atty King County King County Prosecutor/Appellate Unit 1850 Key Tower 700 Fifth Avenue Seattle, WA 98104
[8]	The opinion of the court was delivered by: Coleman, J.
[9]	Judges: Authored by H. Joseph Coleman Concurring: William W. Baker Faye C. Kennedy
[10]	Unpublished Opinion
[11]	Carlos Huereca and Ephraim Smith claim numerous trial and sentencing errors require reversal of their convictions, sentences, and firearm enhancements on four counts of kidnapping in the first degree, three counts of robbery in the first degree, and one count of attempted robbery in the first degree. In addition, Huereca was convicted on one count of rape in the first degree with an associated firearm enhancement. Huereca and Smith either separately or jointly allege that the trial court erred by not severing their trial, that the court erroneously permitted evidence of prior crimes to be introduced into evidence, that the warrantless police search of Huereca's apartment was illegal and the evidence obtained therefrom should have been surpressed, and that the kidnapping and robbery and kidnapping and rape convictions should have been found to be part of the same criminal conduct. Further, they allege that the initiative containing the firearm enhancement is unconstitutional because it violates Washington's constitutional single subject rule, that the firearm enhancements must be stricken because the jury instructions and special verdict form did not ask the jury to find that the defendants were armed with a firearm, and that the prosecutor's misconduct during closing prevented Smith from receiving a fair trial. We affirm the verdicts and sentences for both defendants.
[12]	FACTS
[13]	Dawn Stanford, RN, Roy Rima, and Andrew Gavid stopped at a 7-11 to fuel RN's car at about 3 A.M. on September 10, 1995. RN and Gavid were outside the vehicle when two men, later identified as Huereca and Smith, emerged from nearby bushes and approached them. Smith hit Gavid over the head with a small, silver pistol knocking him to the ground. After ordering RN and Gavid back into the car, Huereca got in the back seat and Smith sat in the driver's seat. Huereca and Smith demanded that the four victims give them anything of value. Shortly thereafter Smith started the car and drove the victims to Lake Fenwick, which was about 15 minutes away. The defendants continued to demand property from the four victims while enroute to and after arriving at Lake Fenwick. During the ride to the lake, Smith gave the gun to Huereca.
[14]	Upon arriving at Lake Fenwick, the victims were instructed to get out of the car and were ordered to strip. Smith told Stanford that she did not have to strip and had her join him in the car. Huereca remained outside with the other three victims and after they had stripped, he took Rima's shirt and RN's shoes and then ordered all three victims to get into the trunk. Huereca then joined Smith and Stanford in the car where he and Smith looked for additional items to steal. A short while later, Huereca opened the trunk and ordered RN out. He took her a short distance away and forced her to engage in two acts of oral sex and one act of vaginal intercourse.
[15]	Huereca returned RN to the car and had her get back into the trunk. When RN returned to the trunk, she told Gavid that she had been raped. Shortly thereafter, the trunk was again opened. This time both Huereca and Smith were present and they both hit Gavid, threatened to kill him, and told him that he had not given them enough property. At that point, Gavid volunteered that his truck with a stereo and speakers was parked at a nearby high school. The defendants decided they wanted to go to Gavid's truck and had Gavid, RN, and Rima get dressed. After dressing, RN and Rima were again ordered into the trunk.
[16]	Smith drove to Gavid's truck whereupon Huereca and Gavid got into the truck and drove it to a grocery store parking lot. Smith remained in RN's car and followed the truck to the new location. Once at the parking lot, Huereca had Gavid remove his stereo and speakers from the truck. Huereca and Gavid then returned to RN's car and, after driving for a brief period, Smith dropped Huereca off with Gavid's speakers at an apartment complex. Smith then drove across the street to a gas station, stopped the car, and left the scene on foot carrying Gavid's stereo.
[17]	Stanford and Gavid drove a short distance away before stopping to let RN and Rima out of the trunk. The four victims then drove to Gavid's friend's house where they called the police. Stanford accompanied RN to Harborview hospital where RN received medical care and evidence of her sexual assault was collected.
[18]	Gavid identified Huereca from a lineup and Smith from a photomontage. Gavid did not wear his glasses at trial and had to get off the stand in order to identify the defendants. Gavid also identified the gun admitted at trial as the weapon used by Smith and Huereca.
[19]	Rima was unable to positively identify Huereca from a photomontage, but he stated that Huereca's picture "looks like one of the suspect's eyes." Rima did however, identify both Huereca and Smith in court as the two men that had kidnapped and robbed him and the others. He testified that Smith initially had the gun and hit Gavid. Rima also testified that Huereca took RN from the trunk and returned her about 20 minutes later. Rima stated that Smith was with Huereca when the trunk was opened for the second time, and that Smith hit Gavid a few times saying, "{T}his is how you treat a white boy." After being allowed to redress, Rima was again placed in the trunk with RN who told him that Huereca had raped her and made her perform oral sex.
[20]	Stanford testified that Smith had originally hit Gavid at the gas station. She said that the gun admitted at trial was possibly the gun used by the defendants. Stanford did not have any property to give to the defendants except a ring which she was initially unable to remove from her finger. Stanford corroborated Smith's story that he intervened, preventing Stanford from having to strip. However, contrary to Smith's testimony that he and Stanford had dated, Stanford denied ever seeing either Smith or Huereca prior to that night. Stanford identified both Huereca and Smith from photomontages and at trial.
[21]	RN identified Huereca from a photomontage and testified that Huereca made her perform oral sex on him, had her turn around and penetrated her vagina with his penis, and then had her perform oral sex again.
[22]	Physical evidence linking the defendants to the charged crimes included Smith's fingerprints on RN's car, recovery from Huereca's apartment of stolen property and clothing matching the description of what one of the perpetrators was wearing, and recovery of the gun from Huereca. The police searched Huereca's residence after obtaining consent to search the apartment from a co-occupant. They recovered clothes matching the victims' descriptions of what one of the perpetrators was wearing, as well as Gavid's stereo speakers and speakers from another vehicle robbery. All four victims identified a gun recovered from Huereca as the gun or at least probably the gun that the perpetrators used.
[23]	DISCUSSION
[24]	Huereca claims that the trial court erred by: (1) refusing to sever his and Smith's trial; (2) admitting prior uncharged crimes into evidence; (3) refusing to suppress evidence seized from his residence; (4) not counting the kidnapping and robbery charges for each victim and the kidnapping and rape of RN as part of the same criminal conduct; (5) failing to properly instruct the jury on the firearm enhancement charges; and (6) failing to find that the initiative that implemented the firearm enhancement statute was unconstitutional. While several of Huereca's assignments of error could also apply to Smith, Smith only joins in Huereca's arguments concerning the instructions given to the jury on the firearm enhancement and on the unconstitutionality of Initiative 159. In addition, Smith alone assigns error to several statements made by both the prosecutor and Huereca's counsel and also argues that his trial counsel was ineffective because he failed to object to the erroneous jury instructions regarding the firearm enhancements. Severance
[25]	Huereca repeatedly requested that his and Smith's trial be severed on the basis that their defenses were mutually antagonistic. Huereca did not testify, and his defense was a general denial of any involvement in the crimes, while Smith testified and admitted that he and Huereca were both present but claimed that Huereca alone committed the crimes.
[26]	The decision to grant or deny a motion for separate trials "is entrusted to the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion." State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991) (footnote omitted). Separate trials are disfavored in Washington. Hoffman, 116 Wn.2d at 74.

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