State v. Birch

• Decision Date: 11 August 2009
• Docket Number: No. 26635-4-III.,26635-4-III.
• Citation: 151 Wn. App. 504,213 P.3d 63
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Keith Dwain BIRCH, Appellant.

213 P.3d 63

151 Wn. App. 504

STATE of Washington, Respondent, v. Keith Dwain BIRCH, Appellant.

No. 26635-4-III.

Court of Appeals of Washington, Division 3.

August 11, 2009.

David N. Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Mark E. Lindsey, Prosecuting Attorney's Office, Spokane, WA, for Respondent.

BROWN, J.

¶ 1 Keith Dwain Birch appeals his first degree robbery conviction and persistent offender sentencing. He contends his counsel failed to object to a California robbery conviction partly used to determine his persistent offender status and that the trial court erred in failing to conduct a comparability analysis for that conviction. Mr. Birch also contends the court erred in denying his juror cause-challenge and denying his motion to exclude identification testimony. We reject his contentions, and affirm.

FACTS

¶ 2 In 2005, the State charged Mr. Birch with one count of first degree robbery. A November 2007 jury trial produced the following facts.

¶ 3 On January 7, 2003 in the early afternoon, Leona Morales, a teller at Wells Fargo Bank on Northwest Boulevard in Spokane, saw a customer approaching the counter and asked if she could help him. The customer was a male, wearing a black hat, jeans, a red and black sweater, and glasses. Ms. Morales thought the customer was wearing a disguise of glasses connected to a fake nose and mustache. Ms. Morales thought he had a gun because the customer had one hand in his pocket.

¶ 4 Ms. Morales testified the customer threw a black bag down on the counter, along with a note stating "[t]his is a robbery." 2 Report of Proceedings (RP) (Nov. 6, 2007) at 286. Ms. Morales filled the bag with cash, and the customer took the bag and the note and left the building. After he left, Ms. Morales activated her alarm system.

¶ 5 Responding law officers were unable to find the suspect, but did locate several items in an a nearby alley including sport goggles, glasses, a black knit hat, a knit glove, a red sweatshirt, and a torn paper with writing on it. DNA found on the glasses, the hat, the glove, and the sweatshirt matched Mr. Birch's DNA sample.

¶ 6 At the end of the first day of jury selection, the prospective jurors had been exhausted. The trial court told counsel it would keep the jurors selected on the first day and bring in new prospective jurors the next day in order to fill out the panel. The court told counsel that Mr. Birch had two peremptory challenges remaining that could be used on the second day of jury selection. Mr. Birch objected to this process, arguing it affected his ability to evaluate the entire venire, and strategically use all six of his peremptory challenges. Accordingly, Mr. Birch requested the trial court start the jury selection process anew. The trial court rejected this request.

¶ 7 The next day, 14 new prospective jurors joined the panel. When detailing her background, Juror No. 32 stated she worked at Washington Mutual Savings Bank for 10 years, working for brokers "in the investment end," but never as a teller. 2 RP (Nov. 6, 2007) at 194. She described her other employment at a small wheat ranch and as a medical receptionist. Juror No. 32 answered that she thought she could follow Mr. Birch's constitutional rights and his presumption of innocence despite the bank robbery allegations, and a number of follow-up questions showed she understood the need to wait for the evidence and not decide the case based on what was said in voir dire.

¶ 8 Mr. Birch moved to strike Juror No. 32 for cause stating, "I think she indicated that she worked in a bank. It sounds like there was some training and she has the strong potential of having been influenced by that." 2 RP (Nov. 6, 2007) at 251. The court denied the challenge, stating:

Well, if she was a teller, I might agree. But it sounds like she is kind of separated from that whole thing. I mean, they probably all get some sort of general training, but I doubt that the kind of training that they get is really going to be the sort of thing that is really going to affect her objectivity here.

2 RP (Nov. 6, 2007) at 251-52. Mr. Birch then exercised one peremptory challenge, and waived his final peremptory challenge. Juror No. 32 was seated on the jury.

¶ 9 Mr. Birch moved to exclude Ms. Morales's in-court identification of him because she had seen him wearing handcuffs in the hallway outside the courtroom with his escort officers. Ms. Morales then told both counsel she would, in court, identify Mr. Birch as the robbery perpetrator. Defense counsel argued Ms. Morales's identification would be tainted by her hallway observations. The trial court denied the exclusion motion, ruling the identification "really goes to the weight of how reliable her recollection and identification is." 2 RP (Nov. 6, 2007) at 263. In court, after questioning about the hallway encounter, Ms. Morales identified Mr. Birch as the perpetrator:

[The State:] What is it about [Mr. Birch] that makes you think that he was the suspect?

[Ms. Morales:] It was his eyes.

. . . .

[The State:] How sure are you that [Mr. Birch] is the person that robbed the bank on that day?

[Ms. Morales:] I am sure.

2 RP (Nov. 6, 2007) at 292-93.

¶ 10 Ms. Morales testified she was approximately three feet away from Mr. Birch during the incident, and although she primarily focused on his chest, she looked at his face for "a good few seconds." 2 RP (Nov. 6, 2007) at 321. In cross-examination, Ms. Morales reviewed her law enforcement report describing some differences in the suspect's age, height, and weight, eye color, hair color, and facial hair. Cross-examination revealed the courtroom encounter was the first time she had seen Mr. Birch since the robbery and that she had never been asked to view a line-up, a photomontage, or identify a suspect. Detective Donald Giese testified about Mr. Birch's listed appearance in March 2003 records.

¶ 11 The jury found Mr. Birch guilty as charged. At sentencing, Mr. Birch, his defense counsel and the prosecutor signed and filed out an "Understanding of Defendant's Criminal History." Clerk's Papers (CP) at 105-06. The first page listed Mr. Birch's criminal history, including a Washington second degree assault conviction and a California robbery conviction. The second page partly stated:

[Mr. Birch's] understanding of [his] criminal history is as set out above. [Mr. Birch] agrees that, unless otherwise noted in writing here, each of the listed convictions counts in the computation of the offender score and that any out-of-state or foreign conviction is the equivalent of a Washington felony offense.

CP at 106.

¶ 12 The State asked for life in prison without the possibility of parole, under Washington's Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981, chapter 9.94A RCW, or the "three strikes law." The State identified Mr. Birch's two earlier strikes as the Washington second degree assault conviction and the California robbery conviction. The State informed the court it had provided original documents reflecting the California robbery conviction, and requested these documents be filed, but they are not part of our record.

¶ 13 Defense counsel stated, "[w]e are here, obviously, because Mr. Birch is going to receive a life sentence." RP (Nov. 15, 2007) at 5. And, regarding criminal history:

I have looked at the documents provided by [the State] to support Mr. Birch's criminal history. The conviction out of California for the robbery ... there are only really three documents. And I didn't see any signature by a judge on these documents.... I suggested the possibility that Mr. Birch may not want to agree to that conviction.... And I talked with Mr. Birch about that possibility today. And his response is, [t]hat was a conviction that I received, and I am not going to say I didn't because it is what happened.

RP (Nov. 15, 2007) at 5-6.

¶ 14 Without any comparability discussion, the court stated, "[t]here really isn't any dispute here about the criminal history," and sentenced Mr. Birch to life in prison without the possibility of parole. RP (Nov. 15, 2007) at 7. Mr. Birch appealed.

ANALYSIS

A. Challenge for Cause

¶ 15 The issue is whether the trial court erred in refusing to dismiss Juror No. 32 for cause. Mr. Birch contends actual bias exists because Juror No. 32 worked in a bank.

¶ 16 "Under the Sixth Amendment and article 1, section 22 of the state constitution, a defendant is guaranteed the right to a fair and impartial jury." State v. Rupe, 108 Wash.2d 734, 748, 743 P.2d 210 (1987). A juror may be challenged by a party for cause. CrR 6.4(c); RCW 4.44.170. We review a trial court's denial of a challenge for cause for a manifest abuse of discretion. State v. Noltie, 116 Wash.2d 831, 838, 809 P.2d 190 (1991). "[T]he trial court is in the best position to determine a juror's ability to be fair and impartial." Id. at 839, 809 P.2d 190. Specifically, "[t]he trial judge is able to observe the juror's demeanor and, in light of that observation, to interpret and evaluate the juror's answers to determine whether the juror would be fair and impartial." Rupe, 108 Wash.2d at 749, 743 P.2d 210. Reversal is the remedy for an erroneous for cause-challenge denial. See, e.g., State v. Stackhouse, 90 Wash.App. 344, 352, 361, 957 P.2d 218 (1998) (case remanded for cause-challenge errors).

¶ 17 Actual bias supports a challenge for cause. RCW 4.44.170(2). "Actual bias" is "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging." RCW 4.44.170(2). "[W]here actual bias is claimed, it must be established by proof." Noltie, 116 Wash.2d at 838, 809 P.2d 190. "[E]quivocal answers alone do not require a juror to be removed when challenged for cause, rather, the question is whether a...