State v. Bremer, No. 26200-6-III (Wash. App. 5/5/2009)
| Decision Date | 05 May 2009 |
| Docket Number | No. 27152-8-III.,No. 26200-6-III.,26200-6-III.,27152-8-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MARK JAMEY BREMER, Appellant. In the Matter of the Personal Restraint Petition of: MARK JAMEY BREMER, Petitioner. |
Appeal from Yakima Superior Court. Docket No: 07-1-00130-7. Judgment or order under review. Date filed: 04/12/2007. Judge signing: Honorable Ruth E Reukauf.
Counsel for Appellant(s), Mark Jamey Bremer (Appearing Pro Se), 60550 Hwy 97, Toppenish, WA, 98948.
Counsel for Petitioner(s), Mark Jamey Bremer (Appearing Pro Se), 60550 Hwy 97, Toppenish, WA, 98948.
Counsel for Respondent(s), Kenneth L. Ramm Jr., Yakima County Courthouse, 128 N 2nd St Rm 320, Yakima, WA, 98901-2639.
UNPUBLISHED OPINION
Pro se, Mark Jamey Bremer appeals his residential burglary conviction, raising 15 grounds for reversal. We consolidated Mr. Bremer's personal restraint petition (PRP) that raises five contentions not addressed in his direct appeal. Additionally, we rule on Mr. Bremer's five motions to modify Clerk's rulings. We affirm Mr. Bremer's conviction, reject his PRP contentions, and deny his motions.
The facts are stated in the light most favorable to the State because we partly consider Mr. Bremer's evidence insufficiency contentions. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
In January 2007, Yakima County Deputy Sheriff Robert Tucker responded to a security alarm at 750 East Wapato Road in Wapato, Washington. The house had been unoccupied since Rosie Schuster's death in November 2005. Ms. Schuster's daughter, Lindsey Miller, had inherited the house, which was still in probate. Steven Tupy, a family friend who lived nearby, kept an eye on the house for Ms. Miller.
Deputy Tucker found the house secured by security bars and plywood. Deputy Tucker saw a ladder against the house underneath a partly pulled out attic vent. No one responded to Deputy Tucker's knocking on the front and back house doors, but the Deputy heard bumping sounds coming from within.
Mr. Tupy arrived at the house and gave Deputy Tucker and other officers permission to force entry. Deputy Tucker found the lights on in the one-level living area, but did not find anyone present. Some rooms looked "gone through" with boxes and drawers opened with "stuff was laying beside them." 2 Report of Proceedings (RP) (Mar. 7, 2007) at 209. Deputy Tucker climbed into the attic and found Mr. Bremer hiding there. Found on Mr. Bremer were a utility knife, latex gloves, gold toenail clippers, a pair of wire frame glasses, and Ms. Schuster's church membership card.
The State charged Mr. Bremer with the residential burglary of Ms. Miller's dwelling. The information listed Mr. Bremer's name as "MARK JAMEY BREMER" and listed his address as transient. Clerk's Papers (CP) at 111.
At arraignment, Mr. Bremer acknowledged his true name was Mark Jamey Bremer. The State read Mr. Bremer the facts of the alleged offense as set forth in the information, and provided Mr. Bremer with a copy of the information. The record does not show that Mr. Bremer attended his omnibus hearing or his status hearing.
The State gave Mr. Bremer copies of police reports on the first morning of trial that Mr. Bremer had requested from Sergeant Carl Hendrickson and a Sergeant Swallow. The State told the court it had learned of the police reports the day before trial. Mr. Bremer, through counsel, did not desire an available continuance within the speedy trial limits, but wished to proceed to trial. Later, Mr. Bremer, pro se, asked the trial court to dismiss the charge because of the late discovery. The trial court denied Mr. Bremer's request, finding Mr. Bremer had not made a showing of prejudice to justify dismissal. Sergeant Hendrickson testified at trial, but not Sergeant Swallow.
The evidence showed Mr. Bremer did not have permission to enter the house. Because of earlier break-ins, Mr. Tupy testified that signs, bars, plywood covers, chains, and padlocks were employed to protect the house and surrounding area. Mr. Tupy testified the night after the critical events, he discovered Mr. Bremer's pick-up truck parked on the property, about 200-300 yards from the house.
Ms. Miller testified she inherited the house from her mother. She testified her mother previously lived in the house, and that no one had lived there since her death. She further testified the house had not been used for anything other than a home, and she did not plan to change it from that purpose.
Deputy Sheriff Aurelio Bermudez testified about patting down Mr. Bremer and removing items from his jacket pockets and pants pockets. Deputy Bermudez remembered removing a pair of latex gloves. Further, on cross-examination:
[Defense counsel:] Where did you find [the gloves]?
[Deputy Bermudez:] It was in either his jacket pocket or his pants pocket. He's — he was wearing a jacket that night.
[Defense counsel:] Okay. Okay. Now most of the things you recovered from the jacket; is that right?
[Deputy Bermudez:] Excuse me?
[Defense counsel:] Most of the things you recovered, you recovered from the jacket?
[Deputy Bermudez:] And his pants pockets.
Deputy Sheriff Shirley Stiles testified she was present when Deputy Bermudez was removing items from Mr. Bremer's person. She testified she looked through the items taken from Mr. Bremer, which included the gold toenail clippers, latex gloves, a pair of wire frame glasses, and the church membership card listing the name of Ms. Schuster. Ms. Miller identified the gold toenail clippers as belonging to Ms. Schuster, and identified the latex gloves as those she purchased for the house and left on the kitchen counter.
Mr. Bremer elected to testify, admitting he entered the house by climbing the ladder and jumping through the attic vent. Mr. Bremer gave two reasons for entering the house in support of his necessity defense; first, he was cold, and second, a cougar, who had just attacked his dog, was after him. He testified he eventually fell through the ceiling to the main floor of the house. Mr. Bremer testified he spent about 10 minutes there, before activating the alarm system to call the police and went back to the attic to wait for them. He testified he took the gloves from the kitchen, to try and warm up his hands, but did not remember the other items found on his person.
Mr. Bremer mentioned that he had hearing problems while describing the critical events, but did not raise any problem hearing at trial except once on cross-examination:
[The State:] When you were sitting here in the chair and listening to [Ms.]
Miller testify, were you able to hear what she was saying?
[Mr. Bremer:] Not — not all of it, no.
[The State:] And you didn't bring that up?
[Mr. Bremer:] I have an attorney.
[The State:] And —
[Mr. Bremer:] I trust him.
[The State:] And, so you didn't care what she said?
[Mr. Bremer:] I asked him a few times. I asked him a couple of times what he — what — what she's saying, yeah.
[The State:] Are you having any problem hearing me now?
[Mr. Bremer:] Yeah, a little bit [of] difficulty hearing you now.
Mr. Bremer was not present at the instruction conference, but in a sentencing colloquy, Mr. Bremer acknowledged he had agreed the conference could take place in his absence while he used the restroom. Mr. Bremer unsuccessfully proposed a lesser-included offense instruction for first degree criminal trespass. The trial court reasoned: "I do not believe the second prong is met where the evidence has to support giving it."
3 RP (Mar. 8, 2007) at 498. The court gave the lesser-included offense instruction for second degree burglary proposed by the State. Regarding the residential burglary elements, the trial court instructed "[d]welling means any building or structure which is used or ordinarily used by a person for lodging." CP at 55. The trial court gave Mr. Bremer's necessity defense instruction.
In closing argument, the prosecutor argued without objection: "[Mr. Bremer] said he didn't remember a lot of the property that was recovered from him, but even from the stand, he admitted taking the gloves." 3 RP (Mar. 8, 2007) at 511. In his rebuttal closing argument, the prosecutor argued, 3 RP (Mar. 8, 2007) at 527. Defense counsel did not object, but Mr. Bremer, pro se, unsuccessfully attempted to interject his own objection, "I didn't admit to theft." 3 RP (Mar. 8, 2007) at 527.
The jury found Mr. Bremer guilty as charged. The court sentenced him to the high end of the 9+ standard-range, 84 months, and ordered $ 600 for attorney fees. Mr. Bremer raised several legal concerns during allocution explained in the analysis below.
The court then sought to determine if agreement might be reached on restitution:
[The court:] — happy with.
[Defense counsel:] — amount here. What was Your Honor thinking would be the (inaudible)?
[The court:] I think 300 is fair, more than fair.
[Defense counsel:] So —
[The court:] [Prosecutor], are we okay with that?
[The State:] Sure.
4 RP (Apr. 12, 2007) at 569. Mr. Bremer was then ordered to pay $300 restitution to Ms. Miller. The trial court stated, "we've agreed to the restitution amount of $300," and defense counsel did not object. 4 RP (Apr. 12, 2007) at 606.
Mr. Bremer appealed and filed a habeas corpus petition in the trial court that was transferred here as a PRP. We consolidated the cases. After his appeal, Mr. Bremer filed a document with ...
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