State v. Calhoun
| Decision Date | 26 February 2008 |
| Docket Number | 34983-3-II,34941-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ABDUL KAHLIF CALHOUN, Appellant. STATE OF WASHINGTON, Respondent, v. ZACHARY L. FRAZIER, Appellant. |
UNPUBLISHED OPINION
The unpublished opinion in this case was filed on January 8 2008. This opinion is hereby amended as follows:
The first full paragraph of section V on page 20 that reads:
Calhoun and Frazier also argue that their convictions for first degree robbery and two counts of first degree assault violate double jeopardy. The State concedes that the robbery and the assault of Celia merge, but the State argues that the robbery and the assault on Rolan do not merge because the crime had an independent purpose.
is deleted. The following paragraph is inserted in its place:
Calhoun and Frazier also argue that their convictions for first degree robbery and two counts of second degree assault violate double jeopardy. The State concedes that the robbery and the assault of Celia merge, but the State argues that the robbery and the assault on Rolan do not merge because the crime had an independent purpose.
IT IS SO ORDERED.
A jury convicted Abdul Calhoun and Zachary Frazier of first degree robbery, first degree burglary, and two counts of second degree assault. Calhoun and Frazier forced their way into an apartment, assaulted two residents, and stole a safe. The police quickly stopped their vehicle based on one victim's 911 call. The police escorted the victims to the traffic stop where the victims positively identified Calhoun and Frazier as the perpetrators. On appeal, Calhoun and Frazier argue that the trial court erred when it (1) failed to suppress the show-up identification and (2) permitted a misleading jury instruction regarding accomplice liability. Additionally, they argue that the convictions of both first degree robbery and second degree assault violated double jeopardy. Finally, Calhoun argues that the trial court abused its discretion by failing to order a competency evaluation and Frazier contends the trial court abused its discretion by denying his motion for severance after Calhoun's numerous outbursts during trial. In his statement of additional grounds (SAG),[1] Calhoun argues (1) a violation of his speedy trial rights; (2) a violation of his right to a fair trial; (3) prosecutorial and judicial misconduct; and (4) ineffective assistance of counsel. Frazier also argues ineffective assistance of counsel as well as a violation of his Miranda[2] rights in his SAG. We affirm Calhoun and Frazier's first degree burglary and first degree robbery convictions but reverse both second degree assault convictions and remand to the trial court for resentencing.
At approximately 2 a.m. on July 11, 2005, Celia Isaac, Isha Isaac, Rolan Kimbrough, and four young children were asleep in their small one bedroom apartment. Celia awoke suddenly to a "big bang" shortly after she fell asleep. Report of Proceedings (RP) (May 3, 2006) at 32. When Celia opened her eyes, she saw two men wearing bandanas entering the apartment through the living room window. One man ran at Celia, jumped on top of her, and searched her bra until he recovered a key to the family's safe.
Meanwhile the sound of the men coming into the apartment woke Rolan who came into the living room. Rolan immediately ran back to the bedroom to protect his daughter when one of the men followed him and struck him over the head with a "pretty hard" object. RP (May 4, 2006) at 143. Rolan heard them ask repeatedly, "Where's the safe, you know, we come for?" RP (May 4, 2006) at 142. The men fumbled through the apartment until they found the safe and fled.
Celia and Isha followed the men to the street and Celia saw the men jump into a red truck. Isha was able to see the truck's license plate and immediately called 911.
Officer Russell Martin was on patrol and received the 911 dispatch concerning the home invasion robbery. As officer Martin headed toward the victims' residence he passed a red truck with a license plate matching Isha's description. Martin stopped the red truck and detained its three passengers. Calhoun and Frazier were two of the passengers and Verndeleao Joy Banks was the third. Later, upon searching the vehicle, Martin discovered the victims' safe.
The police transported Rolan and Isha to the traffic stop scene. When police escorted Frazier and Calhoun out of the red truck, Rolan and Isha positively identified them as the two men who entered the apartment. The State charged Calhoun and Frazier with first degree robbery, first degree burglary, and two counts of second degree assault. The State filed additional charges against Frazier for third degree assault and unlawful use of drug paraphernalia.[3]
Trial was scheduled to begin on August 23, 2005. Following two continuances, Calhoun sought an additional continuance after discharging his first appointed counsel and filing a bar complaint. Calhoun's second attorney withdrew when Calhoun insisted he sign a contract promising representation in a manner "in which [Calhoun] saw [as] constitutionally required." RP (Apr. 27, 2006) at 34. Both the State and the defense counsel were granted additional continuances due to Calhoun firing his attorneys and the assigned prosecutor's trial schedule conflicts.
On April 19, 2006, the trial court asked Calhoun if there were any medical or mental health issues that were of concern. Calhoun answered that there were no medical issues and that he did not require any accommodation. A week later, and approximately a week before trial was to begin, Calhoun's third defense attorney moved for appointment of a psychologist to evaluate Calhoun's competency under chapter 10.77 RCW.
Calhoun's attorney based his motion on the fact that Calhoun (1) behaved so disruptively that his previous attorneys withdrew and the defense investigator refused to work on the case; (2) constantly addressed the court in the third person; (3) insisted on having a defense strategy centered on the Uniform Commercial Code (UCC), specifically with the wish to file interrogatories "demanding the basis for why [the prosecutor] claims to have a perfected security interest in the body of Mr. Calhoun"; and (4) urged defense counsel to use maritime and civil law. RP (Apr. 27, 2006) at 35. Furthermore, defense counsel informed the trial court that Calhoun had a history of drug use that might have caused some brain damage. Finally, defense counsel noted Calhoun's distrust and anger at counsel for not sequestering the jury and for informing the trial court of Calhoun's drug use.
In response, the State elicited testimony from the Pierce County Jail's mental health professional, Mary Tudor. Tudor explained that neither she nor her colleagues perform competency evaluations under chapter 10.77 RCW. Nonetheless, the trial court allowed Tudor to read a colleague's evaluation of Calhoun based on a 30 to 45 minute observation. Tudor testified that her colleague reported:
Mr. Calhoun does have some issues. One is some personality issues, and another is that he's extremely anxious about the outcome of this case. He's very concerned for his future, and the combination of these two things have made him very distrustful of his attorney, present and past. There was nothing indicating any psychotic symptoms; nothing indicating that we would have him submit to one of our psychiatrists to take medication. He is housed in general population and there have been no indications from uniform staff that he's presenting with mental health issues. There have been a number of write-ups for behavioral things, but nothing they thought were stemming from an inability to understand or get along with the rules of the jail.
Following this testimony, the trial court engaged in the following colloquy with Calhoun:
The trial court then found that Calhoun was competent based on the colloquy, Tudor's report, and Calhoun's pro se pleadings. Specifically, the trial court noted that it believed Calhoun had attempted to become a ...
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