State v. Comenout

• Decision Date: 08 October 2019
• Docket Number: 50802-8-II
• Citation: 10 Wn.App.2d 1038
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. LEE ALLEN COMENOUT, JR., Appellant.

10 Wn.App.2d 1038

STATE OF WASHINGTON, Respondent, v. LEE ALLEN COMENOUT, JR., Appellant.

No. 50802-8-II

Court of Appeals of Washington, Division 2

October 8, 2019

UNPUBLISHED OPINION

CRUSER, J.

Lee Comenout Jr. appeals his two convictions for first degree robbery, the trial court's setting of a $1, 500, 000 bail for his release before trial, the State's delays in providing a competency evaluation and restoration services and the imposition of certain legal financial obligations (LFOs). Comenout contends that (1) his multiple convictions for robbery violated the prohibition against double jeopardy (2) he received ineffective assistance of counsel, (3) the trial court erred by failing to comply with CrR 3.2 in setting bail, (4) the State violated his substantive due process rights when it failed to provide timely competency services, and (4) the trial court erred by imposing a criminal filing fee, deoxyribonucleic acid (DNA) collection fee, and nonrestitution interest provision.

We hold that review of Comenout's alleged double jeopardy error is barred under the invited error doctrine, and Comenout was not deprived of effective assistance of counsel. We further hold that Comenout's pretrial release claims are moot and the State violated his substantive due process rights by failing to provide timely competency services. However, the violation does not warrant dismissal of Comenout's convictions. Last, we hold that Comenout is entitled to relief from the challenged LFOs.

Accordingly we affirm Comenout's convictions but remand to the trial court to strike the challenged LFOs and nonrestitution interest provision.

FACTS

I. Criminal Incidents

On June 15, 2016, Comenout and his brother embarked on a series of criminal activities. At around 5:30 in the evening, the brothers stopped at the home of Oscar Corro-Garcia, who was in his garage unloading his pick-up truck. The brothers approached Corro-Garcia, and Comenout's brother demanded, at gun point, the keys to Corro-Garcia's truck. Corro-Garcia threw his keys and ran into his home.

The Comenout brothers drove the truck to Olympic Grocery. The brothers entered Olympic Grocery and demanded that Chong Sun Namkung and Myoung Namkung, the store owners, give them their money. Chong and Myoung^[1] were the only employees standing near the store counter when the brothers arrived. Comenout's brother flashed a gun and ordered Myoung to open the cash register.^[2] The brothers took the cash box from the cash register and put the money in their pockets. Comenout filled the empty box with scratch lottery tickets.

The brothers demanded that Chong and Myoung stay together with their hands up. The brothers took a box of extra cigarettes and cigars and the store's "money bag" with $510 inside from behind the store counter. 6 Verbatim Report of Proceedings (VRP) at 695. One brother reached inside of Myoung's pocket and took about a thousand dollars. The brothers took Chong's cell phone and her bag where she kept spare change. Myoung's coin purse was inside Chong's bag when it was stolen. At trial, the State played a video of the brothers leaving the store with the cash register box full of lottery tickets, Chong's bag, and the store plastic bags that are given to each customer.

The brothers left the store and drove away in the truck. Soon after, the truck collided with another vehicle. Comenout attempted to flee the collision scene, but was apprehended by police while carrying money in both hands. The police found a box with lottery tickets, a box with cigarettes and cigars, a cell phone, and a canvas bag at the scene of the collision.

II. Pretrial Events

The State charged Comenout with three counts of first degree robbery, two counts of second degree assault, one count of third degree theft, and one count of second degree unlawful possession of a firearm.^[3] At Comenout's arraignment hearing, the State requested that the trial court set bail in the amount of $1, 500, 000 due to Comenout's extensive criminal history and warrant history.^[4] Defense counsel reserved argument about bail, stating that "Mr. Comenout has a [Department of Corrections] hold and it will allow Mr. Comenout to meet with his assigned counsel and perhaps make a bail reduction, or bail argument, or request in the future." VRP at 6 (June 17, 2016). The trial court set bail at $1, 500, 000, but reserved the bail issue "pending further order of the Court." Id. at 7. The trial court did not make any written or oral findings.

The trial court entered an order for a competency evaluation under former RCW 10.77.060 (2012) and ordered that Comenout be held without bail on July 29. The competency evaluation began on August 15 and was completed on August 17. The evaluation concluded that Comenout lacked capacity to understand the nature of the proceedings and to assist in his own defense. On August 17, the trial court ordered Comenout to restorative treatment. Comenout commenced restorative treatment on September 23. On December 15, the trial court determined that Comenout was competent to stand trial.

After a finding of competency, the State again requested that the trial court set bail at $1, 500, 000. In response, Comenout's counsel stated that he did not "have a basis at this point . . . to challenge that." VRP at 9 (June 17, 2016). The trial court granted the State's request, but again did not enter any written findings.

III. Trial

At trial, defense counsel did not question the fact that the robberies took place at Olympic Grocery or Comenout's presence at the scene. Defense counsel's strategy throughout trial focused on Comenout's limited participation in the robberies. He argued that the jury should not find that he was an accomplice because his participation was not "[m]ore than a mere presence." 8 VRP at 1012 (Aug. 1, 2017). Defense counsel also questioned whether the robberies were committed with a deadly weapon. Defense counsel did not question Myoung and limited his cross-examination of Chong to questions regarding her recollection of the gun.

Both the State and Comenout proposed jury instructions. The State's proposed instructions included special interrogatory forms pertaining to the robberies at Olympic Grocery-count IV (robbery against Myoung) and count V (robbery against Chong). The proposed interrogatories stated that if the jury finds Comenout guilty of count IV or count V, the jury must answer the questions in the special interrogatory forms pertaining to that count. The proposed form for count IV is as follows:

(This special interrogatory is to be answered only if the jury finds the defendant guilty of Robbery in the First Degree, as charged in Count IV.)

We, the jury, return a special interrogatory by answering as follows:

QUESTION: What property was the basis for your verdict of guilty of Robbery in the First Decree as Charged for Count IV?

ANSWER: (Write "Yes" only in the blank that applies)

___ all jurors based it upon only the money taken from the person of Myoung Namkung

___ all jurors based it upon only other money or merchandise taken from Olympic Grocery Store.

___ all jurors based it upon both the money taken from the person of Myoung Namkung and other money or merchandise

___some jurors based it upon the money taken from the person of Myoung Namkung, and the remaining jurors based it upon other money or merchandise.

Clerk's Papers (CP) at 153. The special interrogatory form for count V is as follows:

(This special interrogatory is to be answered only if the jury finds the defendant guilty of Robbery in the First Degree, as charged in Count V.)

We, the jury, return a special interrogatory by answering as follows:

QUESTION: What property was the basis for your verdict of guilty of Robbery in the First Decree as Charged for Count V?

ANSWER: (Write "Yes" only in the blank that applies)

___ all jurors based it upon only the cellular telephone taken from the person or presence of Chong Namkung

___ all jurors based it upon only money or merchandise taken from Olympic Grocery Store, and not taken from the person of Myoung Namkung

___ all jurors based it upon both the cellular telephone taken from the person or presence of Chong Namkung and money or merchandise taken from Olympic Grocery Store, and not taken from the person of Myoung Namkung

___ some jurors based it upon the cellular telephone taken from the person or presence of Chong Namkung, and the remaining jurors based it upon the money or merchandise taken from Olympic Grocery Store, and not taken from the person of Myoung Namkung.

Id. at 154.

The prosecutor stated that he proposed the special interrogatory forms for count IV and count V to avoid any issues at sentencing or issues on appeal "in case there is a question about what property we're talking about." 8 VRP at 954 (Aug. 1, 2016). The following colloquy ensued regarding the special interrogatory forms:

[Prosecutor]: So if the Court of Appeals says . . . there's not enough evidence, for example, that the cash register money or the merchandise was stolen or there wasn't enough evidence that the money from his pocket was stolen or there wasn't enough evidence that Chong's cell phone was taken, then the jury has specified. . . .

If it's simply left at the generic property and the Court of Appeals says . . . we don't know what the jury based their decision on.

Id. at 956-57.

THE COURT: Here we have evidence that there were some things taken . . . from the person of Chong, arguably. I'm not sure where that phone was. But clearly from Myoung, they took money out of his pocket. . . . So I think that you're saying is you want to be careful or certain that there's no question that these are separate units of prosecution.

. . . .

[Defense Counsel]: Your Honor, I

...