State v. Comenout
Decision Date | 08 October 2019 |
Docket Number | No. 50802-8-II,50802-8-II |
Parties | STATE OF WASHINGTON, Respondent, v. LEE ALLEN COMENOUT, JR., Appellant. |
Court | Washington Court of Appeals |
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.
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 Myoung1 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 insidefrom 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.
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.
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:
Clerk's Papers (CP) at 153. The special interrogatory form for count V is as follows:
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:
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