State v. Conner
| Decision Date | 04 June 2015 |
| Docket Number | 45418-1-II,43762-7-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LA'JUANTA LE'VEAR CONNER, Appellant. |
UNPUBLISHED OPINION
La'Juanta Le'Vear Conner appeals his 24 convictions based on, or related to, a series of home invasion robberies and burglaries.[1] Conner argues (1) the trial court abused its discretion when it allowed the State to exercise a peremptory challenge after the trial started, (2) the trial court erred by allowing improper opinion testimony, (3) his attorney's failure to object to improper opinion testimony provided him ineffective assistance of counsel, (4) the trial court erred when it provided a missing witness instruction to the jury, (5) the trial court improperly commented on the evidence, and (6) the trial court erroneously imposed a fourteenth firearm enhancement related to a charge of which Conner was acquitted. In his statement of additional grounds (SAG), Conner asserts insufficient evidence exists to support his convictions of unlawful possession of a firearm and possession of a stolen firearm. He further asserts prosecutorial misconduct.
Conner filed a personal restraint petition (PRP) that is consolidated with this direct appeal. In his PRP, Conner argues (a) the State's second amended information is invalid because the State did not file an amended statement of probable cause, (b) the jury instructions relieved the State of its burden to prove all elements of the crimes beyond a reasonable doubt, (c) the State vindictively prosecuted him, (d) the trial court erred when it sentenced him by imposing an exceptional sentencing without findings by failing to conduct a same criminal conduct analysis, and by violating his double jeopardy rights.
We hold that the trial court erred when it allowed the State to exercise a peremptory challenge after the jury was sworn, but that the error did not prejudice Conner. We also hold that the trial court erred by instructing the jury using a missing witness instruction, but that the error was harmless. We vacate Conner's theft in the third degree conviction because it violates the prohibition against double jeopardy. We affirm Conner's remaining convictions. Additionally we hold that the trial court erroneously sentenced Conner on one firearm enhancement related to a charge of which he was acquitted. We remand for resentencing on the remaining convictions and twelve firearm enhancements.
The State, by second amended information, charged Conner with 26 separate offenses based on a series of home invasion robberies and burglaries in Kitsap County, 14 of which included firearm enhancements.
On September 15, 2010, Robert and Aaron Dato were present at their apartment on Twelfth Street in Bremerton that they shared with Thomas Harveson, who was not home at the time. Conner, Kevion Alexander, Anthony Adams, and Troy Brown entered the apartment wearing bandanas, carrying guns, and making demands for property. They took the Datos' personal property from their persons or in their presence and they took property that belonged to Harveson. Conner carried a Hi-Point .40 pistol during the commission of this crime. Based on this incident, the State charged Conner with two counts of robbery in the first degree, one count of burglary in the first degree, and one count of theft in the second degree. The State alleged three firearm enhancements.
On September 28, 2010, the Datos and a friend, Jeffrey Turner, were at the Twelfth Street apartment in Bremerton. Harveson was not at home. Conner, Alexander, and Adams entered the apartment wearing bandanas, carrying guns, and making demands for money. They took personal property from the Datos. They also took personal property belonging to Harveson. Based on this incident, the State charged Conner with three counts of robbery in the first degree, one count of burglary in the first degree, and one count of theft in the second degree. The State alleged four firearm enhancements.
On September 28, 20.10, Brett Cummings was in his studio apartment on Shore Drive in Bremerton. Conner stood outside while Alexander and Adams entered Cummings's apartment carrying guns and making demands for property. Either Alexander or Adams pushed Cummings to the ground and Conner and Adams hit him over the head with the butt of their guns. They took Cummings's personal property. Conner carried a Hi-Point .40 pistol during the commission of this home invasion. Based on this incident, the State charged Conner with one count of robbery in the first degree, one count of burglary in the first degree, and one count of theft in the third degree. The State alleged two firearm enhancements.
On the night of October 2, 2010, Conner, Alexander, Adams, and Jerrell Smith entered Kimberly Birkett's apartment at the Weatherstone Apartments. They took Birkett's personal property. Conner carried a Hi-Point .40 pistol. Based on this incident, the State charged Conner with one count of burglary in the first degree and one count of theft in the second degree. The State alleged one firearm enhancement.
On the night of November 3, 2010, Aaron Tucheck, Ann Tucheck, and Keefe Jackson, were at their residence on Wedgewood Lane. Conner, Alexander, and Brown entered the residence carrying guns, making demands for property, and ordering Aaron to open a safe. They took personal property, including a firearm and a debit card, belonging to the Tuchecks and Jackson. Conner carried a Hi-Point .40 pistol during the commission of these crimes. A co-defendant carried a Taurus .44 revolver during the commission of the Wedgewood Lane home invasion. Based on this incident, the State charged Conner with two counts of robbery in the first degree, one count of burglary in the first degree, one count of theft of a firearm, and one count of theft of an access device in the second degree. The State alleged three firearm enhancements.
On November 17, 2010, the police arrested Conner during a high-risk traffic stop. Conner was a passenger in the truck occupied by two of his co-defendants. Prior to the stop, Conner sat in the passenger seat when the driver of the vehicle said, "[W]e got two gats locked and loaded ready to go." VI Report of Proceedings (RP) at 869. Law enforcement executed a search warrant on the truck and found a bag in the bed of the truck containing two loaded firearms, a Hi-Point .40 pistol with a filed off serial number and a Taurus .44 revolver. Law enforcement also located a baggies of marijuana in the cab of the truck where a co-defendant had been sitting. Based on this incident, the State charged Conner with one count of conspiracy to commit burglary in the first degree, two counts of unlawful possession of a firearm in the second degree, two counts of unlawful possession of a stolen firearm, and one count of possession of marijuana. The State alleged one firearm enhancement.
Law enforcement subsequently searched the apartment of Conner's romantic partner, Rachel Duckworth, and found stolen property from the crimes described above. Based on this search and seizure, the State charged Conner with one count of possession of stolen property in the third degree.
After the parties selected a jury but before the court swore them in, juror 4 stated that she remembered that the judge had presided over the trial where her son was convicted of attempted murder. The State asked the trial court, but not the juror, whether the juror testified at her son's trial. The trial court replied in the negative. Following additional questioning, the trial court found that juror 4 showed no bias or prejudice. The State neither challenged the juror for cause nor exercised, its remaining peremptory challenge. The judge swore in juror 4 with the rest of the panel.
The State began its case in chief and presented witnesses. Two days later, the State informed the trial court it learned juror 4 had testified in her son's trial and that the prosecutor had accused her of lying and manipulating testimony. The State also asserted that the juror indicated she had talked to a family member about Conner's trial, which caused her to remember that the judge presided over her son's trial. The State moved to excuse the juror, but the trial court ruled that the juror had not clearly violated the trial court's orders and that it "[could not] excuse her for cause based upon answers to questions that she provided earlier because we had already addressed that issue before impaneling her." VI RP at 651. The trial court took the State's motion under advisement.
The next day, the State asked to exercise its remaining peremptory challenge to excuse juror 4. Conner objected. The State argued that it relied on the trial court's faulty recollection that the juror had not been a witness in her son's trial and it would have struck her if the State had been aware she testified. Relying on State v. Williamson, 100 Wn.App. 248, 996 P.2d 1097 (2000)/the trial court allowed the State to exercise its remaining peremptory challenge and it excused juror 4. Following this juror's excusal, 12 jurors and one alternate remained.
Detective Mike Davis testified about his post-arrest questioning of Conner. During cross-examination, Conner elicited from Detective Davis that he used a "ruse" when questioning Conner. V RP at 605. On redirect, Detective Davis explained he employs a ruse when questioning suspects "[t]o elicit the truth" and when he "believe[s] that [the facts say] otherwise what the person is telling me." VI RP at 730. Detective Davis...
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