State v. Derri

• Decision Date: 10 May 2021
• Docket Number: No. 80396-4-I,80396-4-I
• Citation: 486 P.3d 901,17 Wash.App.2d 376
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Christopher Lee DERRI, a/k/a John Stites, Appellant.

17 Wash.App.2d 376

486 P.3d 901

STATE of Washington, Respondent,

v.Christopher Lee DERRI, a/k/a John Stites, Appellant.

No. 80396-4-I

Court of Appeals of Washington, Division 1.

FILED May 10, 2021

PUBLISHED OPINION

Dwyer, J. ¶ 1 Christopher Derri appeals from his convictions of three counts of robbery in the first degree.

Derri contends that the information was constitutionally defective as to each count because it did not include all of the essential elements of robbery. Additionally, Derri asserts that the trial court erred by (1) admitting out-of-court and in-court identifications of him as the perpetrator, (2) denying his motion for a mistrial or dismissal with regard to count three after witness testimony revealed that the State had failed to disclose the existence of video footage that was potentially relevant to that count, and (3) refusing to instruct the jury on the law concerning missing evidence. Finally, Derri contends that he is entitled to a new sentencing hearing because the State failed to establish his criminal history by a preponderance of the evidence. Because Derri does not establish an entitlement to relief on any of his claims, we affirm.

I

¶ 2 On March 1, 2017, Christopher Derri, who is also known as John Stites, entered a branch of Chase Bank in Seattle, approached two employees at teller stations, and demanded money. Derri first approached David Fletcher, the branch manager. Fletcher greeted Derri. Derri initially responded by "mumbling." Derri then said to Fletcher, "[N]o dye packs, no bait money, this is a robbery, give me the money." In response, Fletcher and another employee, Jacob Price, emptied money from the drawers and put it on the counter of the teller stations. Derri was wearing a hooded jacket and, according to Price, the hood "[d]idn't really cover his face too much."

¶ 3 After Fletcher and Price put the money on the counter of the teller stations, Derri grabbed the money and placed it in a bag. Fletcher stated that Derri "kept asking for more and more" and also asked for the "merchant teller." Fletcher informed Derri that "it was their day off." Fletcher and Price then "started handing [Derri] rolls of coins" and "trays [of] ... loose pennies and nickels." Derri subsequently left through the front entrance of the bank. The encounter lasted several minutes.

¶ 4 After Derri left, Fletcher and Price locked the doors to the bank. Fletcher then telephoned the police. Within a matter of minutes, several police officers arrived. Detective Len Carver obtained photographs and a video from the bank's surveillance cameras. After Detective Carver retrieved the photographs, he distributed them through a "bulletin" to other police officers affiliated with the Seattle Police Department. Upon seeing the photographs, Detective Scott Miller determined that the individual depicted in the photographs "looked like" Derri. Detective Miller had met Derri on three occasions prior to seeing the photographs.

¶ 5 Detective Miller subsequently sent an e-mail message to Detective Carver, informing him that the individual in the photographs resembled Derri. After receiving Derri's name from Detective Miller, Detective Carver located a photograph of Derri and created a photomontage that featured Derri's photograph along with photographs of five other individuals.

¶ 6 On March 2, 2017, Detective Carver presented this photomontage to Fletcher and Price. Neither Fletcher nor Price identified any of the photographs as depicting the individual who robbed the bank.

¶ 7 On March 7, 2017, Derri entered a branch of HomeStreet Bank in Seattle and approached two employees, Hannah Amdahl and Andrew Hilen, who were located at teller stations. Amdahl recalled that Derri "came in and was mumbling, but eventually it became clear through his words that he was robbing us." According to Hilen, Derri initially stated the he "need[ed] ... money now, [or] something to that effect." Derri then repeated his message stating, "I need your money. Please give me your money now."

¶ 8 Amdahl and Hilen emptied money out of the drawers and put it on the counter of their teller stations. Meanwhile, Derri paced back and forth between Amdahl and Hilen. After Amdahl and Hilen "had given him all the money," Derri took the money from the counter and put it in his pockets. Prior to leaving the bank, Derri told Amdahl and Hilen not to "call the cops until after [he] le[ft]." Derri acquired approximately $6,000. The encounter lasted approximately three minutes.

¶ 9 After Derri left the bank, Amdahl and Hilen locked the doors and "wait[ed] for the police to arrive." Police officers arrived within minutes. A video and photographs of the robbery were retrieved from the bank's surveillance cameras.

¶ 10 Amdahl and Hilen recognized Derri as a person who had entered the bank approximately two weeks before the robbery. In late February, Derri had spoken to Amdahl about opening a bank account at HomeStreet Bank. During their conversation, Amdahl agreed to lower the bank's minimum balance requirement because Derri stated that he "didn't have the funds" to open an account. To remember the conversation, Amdahl wrote herself a note, which memorialized the name that was given by Derri: "John Stites." The following week, Amdahl wrote "2/24?" on the note in order to "remember what day it had happened."

¶ 11 On March 8, 2017, Detective Carver interviewed Amdahl. Detective Carver had assembled a photomontage using a different, more recent photograph of Derri. Upon reviewing the photomontage, Amdahl identified Derri's photograph and stated that she recognized Derri as the robber with 100 percent confidence. On March 9, Detective Carver showed the same photomontage to Hilen. Hilen identified Derri's photograph and stated that he recognized Derri as the robber with 98 to 99 percent confidence.

¶ 12 On March 10, 2017, Detective Carver showed the photomontage with the more recent photograph of Derri to both Fletcher and Price, individually. Detective Carver decided to show Fletcher and Price the second photomontage because "the photograph that they were originally shown was older and there was a stark contrast between the two photographs." Price did not select any photograph from the photomontage. Fletcher, however, identified Derri's photograph and stated that he recognized Derri as the robber with 90 percent confidence.

¶ 13 On March 11, 2017, Derri entered the same HomeStreet Bank that he had robbed four days earlier. Amdahl and the branch manager, Dustin Foss, were present. Amdahl "saw [Derri's] face clearly and recognized him as the previous robber." As Derri entered the bank, Amdahl activated a "silent alarm." Derri then approached Amdahl and said something along the lines of "You know the drill." Amdahl gave Derri some money and then "backed up and said that was it." Derri then left the bank. The encounter lasted approximately one minute.

¶ 14 After Derri left, Foss locked the doors and Amdahl telephoned the police. A responding officer, Richard Lima, spoke with Amdahl and Foss. Amdahl and Foss provided the name "John Stites" to Officer Lima. Officer Lima obtained photographs that depicted the robbery from the bank's surveillance cameras. He did not, however, retrieve any video footage from the cameras. Several days after the robbery, Officer Lima retrieved video footage from Ken's Market, a business located across the street from HomeStreet Bank. This footage depicted the exterior of the bank both immediately before and after the robbery. On March 13, 2017, Derri was arrested.

¶ 15 The State charged "Christopher Lee Derri, aka John Stites" with three counts of robbery in the first degree: the first count occurring on March 1, 2017, and "from the person and in the presence of David Fletcher and Chase Bank"; the second count occurring on March 7, 2017, and "from the person and in the presence of Hannah Amdahl, Andrew Hilen, and HomeStreet Bank"; and the third count occurring on March 11, 2017, and "from the person and in the presence of Hannah Amdahl." Following a jury trial, Derri was found guilty as charged. The trial court imposed a standard range sentence of 150 months of incarceration.

¶ 16 Derri appeals.

II

¶ 17 Derri first asserts that the information, which charged him with three counts of robbery in the first degree, was constitutionally defective as to each count because it failed to include all of the essential elements of robbery. This is so, Derri avers, because the information was required to state that he had used force or fear either to obtain or retain possession of the property at issue or to prevent or overcome resistance to the taking. We disagree.

¶ 18 Under both the United States and Washington Constitutions, an accused has a right to be informed of the criminal charges against him or her in order to facilitate the adequate preparation of a defense. U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22 (amend. 10). Accordingly, a defendant must be provided a charging document setting forth every material element of the charge or charges against the defendant, along with all essential supporting facts.

State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000).

¶ 19 "The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made." State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000). When a defendant challenges the sufficiency of the charging document before a verdict is rendered, the charging language must be strictly construed. Taylor, 140 Wash.2d at 237, 996 P.2d 571. When a defendant challenges the sufficiency after a verdict is rendered, the charging document must be construed liberally in favor of validity. Taylor, 140 Wash.2d at 237, 996 P.2d 571.

¶ 20 A challenge to the sufficiency of a charging document involves a question of constitutional due process and may be raised for the first time on appeal. State v. Holland, 77 Wash. App. 420, 426, ...