State v. Dotson

• Decision Date: 29 March 2021
• Docket Number: No. 79604-6-I,79604-6-I
• Parties: STATE OF WASHINGTON, Respondent, v. DOTSON, LETHEORY EARLACOSIE, DOB: 08/10/1969, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. DOTSON, LETHEORY EARLACOSIE, DOB: 08/10/1969, Appellant.

No. 79604-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

March 29, 2021

UNPUBLISHED OPINION

BOWMAN, J. — Letheory Earlacosie Dotson appeals his jury conviction for second degree burglary. He claims that officers lacked reasonable suspicion or probable cause to seize him. He also argues that the trial court erred in denying his Batson¹ challenge to the State's peremptory excusal of a juror based solely on the juror's age, that the court deprived him of his constitutional right to present a defense, and that insufficient evidence supports his conviction. Finally, Dotson seeks reversal of his conviction for instructional error, ineffective assistance of counsel, and cumulative error. Because officers had probable cause to seize and arrest Dotson, sufficient evidence supports his conviction for burglary in the second degree, and he shows no prejudicial error, we affirm.

FACTS

On February 19, 2018 at about 4:15 a.m., Lynnwood Police Department officers responded to an alarm at Sparta's Pizza and Pasta House. The officersarrived within 10 minutes and saw the handle on the restaurant's back door "dangling" and loose with small dents and scrapes around it. Officers entered the restaurant and found the cash registers on the floor, unopened and still connected to computers by cables.

Officer Lindsay Carter and the restaurant's owner looked at surveillance video footage captured on Sparta's security cameras showing a person breaking into the building. Officer Carter broadcasted a description of the person as a "white male, gray hooded sweatshirt, gray pants, black gloves, black ski mask." She also took a screenshot of the person's image from the waist up and texted the photograph to "all the patrol phones." A K-9 unit arrived at the restaurant and tried to track the burglar. The tracking dog alerted most strongly in the northern direction from the restaurant but did not find a suspect.

Sergeant Allen Correa was patrolling the area and dispatched to Sparta's. He first set up a containment perimeter during the K-9 track but eventually drove north to the area where the dog reacted most strongly. At about 5:10 a.m., Sergeant Correa spotted Dotson walking along State Route 99 roughly four blocks north of Sparta's. Sergeant Correa compared Dotson with the photograph Officer Carter had texted of the person on the surveillance video. Although Dotson is a black man, he appeared "almost identical" to the photograph. Dotson was dressed in dark jeans with a gray hooded jacket, a balaclava-type black scarf, black gloves, and a black sport bag with a single strap that crossed his chest diagonally from his left shoulder. Sergeant Correa described it as "a pretty unusual outfit" with a distinctive logo on the bag strap.

Sergeant Correa stopped his patrol car and asked Dotson "what he was doing." Dotson said he was "coming from Everett." Sergeant Correa asked Dotson how he could be coming from Everett when he was in the photograph on Sergeant Correa's phone. Dotson "just shrugged his shoulders." Sergeant Correa then asked whether Dotson had "ever gone in a building at all, ever," to which Dotson responded, "You know my past."

Officer Carter and Officer Josh Magnussen arrived at the scene about a minute after Sergeant Correa contacted Dotson. Officer Carter believed Dotson matched "the exact description" of the surveillance footage, "except he was a black male." Officer Carter immediately read Dotson his Miranda² rights while Officer Magnussen placed Dotson in handcuffs.

After Dotson's arrest, Sergeant Correa returned to Sparta's to watch the surveillance video, "[j]ust to see if I could get any kind of additional factors that might help me make a determination on if I had probable cause." Sergeant Correa noticed the person in the video wore black gloves. Recalling that Dotson had gloves on, he returned to the scene to compare them with what he had seen on the video. The gloves matched. Sergeant Correa brought the owner of Sparta's to the scene as well "to get his opinion on if he thought it was the same person in the video." The owner "said something similar to that's for sure him."

Officer Carter took a photograph of Dotson as he appeared at the arrest scene. The officers also "ran" his name through their database and learned he was "Mr. Dotson." A search of Dotson's bag after his arrest revealed a six- toeight-inch railroad spike. Rust covered most of the spike but the pointed end appeared recently damaged, "exposing shiny metal."

The State charged Dotson with one count of second degree burglary. Dotson moved to exclude police and witness "identification testimony" as a violation of his due process rights; suppress the railroad spike and all evidence obtained during his arrest, including photographs of him, under CrR 3.6; and suppress his statements to the police under CrR 3.5. The court denied the motions.³ The court found that Sergeant Correa had "sufficient probable cause" to stop Dotson "and indeed for an arrest" and that Dotson's statements to Sergeant Correa were voluntary.⁴ The court issued an oral ruling and asked the parties to prepare written findings of fact and conclusions of law.⁵

A different judge presided over Dotson's jury trial. While the parties had not yet presented written findings of fact and conclusions of law from the suppression hearing, they did not dispute the substance of the previous judge's evidentiary rulings.

During jury selection, Dotson objected to the State's peremptory excusal of juror 14. Dotson first argued the State's excusal stemmed from the juror's sexual orientation and precluded under GR 37. Dotson then amended hisobjection, alleging the State based its peremptory challenge solely on the juror's age and precluded under Batson. The court overruled Dotson's objection.

At trial, the court admitted the screenshot that Officer Carter captured from the surveillance video (below left) as well as the photograph that she took of Dotson at the arrest scene (below right).⁶

Image materials not available for display.

Sergeant Correa testified about the similarity between the clothing worn by the person in the surveillance video and Dotson's clothing at the time of the arrest. He described Dotson as wearing "a very large coat with a — that I would call a balaclava, or ski mask, underneath that that was concealing a fair amount of his face. And he had some kind of a strap that went across his clothing that had two distinctive logos on it."

Dotson wanted his investigator to testify in rebuttal. Dotson claimed the investigator's testimony would refute Sergeant Correa and show bias because Sergeant Correa was "surprisingly combative" during a pretrial interview with the investigator. Defense counsel based his request on Sergeant Correa's refusal"to sign" and review his answers that the investigator wrote and "to be recorded despite the prosecutor being there." The court denied his request.

Before closing arguments, the court granted Dotson's request to instruct the jury as to the lesser included offense of criminal trespass in the first degree.⁷ Dotson prepared and offered a packet of jury instructions consisting of an instruction defining "criminal trespass in the first degree," a "lesser crime" consideration instruction, and a criminal trespass in the first degree verdict form. Dotson did not include a "to convict" instruction for criminal trespass in the packet. The court used the jury instructions Dotson provided.

The jury convicted Dotson of burglary in the second degree. Dotson appeals.

ANALYSIS

Motion to Suppress

A. Findings of Fact and Conclusions of Law

I. Timeliness

The trial court did not enter written findings of fact and conclusions of law memorializing its evidentiary rulings until after Dotson filed his opening brief on appeal. Dotson assigns error to several findings in his reply brief. The State argues that Dotson failed to assign error to the findings in his opening brief and that because the "parties agreed to the content of the written findings and conclusions before trial started," we should consider the findings unchallengedon appeal, "regardless of when those findings and conclusions were actually filed." We disagree.

A trial court must enter written findings of fact and conclusions of law following a hearing on the admissibility of evidence. CrR 3.6(b). The court may submit written findings and conclusions while an appeal is pending only "if the defendant is not prejudiced by the belated entry of findings." State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293 (1996). We do not infer any prejudice from delay alone. State v. Head, 136 Wn.2d 619, 625, 964 P.2d 1187 (1998).

Here, Dotson's appellate attorney had no chance to review the court's findings for error before filing his opening brief. And the State offers no authority for its assertion that failure to object to written findings and conclusions of law at the trial court precludes assigning error to those findings on appeal. " 'Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.' " State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).

Precluding Dotson from assigning error to the court's findings in his reply would prejudice him as a result of the trial court's belated action. We review Dotson's assignments of error to the trial court's findings of fact as asserted in his reply brief.

II. Substantial Evidence

"We review challenged findings of fact for substantial evidence, that is, enough evidence to persuade a fair-minded rational person of the truth of thefinding. We treat unchallenged findings as verities on appeal." State v. Allen, 138 Wn. App. 463, 468, 157 P.3d 893 (2007).⁸

Dotson challenges six of the...