State v. Elmore

Decision Date09 March 2010
Docket NumberNo. 34861-6-II.,34861-6-II.
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Roberta J. ELMORE, Appellant.

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Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

ARMSTRONG, J.

¶ 1 Roberta J. Elmore appeals her convictions for first degree felony murder, first degree burglary, first degree kidnapping, second degree assault, and second degree conspiracy to commit robbery. She argues (1) an officer's improper opinion testimony that she was evasive and untruthful in giving a statement violated her right to a jury trial, (2) her conviction of burglary, the predicate crime for felony murder, merged with her conviction of felony murder, and (3) the restraint that formed the basis for her kidnapping conviction was incidental to other crimes and, thus, insufficient to support a separate kidnapping conviction. She also contends (4) the post-Blakely1 legislative amendments to the Sentencing Reform Act (SRA), chapter 9.94A RCW, do not apply to her pre-Blakely crimes, (5) the prosecution acted vindictively in amending the information after her two successful appeals, (6) the addition of aggravating factors to the amended information after her two previous appeals violated double jeopardy and the mandatory joinder rule, and (7) the sentencing court's findings of aggravating factors violated her right to a jury trial on the findings. The State argues that the law of the case doctrine precludes Elmore from raising issues she could have but did not raise in a previous appeal. After considering the merits of Elmore's issues, we find no error and, therefore, affirm.

FACTS
A. Factual Background

¶ 2 The relevant facts have been previously litigated:

In December 1996, Roberta Elmore was hired by an escort service. Elmore went on her first call to the home of Dennis Robertson, a quadriplegic man who shared his home with two other disabled gentlemen. But after a misunderstanding as to what was expected of her, Elmore left Robertson's home and the escort service forced Elmore to return Robertson's payment and fired her. Elmore expressed anger to various friends about the incident and reportedly enlisted Gordon Crockett and Thorsten Jerde to rob the Robertson residence, giving them details about the location of the safe she had seen in the bedroom and showing them where Robertson lived. In addition, Elmore reportedly gave Crockett and Jerde bullets for the gun that they planned to use during the robbery.
In the early morning hours of December 11, 1996, Crockett and Jerde enlisted two others to help with the robbery. After gaining entry to the house on a ruse, Crockett and Jerde entered Robertson's bedroom and Crockett ordered Scott Claycamp, Robertson's caregiver, to the floor. Jerde grabbed the safe and left the room. Crockett shot Claycamp in the back of the head and Claycamp died later that day.

State v. Elmore, 155 Wash.2d 758, 761-62, 123 P.3d 72 (2005); see also State v. Elmore, 121 Wash.App. 747, 749-50, 90 P.3d 1110 (2004).

¶ 3 The following additional details are important to the issues in this appeal. At 6:15 am, the morning of the burglary, Ernie Schaef, another caregiver, opened the door to a woman asking for directions. According to Schaef, he sensed something suspicious and tried to shut the door on the woman. Before Schaef could shut the door, a man forced his way inside, pulled out a revolver, and shoved Schaef to the ground, ordering him to remain there. Schaef continued to lie there as the man stood over him with a gun and the other accomplices searched for the safe. As soon as the men left, Schaef called the police.

B. Procedural History

¶ 4 The State charged Elmore by second amended information with first degree felony murder (predicated on robbery in the first degree), first degree burglary, first degree kidnapping (predicated on robbery in the first degree), second degree assault, and first degree conspiracy to commit robbery. It charged all counts but conspiracy to commit robbery with firearm enhancements.

¶ 5 In 1997, following a plea agreement, the State filed a third amended information, charging Elmore with first degree felony murder only. Elmore pleaded guilty and was sentenced to 400 months' confinement. Elmore appealed and we reversed the conviction, allowing Elmore to withdraw her guilty plea.

¶ 6 Elmore proceeded to trial in 2001, based on a fifth amended information, charging first degree felony murder (predicated on first degree robbery and/or second degree robbery and/or first degree burglary), first degree burglary under RCW 9A.52.020(a),2 first degree kidnapping (predicated on first degree robbery and/or second degree robbery and/or first degree burglary), second degree assault, and first degree conspiracy to commit robbery, all of which included firearm enhancements. The jury found Elmore guilty of all charges except conspiracy to commit first degree robbery, which it reduced to the lesser included offense of conspiracy to commit second degree robbery. The trial court found aggravating circumstances supporting exceptional sentences for first degree murder and first degree burglary, resulting in 797 months' confinement. Elmore appealed for a second time and we reversed and remanded for a new trial. Elmore, 121 Wash.App. 747, 90 P.3d 1110. The Washington Supreme Court affirmed our decision in 2005. Elmore, 155 Wash.2d 758, 123 P.3d 72.

¶ 7 On remand in 2006, the State filed a sixth and then a seventh amended information. The case went to trial on the seventh amended information, which included the same base crimes as the fifth amended information (except for conspiracy to commit robbery, which the State charged in the second degree). The other differences between the fifth and seventh amended informations were: (1) felony murder was predicated on robbery in the second degree and/or burglary in the first degree; (2) first degree burglary was charged in the alternative under RCW 9A.52.020(a) (armed with a deadly weapon) or (b) (assaulting a person); (3) the felony murder, burglary, kidnapping, and conspiracy charges were aggravated by a "high degree of planning and/or sophistication"; (4) the burglary charge was aggravated because "the victim ... was particularly vulnerable or incapable of resistance," and "the victim ... was present in the residence when the crime was committed"; and (5) the conspiracy charge was aggravated by the fact that "the victim ... was particularly vulnerable." Clerk's Papers (CP) at 386-390.

C. The Second Trial (2006)

¶ 8 At the second trial, Lieutenant Adamson testified about his initial interview with Elmore during which she denied participating in the robbery. The prosecutor asked about the interview process:

PROSECUTION: Did you at some point during the interview confront the Defendant with regards to being a suspect?
LIEUTENANT ADAMSON: Yes, I did.
PROSECUTION: And what were the circumstances of that occurring?
LIEUTENANT ADAMSON: We were at a point where the interview was going back and forth, and she was at points being evasive, being untruthful. I sensed deception, and I finally got to the point where I confronted her that I believed that she participated in the robbery, and that was based on the identification by Mr. Schaef.

IX Report of Proceedings (RP) at 687. Adamson also explained that he did not tape the interview because there were "a lot of... inconsistencies and evasiveness of the information that she was providing...." IX RP at 688-89. Adamson confirmed, however, that Schaef's identification turned out to be incorrect. Adamson testified that, although he initially believed it was Elmore who had knocked on the residence door, it was in fact Carole Edwards. Defense counsel did not object during this questioning.

¶ 9 The trial court instructed the jurors that they were "the sole judges of the credibility of each witness" and were "not bound" by the expert witnesses' opinions. CP at 416, 422. The jury convicted Elmore of all five counts with firearm enhancements. The jury also found as aggravating factors that the victim was vulnerable and present in the residence during the burglary; it rejected that the crimes were committed with a high degree of planning or sophistication. The court again sentenced Elmore to 797 months' confinement.

ANALYSIS
I. Law of the Case Doctrine

¶ 10 As a threshold matter, the State contends the law of the case precludes our review of any issue Elmore could have raised in her previous appeals. Elmore counters that previous trial and appellate counsel were ineffective in not raising the issues and that to apply the law of the case doctrine would only perpetuate the claimed errors.

¶ 11 Under the "law of the case" doctrine, we may to refuse to address issues that were raised or could have been raised in a prior appeal. Folsom v. County of Spokane, 111 Wash.2d 256, 263-64, 759 P.2d 1196 (1988); RAP 2.5(c)(2). We have discretion in applying the doctrine and will not do so if it would result in manifest injustice. Folsom, 111 Wash.2d at 264, 759 P.2d 1196. There are at least two circumstances where we will not apply the doctrine: (1) where the prior decision was clearly erroneous and (2) where there has been an intervening change in controlling precedent between trial and appeal. Roberson v. Perez, 156 Wash.2d 33, 42, 123 P.3d 844 (2005). The Supreme Court has also refused to apply the doctrine after a de novo sentencing hearing, reasoning that to deny a defendant's challenge on the merits would deny him his rightful remedy and would not serve the ends of justice. State v. Harrison, 148 Wash.2d 550, 562-63, 61 P.3d 1104 (2003).

¶ 12 We are satisfied that we should exercise our discretion to reach the merits of Elmore's issues. As in Harrison, to refuse review of Elmore's sentence would deny her...

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