State v. Grover
| Decision Date | 23 October 1989 |
| Docket Number | No. 22048-9-I,22048-9-I |
| Citation | 55 Wn.App. 923,780 P.2d 901 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Robert Charles GROVER, Defendant, Kenneth Peeler, a/k/a Marvin Craig Peeler, Appellant. |
Julie Kesler, Asst. Dist. Atty., for respondent.
Cynthia Gannett, Seattle, for appellant.
Kenneth Peeler appeals his conviction for first degree robbery. He contends that the trial court erred in denying his motion to dismiss for insufficient evidence. He also contends that he was denied a fair trial and effective assistance of counsel. We affirm.
Peeler and his co-defendant, Robert Grover, were charged with two counts of first degree robbery. Grover waived his right to a jury. The trial court ruled that Peeler and Grover would be tried simultaneously, but the court would decide Grover's case and the jury Peeler's case. Peeler neither objected to this procedure, nor moved to sever his trial.
The State presented its case-in-chief against both defendants. After the State rested, Peeler moved for dismissal based on insufficient evidence. The trial court denied his motion to dismiss.
With the jury still present, Grover began his defense. Counsel for Peeler did not object. Grover testified in his own behalf, essentially denying that he and Peeler had committed the robbery. He presented no other witnesses.
The following day, the State presented two rebuttal witnesses, again with the jury present. Peeler did not object to their testifying in front of the jury, but did object to the second rebuttal witness on the grounds that the witness' testimony was inadmissible hearsay. The trial court overruled Peeler's objection, and defense counsel cross-examined the witness.
Grover presented one additional witness, and then counsel for the State and Peeler made their closing arguments. While the jury deliberated over Peeler's verdict, the judge considered Grover's verdict. The jury found Peeler guilty as charged, and the court found Grover guilty as charged.
On November 12, 1987, Angela Hughes was home with her baby. While Hughes' friend, Willie Price, was at the store, Carlanne Gardner and Michael Parker, Price's stepchildren, arrived. Shortly thereafter, there was a knock at the door. Hughes answered the door to two men who asked to see Michael.
When Hughes opened the door to let Michael out, one of the men produced a hatchet, grabbed Hughes, and pulled her into a bedroom. The man made Hughes get down on her knees and demanded money. He hit Hughes on the head and body with the hatchet, threatening to kill her and her baby. In the attack, an artery in Hughes' arm was cut, and she bled profusely. Some of the blood stained her attacker's pants.
When Price returned, a second man, wielding a knife, forced him to lie down and took his wallet. Then Michael entered the room. He too was forced to lie down, but was not attacked or robbed. The men left together with Price's money and Hughes' television set.
Hughes called the police who arrived within 1 minute. Hughes described the robbers: the man with the hatchet was a skinny black man with a beard who wore blue pants and a red shirt. The man with the knife was also skinny and black, but he was shorter than the man with the hatchet, had short wavy hair, and wore dark pants and a blue or grey dress jacket.
Gardner also gave the police a statement, identifying the robbers by name. She told the police that her brother Michael had left the scene to "chase" the robbers on foot.
The police searched the area near Hughes' home with no success. Because Michael was known to the police and drove a distinctive red and white Cadillac limousine, Sergeant Harry Bailey decided to search for Michael's car in hopes of obtaining more information about the robbers.
Within an hour, Sergeant Bailey found Michael's car parked a few miles from Hughes' home. As he approached, a man fitting the description of one of the robbers emerged from the car. When the suspect made furtive motions, Sergeant Bailey drew his revolver and ordered him to halt.
Nearing the car, Sergeant Bailey noticed that the suspect's pants were freshly stained with blood. He also observed that one of the occupants of the car was wearing a grey leather jacket. Sergeant Bailey then saw a bloody hatchet and knife between the front seats. A third man sitting in the car was later identified as James Parker, Michael Parker's brother.
When additional officers arrived, all three men were arrested. Neither Peeler nor Grover gave their correct names when they were arrested.
Within hours of the robbery, Hughes was shown a photographic montage and tentatively identified Peeler as one of the robbers. At a line-up 5 days later, Hughes picked someone who looked most like her attacker, but she failed to pick Grover, although he was in the line-up.
At trial, Hughes testified that Peeler and Grover were the men who attacked and robbed her. However, on cross-examination, she admitted that they merely "resemble[ed]" the men who were in her home, and she could not be certain "beyond a reasonable doubt" that he was one of the assailants. On re-direct examination, Hughes again identified the defendants as the men who had robbed her.
Carlanne Gardner testified under a grant of immunity after she was arrested on a material witness warrant. Gardner denied any memory of the robbery or her statement to the police identifying Peeler and Grover as the robbers. She claimed that on the day of the robbery she was intoxicated. However, Sergeant Bailey testified that Gardner was not intoxicated when he interviewed her at the scene.
The prosecuting attorney asked Gardner if she was afraid to testify because she had received threats from the defendants. Gardner denied she had received any threats but admitted she was reluctant to testify. The prosecutor then asked:
Q (By Ms. Bremner) You are afraid to testify. Have you received any phone calls from Mr. Grover in the last few weeks?
A No. I don't even have a phone.
Q Have you received information or any threats from either of these defendants in the last couple of weeks?
A No.
Q Have you received it [sic ] through third persons?
A No.
Q Didn't you tell the detectives today, when you came in, that they had been calling you?
A No, no, I didn't. No, I did not. I told them today that I don't like being put on the spot for any reason because something could happen in a situation like this.
Q Didn't you tell the detectives that Mr. Grover had called and threatened to kill your child?
James Parker also testified under a grant of immunity after he was arrested on a material witness warrant. Parker first claimed he could not remember the details of what happened before his arrest because he had been drinking that day. Nonetheless, he admitted that he told police on the day of the robbery that the defendants, Michael Parker and Gardner all left his house around noon to go to "Angie's" (Angela Hughes) in Michael's red and white Cadillac limousine. Peeler was wearing a grey suede jacket. About an hour later, the defendants returned, immediately went upstairs, and then came back down and told Parker they wanted a ride. They left in Michael's car and all three were arrested within a few minutes.
Grover testified in his own behalf, denying participation in the robbery. He claimed that he, Peeler and Parker drove Michael Parker's car to make a drug sale in another neighborhood at the time of the robbery. Grover asserted that he participated in this drug sale as part of his work as a police informant.
The State presented its rebuttal evidence. Over defense counsel's hearsay objection, Detective Stewart testified that at the scene, Gardner told him that Peeler and Grover had committed the robbery.
In her closing argument to the jury, the prosecutor argued that Gardner did not identify the defendants at trial because she feared them:
Carlanne Gardner was able to identify Mr. Grover and Peeler right after the crime and she told Detective Stewart that it was Peeler and Grover. When she testified in Court she had to be arrested to be brought to Court, as did James [Parker]. Her fear of reprisal is obvious. Her fear for herself and her family is obvious. She does not want to be the one who points these two men out, but she was willing to tell a detective that back on November 12th.
In her argument on rebuttal, the prosecuting attorney again implied that Gardner was afraid to testify: Michael Parker didn't do this. Carlanne didn't want to be here and she wants to have nothing to do with this, nothing, because she witnessed the crime. What does she have to gain by testifying? Nothing. She could only lose. She initially told the detectives that she knew them. She identified Mr. Peeler because she knows him and she identified Mr. Grover. But since that time her memory, by choice, has become faulty. I think it is pretty clear why.
Peeler first contends that the State did not establish beyond a reasonable doubt that Peeler committed the robbery. He argues that Hughes' identification of Peeler was equivocal and uncertain, and the State's circumstantial evidence, at best, merely placed Peeler in the vicinity of the robbery. He asserts that this evidence is insufficient to support a conviction. Peeler's contention is without merit.
In reviewing a challenge to the sufficiency of the evidence, this Court determines whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hendrix, 50 Wash.App. 510, 514, 749 P.2d 210 (1988) (...
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Table of Cases
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