State v. Hewson

• Decision Date: 25 April 2013
• Docket Number: 30212-1-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JACK MAURICE HEWSON, Jr., Appellant.

STATE OF WASHINGTON, Respondent, v. JACK MAURICE HEWSON, Jr., Appellant.

No. 30212-1-III

Court of Appeals of Washington

April 25, 2013

UNPUBLISHED OPINION

Brown J.

Jack Maurice Hewson Jr. appeals his convictions for first degree burglary and conspiracy to commit first degree robbery. He first contends the trial court violated his confrontation right or abused its discretion when limiting his cross-examination of a State witness in an attempt to show bias based on State leniency and gang membership. Second, he contends the trial court erred in rejecting his Brady^[1]-based new trial motion. In his pro se statement of additional grounds for review (SAG), Mr Hewson raises concerns related to the State's precharging delay, the victim's photomontage identification of him the trial court's ER 609 rulings, and the prosecutor's trial conduct. We reject Mr. Hewson's confrontation and Brady contentions. We find no merit in Mr. Hewson's SAG concerns. Accordingly, we affirm.

OVERVIEW

This case is about a first degree burglary and conspiracy to commit first degree robbery occurring at Jamie Robinson's Spokane house in 2007. Robert Delao, Andrew Oakes, and Joseph Hoofman (co-participants) admitted their crime participation. Although Mr. Delao and Mr. Oakes were federally prosecuted for unrelated or unspecified crimes, they apparently received State concessions not to prosecute for federal sentence benefits. Similarly, the State prosecuted Mr. Hoofman solely for driving while license suspended. The co-participants incriminated Mr. Hewson in court as the fourth crime participant. Ms. Robinson initially identified Mr. Hewson from a photomontage and later identified him in court. Mr Hewson denied his participation, asserted an alibi, argued Ms. Robinson misidentified him, and raised a credibility-bias defense in an attempt to undermine his co-participants' incriminating testimony.

The trial court allowed extensive evidence of the co-participants' criminal backgrounds and the non-prosecution benefits the State offered them but limited evidence of particular sentencing consequences that might flow from Mr. Hewson's prosecution. The court allowed extensive evidence of the long, close friendship between Mr Delao and Mr. Oakes and their business and personal animus towards Mr. Hewson, limiting solely evidence of their gang membership. The trial court allowed evidence showing Mr. Hewson's refusal to make bail for his long-time friend, Mr. Hoofman, which Mr. Hewson argued caused Mr. Hoofman's animus toward him. From the amply developed record, Mr. Hewson argued or received an adequate opportunity to argue his defense theories, including those the court partly limited. The jury rejected his defenses and found Mr. Hewson guilty as charged of first degree burglary and conspiracy to commit first degree robbery, along with several firearm enhancements.

FACTS

On November 21, 2007, Mr. Delao and Mr. Oakes approached Ms Robinson's house wearing masks and armed with guns, kicked open an exterior door and attempted to enter an interior kitchen door, but left when Ms. Robinson confronted them. Soon, an unmasked male, later identified as Mr. Hewson, appeared behind a window in the kitchen door and pointed a gun at Ms. Robinson just six inches away. Mr. Hewson left when he saw Ms. Robinson placing a telephone call. Mr. Hoofman related he drove a getaway car that Mr. Hewson provided him and that turned out to be owned by Denise LaCount. Ms. LaCount later became Mr. Hewson's alibi witness. Ms. LaCount testified Mr. Hoofman took her car without permission while Mr. Hewson stayed with her at the house. Mr. Delao, Mr. Oakes, and Mr. Hoofman each identified Mr. Hewson in court as the unmasked male who pointed the gun at Ms. Robinson.

Police showed Ms. Robinson three photomontages, on November 28, 2007, January 25, 2008, and February 12, 2008 respectively. She identified no perpetrators on the first two occasions. On the third occasion, she immediately began shaking and identified Mr. Hewson as a perpetrator with 90 to 97 percent certainty. Mr. Hewson did not object to this evidence. Ms. Robinson identified Mr. Hewson in court as the unmasked male who pointed the gun at her. Mr. Hewson attempted to show Ms. Robinson previously saw him when he visited her home to meet her house guest, James Crabtree, causing a misidentification; Mr. Crabtree contradicted this hypothesis.

On April 12, 2010, the State charged Mr. Hewson as a principal or accomplice to first degree burglary and conspiracy to commit first degree robbery. Mr. Delao cooperated with state authorities but Mr. Hewson did not. The State eventually alleged six firearm enhancements against Mr. Hewson. Apparently, Mr. Delao and Mr. Oakes were prosecuted federally but not in State court. We assume for discussion, without specific supporting evidence in our record that the State agreed not to prosecute them in exchange for their testimony against Mr. Hewson.^[2] Similarly, we assume Mr. Hoofman, the getaway car driver, received a state benefit when the State prosecuted him solely for driving while license suspended.

Mr. Hewson unsuccessfully moved in limine to impeach Ms, Robinson with evidence she was convicted of two forgeries and a theft between 1994 and 1998, and of drug possession in 2008.^[3] The State argued Ms. Robinson's prior forgery and theft convictions were stale because she had been released from confinement on them more than 10 years before testifying and her prior drug possession conviction was not probative of her truthfulness. The trial judge reasoned, "I am not satisfied ... that this issue is more probative than unfairly prejudicial. It does have the aspect of inferring propensity. It doesn't necessarily go to credibility. There may be, however, some other bases to consider this . . .." Report of Proceedings (RP) (May 9, 2011) at 17-18.

The State successfully moved in limine to exclude evidence of Mr. Delao's gang membership as either irrelevant or unfairly prejudicial. Mr. Hewson partly argued the gang evidence was relevant to show Mr. Delao's motive to falsely implicate him, suggesting Mr. Delao was protecting a fellow gang member. The court partly reasoned "just the fact of gang membership alone is not sufficient" to "provide the necessary probative value for veracity, reliability of testimony." RP (May 9, 2011) at 38. At trial, in the context of business animus, the court revisited the topic. Mr. Hewson wanted to show Mr. Delao's gang activities, especially drug money laundering, motivated him to fire Mr. Hewson from a business in which Mr. Delao, Mr. Oakes, and Mr. Hewson participated. Allowing the business animus evidence but excluding the underlying gang motivation evidence, the court explained: "It [g]rafts 403 protection against undue confusion or distraction by the jury, but it satisfies, again, to a certain extent a reasonable basis for the type of bias that the Defense is trying to move forward with so I would permit that." RP at 164. The court additionally allowed bias evidence based on Mr. Delao's and Mr. Oakes's attempt to get Mr. Hewson's probation revoked.

At the May 2011 trial, Mr. Delao testified for the State. On extensive cross-examination, Mr. Delao related his understanding of the State's concession not to prosecute and the federal concessions in his 70- to 87-month federal sentence. When Mr. Hewson began asking about disparities in Mr. Delao's sentence and what he might have received with state firearm enhancements, the trial court, sua sponte, called a sidebar and ordered defense counsel not to tie specific maximum sentence lengths to specific state charges or firearm enhancements while cross-examining Mr. Delao. The trial court expressed concern doing so would confuse issues by suggesting the specific maximum sentence lengths and enhancements that might apply to Mr. Hewson, and thus undermine the jury instruction to ignore any punishment that may follow conviction. Mr. Hewson objected to any limitation on his inquiry into the full extent of the State's leniency toward Mr. Delao.

Mr. Oakes, who was then a federal inmate, testified for the State by deposition. On extensive cross-examination, Mr. Oakes admitted he previously testified at Mr. Delao's federal bail hearing regarding Mr. Delao's gang membership. The State did not object. Later, in Mr. Hewson's closing argument to the jury, he argued without objection Mr. Delao was his "good friend, old gang member, we go way back." RP at 484.^[4] But when Mr. Hewson continued referring to gang membership, the State objected. The court ruled: "The issue is in front of the jury; however, if that was a product of error and that fact should not have been provided, continued reference in the argument would be improper. Certainly, ... you have referenced that fact now before the jury in your closing. I won't for the record strike that, but I am going to request you move forward further." RPat487.

As Mr. Hewson's alibi witness, Ms. LaCount related that on the night of the burglary, she went to bed with Mr. Hewson around 10:00 p.m. and awoke around 1:00 a.m., noticing the television on in the living room. She said she did not check on Mr. Hoofman, who had been sleeping on the couch, but by the next morning, he had left with her car. The prosecutor then impeached Ms. LaCount with her pretrial interview without objection from Mr. Hewson. In closing and rebuttal arguments, the prosecutor told the jury the evidence showed Ms. LaCount changed her trial testimony, undermining Mr. Hewson's alibi defense strategy. Mr. Hewson did not object.

After the jury found Mr. Hewson guilty, Mr. Crabtree signed a statement saying, in his May 5, 2011 pretrial interview, he asked the prosecutor to "put in a good word for him" on his...