State v. Jennings

• Decision Date: 05 April 2002
• Docket Number: No. 26168-5-II.,26168-5-II.
• Citation: 111 Wash.App. 54,44 P.3d 1
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Eustace R. JENNINGS, Appellant.

44 P.3d 1

111 Wash.App. 54

STATE of Washington, Respondent, v. Eustace R. JENNINGS, Appellant.

No. 26168-5-II.

Court of Appeals of Washington, Division 2.

April 5, 2002.

Reconsideration Denied April 22, 2002.

Rita Joan Griffith, Kevin R. Cole, Seattle, for Appellant (Court Appointed).

Kathleen Proctor, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

HOUGHTON, J.

Eustace Jennings appeals his conviction of five counts of first degree robbery and one count of second degree robbery. He argues that he was unconstitutionally restrained at trial and that the jury was instructed erroneously on the definition of display of a weapon. He also appeals his sentence of life without parole as a persistent offender, arguing that one of his prior convictions was not a "strike" for purposes of the Persistent Offender Accountability Act (the Act). He argues that the Act is unconstitutional because it does not require the sentencing court to prove all sentencing facts beyond a reasonable doubt and that the Act violates the Ex Post Facto Clause of the Constitution and is a bill of attainder. The State concedes that there is reversible error on count VI. We affirm counts I, II, III, IV, and V, reverse count VI, and remand for further proceedings.

FACTS

Count I

On August 3, 1998, Jennings entered a Key Bank branch in Tacoma and approached teller Paulette Carlson. He gave her a note that read, "Give me the money. Hundreds, fifties, twenties, or I will shoot you now." VI Report of Proceedings (RP) at 95. One of Jennings's hands was free and the other was tucked inside his shirt. Carlson testified that she was afraid Jennings had a gun in his shirt and had the impression one was there, but she did not see it. The surveillance security videotape shows Jennings with a button-down shirt, but it does not show his hand position. No weapon is visible, and nothing in the videotape indicates that he has a weapon.

Carlson gave Jennings the money from her till.

Count II

On August 12, 1998, Jennings entered a North Pacific Bank branch in Tacoma and approached teller Sherri Nall. Jennings gave her a note that read, "Give me the money or I will kill you." VII RP at 201. Again, Jennings had one hand tucked into his shirt, near his waistband. Nall testified that she had the impression that Jennings had a gun, but she did not see one. The videotape shows a man with a button-down shirt, but it does not show any hand position. No weapon is visible, and nothing in this videotape indicates that Jennings had a weapon.

Count III

On August 13, 1998, Jennings entered Tillicum Food Center where Wesley Chase and Tonja Tison were working. Jennings pulled a gun and demanded money. As Jennings left, he said, "If any of you move, I'll kill you." VIII RP at 496. The security surveillance videotape clearly shows that Jennings displayed a gun.

Count IV

On August 14, 1998, Kim Jones was working as a teller at the same North Pacific Bank branch that was robbed on August 12, 1998. Jennings entered the bank and when Jones asked if she could help him, he handed her a note that read, "Give me the money or I will kill you." VII RP at 331. She had no money in her till so Jennings went to the next window, where another teller, Dawn Tooker, gave Jennings money. Tooker testified that Jennings pointed at her with something underneath his shirt. She did not see whether Jennings had a gun beneath his shirt.

The security surveillance videotape shows a man in an oversized T-shirt with his right hand apparently in his right pants pocket and his left hand at his waistband, outside his shirt. It is impossible to see whether there was a bulge in the shirt where his hand appeared to rest.

Count V

On August 17, 1998, Lois Charlene Anderson was working as a teller at another branch of North Pacific Bank. Jennings approached her window and gave her a note she could not read. Jennings told her he wanted money, and Anderson gave it to him. She did not know if Jennings would harm her; Jennings never said he had a weapon and Anderson never saw a weapon. Another teller, Vicki Seaman saw the note, which read, "Give me the money or I will kill you, 100, 50, 20." IX RP at 534.

Count VI

On August 18, 1998, Carol Beckwith was working as a backup teller at Washington Federal Savings. Jennings approached her and gave her a note that said, "Give me the money or I will shoot." X RP at 654. Beckwith gave Jennings money, including "bait" money that had recorded serial numbers. Jennings made no manifestations of a weapon here.

Jennings was arrested after a Pierce County sheriff's deputy recognized his car and then chased Jennings on foot. The bait money was found on Jennings's person. No weapon was found. At the Lakewood precinct, Jennings made a tape-recorded statement implicating himself. The trial court admitted the statements over Jennings's objections.

Trial

At the beginning of trial, the court determined that Jennings required restraints in the courtroom. The trial court made this decision based on Jennings's prior robberies and assaults with weapons, the current charges, the possible sentence of life without parole, his attempt to escape arrest, his stature and build, the courtroom layout, and staff location. Jennings agreed to wear leg shackles rather than a stun belt. Although the trial court was concerned about jurors seeing the shackles as they entered the jury box, Jennings still preferred shackles over a stun belt.

Despite precautions, some jurors saw Jennings in handcuffs in the hallway, and the trial court declared a mistrial. Jennings agreed to wear a stun belt instead of shackles during the second trial. To ensure that the stun belt would not be visible to the jury, the trial court ordered correction officers to arrange a loose fitting garment for Jennings. After the trial, the court noted that the stun belt had not been observable to anyone in the courtroom during the trial.

Jury Instructions

Jennings excepted to jury instruction 25, which stated in part that a person "`displays' a ... weapon ... if by his conduct or speech, he leads the victim to believe that he is actually armed with a deadly weapon, even though no weapon is seen." CP at 66. Jennings argued that the language "even though no weapon is seen" is misleading. The court gave this instruction over Jennings's objections.

The jury convicted Jennings as charged.

Sentencing

The State charged Jennings under the Persistent Offender Accountability Act (the Act) of the Sentencing Reform Act of 1981,¹ arguing that previous convictions from other states made the current conviction a "third strike." The trial court concluded that Jennings had two prior convictions, each constituting a strike for purposes of the SRA: one from Dade County, Florida, and another from New Castle, Delaware.

The trial court sentenced Jennings to life in prison as a persistent offender. Jennings appeals his judgment and sentence.

ANALYSIS

Courtroom Restraints

Jennings first contends that the trial court abused its discretion when it required him to wear restraints in the courtroom.

A criminal defendant is entitled to appear at trial free from all bonds or shackles, except in extraordinary circumstances. State v. Clark, 143 Wash.2d 731, 772, 24 P.3d 1006 (citing State v. Finch, 137 Wash.2d 792, 842, 975 P.2d 967 (1999) cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999)), cert. denied, ___ U.S. ___, 122 S.Ct. 475, 151 L.Ed.2d 389 (2001). A defendant may be physically restrained in the courtroom only when he or she is particularly obstreperous and disruptive and it is absolutely necessary to prevent escape, injury, or disorder in the courtroom. Clark, 143 Wash.2d at 773, 24 P.3d 1006.

A claim of unconstitutional shackling is subject to a harmless error analysis. State v. Damon, 144 Wash.2d 686, 692, 25 P.3d 418, 33 P.3d 735 (2001). Case law is not clear, however, regarding whether shackling in the courtroom creates a presumption of prejudice that the State must overcome² or whether the defendant must demonstrate that the shackling was prejudicial.³

We need not resolve this conflict here because the stun belt was not visible to the jury. Because there was no possibility of prejudice to Jennings, we hold that any error in ordering Jennings to wear the stun belt was harmless under either standard.

Display of a Weapon Instruction— Harmless Error

Jennings next contends that the court erred in giving a jury instruction that defined "display of a weapon" to include speech that leads the victim to believe he is armed with a deadly weapon when no weapon is seen.⁴ The State concedes that this instruction was given in error,⁵ but it asserts that it was harmless. Jennings argues that this error is not subject to a harmless error analysis and that his first degree robbery convictions be reversed and convictions for second degree robbery be imposed.

Until recently, Washington law was clear that an instruction that relieves the State of its burden to prove an element of a crime is automatic reversible error.⁶ But the United States Supreme Court has unsettled this previously settled issue.

The United States Supreme Court held that a jury instruction that relieves the prosecution of its burden to prove an element of a crime is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the Court held that when an error is structural, affecting the whole "`framework within which the trial proceeds,'" it taints the entire process, making it fundamentally unfair. Neder, 527 U.S. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Such errors can never be harmless. But an instruction that omits an element of the offense may not necessarily taint the entire trial or otherwise make it unreliable to determine guilt or innocence. Neder, 527 U.S. at 9, 119 S.Ct. 1827. It is thus subject to a harmless...