State v. Kloepper

• Decision Date: 04 February 2014
• Docket Number: No. 30294–6–III.,30294–6–III.
• Citation: 317 P.3d 1088,179 Wash.App. 343
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Cody Joseph KLOEPPER, Appellant.

179 Wash.App. 343

317 P.3d 1088

STATE of Washington, Respondent,

v.Cody Joseph KLOEPPER, Appellant.

No. 30294–6–III.

Court of Appeals of Washington,

Division 3.

Feb. 4, 2014.

Eric J. Nielsen, David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Andrew Kelvin Miller, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

KORSMO, C.J.

¶ 1 Cody Kloepper challenges his convictions for first degree rape, first degree burglary, and first degree assault, primarily arguing that the victim should not have been allowed to identify him at trial. We affirm the convictions and sentence.

FACTS

¶ 2 D.W. awoke in her fourth floor Richland apartment at 4:00 a.m. to prepare for work. An unknown man with long hair attacked her and struck her repeatedly on the head with a metal bar. The two struggled and D.W. defecated in her pants. When asked why he was attacking her, the man responded “because Obama was elected president.” The victim told the man that if he was there to rape her, “just do it and get it over with.”

¶ 3 He made D.W. get down on her knees, but was unable to penetrate her with his penis. She then heard a package being opened and what she thought was latex gloves. The man then used his fingers to penetrate her vagina and her anus. He covered her with a blanket and told her that if she told anyone, he would “come back and finish it off.” A few minutes later D.W. called 911.

¶ 4 D.W. was taken to a Spokane hospital for treatment of her head injuries. An officer there subsequently showed her a six-person photomontage that included a picture of Mr. Kloepper with short hair; D.W. did not identify anyone in the montage. Five days later she was shown a 23–person photomontage that included the same photo of Mr. Kloepper with short hair. D.W. told officers that she recognized Mr. Kloepper ¹ with the short hair, but identified Mr. Karl Goering from the montage as the man who attacked her. She also identified Goering from an in-person line-up. He was arrested and charged for the attack on D.W.

¶ 5 The crime scene investigators found what appeared to be the tip of a latex glove covered in D.W.'s blood. A small amount of male deoxyribonucleic acid (DNA) was recovered and subjected to Y-chromosome Short Tandem Repeat (Y–STR) DNA testing. The result excluded Mr. Goering, but matched 1/440 males in the United States population, including Mr. Kloepper. The police advised D.W. on May 5, 2010, that the DNA “matched” Mr. Kloepper and excluded Mr. Goering. The police also advised that they would continue their investigation and had not ruled Goering out as a suspect.

¶ 6 D.W. returned to the police station on July 28, 2010, and gave a recorded statement that she now believed Mr. Kloepper was the attacker. When asked why she changed her mind, D.W. said, “Well the DNA thing.” Mr. Kloepper was charged with the three noted offenses, all of which carried a deadly weapon enhancement. Charges against Mr. Goering were dropped. Mr. Kloepper met the victim's original identification of the assailant far better than Mr. Goering did.

¶ 7 The defense moved to exclude D.W.'s anticipated in-court identification on the basis that her receipt of the DNA information was impermissibly suggestive and had tainted the identification. The trial court denied the motion on the basis that the information went to the weight to be given the testimony rather than its admissibility.

¶ 8 Prior to opening statements, juror 8 indicated by note to the court that his parents were friends of D.W.'s parents while he was growing up. The court did not find a basis for excusal for cause, noting that Juror 8 had not seen D.W. in 40 years and probably would not recognize her.

¶ 9 The jury convicted Mr. Kloepper on all three counts and also found that he was armed with a deadly weapon on each count. The trial court ruled that the rape and assault convictions arose from separate conduct and the sentences would be served consecutively to each other, while the burglary count would be served concurrently with those counts. Mr. Kloepper then timely appealed to this court.

ANALYSIS

¶ 10 This appeal raises four claims. Mr. Kloepper contends that the trial court erred in denying his motion to exclude the in-court identification and in failing to remove juror 8. He also argues that his trial attorney provided ineffective assistance and that the court was required to have sentenced him to concurrent terms on all three counts. We will address those issues in the noted order.

Identification Testimony

¶ 11 Mr. Kloepper asks us to expand the law concerning impermissibly suggestive identification to include this fact pattern. His argument could effectively prevent a witness from changing an incorrect (or what she perceived as incorrect) prior identification at trial. We conclude that this expansion is inappropriate.

¶ 12 Typically, a trial judge has discretion to admit or exclude evidence at trial. State v. Kinard, 109 Wash.App. 428, 432, 36 P.3d 573 (2001). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 13 When impermissibly suggestive government behavior results in the substantial likelihood of the misidentification of a suspect, due process of law requires that trial courts exclude the identification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Vickers, 148 Wash.2d 91, 118, 59 P.3d 58 (2002). Typically these types of issues concern pretrial identification procedures that allegedly taint a witness' initial and subsequent identifications. E.g., Vickers, 148 Wash.2d at 118, 59 P.3d 58;State v. Cook, 31 Wash.App. 165, 167–71, 639 P.2d 863 (1982). More recently, arguments have been advanced, unsuccessfully, calling for the exclusion of trial identification testimony on the basis that the witness had failed to identify the defendant during pretrial identification opportunities. E.g., State v. Sanchez, 171 Wash.App. 518, 288 P.3d 351 (2012), review denied,177 Wash.2d 1024, 309 P.3d 504 (2013) (witness did not identify defendant until after seeing his picture on the news permitted to identify him at trial); State v. Salinas, 169 Wash.App. 210, 224, 279 P.3d 917 (2012), review denied,176 Wash.2d 1002, 297 P.3d 67 (2013) (witness unable to identify defendant in montage permitted to do so at trial).

¶ 14 The argument that Mr. Kloepper raises is similar to that presented by Sanchez and Salinas, but with a twist—unlike those cases, there was no suggestion of any action by the government to taint the identification—here Mr. Kloepper contends that the sharing of the DNA results tainted the in-court identification. He finds support for his argument in State v. McDonald, 40 Wash.App. 743, 700 P.2d 327 (1985). There the police, after the victim identified one of the suspects in a line-up and said that another might be the man, was told that the two men the victim had mentioned were the ones who had been arrested. Id. at 744–45, 700 P.2d 327. This court concluded that the information was tantamount to telling the witness that “this is the man.” Id. at 746, 700 P.2d 327. The conviction of the man who had been equivocally identified was reversed. Id. at 747–48, 700 P.2d 327.

¶ 15 Similarly here, Mr. Kloepper argues with some force that McDonald applies and renders D.W.'s in-court identification invalid. When a court finds suggestive government behavior, the court must then determine if there was a substantial likelihood that the resulting identification was erroneous. Cook, 31 Wash.App. at 171, 639 P.2d 863. If there was no suggestive behavior, then the argument fails and there is no need to consider whether there was a substantial likelihood of misidentification. Id.

¶ 16 As to the first factor, it is a close question whether there was suggestive behavior by the government. The communication of the DNA results by a government agent clearly affected the prior identification and, to that extent, can be seen as suggestive behavior. But, critically in our view, the suggestive behavior was not directed to D.W.'s identification of her assailant. Rather, it was made as part of an update of the pending case against Mr. Goering and used to explain to the victim that despite the filing of charges, the investigation was continuing against both men. D.W.'s change in her identification occurred 12 weeks after the communication from the detectives. This case is thus distinguishable from McDonald where the suggestive communication was made directly in response to the line-up identification. In light of these circumstances, we are not convinced that this truly was a suggestive identification procedure.

¶ 17 However, we need not decide the case solely on that basis as we also doubt that the changed identification resulted in a “substantial likelihood” of a misidentification. If anything, the change prevented a misidentification. The other evidence in the case pointed to Mr. Kloepper, not Mr. Goering, as the assailant. Besides the DNA, Mr. Kloepper better fit D.W.'s initial description of the attacker as a thin, tall (6'2”) man with long hair. Mr. Kloepper stood 6'4” and was thin with long hair at the time of the attack. ² Additionally, against company policy shortly prior to the assault he accessed the supervisor's office in the middle of the night where keys to the apartments, including D.W.'s, could be accessed. D.W. reported that she had locked her door, but the assailant gained entry without force, a fact suggesting that a key was used.

¶ 18 There was not a substantial likelihood of misidentification. Even without D.W.'s identification, the evidence pointed at Mr. Kloepper as the assailant. The defense was thoroughly able to develop D.W.'s earlier identifications of Goering and the reason for her change of mind in order to attack the reliability of her identification testimony. We believe this comported with due...