State v. Larry

• Decision Date: 17 August 2001
• Docket Number: No. 24965-1-II, No. 25073-0-II.
• Citation: 34 P.3d 241,108 Wash.App. 894
• Parties: STATE of Washington, Respondent, v. Clinton Lamont LARRY, Appellant. State of Washington, Respondent, v. McQueen Dee Varnes, Appellant.
• Court: Washington Court of Appeals

34 P.3d 241

108 Wash.App. 894

STATE of Washington, Respondent, v. Clinton Lamont LARRY, Appellant.

State of Washington, Respondent, v. McQueen Dee Varnes, Appellant.

Nos. 24965-1-II, 25073-0-II.

Court of Appeals of Washington, Division 2.

August 17, 2001.

Publication Ordered November 2, 2001.

Linda J. King, Steilacoom, Rebecca Wold Bouchey, University Pl, for Appellants (Court Appointed).

Kathleen Proctor, Barbara Corey-Boulet, Pierce County Deputy Pros. Attys., Tacoma, for Respondents.

HUNT, J.

Codefendants Clinton Larry and McQueen Varnes appeal their convictions for kidnapping, robbery, and attempted murder of a fast food restaurant manager. The co-defendants were tried together. Larry argues that the trial court erred in admitting Varnes' redacted confession. Varnes argues that the redacted statement unfairly excluded exculpatory portions of his confession, and that the prosecutor misstated the law during closing argument. Both argue that they should have had separate trials, that their respective sentences should have run concurrently, and that there was insufficient evidence of premeditated attempted murder. Finding no error, we affirm.

FACTS

I. THE CRIMES

Larry and Varnes conspired to rob the nearby Burger King restaurant, where Larry had previously worked. Larry told Varnes how he had previously robbed the restaurant by waiting "for the trash guy to come out and take him inside hostage and make him go through the safe." Larry gave Varnes a .380 caliber handgun.

Larry and Varnes waited for about two hours outside of the Burger King. At several points, Varnes attempted to initiate the robbery, but he did not go through with the plan. "I went out to do that a few times and I looked at the dude and I was like I didn't, I didn't wanna hurt the dude with the gun, you know." Eventually, Varnes approached the manager, Jorge Rivera, in the parking lot and asked if he had any spare change. When Rivera answered no, Varnes started to walk away. Varnes then ran back and asked Rivera if he had called him; again, Rivera said no.

Larry and Varnes followed Rivera's car to a nearby gas station. Larry harangued Varnes, saying, "[S]top being a bitch, just go in there and get him." With gun in hand, Varnes approached Rivera at the gas pumps, saying, "[M]y friend wants to talk to you." Varnes put Rivera in the back seat of the car in which Larry was waiting and gave the gun back to Larry. All three drove away.

Larry and Varnes stopped for gas at another gas station, using Rivera's $5 for gas. They then returned to the Burger King, where Larry and Varnes forced Rivera to let them into the restaurant. They removed about $2,500. Varnes then left the restaurant and waited in the car. Larry kept Rivera in the Burger King and made him remove the videotape from the surveillance system.

Larry drove them all to his friend Chad's house, where he told Varnes to grab Rivera and to bring him into the house. Larry told Rivera, "[Y]ou better hope that this is the tape or that's on my unborn child that I'll f[* *]kin' kill you." Larry tried to watch the surveillance videotape, but Chad told them to leave.

Larry, Varnes, and Rivera returned to the car. Larry drove to a dead end street, stopped the car, and told Varnes to "let him out." Varnes pulled Rivera out of the car. Before Varnes released Rivera's arm, Larry began shooting from the driver's seat. Larry and Varnes left Rivera, who had multiple gun shot wounds. Rivera managed to reach a nearby residence for help. The resident called police, who responded, along with medical personnel. Rivera later recovered.

Meanwhile, Larry and Varnes drove to another friend's house, where Larry returned the gun, saying, "I dirtied your gun." Larry and Varnes split the money: Varnes got $300, the gun provider got "a hundred bucks or a hundred and fifty bucks for the gun," and Larry kept the remainder, approximately $2,050. Larry arranged to store the vehicle in northeast Tacoma.

II. ARRESTS

The day after the shooting, police investigators obtained a videotape from the surveillance camera at the AM/PM mini-mart that showed Varnes walking away with Rivera. The police produced a special videotape, including digital freeze frames, showing Rivera and Varnes, which was broadcast by local television stations.

Police detectives learned that a gold Cadillac was seen leaving the scene of the shooting. The day after the shooting, police set up surveillance of Larry's Cadillac from 3:00 P.M. to 8:00 P.M.; they observed nothing. At about 11:00 P.M., Detective Farrar discovered that the Cadillac was no longer there.

The police arrested Larry two days after the shooting; he asked to speak with an attorney before speaking with police. While in custody, Larry filed a stolen vehicle report for the Cadillac, telling police that the Cadillac had been stolen the week before the robbery and kidnapping. Police eventually located the Cadillac several months later, stored at a home of Larry's friend in northeast Tacoma.

Following up on tips from the Crime Stoppers program, police arrested Varnes three days after the robbery/kidnapping. After his arrest, Varnes immediately began making statements to the police, even before the Miranda warnings were read:

[H]e started talking about the case, and stated he knew why I was there and that he was sorry that it happened and that he didn't mean for anybody to get shot; he didn't know that that was going to happen; that he only intended on being part of a theft or a robbery to help get some money from this subject and had no idea any shots were going to be fired.

Report of Proceedings (RP) at 441.

III. TRIAL

The State charged Larry and Varnes with first degree kidnapping, two counts of first degree robbery, and attempted first degree murder. The trial court denied their motions to sever both before trial and at the close of the State's case.

The jury found Larry guilty of attempted first degree murder, first degree kidnapping, and two counts of first degree robbery. The jury found Varnes guilty of attempted second degree murder, kidnapping, and two counts of robbery. The jury also returned special verdicts finding firearm enhancements for each defendant for each count.

The court sentenced Larry to 600 months confinement, and Varnes to 515 months confinement. The court ran the firearm enhancements consecutively with the sentences for the underlying convictions.

ANALYSIS

I. CO-DEFENDANTS' REDACTED STATEMENTS—BRUTON

We review de novo alleged violations of the confrontation clause.¹ United States v. Mayfield, 189 F.3d 895, 899 (9th Cir., 1999), United States v. Hoac, 990 F.2d 1099, 1105 (9th Cir., 1993).

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), "the United States Supreme Court held that the defendant was deprived of his confrontation rights under the Sixth Amendment when he was incriminated by a pretrial statement of a codefendant who did not take the stand at trial." State v. Hoffman, 116 Wash.2d 51, 75, 804 P.2d 577 (1991). But in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the United States Supreme Court held that a confession redacted to omit all reference to the codefendant fell outside Bruton`s prohibition because the statement was not "incriminating on its face" and became incriminating "only when linked with evidence introduced later at trial (the defendant's own testimony)." Richardson, 481 U.S. at 208, 107 S.Ct. 1702.

The Supreme Court further defined the contours of the Bruton rule in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), in which the prosecution had redacted the nontestifying codefendant's confession by replacing the defendant's name with a blank space or the word "deleted." Gray, 523 U.S. at 188, 118 S.Ct. 1151. Rejecting this approach, the Court said:

Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result.

Gray, 523 U.S. at 192, 118 S.Ct. 1151. The Court reasoned that such statements

obviously refer directly to someone, often obviously the defendant, and ... involve inferences that a jury ordinarily could make immediately.... [T]he accusation that the redacted confession makes "is more vivid than inferential incrimination, and hence more difficult to thrust out of mind."

Gray, 523 U.S. at 196, 118 S.Ct. 1151 (emphasis added) (quoting Richardson, 481 U.S. at 208, 107 S.Ct. 1702). The Court would have reached a contrary result had the confession been tailored to read "[m]e and a few other guys" committed the crime, instead of the format used in Gray—"[m]e, deleted, deleted, and a few other guys." Gray, 523 U.S. at 196-97, 118 S.Ct. 1151.

Since Gray, the federal Courts of Appeal have issued divergent opinions on whether the use of neutral pronouns in redacted statements adequately protect the non-testifying defendant. Several courts have found neutral pronouns proper: United States v. Logan, 210 F.3d 820 (8th Cir., 2000) (use of "another individual" did not violate confrontation clause); United States v. Verduzco-Martinez, 186 F.3d 1208, 1213-14 (10th Cir., 1999) (use of "another person" did not violate confrontation clause); and United States v. Akinkoye, 185 F.3d 192, 198, (4th Cir., 1999)cert. denied 528 U.S. 1177, 120 S.Ct. 1209, 145 L.Ed.2d 1111 (2000) (use of "another person" and "another individual" did not violate confrontation clause);

However, in United States v. Gonzalez, 183 F.3d 1315, 1322 (11th Cir., 1999) superseded by regulation on other grounds United States v. Diaz, 248 F.3d 1065 (11th Cir., 2001),

the court found that a redacted confession implicating a precise number of the confessor's codefendants violated the confrontation clause. Other courts have found...