State v. Lillard
| Decision Date | 12 July 2004 |
| Docket Number | No. 49810-0-I.,49810-0-I. |
| Citation | 122 Wash. App. 422,93 P.3d 969,122 Wn. App. 422 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Lonnie E. LILLARD, Appellant. |
Gregory C. Link, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.
Jimmy I. Hung, Deric Martin, King Co Pros Ofc/Appellate Unit, Seattle, WA, for Respondent.
Lonnie Lillard appeals his conviction for possessing stolen property. We hold that Lillard validly waived his right to counsel. We also reject his claim that the trial court abused its discretion in admitting evidence of uncharged crimes. And although the trial court did not calculate Lillard's exact offender score, the court properly concluded that his score exceeded the statutory maximum. Lillard also raises a number of pro se issues. Because these claims are without merit, we affirm his conviction and sentence.
In October 2000, Nordstrom's loss prevention unit began investigating incidents of fraud involving altered electronic gift cards. The perpetrators would apparently purchase low-value gift cards and alter the magnetic strips on the backs of the cards to correspond with the number from an account with substantially more money. For example, they would purchase a $10 card and then alter the number on the back strip to match an account with an $800 balance. The individuals would then purchase items using the cards, and later return the items for cash. Incidents involving these altered cards were reported at five stores in the Seattle area.
Loss prevention personnel handling the investigation instructed store employees to check gift card numbers carefully to ensure the number on the card matched the number on the magnetic strip. Store security personnel were warned to be on the lookout for persons purchasing expensive clothing without regard to size or style and using gift cards to pay for the merchandise. A group of suspects who were using the altered cards were identified, and security personnel began observing them through closed circuit video surveillance systems. One of the persons Nordstrom investigators identified was Lillard.
On November 5, Nordstrom security at the Bellevue store observed potential suspects engaging in the described activities. A man entered the store and began grabbing expensive sweaters without apparent regard to color, size, or style. Store security observed the suspect make several calls on his cell phone during the time he was selecting the sweaters. He then paid for the sweaters with several gift cards. The numbers on the front of the cards did not match the strips. The store security manager allowed the clerk to complete the transaction.
Michele Rufer, the store's loss prevention manager, then contacted Bellevue police to report the crime. Officer Jessamyn Poling responded to take a report. Rufer explained that the suspects had been recorded on the store's video surveillance equipment buying, returning, and loading merchandise into a U-haul truck with sunflowers painted on the side.
The next day while on patrol, Officer Poling observed a truck matching this description driving toward the mall. Poling followed and watched as the truck turned toward Nordstrom and then parked in an adjacent grocery store lot.
Officer Poling watched as Lillard emerged from the driver's seat, went to the rear of the vehicle and unlocked the cargo door. Shopping bags with the Nordstrom logo on them were visible inside the truck. Lillard then went across the street toward the Nordstrom store, accompanied by two female passengers.
Officer Poling called Nordstrom and spoke with Rufer, who identified the U-Haul as the same one the thieves had used before. Poling went inside the store into the security office where Rufer and her team were monitoring the suspects using security cameras. Rufer identified all three suspects as participants in the gift card fraud. As Rufer and Poling watched, Lillard and the two females split up. The two women went inside and returned items from another store purchased with altered gift cards. Lillard appeared to be overseeing the women's activities. After completing the returns, Lillard and the two women returned to the truck. Officer Poling pursued them, stopped the truck, and arrested Lillard for driving with a suspended license.
In the passenger compartment, the officer noticed a Nordstrom bag filled with numerous expensive sweaters. These were the same sweaters purchased on November 5 with altered gift cards. Lillard was charged with first degree possession of stolen property. At trial Lillard represented himself pro se. He was found guilty following a jury trial. He timely appeals his conviction.
Lillard first argues that he did not knowingly and intelligently waive his right to assistance of counsel. Both the state and federal constitutions afford a criminal defendant the right to reject assistance of counsel and to represent himself.1 But a defendant desiring to represent himself must knowingly and intelligently waive his right to counsel.2
While there is no formula for determining whether a waiver is valid, the preferred method of ensuring a valid waiver is a court's colloquy with the defendant conducted on the record.3 This colloquy should include discussion about the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of the accused's defense.4 In the absence of a colloquy, the record must reflect the defendant's knowledge and appreciation of these factors and other risks associated with self-representation.5 While a defendant's education, literacy, and experience in prior trials are relevant, these factors are not dispositive of whether he understood the relative advantages and disadvantages of self-representation in a particular situation.6
In State v. Silva,7 we reversed a conviction because the trial court did not conduct a proper colloquy before granting the defendant's motion to proceed pro se. In Silva, the defendant asked to represent himself at sentencing. The court granted the motion. Later, Silva asked the same judge to allow him to represent himself pro se in a second criminal case. The court granted his motion without conducting a colloquy. We reversed Silva's second conviction, because the colloquy from the first case was insufficient as applied to the challenged case.8
Before conducting its CrR 3.5 and 3.6 motions, the court engaged Lillard in a colloquy about proceeding pro se. The court first asked Lillard if he had represented himself before, and if he understood that he had to follow the rules of evidence. After Lillard replied that he had represented himself, and that he knew he was subject to the rules of evidence, the court went on to caution Lillard about the perils of self-representation:
The court continued cautioning Lillard about the intricacies of trial practice, including knowing when to object, present evidence, and cross-examine witnesses. The court explained that after completing the motions, "I may want to have a little more discussion with you before we get to the point of you actually representing yourself at trial." But the court also acknowledged that "it sounds to me like you have a pretty good understanding of what you are getting into."
After ruling on the pretrial motions, the court continued its colloquy with Lillard about self-representation. The court twice explained the maximum penalties for the alleged crime:
Later, during the same colloquy, the court repeated the maximum penalty that Lillard could face if convicted:
On appeal, Lillard claims that the court failed to satisfy Silva's requirement that the defendant be apprised of the nature of the charges he faces. He argues that he could not intelligently waive his right to counsel because the court did not explain the essential elements of the charged crime and possible defenses.
Lillard focuses on his exchange with the court at his arraignment several months earlier. There, Lillard stated that he had not looked at the charging document. But his attorney acknowledged receipt of the information, waived formal reading, and entered a plea of not guilty for Lillard. Later, at the same arraignment, Lillard again explained to the court that he had not received a copy of the affidavit of probable cause and that he did not know what he was pleading guilty or not guilty to.
But evidence before the trial court contradicts Lillard's assertion that he did not know the nature of the charges against him. Both he and his attorney...
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...P.2d 961 (1981)). The rationale for this res gestae evidence is to ensure that the jury knows the whole story. State v. Lillard, 122 Wn. App. 422, 431-32, 93 P.3d 969 (2004). Here, the evidence that Mr. Prado had an arrest warrant was unsolicited and therefore not sought for the improper pu......
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State v. Cahill, No. 30885-1-II (WA 3/14/2006)
... ... These prior bad acts are not part of a `string of connected offenses.' State v. Lillard, 122 Wn. App. 422, 431, ... 93 P.3d 969 (2004). The State did not assert that the acts were contiguous with or collateral to the crime. They do not comprise pieces of the mosaic necessary for a complete picture. Rather they are only relevant if used to establish Cahill's motive to kill Teresa ... ...
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State v. Sanchez
...of a crime or to provide the immediate context for events close in both time and place to the charged crime." State v. Lillard, 122 Wn. App. 422, 432, 93 P.3d 969 (2004); see State v. Brown, 132 Wn.2d 529, 570-71, 940 P.2d 546 (1997). The trial court did not abuse its discretion in admittin......
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State v. Prado
... ... 831, 889 P.2d 929 (1995) (quoting State v. Tharp, 27 ... Wn.App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 ... Wn.2d 591, 637 P.2d 961 (1981)). The rationale for this res ... gestae evidence is to ensure that the jury knows the whole ... story. State v. Lillard, 122 Wn.App. 422, 431-32, 93 ... P.3d 969 (2004) ... Here, ... the evidence that Mr. Prado had an arrest warrant was ... unsolicited and therefore not sought for the improper purpose ... of showing that Mr. Prado was a criminal type. During ... ...