State v. Moretti
| Decision Date | 31 October 2017 |
| Docket Number | 47868-4-II |
| Citation | 1 Wn.App.2d 1007 |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY A. MORETTI, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Anthony Moretti appeals his conviction and sentence for robbery in the first degree and two counts of assault in the second degree. He argues that the prosecutor committed misconduct that the trial court erred by denying a mistrial, and that his attorney provided ineffective assistance of counsel. As to his sentence under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), ch 9.9A RCW, Moretti argues that it constitutes cruel and unusual punishment, that he was entitled to prove his prior convictions to a jury, and that the State failed to meet its burden of proof. Moretti also argues that the sentencing court failed to consider Moretti's actual ability to pay before imposing legal financial obligations (LFOs).[1] Additionally, Moretti raises a number of issues in his statement of additional grounds (SAG) including whether or not any of his convictions violate double jeopardy. We affirm, but remand for the trial court to strike all discretionary LFOs and to amend the judgment and sentence to vacate the assault in the second degree conviction against Knapp.
In the afternoon of September 11, 2014, Michael Knapp and his roommate, Tyson Ball, drove to a boat launch in Oakville to buy methamphetamine from a woman, later identified as Halli Hoey. Knapp had approximately $1, 000 on him.
On route to the boat launch, Ball texted with an acquaintance Jonathan "Jon" Charlie, whom he described as a "heavier guy, big[, ] tall." Report of Proceedings (RP) (July 14, 2015) at 112. They discussed that a woman would meet Knapp and Ball at the boat launch. When Knapp and Ball reached the boat launch, they saw Hoey. Because Hoey did not have drugs with her, Knapp and Ball left. Ball thought Hoey looked nervous.
Approximately 20 minutes later, Hoey called Ball to ask if he and Knapp could help jump start her car. When Ball and Knapp went back to the boat launch, a man approached them and asked Knapp for a cigarette. Hoey looked "way more nervous" than before. RP (July 14, 2015) at 117.
Ball and Knapp gave somewhat inconsistent testimony. Ball testified that as Knapp and the man were speaking, the man pulled a bat from his pants. Because Knapp was "an old man, " Ball pushed Knapp behind him and was hit with the bat on the arms. RP (July 14, 2015) at 119. Once the man began attacking Ball with the bat, a second man came out of the bushes. The second man, armed with an ASP, [2] hit Ball on the head multiple times. Ball escaped and ran off.
Knapp testified that no one asked for a cigarette before he and Ball were attacked. When Ball got out of the truck to help Hoey, Knapp saw a man running out of the bushes with a baseball bat. He immediately recognized the man as Samuel "Sam" Hill, a person he knew. Knapp tried to help Ball, when a second man jumped out of the bushes and began beating Knapp with an ASP. Ball ran off and both assailants attacked Knapp.
While both assailants attacked Knapp, they said "give me the money." RP (July 14, 2015) at 123. Knapp tried to defend himself and pulled out a knife, but was "beat down" to the ground. RP (July 14, 2015) at 166. The assailants beat Knapp's head while they continued to demand money. Knapp complied. Once they had the money, the assailants ran away. Hoey drove off during the assault.
When law enforcement officers reached Knapp, he had a laceration above his left eye, blood soaked clothes, and a grossly swollen ear. Injuries on Knapp's hands and arms appeared to be defense wounds.
Knapp provided Hill's name to the police as one of the assailants. The officers obtained a description of the second assailant, "[f]ive seven, slight build, lighter skin " later identified as Anthony Moretti. RP (July 15, 2015) at 217. The officers showed Ball a photo montage. Ball identified Moretti as one of the assailants. The police also showed Knapp a photo montage. Knapp identified Moretti as one of the assailants.
Officers contacted Moretti approximately two months later and arrested him. Moretti stated he had no involvement in the incident and did not know anyone involved.
On March 23, 2015, the State charged Moretti with robbery in the first degree and two counts of assault in the second degree, one for the assault against Knapp and one for the assault against Ball. The State filed a notice that Moretti may be a persistent offender subject to total confinement for life without the possibility of release.
At trial, Peterson testified that he did not include Charlie in the photo montages because "early on in the investigation . . . there were three persons who identified the defendant as the person . . ." RP (July 14, 2015) at 93. Moretti objected based on hearsay and the court sustained the objection.
After Peterson stated that he recognized Moretti from his investigation of the incident, the prosecutor asked him whether he had any prior dealings with Moretti. Moretti objected based on relevance and the court sustained the objection.
The prosecutor next asked Peterson what information he obtained from Hill regarding his involvement in the incident. Before Peterson responded, Moretti objected and the trial court sustained the objection. The prosecutor countered, "Your Honor, it's co-defendant, co-conspirator in this case." RP (July 15, 2015) at 218.
Outside the presence of the jury, Moretti moved for a mistrial. In the alternative, he asked that he be able to tell the jury that Hill was acquitted of a robbery charge in a separate trial. The court denied both motions, stating:
I just have trouble with saying that in this case, the defendant has been severely prejudiced by the mention of co-defendant when it's been coming in loud and clear that there were two actors and one was clearly Mr. Samuel Hill. So [the prosecutor] kind of said co-defendant and then said co-conspirator and it just to me is not something where I would declare a mistrial.
Later, the prosecutor asked Peterson whether law enforcement officers attempted to identify other individuals involved in the incident. Moretti objected based on hearsay, but the trial court overruled the objection. Peterson continued, stating, "We were able to identify a female named Halli Hoey who was acquainted with Mr. Hill. . . [and] another person named Jon, who we later learned was Jonathan Charlie." RP (July 15, 2015) at 232.
When the prosecutor asked Peterson several other questions regarding how Charlie's description was important to the investigation, what in Knapp's version of events and Ball's version of events were different, and what information matched the evidence that he collected during the investigation, Moretti objected to each question. The trial court sustained every objection.
The prosecutor continued and asked whether, after speaking with Ball, other persons of interest developed. Moretti again objected and the court sustained the objection. The prosecutor then asked what happened in the investigation after that point. Peterson responded, "We inevitably identified Mr. Moretti as a-." RP (July 15, 2015) at 237. Moretti objected and the court sustained the objection.
On the day of the incident, Hoey was with Charlie and Hill. Charlie asked Hoey to take him to Oakville to meet people at the river. He had a backpack with the end of a bat sticking out of it.
Hoey drove Charlie and Hill to the boat launch. On the way, Charlie and Hill saw one of their friends walking down the road and asked Hoey to pick the friend up. The friend was a "bald, " "[w]hite man" whom Hoey did not know. RP (July 15, 2015) at 290.
When they arrived at the boat launch, no one was there. Charlie and Hill got out of the car. Eventually, a truck with two men arrived. Hoey did not talk to the men from the truck. She heard Charlie talking to the men, but they began yelling about money or drugs. When she saw a knife on the older man, Hoey immediately drove off.
The following morning, law enforcement officers contacted Hoey. She spoke with the officers about the incident. According to Hoey, one officer "wrote down in his own words what he thought happened." RP (July 15, 2015) at 296. The statement said that Charlie asked Hoey to give him a ride so he could "sell [m]eth." RP (July 15, 2015) at 306. Hoey denied knowing she was going to a drug deal and felt pressured into signing the document.
Hoey also testified that she never provided the law enforcement officers with Moretti's name. Peterson impeached her testimony when he testified that, approximately one week after the incident, Hoey provided him with a description of the man she picked up-"white male, five seven, slender build"-and that she had been "introduced by the other persons in the car as Anthony." RP(Jul. 15, 2015) at 320-21.
Hoey denied that she identified the unknown man, but later identified Moretti in court as the man she picked up on the road while driving to the boat launch.
Near the close of trial, Moretti contended that during recess, a juror saw him in restraints while being brought back to the courthouse. Moretti feared that the juror would relate her observations to the other jurors and he moved for a mistrial. The court and the parties questioned the juror.
The juror said that she did not see Moretti being brought back into the courthouse. She stated that she was walking up the stairs and passed by Moretti on the second floor. The juror did not notice whether or...
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