State v. Parker
| Decision Date | 24 May 2021 |
| Docket Number | No. 82049-4-I,82049-4-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SHAMARR DERRICK PARKER, Appellant. |
UNPUBLISHED OPINION
CHUN, J. — In 2008, 17-year-old A.W. arrived home late and told her mother that a stranger had raped her. A.W.'s mother called 911. The police identified Shamarr Parker as a suspect, located him using a cell site simulator (CSS), and arrested him. The State charged Parker with first degree kidnapping, first degree robbery, and first degree rape, all with a deadly weapon. A jury found Parker guilty of kidnapping and robbery but deadlocked on the rape charge. Parker filed a successful personal restraint petition and obtained a retrial.
Before the second trial, Parker learned that the police used a CSS to locate him despite not disclosing it in their warrant application. Parker moved to dismiss the case based on government misconduct and, in the alternative, to suppress evidence. The trial court denied the motions.
At the second trial, over Parker's objections, the court admitted (1) a 911 call, (2) A.W.'s mother's testimony, and (3) the testimony of a sexual assault nurse examiner (SANE). A jury found Parker guilty of kidnapping and robbery and not guilty of rape. The trial court found Parker indigent but imposed legal financial obligations (LFOs).
Given our Supreme Court's decision in State v. Mayfield, 192 Wn.2d 871, 434 P.3d 58 (2019)—which issued after the second trial—we remand for the trial court to hold a suppression hearing on the issue of attenuation with respect to the CSS. In the event Parker's convictions stand, we also remand to strike a $200 filing fee and an interest accrual provision. We otherwise affirm.
In December 2008, 17-year-old A.W. arrived home late and told her mother, Tracy Nephew,1 that a stranger had raped her at knifepoint. Nephew called 911. A.W. went to the hospital and a SANE examined her.
Police identified Parker as a suspect based on A.W.'s recollection of the alleged attacker's car and license plate number. Pierce County Superior Court issued an arrest warrant for Parker. Also, police obtained a search warrant to use a pen register and trap and trace device to locate Parker. They also used a CSS, which they had not disclosed in their warrant application. Police found Parker at the home of Dacia Birka, an ex-girlfriend with whom Parker shared a child. When Parker left the residence with Birka, police followed them and arrested Parker in a parking lot.
The State charged Parker with first degree kidnapping, first degree robbery, and first degree rape, all with a deadly weapon. A jury found Parkerguilty of first degree kidnapping and first degree robbery both with a deadly weapon. The jury deadlocked on the rape charge.
Parker appealed based on sufficiency of the evidence on the kidnapping conviction. Division Two of this court affirmed. Parker then filed a personal restraint petition based on prosecutorial misconduct during the trial and ineffective assistance of counsel during his appeal. Division Two granted the petition, reversed his convictions, and remanded for a new trial.
The State again charged Parker with first degree kidnapping, first degree robbery, and first degree rape, all with a deadly weapon.
Before the second trial, Parker discovered that the police had used a CSS, commonly known as a Stingray, to locate him before his arrest, despite not mentioning its use in their warrant application. Parker moved for dismissal under CrR 8.3(b) and, in the alternative, suppression of evidence discovered as a result of the search. The trial court denied the motions.
At the second trial, A.W. testified that Parker forced her into his car at knifepoint, drove her to another location, robbed her of some marijuana and cash, and raped her.
Parker did not testify. He presented a defense theory that A.W. met him voluntarily to sell him marijuana, and that he robbed her but did not kidnap or rape her. Parker contended that A.W. alleged rape and kidnapping as revenge for the robbery and to avoid trouble for arriving home late and being with her older boyfriend.
A.W. denied knowing Parker before the attack and denied voluntarilymeeting him to sell him drugs. Over the course of trial, A.W. admitted in her testimony that she had not been truthful at first and had omitted information on certain occasions. Just after the incident, she told her mother she was with friends rather than her boyfriend that day. She at first told no one that she had sex with her boyfriend that day and she acknowledged that she answered falsely when the SANE asked her when she had last had sex. And she initially told no one that she possessed marijuana or that Parker stole it from her. Also, A.W. initially told people and testified that no one would lend her their phone after the attack, but during cross-examination she admitted that someone had lent her their phone and that she called her boyfriend, and her boyfriend testified that she called him that day.
A.W.'s mother, Nephew, and the SANE also testified. Birka, Parker's ex-girlfriend, was unavailable, so the State introduced her testimony from the first trial.
The jury found Parker guilty of first degree kidnapping and first degree robbery, both with a deadly weapon. The jury found him not guilty of first degree rape. The court found Parker indigent yet imposed a $200 filing fee and interest.
Parker says that the trial court erred in denying his CrR 8.3(b) motion to dismiss because the police committed misconduct by omitting the CSS from the warrant application. The State responds that the police did not commit misconduct and that, even if misconduct occurred, it did not prejudice Parker.We conclude that the trial court acted within its discretion in denying Parker's motion because he has not established actual prejudice.
We review a trial court's decision on a motion to dismiss under CrR 8.3(b) for abuse of discretion. State v. Koeller, 15 Wn. App. 2d 245, 251, 477 P.3d 61 (2020). "A court abuses its discretion where its decision rests on untenable grounds or was made for untenable reasons." Id.
CrR 8.3(b) provides that a "court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial." Thus, a movant must show by a preponderance of the evidence (1) arbitrary action or misconduct by the government, and (2) prejudice affecting the movant's right to a fair trial. Koeller, 15 Wn. App. 2d at 251; State v. Kone, 165 Wn. App. 420, 432-33, 266 P.3d 916 (2011). Dismissal under CrR 8.3(b) is an "'extraordinary remedy'" and should be granted "'only as a last resort.'" Koeller, 15 Wn. App. 2d at 251 (quoting State v. Brooks, 149 Wn. App. 373, 384, 203 P.3d 397 (2009); see also State v. Oppelt, 172 Wn.2d 285, 297-98, 257 P.3d 653 (2011) ().
In moving for dismissal under CrR 8.3(b), "[t]he movant . . . bears the burden of demonstrating prejudice." State v. Salgado-Mendoza, 189 Wn.2d 420,431, 403 P.3d 45 (2017). "[T]he defendant must show actual prejudice, not merely speculative prejudice, affected [their] right to a fair trial." Kone, 165 Wn. App. at 433; see also Salgado-Mendoza, 189 Wn.2d at 431-32 (). A defendant does not establish prejudice by showing merely "expense, inconvenience, or additional delay within the speedy trial period; the misconduct must interfere with the defendant's ability to present [their] case." City of Kent v. Sandhu, 159 Wn. App. 836, 841, 247 P.3d 454 (2011). And dismissal "should be limited to egregious cases of mismanagement or misconduct." State v. Hand, 199 Wn. App. 887, 898, 401 P.3d 367 (2017).
Pierce County Superior Court issued a bench warrant for Parker's arrest. Police obtained a cell phone number from Parker's mother that they suspected to be his number. To locate Parker, the police applied for a warrant under the Washington State Criminal Records Privacy Act2 to place a pen register and a trap and trace device on the cell phone number. A pen register identifies the numbers dialed by the specified phone number and a trap and trace identifies the phone numbers of incoming calls to the specified phone number.
RCW 9.73.260(d), (e). In the warrant application, the police also said that they wanted the court to order the cell service provider, T-Mobile, to share the general geographic location of Parker's cell phone by identifying the cell tower connected to the phone. The police, however, did not say anything about the use of a CSSin the application. The trial court issued an order3 approving the use of a pen register and trap and trace device and the discovery of Parker's location through T-Mobile. The court sealed the warrant application and warrant.
According to the police report, officers identified Birka's address as a location where Parker may be hiding. Police surveilled the residence. Police say they used a CSS to confirm that Parker's phone, and thus presumably Parker himself, was in the residence. A CSS makes cell phones in its vicinity connect to it rather than the nearest cell tower and therefore provides real-time, geographic locations on all switched-on cell phones in the area, as well as access to data and identifying information. RCW 9.73.260(f); see also People v. Gordon, 58 Misc. 3d 544, 549-50, 68 N.Y.S.3d 306, 310 (N.Y. Sup. Ct. 2017) (...
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