State v. Reed, No. 30117-2-II (consolidated with) (WA 9/21/2004)
Decision Date | 21 September 2004 |
Docket Number | No. 31325-1-II,No. 30117-2-II (consolidated with),30117-2-II (consolidated with),31325-1-II |
Parties | STATE OF WASHINGTON, Respondent, v. JEFFREY DEAN REED, Appellant. In the Matter of the Personal Restraint Petition of: JEFFREY DEAN REED. |
Court | Washington Supreme Court |
Appeal from Superior Court of Clark County. Docket No. 02-1-02383-5. Judgment or order under review. Date filed: 02/11/2003. Judge signing: Hon. John P Wulle.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St Ste 250, Vancouver, WA 98660-3320.
Jeffrey Dean Reed (Appearing Pro Se), #917347, Wa State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Jeffrey Dean Reed appeals his conviction of first degree possession of stolen property, arguing that there was insufficient evidence to convict. Additionally, in a pro se Statement of Additional Grounds1 (SAG), Reed argues that (1) he was subject to an impermissibly suggestive mid-trial identification procedure; (2) he received ineffective assistance of counsel; (3) the trial court miscalculated his offender score; and (4) the trial court erred in admitting evidence that the State disclosed after the discovery deadline. He repeats many of his pro se arguments in a personal restraint petition (PRP), which this court consolidated with the direct appeal. We affirm the conviction and dismiss the PRP.
The State charged Reed and a co-defendant, Lori Ann Lapier, with first degree possession of stolen property, specifically, a 2001 Dodge pickup belonging to Joseph B. Potter.2 The State alleged that Reed committed the offense between November 20 and November 22, 2002. Lapier later pleaded guilty.
After Reed rejected the State's plea offer, the trial court set trial for January 22, 2003.
Just prior to a January 7 pretrial hearing, the State informed defense counsel that it had become aware of a potential eyewitness and that it was attempting to contact this witness. The State informed the trial court that it had not yet contacted the witness and that it had provided defense counsel with all of the information it had on this witness. In response to defense counsel's concern that he would not have access to the witness in time to prepare for trial, the trial court set a discovery cut off date for Monday, January 13.
In a motion in limine, Reed raised various issues related to statements Lapier had made and the potential eyewitness testimony. Following jury selection on Wednesday, January 22, the trial court heard Reed's motion.
While discussing Lapier's statements, the prosecutor told the trial court that Lapier was represented by counsel and that he believed she would assert her Fifth Amendment rights if she was called to testify. Defense counsel told the trial court that he had not spoken to Lapier because she was represented by counsel and that he was unsure whether she would assert her Fifth Amendment rights if called as a witness.
Defense counsel also objected to the State's proposed eyewitness testimony, arguing that the trial court should not allow the testimony because the State disclosed the witness information three days after the January 13 discovery cutoff date expired. Although it found that the prosecutor should have attempted to contact these witnesses sooner, the court allowed the testimony. But it also provided that defense counsel would have time to interview the witnesses before they testified.
Defense counsel also requested that the trial court require the two witnesses to identify Reed before trial under circumstances less suggestive than a trial setting with Reed sitting at counsel table. At defense counsel's suggestion and outside the presence of the jury, the trial court allowed Reed to sit in the audience with his brother and father while the prosecutor asked each witness whether the man they saw on November 20 was in the courtroom. Both witnesses identified Reed.
At trial, Potter testified that on November 20, he parked his 2001 Dodge pickup truck in a parking lot near a construction site while he attended a meeting. In addition to leaving his keys inside the truck and the doors unlocked, Potter also left a Chevron credit card inside the truck.
When Potter returned from his meeting, the truck was gone; he reported the theft immediately. The day after the theft, someone from a Chevron gas station notified him that someone had attempted to use his Chevron card. The police recovered the truck on November 22.
After retrieving the truck from the police, Potter found various items, including a wallet containing a photograph of Reed and Lapier, in the truck. Potter brought the wallet to court on the day of trial. The State moved to admit the wallet and its contents into evidence. Over Reed's untimely disclosure objection, the trial court admitted the wallet.
The two eyewitnesses, Brian Stevens and Alex Mattila, both testified that they had observed a man and a woman at a park table near Potter's truck immediately before the truck was taken. Mattila testified that the man and woman `seemed nervous' and that the woman appeared to be `strung out on drugs.' II Report of Proceedings at 144-45. He observed the man and woman walk toward the truck and, soon after, he heard the truck reverse out of the parking lot at high speed. But neither Stevens nor Mattila saw who was inside the truck or observed the man or woman get into the truck.
Although the witnesses' descriptions of the man and woman varied in some respects, they both identified Reed as the man they observed just before the truck was taken. They also identified the woman in the photograph from Reed's wallet as the woman they observed near the truck. Stevens testified that he was 80 percent certain that Reed was the man he had observed, and Mattila testified that he was 75 percent certain Reed was the man he had observed.
Before the jury, defense counsel asked both witnesses whether they had identified Reed in the earlier in-court identification procedure because he was the only person in the room that resembled the man they had observed on November 20. Stevens initially stated that he identified Reed because he was the man he had seen, but he later admitted it was possible that he could have been influenced by the fact that Reed was the most likely person in the room. Mattila testified that the presence of the two other men did not influence his identification.
Officer Steven Cocklin, the officer who took the original theft report, testified that on November 22, he pulled over a truck matching the description of Potter's truck because it was missing its front license plate. Reed was driving the truck, and Lapier was in the passenger's seat. After taking Reed and Lapier into custody, Cocklin searched truck and found the missing front license plate, a license plate from a different truck, and clothing belonging to Reed and Lapier.
Following Cocklin's testimony, the State rested.
Reed then testified in his own defense. Although he admitted to driving the truck on November 22, he denied stealing the truck or knowing that it was stolen. He asserted that Lapier was driving the truck when she picked him up from a friend's house and that he did not suspect it was stolen because Lapier had the keys and she frequently borrowed vehicles.
Reed also admitted that he was driving the truck when Lapier attempted to purchase some gas at a Chevron station on November 21, and that he took the truck's registration out of the glove box and handed it to Lapier when she requested it. But he denied speaking to the station attendant or knowing that Lapier did not pay for the gas.3
In addition, Reed testified that he was on probation for a prior offense when he was arrested on the current charges. Following Reed's testimony, the defense rested.
After the State rested, Reed objected to the admission of his wallet and its contents, arguing that the State's disclosure of this evidence was untimely. Reed asserted that the prosecutor's questions to Potter demonstrated that he knew about and planned to present the wallet as evidence before trial. The prosecutor asserted that he did not know about the wallet until Potter handed it to him as they walked into the courtroom.
The trial court overruled Reed's objection and admitted the wallet and its contents into evidence after finding that the State did not know about the wallet in time to disclose it. Reed renewed his objection and later moved for a mistrial on the same basis. The trial court denied Reed's motion.
Also after the State rested, Reed moved to admit a letter Lapier had written to the prosecutor's office and her plea statement. During argument, the prosecutor again stated that Lapier would assert her Fifth Amendment rights if called to testify. In an offer of proof following the trial court's refusal to admit these documents, defense counsel stated that the documents were highly relevant because Lapier was afraid to testify consistently with the letter because she might be subject to further criminal charges or additional sentencing consequences.4
The jury found Reed guilty of first degree possession of stolen property.
At the sentencing hearing, the State informed the trial court that although it had originally calculated Reed's offender score as 9, his correct offender score was 7. Defense counsel informed the court that he had originally relied on the State's representation that the offender score was 9 and suggested that had the State been aware of the correct offender score it would have offered a plea within a lower sentencing range and that Reed probably would...
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