State v. Rowland
| Decision Date | 25 September 2018 |
| Docket Number | 49444-2-II,49530-9-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL EUGENE ROWLAND, Appellant. STATE OF WASHINGTON, Respondent, v. MAZZAR GERALD ROBINSON, Appellant. |
UNPUBLISHED OPINION
A jury convicted Mazzar Robinson and Michael Rowland of one count each of first degree felony murder, first degree burglary and first degree attempted robbery. Robinson was also convicted of one count of conspiracy to commit first degree murder and unlawful possession of a firearm.
Robinson and Rowland argue that (1) the trial court violated their right to a public trial when it failed to memorialize numerous off-record sidebars and (2) sufficient evidence does not support their convictions for first degree attempted robbery. In addition, Robinson argues that (3) his attempted robbery conviction violates double jeopardy and should be merged into his first degree felony murder conviction and (4) the trial court erred when it sentenced him as a persistent offender because the trial court improperly considered a facially invalid plea to a prior most serious offense. And Rowland argues that (5) he received ineffective assistance of counsel when his attorney withdrew a request for an "unarmed accomplice"[1] affirmative defense instruction to first degree murder. Rowland and Robinson also (6) submit extensive statements of additional grounds (SAGs).[2]
We hold that (1) the trial court did not violate Robinson's and Rowland's public trial right, (2) sufficient evidence supports their attempted robbery convictions, (3) Robinson's attempted robbery conviction violates double jeopardy, (4) the trial court did not err when it sentenced Robinson as a persistent offender, and (5) Rowland's counsel provided effective assistance. In addition, we (6) reject Robinson's and Rowland's SAG claims as lacking merit, relying on matters outside the record, or too vague to address. We remand for the trial court to vacate Robinson's attempted robbery conviction but affirm all other convictions.
On November 12, 2012, a home intruder entered an apartment occupied by Juan Hidalgo Mendoza and Jaime Diaz-Solis. The intruder shot Diaz-Solis, who died at the scene.
After an investigation, law enforcement believed that William Alvarez Calo had planned to kill and steal from two men who acted as drug wholesalers for a Mexican cartel: Hidalgo Mendoza and Alberto Mendoza "Yeto" Ortega.[3] Law enforcement believed that Calo directed co-defendants Robinson and Rowland, along with Robert Smith, Jiffary Mendez, Ray Turner, and Fidel "Vinnie" Gaytan-Gutierrez, to break into Hidalgo Mendoza's apartment and steal drugs and money. Law enforcement believed that Robinson had shot Diaz-Solis Hidalgo Mendoza's roommate, while breaking into the apartment.
The State charged Robinson and Rowland with one count each of first degree felony murder of Diaz-Solis (RCW 9A.32.030) conspiracy to commit first degree murder (RCW 9A.28.040), first degree burglary (RCW 9A.52.020), and attempted first degree robbery from Diaz-Solis (RCW 9A.28.020; RCW 9A.56.190, .200). In addition, the State charged Robinson with unlawful possession of a firearm (former RCW 9.41.010(7) (2009); former RCW 9.41.040 (2011).
Rowland was arrested in Oregon in October 2014 by local Oregon police and United States Marshals. Rowland signed a form stating that he "freely and voluntarily agree[s] to accompany any officer . . . to the State of Washington" and waived Oregon's statutory extradition procedure. Clerk's Papers (CP) at 206.
On October 21, 2014, two police officers, Lakewood Police Department Detectives Jason Catlett and Les Bunton took custody of Rowland and brought him across state lines to Washington. During the drive, the detectives interviewed Rowland about his involvement in the events on November 12, and Rowland criticized Calo's plan, saying, 17 Verbatim Report of Proceedings (VRP) at 2246.
Rowland filed a motion to suppress and motion to dismiss. Rowland's motion to suppress argued that he did not waive his Miranda[4] rights before the detectives interviewed him during the drive from Oregon to Washington. After a hearing, the trial court denied this motion.
In his motion to dismiss, Rowland argued that the State violated his due process rights when law enforcement allegedly failed to comply with Oregon's extradition statutes providing procedures for removal of arrestees to other states. The trial court denied the dismissal motion on the basis that even if Rowland's removal from Oregon did not follow statutory procedures, violation of Oregon's extradition procedures is not a due process violation. Consequently, the trial court concluded that dismissal was not an appropriate remedy.
Robinson's and Rowland's cases proceeded to a joint trial. The first trial resulted in a mistrial as to all counts because the jury could not unanimously agree on verdicts. Before the second trial, the parties agreed to adopt the pretrial rulings from the first trial. The second trial began in June 2016.
The State presented testimony from 22 witnesses. Numerous witnesses testified regarding personal knowledge about the individuals involved in Calo's plan and their actions on November 12, 2012.[5] In addition, numerous first responders and law enforcement officials testified about the emergency and investigative response immediately after the shooting.[6] And several expert witnesses testified.[7]
The State's witnesses testified consistent with the following.
Hidalgo Mendoza was a major wholesaler for a Mexican drug cartel and provided illegal drugs to several drug dealers in Tacoma, including his roommate Diaz-Solis and his cousin Yeto. In turn, Yeto had numerous people helping him to deal drugs, including Calo. And Calo had several men working for him.
When Calo started stealing money from Yeto, Yeto fired him. Calo knew that Yeto had two properties: a home in Tacoma and a "stash house" in Lakewood where he kept drugs and money and where Yeto's cousin Hidalgo Mendoza lived. Calo was angry about being fired, and he started telling the people who worked for him that he wanted to kill Yeto and steal his drugs and money.
On November 12, 2012, Calo met at a garage attached to his home with Robinson as well as Mendez, Turner, Gaytan-Gutierrez, and Smith, to discuss a plan to steal Yeto's drugs and money from his two properties and kill Yeto. The plan was for the group to go to Yeto's Tacoma home, rob him, tie him up, and leave him at the house so that Calo and another man could enter and kill Yeto. After leaving Yeto's home, the group was supposed to go to Yeto's Lakewood stash house and rob the property and tie up anybody who was inside. After discussing the plan with the group, Calo passed out firearms and gave one to Robinson.
As the group was leaving to execute the plan, Rowland arrived in his car. Rowland knew from previous discussions that the group planned to commit a robbery, and Calo offered Rowland money to participate. Rowland, Robinson, Mendez, Turner, Gaytan-Gutierrez, and Smith[8] divided into two cars. Rowland agreed to drive Mendez and Gaytan-Gutierrez while Robinson drove Turner and Smith.
As the participants headed towards Yeto's Tacoma home, Calo called to change the plan and sent the participants to the stash house to steal from that location first. Calo told them that "there should be no one home, but if someone is there then somebody would tie them up." 15 VRP at 2020.
The participants drove to Yeto's stash house. On the way, Mendez and Gaytan-Gutierrez explained the plan to Rowland, telling him that they were going to the stash house to take the drugs and tie up anyone in the house for Calo to kill.
When the participants arrived at the apartment where the stash house was located, they got out of their cars and put on gloves and masks. They also grabbed duct tape and zip ties from Robinson's car trunk. They crept along the shadows of the fence line to stay out of sight until they arrived at the bushes outside the stash house, where they waited for approximately 10 minutes.
At the back of the stash house, Rowland was standing apart from the group serving as a lookout. Gaytan-Gutierrez and Robinson were openly holding their guns, and Mendez was holding his gun but then placed it in his waistband.
Gaytan-Gutierrez walked to the back porch, discovered that the sliding glass door was unlocked, pushed the door open two inches, and then returned to the group and told them they could just walk in. Then Robinson approached the sliding glass door, followed by the other participants, with Rowland at the back of the line. Robinson, Gaytan-Gutierrez, and Mendez entered the apartment, but Rowland did not.
As Robinson entered, he drew his gun. He saw Diaz-Solis inside and shot him. The group fled. Rowland ran from the building back to his car, and Mendez and Gaytan-Gutierrez got into Rowland's vehicle. Robinson also ran back to his car but realized he lost his keys. He asked to ride in Rowland's car, but there was no room, and Rowland drove away.
Mendez called Robinson several times after fleeing the scene to offer Robinson a ride away from the area near the shooting. Mendez identified in phone records the times that he called Robinson after the shooting to offer a ride. When Mendez eventually spoke with Robinson, Robinson said he had a ride from one of Calo's...
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