State v. Suarez

• Decision Date: 11 September 2012
• Docket Number: No. 41048-6-II,No. 41005-2-II,41005-2-II,41048-6-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. OZIEL V. SUAREZ, Appellant. STATE OF WASHINGTON, Respondent, v. DEVAN IDRIS HOPSON, Appellant.

STATE OF WASHINGTON, Respondent, v. OZIEL V. SUAREZ, Appellant.

STATE OF WASHINGTON, Respondent, v. DEVAN IDRIS HOPSON, Appellant.

No. 41005-2-II

No. 41048-6-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Dated: September 11, 2012

UNPUBLISHED OPINION

Quinn-Brintnall, J. — On June 28, 2010, a jury found Oziel Suarez and Devan Hopson guilty of attempted first degree robbery and first degree assault for their roles in a Tacoma shooting incident. The jury also found by special verdict that Suarez and Hopson were armed with deadly weapons during the commission of these crimes. On appeal, Suarez and Hopson both contend that the trial court erred in limiting the testimony of Suarez's longtime girlfriend,Traniece Armstrong, and in instructing the jury that it needed to unanimously agree to enter a not guilty finding on the special verdicts. Hopson also contends that the evidence was insufficient to support his attempted robbery conviction. Suarez also argues that the trial court erred in ruling that he voluntarily waived his Miranda¹ rights while being treated for a gunshot wound and, in a statement of additional grounds² (SAG), that the State's charging document did not fully apprise him of the charges against him and that he received ineffective assistance of counsel. We affirm Suarez's and Hopson's convictions.

Issues are presented by both appellants' sentences. Suarez contends that the trial court miscalculated his baseline sentence. And although appellate counsel for both Suarez and Hopson failed to recognize that the jury's special verdict findings supported a deadly weapon rather than a firearm enhancement, we raised this issue sua sponte at oral argument in the interest of justice.³ The State conceded that if the jury's special verdict supported only a deadly weapon enhancement, imposing a firearm enhancement was error.⁴ Because the jury's findings supported deadly weapon, but not firearm, sentence enhancements, and because the trial court miscalculated the length of Suarez's total confinement, we vacate Suarez's and Hopson's sentences and remand for resentencing.

FACTS

Background

On June 27, 2009, Tacoma Police Department officers responded to a reported shooting in the area of 702 S. Huson and S. 12th Streets. Inside the home at 702 S. Huson, police found one of the residents, Roshawn Laster-Cobb, lying on a mattress in a bedroom and a "handgun, semiautomatic Glock pistol" nearby. 3 Report of Proceedings (RP) at 220. Laster-Cobb had been shot multiple times, but he was conscious and able to cooperate with police. The other resident of 702 S. Huson, Jeremy Patchell, was not there when police arrived. Officers found two other participants in the altercation, Hopson and Suarez, near a retaining wall at 6th Avenue and S. Huson. Hopson had suffered a grazing bullet wound to the head and Suarez had been shot in the abdomen.

Tacoma Police Detective Brian Vold observed that "there [were] drugs present at the scene. It appeared that both sides of this conflict had weapons. The hour of the day, the location, it appeared to be some sort of drug deal had gone bad." 6 RP at 682. Vold discovered a bag containing $595 at the scene. Vold also located two .45 caliber casings and six 10 mm casings inside the home along with an unfired rifle cartridge in the driveway. The .45 caliber casings were found near the home's front door while the 10 mm casings were found much further into the home's interior.

In addition, Detective Vold followed a trail of blood leading from the gravel in front of the 702 S. Huson home to a house about a block away. Detectives discovered an assault rifle and a .45 caliber pistol in a recycling bin at that location. There appeared to be blood on both weapons. Officers then followed the blood trail from the recycling bins to the retaining wall where policefirst contacted Hopson and Suarez. A crime lab technician later verified that both firearms were operational, that the .45 caliber had been fired twice, and that no live cartridges had been fired from the assault rifle. Police found Suarez's fingerprints on the assault rifle.

Tacoma Police Detective Daniel Davis interviewed a number of suspects associated with the shooting, including Hopson and Derrick Cleary, a person who approached police shortly after they arrived at the scene. Davis spoke with Hopson at about 3:45 am the morning after the incident. Davis stated,

After a few minutes of prompting [Hopson] to be truthful, he began to provide more information. Hopson admitted that he and others had been driving around with [Cleary] earlier in the evening. He said they had driven to Point Defiance for a short time and then decided to go to JP's house. JP was someone we had identified as Jeremy Patchell. [Patchell] is a friend of [Cleary's], and Hopson had never met him before tonight. Hopson said that when [Cleary] pulled into the driveway, [Patchell] was on the porch. He greeted [Cleary] and they went inside the house. Hopson was following behind. Hopson said he had only made it as far as the doorway of the house when the shooting began. He observed a black male from within the living room of the home shooting toward him. Hopson said he did not recognize the shooter and he did not feel he had ever seen him before. Hopson maintained the shooting was unprovoked and . . . [t]hat neither he nor anyone he was with were armed with guns. Hopson said that the black male fired multiple rounds.

4 RP at 278.

Detective Davis interviewed Cleary for approximately an hour and a half and then arrested him on first degree assault and robbery charges. When Davis located Patchell a few days after the incident, Patchell admitted that he was at the home when the shootings occurred. Patchell told Davis that he knew Cleary prior to the incident but that he was unfamiliar with Suarez and Hopson. After being shown a photomontage, Patchell indicated that he was "pretty sure that this is the guy [Hopson] that was with" Cleary. 4 RP at 300. Patchell had no difficulty recognizingSuarez in a photomontage. Although Laster-Cobb was unable to identify either Cleary or Hopson in photomontages, he immediately identified Suarez, stating, "That's him. That's the guy with the rifle." 4 RP at 306. Police interviewed Suarez in the hospital while he was being treated for the gunshot wound he received during the incident.

On June 29, 2009, the State charged Hopson, Suarez, and Cleary with first degree assault and first degree robbery with "firearms or deadly weapon" enhancements for both charges. RCW 9A.36.011(1)(a), RCW 9.41.010, RCW 9A.56.190, RCW 9.94A.530. Cleary pleaded guilty to second degree robbery. The State later amended the charges against Hopson and Suarez, reducing both of their first degree robbery charges to attempted first degree robbery. Procedure

Trial commenced on June 8, 2010. At a pretrial CrR 3.5 hearing, the trial court concluded that all of Hopson's and Suarez's custodial statements would be admissible for the purposes of trial.

At trial, Laster-Cobb testified that he came home around 8:30 or 9:00 pm on the day of the shooting to learn that his roommate, Patchell, had set up a drug deal. As the deal began, two people walked in and as Patchell was moving to shut the door, "another guy puts his foot inside of the door . . . and he tells [Patchell], 'Where the fuck is the money at, white boy?'" 4 RP at 360. Laster-Cobb related that Suarez shot him with the assault rifle while he returned fire with his own gun but that he never saw Hopson holding a gun or shooting at him.

Patchell gave a similar, though slightly varied, version of events. According to Patchell, he called Cleary to set up the drug deal for a large amount of Oxycontin (over $8,000 worth) on Laster-Cobb's behalf. Patchell testified that four people, including Cleary, Hopson, and Suarez,arrived at the scene in Cleary's vehicle. Patchell related that Cleary and Hopson came inside the home and as Patchell was attempting to close the door, Suarez blocked the door and then put a "big-ass gun to [his] face." 5 RP at 531. After the shooting began, Patchell managed to escape through a bedroom window.

Cleary testified that Patchell contacted him to arrange the deal and, acting as a middleman, he contacted Suarez to see if he could obtain the large amount of drugs being requested. Cleary picked up Suarez and Hopson around 8:00 pm and, after the parties agreed to meet at Patchell's home, drove them there. Cleary testified that after arriving at 702 S. Huson, he and Hopson went inside and moments later, Suarez came inside attempting to rob Patchell and Laster-Cobb and the shooting began. Cleary escaped the shooting unharmed and ran to a neighboring house to wait for police after calling 911.

Suarez testified at trial that he and Hopson had planned to go with Cleary to a nightclub that evening. He testified that Cleary stopped at Patchell's to pick something up and, inexplicably, he and Hopson ended up with gunshot wounds. Suarez's longtime girlfriend also testified, although the trial court excluded much of her testimony because it related to an alleged conversation she had with Cleary, and Suarez failed to properly lay a foundation to impeach Cleary.

A jury found Hopson and Suarez guilty of attempted first degree robbery and first degree assault on June 28, 2010. The jury also found by special verdict that Hopson and Suarez committed each crime while armed with a deadly weapon. At sentencing, Hopson received a sentence of 270 months confinement while Suarez received a 282-month sentence, both including 96-month firearm enhancements. Both appellants timely appeal.

DISCUSSION

Limiting Armstrong's Testimony

Both Suarez and Hopson contend that the trial court erred in limiting the testimony of Suarez's girlfriend, Armstrong. Specifically, they contend that Armstrong's excluded testimony—a purported conversation between her and Cleary where Cleary offered her money for false testimony—would have established...