State v. Vickers
| Decision Date | 12 December 2002 |
| Docket Number | No. 71667-6.,71667-6. |
| Citation | 59 P.3d 58,148 Wash.2d 91 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. John Phillip VICKERS, Petitioner. State of Washington, Respondent, v. Paul Thomas Vickers, Petitioner. |
Mary High, Pattie Mhoon, Tacoma, for Petitioner.
Gerald Horne, Pierce County Prosecutor, Barbara Corey-Boulet, Deputy, Kathleen Proctor, Deputy, Tacoma, for Respondent.
Walla Walla City Attorney's Office, Timothy Donaldson, Asst., Amicus Curiae on Behalf of City of Walla Walla.
In consolidated cases Petitioners John Phillip Vickers (John Vickers) and Paul Thomas Vickers (Paul Vickers) seek review of a decision of the Court of Appeals, Division Two, both petitioners challenging the constitutional validity of a search warrant; Petitioner Paul Vickers challenging a photomontage as impermissibly suggestive; and Petitioner John Vickers challenging evidence of his prior conviction used to establish his status as a persistent offender.
The Court of Appeals affirmed their convictions in the Pierce County Superior Court of first degree felony murder and attempted first degree murder while armed with a firearm (John Vickers) and aggravated first degree murder and attempted first degree murder while armed with a firearm (Paul Vickers).
We granted review. We affirm.
The questions presented in these consolidated cases are (1) whether the affidavit in support of the search warrant established probable cause; (2) whether the confidential informant's basis of knowledge and erroneous reference to a calendar date invalidated the search warrant, thus requiring suppression of all evidence recovered in the search; (3) whether there was substantial evidence to support the trial court's findings of fact and conclusions of law; (4) whether the photomontage used to identify Petitioner Paul Vickers was impermissibly suggestive; and (5) whether the State was required to prove beyond a reasonable doubt the validity of a prior conviction used to establish the status of Petitioner John Vickers as a persistent offender.
On January 24, 1998, sometime before midnight,1 two men entered the 38th Street Pub (The Pub) located at 1209 South 38th Street in Tacoma, Washington. A separate room of The Pub served as a card room where the game of blackjack was played with a professional dealer.2 Present at The Pub were several patrons and employees, security guard Robert Williams and his fiancée Ms. Brenda Bottrel, blackjack dealer Ms. Theresa Dill, and bartender Ms. Gloria Cox.3 The two men, described as either white or hispanic, 5 feet 6 inches to 5 feet 9 inches tall, wore denim pants, shirts, and bandannas tied over their heads.4 The men stayed at The Pub for 10 to 15 minutes, during which time they ordered two bottles of beer from bartender Cox. One empty bottle left behind contained saliva and remnants of chewing tobacco.5 Blackjack dealer Dill recalled that the two men entered the card room where she was dealing blackjack and, when she asked if they would like to play, they responded that they just were looking around.6 The men shortly after that time left The Pub.7
Sometime around 11:00 p.m. that night, Ms. Dill became ill and left The Pub.8 On her way out, she noticed a black car parked at the side of The Pub with two persons seated inside.9 She testified she thought it unusual for an automobile to be parked in that location when the parking lot was not full.10
Just after midnight in the early morning of January 25, 1998, two men wearing ski masks, brandishing a shotgun and an automatic rifle, burst through The Pub entrance doors, immediately fired several rounds, and ordered everyone to the floor.11 Several shots struck Mr. Williams, the security guard, whose protective vest caught most of the bullets, and struck his fiancée Ms. Bottrel, who later died at the scene.12 The two armed intruders took about $1,500-$1,600, placed it in a white bag, and left The Pub.13 Witnesses saw them walk across the parking lot to an adjoining alley, get into an older car painted flat black, and drive away.14 Physical evidence collected at The Pub by the Tacoma Police Department included five 7.62 mm shell casings and two 12-gauge shotgun shells.15
Sometime prior to the robbery and homicide on January 25, 1998, Ms. Tary Rodocker contacted Pierce County Detective Bruce Larson after she became concerned over conversations she had with Petitioners Paul and John Vickers about the idea of committing a robbery and going in "shooting."16 On the evening of January 24, 1998 Petitioners John and Paul Vickers took the ferry from Anderson Island to Steilacoom and went to The Pub in Tacoma. On the morning of January 25, 1998 Petitioners took the ferry from Steilacoom back to Anderson Island.
On January 26, 1998, the day after the robbery and homicide, Ms. Rodocker noticed that Petitioner John Vickers returned with money he did not have before leaving Anderson Island two days before.17 Upon hearing about the robbery Ms. Rodocker and Phil Vickers, Petitioners' brother, contacted the Tacoma Police Department relaying their suspicions that Petitioners Paul and John Vickers might have committed the robbery and homicide at The Pub on January 25, 1998.18 Ms. Rodocker reported that Petitioner Paul Vickers owned an SKS automatic rifle, a 12-gauge shotgun, and a flat-black Plymouth Arrow automobile, and that both brothers left Anderson Island by ferry on the day of the shooting.19
Based on information given by Ms. Rodocker, Tacoma Police Detectives T. Davidson and B. Larson submitted under oath a complaint for a search warrant for the Anderson Island residence of Ms. Rachel Krause and Petitioner Paul Vickers, and his automobile, a 1980 Plymouth Arrow.20 The search warrant was issued by Judge Brian Tollefson on January 30, 1998. It was executed by Detective Davidson who found (1) a spent shotgun shell, (2) a live shotgun shell, (3) a can of Skoal chewing tobacco, (4) a black wallet with John Vickers' Washington State I.D. card and a receipt plus two $10.00 bills, (5) a Kalashnikov sporting rifle manual, (6) a white bag with miscellaneous ammunition, (7) two bandannas, (8) a live 7.62 × 39 round (ammunition), (9) a box containing an SKS .45 7.62 × 39 semiautomatic rifle manual, a rifle stock, bayonet, and banana clip, (10) an Electro Dot rifle sight, (11) two rifle magazines and notebook, (12) dominion and control paperwork, (13) a bandanna, and (14) vehicle registration.21
Observing photomontages, Ms. Theresa Dill identified both Petitioner Paul Vickers and Petitioner John Vickers as the two men who had been in The Pub on January 24, 1998.22 Ms. Gloria Cox also identified Petitioner John Vickers as one of the two men who had been in The Pub the night before the shooting.23
Petitioners John Vickers and Paul Vickers were arrested and charged in the Pierce County Superior Court on February 2, 1998 with one count of first degree murder with aggravating circumstances and one count of attempted murder in the first degree.24 The information was amended on October 29, 1998 to charge one count of first degree murder with aggravating circumstances and, in the alternative, first degree felony murder, and one count of attempted first degree murder, with firearm enhancements on both counts.25
Petitioners' cases were consolidated in the Superior Court. Both Petitioners in pretrial motions moved for severance.26 The trial court, the Honorable Rosanne Buckner, denied the motions, stating that Petitioners were charged as accomplices and that evidence against one was evidence against the other.27 Both Petitioners additionally moved to suppress evidence seized during the search, claiming the search warrant was defective. Petitioner Paul Vickers also moved to suppress the photograph identification.28 The court conducted a suppression hearing29 and denied the motions on May 10, 1999. The court issued an oral ruling but declined to enter written findings of facts and conclusions of law at that time.30
On July 29, 1999, the jury found Petitioner John Vickers "guilty" of first degree felony murder and attempted first degree murder, with weapon enhancements on both counts31 and found Petitioner Paul Vickers "guilty" of aggravated first degree murder and attempted first degree murder, with weapon enhancements on both counts.32 The trial court on July 29, 1999 sentenced Petitioner Paul Vickers to mandatory life imprisonment without the possibility of parole and sentenced Petitioner John Vickers, as a persistent offender under former RCW 9.94A.120(4) (2000), to life imprisonment.33
Petitioners appealed their convictions to the Court of Appeals, Division Two, assigning error to the trial court's denial of their motions to suppress the evidence obtained by search warrant. Petitioner Paul Vickers claimed the trial court erred in permitting his identification from suggestive photomontages.34 The court in a partly published opinion on August 24, 2001 affirmed the convictions and sentences and concluded the photomontage did not impermissibly suggest identification of Petitioner Paul Vickers.35
On two occasions, once before and again after the Court of Appeals issued its opinion, the State asked the trial court to issue written findings of fact and conclusions of law.36 Judge Buckner declined both requests and suggested that the State make its request to this court.37 On July 16, 2002 the State moved this court for an order authorizing the trial court to enter belated written findings of fact and conclusions of law.38 Supreme Court Commissioner Geoffrey Crooks in a ruling on August 6, 2002 granted the motion:
The trial court is hereby authorized to enter findings of fact and conclusions of law on the suppression motion, so long as it does so not later than September 10, 2002. The parties may then file supplemental briefs addressing those findings and conclusions (if entered)...
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