State v. Waller
| Decision Date | 29 July 2010 |
| Docket Number | 38021-8-II,38008-1-II,37831-1-II,38102-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DONALD MILTON WALLER, Appellant. STATE OF WASHINGTON, Respondent, v. DAWN MARIE COOPER, Appellant. STATE OF WASHINGTON, Respondent, v. DAVID WILLIAM READING, Appellant. |
UNPUBLISHED OPINION
A jury entered verdicts finding co-defendants Donald Waller and David Reading guilty of conspiracy to commit first degree robbery and/or first degree burglary and finding Dawn Cooper guilty of conspiracy to commit first degree robbery. Waller Reading, and Cooper appeal their convictions, asserting that the State did not present sufficient evidence of an agreement among the participants to commit either of the charged offenses. Additionally, Cooper asserts that the trial court erred by (1) joining the defendants for trial, (2) violating her timely trial right, and (3) violating her right to present a defense by refusing her request to call a witness on her behalf. Cooper also argues that cumulative error requires reversal of her convictions based on the trial court violating the appearance of fairness doctrine and based on prosecutorial misconduct. In her statement of additional grounds for review (SAG), [1] Cooper repeats her counsel's arguments that the trial court improperly joined the defendants for trial and that the cumulative error doctrine requires reversal of her convictions. In her SAG, Cooper also argues that the trial court erred by limiting the scope of her defense counsel's opening statements. Because sufficient evidence supports the agreement element of the conspiracy convictions and because Cooper's remaining contentions lack merit, we affirm.
On the morning of November 27, 2007, Waller, Reading, Cooper, and Janus Afo traveled in a green Ford Explorer to Kristinna Whitt's house on Steamboat Island in Thurston County. Afo told Whitt that he needed her help to find someone. Afo got into the Explorer and rode to the Steamboat Island Store Whitt followed in her own car. At the store, Afo got into Whitt's vehicle and told her that he needed her help to find Nate Hoffman because Hoffman "ripped some people off for $1, 500." 2 Report of Proceedings (RP) at 258. Whitt and Afo drove to a nearby driving range followed by Waller, Reading, and Cooper in the Explorer. Cooper got out of the Explorer, walked to Whitt's car, and told her "she was sorry about the situation, that it sucked, but at that point, [Whitt] was their only link to finding [Hoffman]." 2 RP at 260. This was the first time that Whitt had met Cooper.
Cooper entered Whitt's car, and Whitt drove to a trailer park in Olympia, Washington, followed by the Explorer. Everyone went into a trailer, and Whitt made a number of telephone calls in an attempt to locate Hoffman. After approximately 10 phone calls, Whitt obtained directions to a residence in Tumwater Washington. She wrote the directions on a piece of a phonebook page and gave it to Afo. Afo, Reading, and Waller left in the Explorer; Cooper stayed at the trailer with Whitt.
That same morning, Kristi Jones looked out the window of her Tumwater duplex and saw three men, later identified as Waller, Reading, and Afo, walking up the driveway toward her neighbor's house. Because Jones knew her neighbor very well and thought that he was not at home that morning, she became concerned about the men's presence. Jones did not notice whether any of the men were holding any objects in their hands. Waller, Reading, and Afo left Jones's view for approximately five minutes and then she saw them as they were returning to the Explorer. On the way back to the Explorer, Waller knocked on Jones's door, Jones answered through her window, and Waller asked her if "Nate [Hoffman]" was at home. 1 RP at 48. After Jones told him she did not know who Nate was, Waller left with Reading and Afo.
Also that same morning, Narissa Kelley saw a green Ford Explorer drive past her Tumwater home approximately five times in a 40- to 45-minute period. The Explorer eventually parked by a duplex across the street from Kelley. Kelley saw the three men walk toward the duplex; all three men were wearing hooded sweatshirts with their hoods up and one was wearing a camouflage jacket. Kelley saw one of the men open the screen door and try to push open the door with his upper right shoulder. Kelley saw another man possibly attempting to open a window. Kelley did not see any of the men enter the residence. She saw them leave after approximately five minutes. Kelley called 911 to report the activity.
At 9:35 am that day, Officer Christopher Tressler of the Tumwater Police Department responded to a call about a suspicious green Ford Explorer. While traveling southbound on Capital Boulevard in Tumwater, Tressler saw a green Ford Explorer traveling northbound. Tressler passed the vehicle and saw that there were three men in the vehicle. Tressler turned his vehicle around and stopped behind the Explorer while it was at a red light. When the light turned green, the Explorer turned left, and Tressler activated his overhead lights in an attempt to perform a traffic stop.
The driver of the vehicle, later identified as Reading, entered Interstate 5 and drove as "[f]ast as the vehicle would go, " 85 m.p.h. 3 RP at 546. While driving on the Interstate, Reading "made numerous lane changes between the right outside lane and the center lane to pass other vehicles." 1 RP at 97. When Reading exited the Interstate, he went "[p]art way down the [off-]ramp . braked and then made a hard right-hand turn onto the on-ramp to Highway 101 to Deschutes Way, driving the wrong way onto the on-ramp." 1 RP at 97. Reading then turned left on Deschutes Way and traveled at 80 m.p.h. in a posted 35-m.p.h. zone. The Explorer eventually turned into a private drive and stopped; the three men ran from the vehicle.
Officer Tressler caught the backseat passenger, Afo. A police dog located the front passenger, Waller, who was in a nearby wooded area. When officers found Waller, he was wearing a camouflage jacket, had a ski mask around his neck, and had two pairs of gloves in his pocket. Police caught Reading behind a convenience store near Highway 101. Inside the Explorer, police found a hatchet, a two-way radio, cell phones, a roll of duct tape, a police scanner, a wooden club, a pair of gloves, zip ties, a sleeping bag, and a .45 caliber handgun. When officers turned on the scanner, they found it tuned to the frequency used by the Tumwater and Lacey Police Department. Officers also found a page from a telephone book with directions written on it stating, "Right at the Dairy Queen, take the first right, follow to the end and take a left." 2 RP at 231.
Tumwater Police Detective Charles Liska found a cell phone ringing in the front passenger seat of the Explorer. Liska answered the phone and a female, later identified as Cooper, repeatedly asked him who he was. Liska said he was "Janus, " and Cooper responded, "Quit fucking with me, " and asked him where she could pick them up. 1 RP at 174. Liska told her that she could pick them up at the Tumwater Dairy Queen. Cooper called again, and Liska saw that the caller identification read "Don C." 1 RP at 176. Liska answered, "Dawn, where are you at, " and he told her to pick him up at the Dairy Queen. 1 RP at 177. Cooper called again and Liska handed the phone to Detective Jennifer Kolb, who told Liska that Cooper wanted to talk to the male to whom she had just spoken. Cooper told Liska to meet her at the Chevron gas station. Liska contacted Police Chief John Stines and asked him to patrol the Dairy Queen for any suspicious females. Cooper called again and demanded to know the location of the person to whom she was talking; Cooper's voice became "increasingly panicky." 1 RP at 179. Officers did not locate Cooper that day.
On November 30, 2007, Cooper gave a tape-recorded statement to the Tumwater Police Department. In her statement, Cooper told Detective Kolb that she was friends with Afo and that she rode with Afo, Reading, and Waller in a Ford Explorer to Whitt's residence. During the interview, Kolb confronted Cooper about the lack of details in her statement, and Cooper responded, 3 RP at 404. After Kolb turned off the tape recorder, Cooper stated that they were looking for Hoffman because he had stolen $1, 500 from Reading. Cooper also stated that she had contacted Afo because she believed he could help them contact Whitt and that Whitt could help them locate Hoffman. Cooper further stated that she wanted to help find Hoffman because she had introduced him to Reading. Cooper also told Kolb that she did not believe that Reading intended to kill Hoffman, "[j]ust beat him up pretty bad." 3 RP at 405.
The State charged Waller with first degree unlawful possession of a firearm and conspiracy to commit first degree robbery and/or first degree burglary. The State charged Reading with first degree unlawful possession of a firearm, attempting to elude a pursuing police vehicle, and conspiracy to commit first degree robbery and/or first degree burglary.
On December 5, 2007, the State charged Cooper with conspiracy to commit first degree robbery. The State's charging document lists Waller, Reading, and Afo as Cooper's "Co-Defendant[s]" and provides separate cause numbers for each co-defendant. Clerk's Papers (CP) (Cooper) at 8. Cooper was arraigned on December 11, 2007. The trial court entered an order setting Cooper's trial to begin the week of February 4, 2008; the order lists Waller Reading, and Afo as Cooper's co-defendants.
On January 7, 2008, the State filed a motion to join defendan...
To continue reading
Request your trial