State v. Watkins

• Decision Date: 17 January 1989
• Docket Number: No. 18347-8-I,18347-8-I
• Parties: STATE of Washington, Respondent, v. Patricia Ann WATKINS, Appellant.
• Court: Washington Court of Appeals

Page 264

53 Wn.App. 264

766 P.2d 484

STATE of Washington, Respondent, v. Patricia Ann WATKINS, Appellant.

No. 18347-8-I.

Court of Appeals of Washington Division 1.

Jan. 17, 1989.

Rita Griffith, Mark Muenster, Washington Appellate Defender, Seattle, for appellant.

Sally Stanfield, Deputy Pros. Atty., Seattle, for State of Wash.

PEKELIS, Judge.

Patricia Watkins appeals from her conviction for five counts of robbery in the first degree. She contends that the trial court erred in denying her motion for severance of counts, her motion to suppress in-court identifications, and her motions for a mistrial and for a new trial based on prosecutorial misconduct. She also contends that the trial court erred in refusing to give her proposed jury instruction on eyewitness identification and in calculating her offender score.

I.

In November and December of 1985, a small black woman robbed four convenience stores at gunpoint. Patricia Watkins was charged with these robberies.

During each robbery, the store cashier activated the store's security camera, and the pictures taken were admitted into evidence at Watkins' trial. Each of the four cashiers identified Watkins in court as the person who had robbed them. The cashiers also identified clothing and glasses seized from Watkins as similar to items worn by the robber and a gun taken from Watkins' apartment as similar to the one carried by the robber.

Watkins testified that she committed the four convenience store robberies under duress. On November 25, 1985, she stopped at a rock house and smoked cocaine offered to her by a man called Louis. Afterward, Louis told her he needed money to pay for the cocaine and suggested she engage in prostitution. When she refused, Louis struck her and dragged her to the car by her hair. Louis then forced her to commit two armed robberies, threatening to kill her if she did not cooperate. On another occasion, December 9, 1985, Louis came to her apartment and threatened to break down her door if she did not let him in. Using physical force, Louis forced her to leave with him and to commit a third armed robbery and, under similar circumstances, to commit a fourth robbery on the following day, December 10.

In addition to the convenience store robberies, an additional count charged Watkins with robbing two individuals. According to eyewitness testimony, a small black woman requested a ride from Denise Schwind on December 3, 1985, and Schwind agreed. After Schwind drove a short distance, the woman threatened her with a knife and took her wallet and a diamond. The woman then walked over to Sharilyn Ranko's car, but left almost immediately and approached Harold Teter, who was just across the street. Teter agreed to give her a ride and she got in his car. When the woman threatened to pull her knife, Teter allowed her to take his billfold.

Schwind and Teter viewed a pretrial lineup and tentatively selected Watkins as the person who robbed them. Defense counsel moved at trial to suppress in-court identifications by Schwind and Teter because prior to the lineup Schwind was shown a montage composed of individual photographs and Teter a composite drawing. The court denied the motions, and all three of the eyewitnesses identified Watkins in court as the woman who robbed Schwind and Teter.

Both pretrial and at trial Watkins moved to sever the four convenience store robbery counts from the car robbery count. These motions were denied. The court also refused to give the instruction on eyewitness identification requested by the defense.

After the prosecutor's cross examination of Watkins, defense counsel moved for a mistrial, contending that the prosecutor's questions implicated Watkins' credibility and her right to remain silent. The motion was denied. After the jury returned a verdict of guilty on all five counts, defense counsel moved for a new trial based on the prosecutor's comments during closing argument, and the court's denial of his motion for severance. The court denied the motion.

Watkins was given an exceptional sentence downward of 92 months for each offense, the sentences to run concurrently. The trial judge arrived at a standard range of 132 to 168 months by counting her other current offenses separately, thereby arriving at an offender score of 8.

II.

Watkins contends that the trial court erred in denying her pretrial motion to sever the car robbery count from the convenience store counts. CrR 4.4(b) provides that "[t]he court ... shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." A motion to sever brought under CrR 4.4(b) focuses on potential prejudice to the defendant notwithstanding proper joinder. State v. Gatalski, 40 Wash.App. 601, 606, 699 P.2d 804, review denied, 104 Wash.2d 1019 (1985).

Prejudice may result if the defendant is embarrassed in the presentation of separate defenses, or if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition. State v. Smith, 74 Wash.2d 744, 754-55, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972), overruled on other grounds, 85 Wash.2d 758, 539 P.2d 680 (1975); State v. Redd, 51 Wash.App. 597, 603, 754 P.2d 1041, review denied, 111 Wash.2d 1008 (1988). In determining whether the potential for prejudice requires severance, relevant factors include (1) the strength of the State's evidence on each count, (2) the clarity of defenses as to each count, (3) whether the trial court properly instructed the jury to consider the evidence of each crime, and (4) the admissibility of evidence of the other crimes. Gatalski, 40 Wash.App. at 607, 699 P.2d 804.

A trial court's refusal to sever is reversible only for a manifest abuse of discretion. State v. Harris, 36 Wash.App. 746, 749, 677 P.2d 202 (1984). On appeal, the defendant bears the burden of demonstrating that the trial court's refusal was an abuse of discretion. State v. Robinson, 38 Wash.App. 871, 881, 691 P.2d 213 (1984), review denied, 103 Wash.2d 1015 (1985).

Watkins contends that the first prejudice-mitigating factor cuts in her favor because the State's evidence was relatively strong on the convenience store counts but weak on the car robbery count. We disagree. The evidence on the car robbery count was strong since three eyewitnesses identified Watkins as the woman who committed the robberies charged in that count. ¹

As to the second factor, Watkins argues that she was prejudiced in the presentation of her defenses by the court's refusal to sever. In the convenience store robberies her defense was duress while her defense to the car robbery was mistaken identity. She contends she would have exercised her right to remain silent had the car robbery been tried separately.

However, a defendant's desire to testify only as to some, but not all, the counts is an insufficient reason to require severance. State v. Weddel, 29 Wash.App. 461, 467, 629 P.2d 912, review denied, 96 Wash.2d 1009 (1981). Severance is required only if a defendant makes a convincing showing that she has important testimony to give concerning one count and a strong need to refrain from testifying about another. Weddel, 29 Wash.App. at 467, 629 P.2d 912. In addition, mutually antagonistic defenses will not support a motion for severance unless the defendant demonstrates prejudice. State v. Grisby, 97 Wash.2d 493, 508, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). Watkins has not shown that she has a strong need to refrain from testifying about the car robbery or how the presentation of separate defenses prejudiced her.

Although the jury was instructed to consider each count separately, Watkins contends that if this third factor were sufficient to overcome prejudice, there would be no need for CrR 4.4(b). Her argument would have more apparent merit if this factor were the entire test. However, it is but one factor in determining whether severance is required. The fact the trial court in Watkins' case properly instructed the jury to consider each count separately is appropriately considered together with the other factors. See State v. Robinson, 38 Wash.App. 871, 883, 691 P.2d 213 (1984), review denied, 103 Wash.2d 1015 (1985); Redd, 51 Wash.App. at 604, 754 P.2d 1041.

The final factor to assess, and frequently the most difficult, is whether evidence of each count would be cross-admissible under ER 404(b). In determining the admissibility of other crimes under ER 404(b), a trial court must (1) determine that evidence is relevant to an issue such as identity or absence of mistake; (2) determine that any prejudicial effect is outweighed by the probative value; and (3) properly limit the purpose for which the jury may consider the evidence. Gatalski, 40 Wash.App. at 607-08, 699 P.2d 804, construing State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697 (1982); see also State v. Robtoy, 98 Wash.2d 30, 653 P.2d 284 (1982).

The trial court determined that the evidence of each crime would be cross-admissible because evidence of the car robbery was relevant for the purpose of proving lack of mistake in the convenience store robberies, and evidence of the convenience store robberies was relevant to prove identity in the car robbery. We agree that proof that Watkins committed the car robbery without duress tends to negate her duress defense to the convenience store robberies. Thus, the trial court correctly determined that evidence of the car robbery was relevant to a material issue, namely Watkins' intent or the lack of accident in the commission of the convenience store robberies.

In the car robbery count, the trial court also correctly determined that the identity of the robber was the relevant issue for purposes of an ER 404(b) analysis since Watkins' defense was...