State v. Willis

Decision Date28 September 2020
Docket NumberNo. 79790-5-I,79790-5-I
PartiesSTATE OF WASHINGTON, Respondent, v. ROBERT LEE WILLIS, Appellant.
CourtWashington Court of Appeals

UNPUBLISHED OPINION

VERELLEN, J. — A jury convicted Robert Willis of burglary in the first degree following a joint trial with his codefendant, Jonathan Key. Willis argues the trial court excluded evidence critical to his defense and abused its discretion by denying a motion to sever the trials. He also claims defense counsel's representation was constitutionally inadequate and challenges imposition of community supervision fees as a condition of sentence. We affirm Willis's conviction but remand for the court to strike the provision imposing costs of supervision.

FACTS

According to the testimony presented at trial, in August 2018, Tom Dykstra left his Bellevue, Washington home for a vacation in Hawaii. Before leaving, Dykstra informed his neighbors, Guang "Allen" Wang and Peichun Tsai, that he would be out of town.

On August 18, 2018, a Saturday afternoon, the neighbors heard noises coming from Dykstra's condominium. Wang went to investigate, found the front door ajar, and heard sounds coming from upstairs. Wang called out, and two black men rushed down the stairs toward the door. Wang tried to close the door to stop the men, but one of the men hit him, knocking off his glasses. Since he cannot see well without his glasses, Wang could not identify either of the men but said one of them was wearing a "red hood."1

Tsai followed Wang next door and observed the two men running from Dykstra's home toward a red vehicle. The men almost ran into her, and she fell to the ground. The men sped away in the vehicle and left the development. Another neighbor who heard Wang yelling called 911.

Dykstra returned early from his vacation to find the front door damaged, the home ransacked, and several items, mostly jewelry, missing. One of the missing items was a plain 14-carat gold band worth approximately $65.

City of Bellevue police officers interviewed the neighbors and obtained surveillance video footage from one neighbor and the homeowners' association. From the video footage, police were able to identify the license plate number of the red vehicle. Detective Jeff Christiansen located the vehicle, a Chevy Impala, at an impound lot. The detective obtained a warrant to search the vehicle forfingerprints. That search revealed fingerprints on a document inside the vehicle that matched an individual named Cornell Burr. The detective then obtained a warrant for Burr's telephone records.

The detective also consulted a website, Leads Online, where pawnshops are required by law to record transactions. He determined that a certain telephone number recorded as an incoming call on Burr's telephone two hours before the burglary was also associated with a transaction at a pawnshop in south Seattle an hour and a half after the burglary. The name on the pawnshop receipt was Jonathan Key.

Video surveillance footage from the Cash America pawnshop showed a red Chevrolet Impala pulled into the parking lot and two men got out of the vehicle and entered the store. Video footage from inside the pawnshop showed two men conducting a transaction, one of whom was wearing a red t-shirt with a prominent Nike logo. The detective showed a photograph of the pawned item, a plain gold band, to Dykstra, who believed the ring was his.

The detective obtained a warrant for Key's cellphone records and location data. According to those records, at the approximate time of the burglary, the phone was located in the southeastern corner of the condominium development where Dykstra lived. Then at 5:58 p.m., the same time the video footage showed the Impala and two individuals in the pawn shop, the phone was in the immediate vicinity of the Cash America pawnshop.

Willis was present when police officers arrested Key about a month after the burglary. At the time of his arrest, Willis told Christiansen that on August 18, he was at his girlfriend's apartment in Seattle and then drove to the Cash America pawnshop in the Impala at about 5:30 p.m.2 Willis explained that a friend from high school worked there. After Willis signed a written statement to this effect, the detective said he believed Willis was involved in the burglary and asked him why he chose to go to Bellevue. Willis responded that he did not know. The detective asked for details about the burglary, and Willis denied assaulting anyone. When Christiansen asked what happened to the rest of the jewelry, Willis again said he did not know. Police officers obtained a warrant to search Key's apartment and found a red t-shirt in a laundry hamper that appeared to be the same shirt depicted in the pawnshop surveillance footage.

The State charged Key and Willis with burglary in the first degree and trafficking in stolen property in the first degree. Following a CrR 3.5 pretrial hearing, the trial court admitted Willis's oral and written statements. Several witnesses testified at Key and Willis's joint trial, including Dykstra, neighbors, and police officers. Christiansen testified about Willis's statements without objection. Neither Key nor Willis testified. The jury convicted both defendants of burglary inthe first degree, but was unable to reach a verdict on the trafficking counts.3 The court imposed standard range sentences. Willis appeals.

ANALYSIS

Evidence Related to an Initial Suspect

Willis argues the trial court violated his right to present a defense by "suppressing" evidence that was relevant and necessary to his theory of the case.4 The evidence at issue relates to Cornell Burr. Before trial, Willis indicated his intent to pursue a defense based, in part, on the fact that until police officers arrested Key when Willis happened to be present, the investigating officers suspected Burr was Key's accomplice.

The State sought to admit evidence of the telephone call linking Burr and Key, which was necessary to explain why the police were investigating pawnshop transactions associated with Key's telephone number. And to counter the anticipated defense argument that the belated identification of Willis was indicative of a weak case against him and shoddy investigation, the State wanted to present evidence to explain why police initially suspected Burr's involvement. Those reasons included (1) Burr's fingerprints were found in the Impala, (2) he visually resembled the second suspect, especially in the initial video grainy images thepolice obtained, and (3) Burr was a suspect in other residential burglaries that were under investigation around the same time.

Key opposed admission of this evidence because it suggested his "guilt by association."5 In view of evidence showing a connection between Key and Burr, Key's counsel argued if the State offered testimony that Burr was implicated in other criminal matters, it would lead to an inference that Key and Burr were involved in "some type of conspiracy" together.6 Key also suggested there would be ER 404(b) "problems" if the State were to "elicit testimony regarding the investigation of Mr. Burr as it involves Mr. Key."7

Willis claims the trial court preliminarily and correctly determined the evidence of a telephone call between Key and Burr on the date of the crime was relevant and admissible and "implicitly" also ruled all evidence related to Burr's status as a suspect was admissible to rebut the suggestion of a flawed investigation.8 He claims the court later "backpedaled" and determined evidence explaining why Burr was initially under suspicion, including his alleged involvement in other crimes, was inadmissible ER 404(b) evidence and was unfairly prejudicial to Key.9

In fact, the court first reserved ruling on admissibility of all evidence concerning Burr, including the telephone call between Key and Burr and evidence about the initial focus on Burr as the second suspect, until Christiansen testified. But the court revised its ruling after the State pointed out the necessity of eliciting evidence about the telephone call linking Burr and Key on direct examination. The court ruled that evidence of a connection between Burr and Key was admissible and reserved ruling on the admissibility of evidence about "Mr. Burr and how he was known to the detective" until the detective testified, predicting that the testimony would likely come out during cross-examination.10 The court also ruled that if the detective testified about the basis for suspecting Burr's involvement, that testimony would be limited to the fact that Burr was a "person of interest in a similar crime" without reference to burglaries or a particular geographic area.11

In opening arguments, both the prosecutor and Willis's counsel addressed the significance of evidence about Burr. The State informed the jury that police officers found Burr's fingerprints in the Impala and, for that reason, the lead detective initially had reason to believe Burr might be involved in the burglary. The prosecutor explained that Burr's telephone records ultimately led police to investigate Key's pawnshop transaction. Willis's counsel also emphasized that police first identified Burr as the driver of the Impala and changed their position only after Key's arrest.

During the State's direct examination of Christiansen, Key again objected to the admission of "prejudicial" evidence involving "connections" between him and Burr "involving other alleged activities that may have occurred."12 The State confirmed it would not introduce any evidence of "prior bad acts" involving either defendant.13 Willis said he intended to present only evidence about the "context" of the initial identification of Burr as the driver.14 The court determined that no party was seeking to introduce ER 404(b) evidence, particularly since it had already ruled that if the detective testified at all about the basis for his suspicion of Burr, his testimony would be devoid of details and would not implicate Key....

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