State v. Blue

1

STATE OF WASHINGTON, Appellant, v. DECHAS DEMPSY BLUE, Respondent.

No. 84807-1-I

Court of Appeals of Washington, Division 1

January 29, 2024

UNPUBLISHED OPINION

COBURN, J.

De'Chas Blue was convicted of one count of robbery in the second degree and one count of theft in the second degree following a jury trial at which evidence of four other robberies was admitted under ER 404(b) for the purpose of proving identity and common plan or scheme. Blue challenges the admission of such evidence and the imposition of a Victim Penalty Assessment (VPA). He also alleges a violation of his right to a speedy trial under CrR 3.3, and submitted a statement of additional grounds with additional claims. Because we hold that the trial court did not abuse its discretion in admitting the ER 404(b) evidence to prove identity, we need not address the other basis under which the court admitted the evidence.^[1] We remand to strike the VPA from the judgment and sentence, but otherwise affirm.

FACTS

On April 9, 2021 Everett Police received report of a robbery of a Safeway Store in Everett. This event is the basis of the theft in the second-degree conviction. The event occurred at approximately 11:15 p.m. Surveillance video showed a tall heavyset Black man wearing a black hooded jacket with the hood up, black shoes, black pants, and a black face mask.^[2] The man approached a Safeway employee to report that another employee had used a racial slur against him and requested to review surveillance footage in order to identify the offending employee. The employee attempted to ask follow up questions. The man told the employee he was asking too many questions and that the interaction was taking too long. The man then demanded money from the till. The man said if the employee did not give him the money there would be trouble. The employee stated the suspect's hand was in his pocket during the robbery and he was unsure if the man had a weapon. The man left the store before police arrived.

Three days later, on April 12, employees at a Renton Safeway reported another robbery at approximately 11:15 p.m Surveillance video showed a tall, large-figured Black man enter the store wearing a black jacket with the hood up black pants, black shoes, and a black face mask. Store employees described the man as a heavyset Black male in his thirties who was approximately six feet tall. The man's hands remained in his front jacket pockets until he approached an employee. At that store, the man asked the store manager to follow him down an aisle, which the manager did. There, the man demanded the manager retrieve cash from the safe and give it to him. The manager walked away and called 911. The manager did note that the man's hands were in his pocket leading the manager to believe the man may have had a weapon. The man did not receive any money and left the store.

On April 13, employees at a University Place Safeway reported another robbery. This incident occurred at around 12:30 a.m. Video surveillance showed a tall, heavy-set Black man enter the store wearing a black jacket with the hood up, black pants, and black shoes, holding both hands in the front pockets of his jacket. Store employees described the man as African American, tall, and "bigger." The man approached a cashier and told the cashier to give him everything in the till while making comments that the man did not want it to get bad and that the man was from the streets. The man also held one hand in his pocket during the interaction, leading the cashier to believe the man was armed. The investigating officer obtained additional surveillance footage showing the man exit the store, walk toward a nearby apartment complex, then get into an orange Chevrolet Avalanche before driving away.

On April 15, Seattle Safeway employees reported another robbery around 6 a.m. Surveillance video shows a man wearing a white and gray hooded sweatshirt with the hood up, dark pants, black shoes, and a black face mask in the store. The victim described the man as approximately six feet tall with a large build. In the store, the man went behind the counter of a customer service area, where only employees were permitted, then confronted an employee working in an office. The employee asked the man to leave the area before the man told the employee he had a gun and demanded cash. The man kept his left hand in his pocket, leading the employee to believe he had a weapon. The man obtained cash and was followed by employees as he left the store.

On April 21, SeaTac Safeway employees reported a robbery that occurred shortly after the store opened that morning. The suspect was described as a taller, heavy-set African American. The suspect wore a gray jacket, face covering, and khaki pants. The man reportedly waited by the bathroom, then told an employee someone had spit on his wife.^[3] The employee went back to the office to review surveillance footage and the man followed him. The employee told the man he needed to wait in the customer area then the man asked where the money was and told the employee if he did not give the man the money, the man would start shooting. The employee told the man they did not have money in the office and walked the man up to the registers, where he told another employee they were being robbed and to give everything in the till to the man.

On May 11, a Safeway in Everett reported a robbery had occurred at 12:44 a.m. This incident is the basis for the robbery in the second-degree conviction. Surveillance video shows a man entering the store wearing a black jacket with the word "SECURITY" written in white letters across the back, with the hood up, wearing dark pants, and black running shoes with white soles, and a face mask. The man held his hands in the front pockets of his jacket as he entered the store. Employees described the man as a tall, stocky Black male wearing a security jacket. The man went up to an employee and asked for cigarettes. The employee rang up the cigarettes while other customers waited in the cashier's line but the man walked away. The man then returned with additional items. The man asked about the store's opening and closing times and appeared to the employee to be stalling. At some point in his interaction with the employee, the man entered the phone number 206-304-0414 in order to use a Safeway club card. After helping the other customers in line who then left, the employee at the register asked the man if he was going to pay for his items. At that time, the man called over another employee saying he had a problem with the one at the register. When the other employee approached, the man said this is a robbery and ordered the employees to give him all the money and not to do anything stupid or they would "get it."

During his investigation, the assigned detective located a report out of the Lakewood Police Department that associated the phone number 206-304-0414 with Blue's name. Lakewood Police spoke to someone who identified himself as De'Chas Blue and called the department from the number 206-304-0414.

Detectives obtained Department of Licensing photos of Blue and compared it to the surveillance footage from the Safeway robberies. Detectives identified Blue as the suspect in the robberies. A Pierce County Sheriff's Office detective obtained a search warrant for the cell phone number ending in 0414.

Officers tracked the phone to a motel in Kirkland, where they observed Blue exit a room and walk toward an orange Chevrolet Avalanche in the parking lot. Officers found a cell phone in Blue's pocket with the number 206-304-0414. The search history on the cell phone showed that a user searched for "Washington's Most Wanted," as well as conducted searches for "Safeway near me," and "Cricket wireless."

Officers subsequently searched the Avalanche and found a receipt with the name De'Chas Blue and an EBT^[4] card under Blue's name. Detectives subsequently obtained and analyzed the cell phone's location data, which showed Blue's cell phone had been in the vicinity of each Safeway store at the time of each robbery. The data included evidence of the cell phone in the vicinity of a Super K store, where surveillance video and EBT card records show Blue was at approximately 11:20 p.m., just hours before the May 11 robbery of a Safeway three miles away.

Procedural History

The State charged Blue by second amended information with committing theft in the second degree on April 9 and robbery in the second degree on May 11. Because Blue was masked during both events, the State moved to introduce evidence of other bad acts between March and April 2021 to prove identity.^[5] The court held a hearing over four days where the State presented live testimony from seven witnesses to support its motion to admit ER 404(b) evidence at trial.

In addition to the reported robberies from April 12, 13, 15 and 21, the State moved to introduce a March 18, 2021 reported theft out of Lakewood Police Department that had been closed and never prosecuted. Sean Ephrem reported to Lakewood Police that he tried to buy an orange Chevrolet Avalanche from someone with the phone number 206-304-0414. Ephrem claimed the would-be seller secretly stole $2,000 cash from Ephrem's wallet during a test drive with his sister and the seller. Ephrem provided photographs of the Avalanche and Blue sitting in the vehicle. During the investigation, a detective received a call from a man who identified himself as De'Chas Blue, who acknowledged meeting with Ephrem, but denied taking any money from him.

Lakewood Police later closed the case after a follow-up investigation.^[6] Neither Ephrem nor his sister testified at the hearing or at trial. The trial court did not find by a preponderance of the evidence that the...