State v. English

STATE OF WASHINGTON, Respondent, v. BRANDON MICHAEL ENGLISH, Appellant.

STATE OF WASHINGTON, Respondent, v. CALVIN JAMES QUICHOCHO, Appellant.

Nos. 46921-9-II, 47001-2-II

Court of Appeals of Washington, Division 2

March 21, 2017

UNPUBLISHED OPINION

LEE J.

Brandon Michael English and Calvin James Quichocho were convicted of two counts of first degree robbery, two counts of first degree kidnapping, and two counts of second degree assault all while armed with a firearm. They appeal, arguing: (1) the trial court erred by omitting an essential element from the jury instruction for robbery, (2) their convictions for first degree robbery should have merged with second degree assault (3) their right to a public trial was violated when the parties exercised peremptory challenges in writing, (4) the State committed prosecutorial misconduct when the prosecutor elicited testimony that a witness received a plea bargain in exchange for his truthful testimony, (5) the State failed to present sufficient evidence of the firearm enhancements because it failed to prove that the firearm was operable, and (6) they received ineffective assistance of counsel when (a) counsel failed to object to the alleged prosecutorial misconduct, and (b) counsel agreed to the State playing a redacted recording of Quichocho's police interview. Quichocho raises additional claims in a Statement of Additional Grounds (SAG). We affirm.

FACTS

A. The Crime

Colby Haugen lived alone in an apartment in Vancouver, Washington and sold marijuana from his apartment. On December 3, 2013 Austin Bondy was with Haugen at his apartment. John Lujan, Juan Alfaro, and Brandon English went to Haugen's apartment to smoke marijuana and to gather information about Haugen's apartment as a part of their plan to rob Haugen the next day.

On December 4, Lujan, English, and Calvin Quichocho met to carry out the robbery. Bondy and Brittany Horn were waiting in Haugen's apartment while Haugen was at work. When there was a knock at the door, Bondy opened it to find Lujan, English, and Quichocho. After asking to purchase marijuana, Quichocho drew a revolver and ordered Bondy to give them money. Quichocho ordered Lujan to tie up Bondy and Horn, and Lujan complied by wrapping a cord around their wrists. Bondy and Horn were then put into the bedroom closet and ordered to stay there or they would be killed. Lujan, English, and Quichocho took Haugen's marijuana, Xbox gaming system, iPod, video games, and change jar; Bondy's wallet; and Horn's purse and phone.

Afterwards, Alfaro asked Lujan whether they completed the robbery and what they obtained. Lujan responded that they had taken an Xbox 360 and $20 worth of marijuana.

During the police investigation, Lujan identified English and Quichocho as being involved in the robbery. Bondy and Horn identified Quichocho from a photo montage. Horn also identified English from a photo montage. Lujan reported that Quichocho was driving a dark gray Chevrolet Impala with a Guam sticker on the rear window. Police later located an Impala with a Guam sticker at Quichocho's residence.

The State charged English and Quichocho with two counts of first degree robbery, ^[1] two counts of first degree kidnapping, ^[2] and two counts of second degree assault, ^[3] alleging that they "and/or an accomplice"^[4] were armed with a firearm during the commission of all six crimes.^[5]Clerk's Papers (CP) (English) at 14-15.

B. Voir Dire

During voir dire, juror 7 reported: "[M]y home was robbed while we were in it in the middle of the night, " but that there was no contact with whomever broke in. 2 Verbatim Report of Proceedings (VRP) at 196-97. Juror 8 reported that her ex-husband kidnapped her at gunpoint in 1979, and that the experience "could affect [her]." 2 VRP at 199. The State asked, "Now, are you saying that you don't think you could be impartial or you're just not sure?" and juror 8 responded: "I'm just not sure." 2 VRP at 199-200. English and Quichocho did not challenge these jurors.

The parties exercised four peremptory challenges on the record outside the presence of the jury panel. After the jury panel returned to the courtroom, the parties exercised further peremptory challenges in writing at the sidebar. English and Quichocho were not present at the sidebar, but were in the courtroom when the peremptory challenges were exercised.

C. Trial Testimony

Haugen, Bondy, Horn, Alfaro, and Lujan testified. Neither English nor Quichocho testified. The photo montages signed by Horn, Bondy, and Lujan were admitted into evidence. Lujan testified against English and Quichocho as part of a plea deal. The State questioned Lujan on direct examination about his obligation under the plea agreement to tell the truth.

Detective Tim Martin testified that before the investigation in this case, Quichocho admitted to using or having used the nickname "Huss" or "Lil Hustler." 7 VRP at 810. Detective Martin also testified that he has not met anyone else in the community who uses that same nickname.

The State moved to introduce English's cell phone records through Detective Jason Granneman's testimony. Quichocho objected, arguing that the State presented insufficient evidence tying Quichocho to the phone and the "Lil Huss" contact entry on the phone. 9 VRP at 1110-112. The trial court overruled Quichocho's objections, finding that Quichocho's arguments go to the weight of the evidence, not the admissibility, and that the references to "Lil Huss" were "simply a part of the evidence." 8 VRP at 994. The trial court further noted that the phone records were "substantially reduced to certain entries that counsel have had a chance to examine." 9 VRP at 1118. Detective Granneman testified that English's cell phone records revealed multiple outgoing calls to a number identified as "Lil Huss." 10 VRP at 1157, 1162. Detective Granneman also testified that records from a cell phone found on Quichocho's person, which was later determined to belong to his girlfriend, revealed an outgoing text message to English's cell phone on December 3. The phone had also received e-mails addressed to "Huss." 11 VRP at 1326-27.

Bondy testified that Quichocho pulled out a gun with a "revolving chamber." 4 VRP at 444. Bondy acknowledged that he was "[n]ot very" familiar with guns, but that he knew a revolver was used. 4 VRP at 444. Bondy also testified that Quichocho told Bondy that "that bullet was for [him]" and that he was scared. 4 VRP at 445.

Horn testified that the "shorter guy" pointed a gun at her, and she thought to herself, "I'm going to die." 5 VRP at 560. Horn identified the "shorter person" as Quichocho. 5 VRP at 574-75. Horn also testified that she was not very familiar with guns, but this gun had a "round cylinder" where the bullets are loaded. 5 VRP at 562. Horn further testified that she and Bondy were directed to stay in the bedroom closet or they would be killed.

Lujan testified that Quichocho drew a gun on Bondy, and then pointed the gun at him and directed him to tie up Bondy and Horn. Lujan also testified that Quichocho ordered him to lay down on the floor, and he thought, "I'm dead." 7 VRP at 845.

The State moved to introduce a redacted recording of Quichocho's police interview, along with a transcript, during Detective Jared Steven's testimony. Quichocho's counsel agreed to have the redacted recording played.

The trial court instructed the jury that in order to convict English and Quichocho of first degree robbery, the State must prove the following six elements beyond a reasonable doubt:

(1) That on or about December 4, 2013, the defendant or an accomplice unlawfully took personal property from the person or in the presence of [Bondy and Horn];

(2) That the defendant or an accomplice intended to commit theft of the property;

(3) That the taking was against the person's will by the defendant's or an accomplice's use or threatened use of immediate force, violence, or fear of injury to that person or to that person's property;

(4) That force or fear was used by the defendant or an accomplice to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

(5) That in the commission of these acts or in the immediate flight therefrom the defendant or an accomplice displayed what appeared to be a firearm or other deadly weapon; and

(6) That any of these acts occurred in the State of Washington.

CP (English) at 116.

D. Verdict and Sentencing

The jury convicted English and Quichocho as charged. At sentencing, the trial court found: "Counts 5 and 6, the assault charges, would merge with the-I want to use the correct word whether we use merger or constitute same criminal conduct. In any event, we will not impose sentence as to those two, so we are proceeding as to two counts of robbery in the first degree and two counts of kidnapping in the first degree." 13 VRP at 1651. The felony judgment and sentence show that English and Quichocho were sentenced for all six counts charged.^[6] English and Quichocho appeal.

ANALYSIS

A. Robbery

English and Quichocho argue that the to-convict instruction for robbery omitted the essential element that the victim must have an interest in the property taken and allowed the jury to convict on improper grounds. We agree.

"The essential elements of the crime are those that the prosecution must prove to sustain a conviction." State v. Richie, 191 Wn.App. 916, 921, 365 P.3d 770 (2015); State v. Peterson, 168 Wn.2d 763, 772, 230 P.3d 588 (2010). We first look to the statute to determine the essential elements. Richie, 191 Wn.App. at 921.

RCW 9A.56.190 defines robbery:

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against

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