State v. Giancoli

1

STATE OF WASHINGTON, Respondent, v. DENNIS RAY GIANCOLI, Appellant.

No. 56287-1-II

Court of Appeals of Washington, Division 2

October 31, 2023

UNPUBLISHED OPINION

Glasgow, C.J.

Two men broke into Arlen Stebbins's house, tried to abduct Stebbins and his friend, John Fryer, at gunpoint, shot Stebbins, and tried to shoot Fryer. Stebbins and Fryer escaped. After police arrested Dennis Ray Giancoli as a suspect in the case, they listed him on a publicly available jail roster. Stebbins's wife then looked up pictures of Giancoli on social media and showed them to Stebbins. Stebbins later identified Giancoli to police as one of his attackers.

Before trial, Giancoli sought to exclude evidence about Stebbins's identification of him, including any in-court identification, because Stebbins's preview of social media pictures was highly suggestive. The trial court admitted the pretrial identification evidence and Stebbins identified Giancoli at trial as one of his assailants.

The jury convicted Giancoli of multiple charges, including two counts of first degree assault, one count of first degree burglary, and two counts of first degree kidnapping. Those charges were also all most serious "strike" offenses under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. The jury found Giancoli was armed with a firearm during the assaults, burglary, and kidnappings. The jury also convicted Giancoli of first degree unlawful possession of a firearm, attempting to elude a pursuing police vehicle, and witness tampering.

Because Giancoli was convicted of multiple most serious offenses and his criminal history included two prior most serious offenses, the trial court sentenced Giancoli to life without the possibility of release as a persistent offender. The trial court also imposed 300 months of consecutive firearm sentencing enhancements on top of the life sentence.

Giancoli appeals. He argues that admitting Stebbins's pretrial and in-court identifications of him violated due process. He contends that there was insufficient evidence to convict him of unlawful possession of a firearm. Giancoli raises numerous issues related to his burglary and kidnapping convictions and he asserts that the assault convictions merge into the kidnapping convictions. Giancoli also challenges his firearm sentencing enhancements. Finally, he argues that his mandatory life without the possibility of release sentence violates article I, section 14 of the Washington Constitution because he committed his first most serious offense when he was 17. Giancoli does not challenge his attempt to elude or witness tampering convictions on appeal.

The State concedes that we should reverse the burglary and kidnapping convictions. And it concedes that the assault convictions would otherwise merge with the kidnapping convictions if the kidnapping convictions are not reversed.

We accept the State's concessions regarding the burglary and kidnapping convictions, reverse those convictions, and remand for the trial court to vacate Giancoli's convictions for first degree burglary and first degree kidnapping. We also reverse the firearm sentencing enhancements. We otherwise affirm.

FACTS

I. Background

Stebbins owned a property on the Key Peninsula where he stored extra tools and vehicles. He visited the property every few weeks. In November 2019, after noticing disturbances and missing items at the property, Stebbins and his friend Fryer decided to sleep in a mobile home on the property. The home had little furniture, so the two slept on couch cushions on the floor of the dining room.

Around 4:00 a.m., Stebbins and Fryer woke up to two men with guns standing over them. The men were looking for someone named Larry. One man was taller and carried a handgun; the shorter man carried a rifle. Giancoli was later identified as the tall man carrying the handgun and Christopher Conklin was identified as the man with the rifle. The men ordered Stebbins and Fryer outside, but told them to leave their wallets and cell phones behind in the trailer. The men directed them to get into a black Escalade at the end of the driveway. Both Stebbins and Fryer thought the men intended to kill them.

Giancoli struck Stebbins in the head with the gun when Stebbins objected, causing Stebbins to bleed profusely from a head wound. In the confusion, Fryer ran away and Conklin shot after him with the rifle but missed. After Fryer escaped Conklin shot Stebbins in the legs. Stebbins somehow managed to flee and hide in the woods.

Both Stebbins and Fryer were eventually able to contact law enforcement. Police later pursued a black Escalade that wove in and out of oncoming traffic. After a flat tire disabled the Escalade near an apartment complex, Giancoli and Conklin fled on foot into a wooded area. Police recovered Giancoli and Conklin from the woods.

II. Investigation

Police brought Fryer to the apartment complex, where he identified Conklin as the man with the rifle, but he could not identify whether Giancoli was the man with the handgun. Stebbins did not participate in the identification at the apartment complex because he was at the hospital. Police arrested both Conklin and Giancoli.

Shortly after these events, Stebbins's wife looked up the names of the men arrested on a publicly available jail roster, then researched their social media profiles. She showed Stebbins pictures of Giancoli and Conklin from their social media pages.

In early December 2019, roughly two weeks after the incident, a detective showed Stebbins two photo montages to see if Stebbins could identify his assailants. The detective knew that Giancoli and Conklin were the suspects in the case. Stebbins signed an admonition that the montage may not contain a picture of his assailant and that he was not required to identify a suspect.

Each photo montage consisted of six jail booking photographs on a single page. One montage contained images of Giancoli and five people with similar characteristics, the other contained images of Conklin and five people with similar characteristics. Stebbins identified Giancoli and Conklin as his assailants. Several months later, the detective learned that Stebbins had previously seen their social media pictures.

Stebbins's DNA was found in several places inside the Escalade. Giancoli's DNA was on both the Escalade's steering wheel and a cigarette butt found on the porch of the mobile home. Law enforcement also recovered a .22 caliber rifle and several bullets from along the route that police pursued the Escalade. And police found .22 caliber rounds in a backpack in the Escalade, as well as discharged .22 caliber casings on Stebbins's property. The handgun was never recovered.

The State charged Giancoli with two counts of first degree assault, one count of first degree burglary, and two counts of first degree kidnapping, all with firearm sentencing enhancements. The burglary charge alleged that Giancoli entered or remained unlawfully within a building with intent to commit a crime therein, and that while doing so, Giancoli "or an accomplice[] was armed with a firearm, to-wit: a rifle." Clerk's Papers (CP) at 67. The kidnapping charges alleged that Giancoli abducted Stebbins and Fryer with intent to "hold [each victim] as a shield or hostage," or "to inflict bodily injury on [each victim]," or "to inflict extreme mental distress on [each victim] or a third person," while Giancoli or an accomplice was armed with a rifle. CP at 67-69. The State also charged Giancoli with attempting to elude a pursuing police vehicle and first degree unlawful possession of a firearm. The State later added a charge of witness intimidation based on events while Giancoli was in jail awaiting trial.

III. Motions Regarding Identification Evidence

Before trial, the State moved to admit the photo montages shown to Stebbins. Giancoli opposed the motion and moved to prohibit any pretrial or in-court identifications by Stebbins and Fryer as "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." CP at 43. In particular, Giancoli argued that an in-court identification by Stebbins would not be reliable. Giancoli reasoned that Stebbins's wife's research tainted the pretrial photo montage identification, and that any in-court identification would be "highly suggestive" while Giancoli sat at the defense table. CP at 44.

The State argued that Stebbins's pretrial identification was not impermissibly suggestive because no state actor directed him to view the social media pictures of Giancoli and Conklin. "[L]aw enforcement did not show Mr. Stebbins the Facebook photos nor did they direct him or his wife to conduct their own research." CP at 58. And the State argued that there was "nothing unduly suggestive about the photo montages" the detective administered. Id.

The trial court reasoned based on State v. Knight, 46 Wn.App. 57, 729 P.2d 645 (1986), that "due process principles regarding suggestive photographic identifications have no application to pretrial photographic identification procedures engaged in by private citizens." Verbatim Rep. of Proc. (VRP) (July 12, 2021) at 87. Thus, it would be proper to suppress pretrial identification evidence "only where the State in some manner instigated and encouraged or counseled or directed or controlled the conduct." Id. at 88. "[A]nd the evidence does not show that in this case." Id.

The trial court ruled that the photo montages and Stebbins's pretrial identification of Giancoli were admissible. And it denied Giancoli's motion to prohibit an in-court identification. The trial court found "that Mrs Stebbins was acting on her own" when "she did her own research." Id. at 91. "[Although the charging...