State v. Greenlee

STATE OF WASHINGTON, Respondent, v. FLOYD ARGUS GREENLEE, III, Appellant.

No. 42033-3-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Dated: March 5, 2013

UNPUBLISHED OPINION

QUINN-BRINTNALL, J. — Floyd Argus Greenlee, III appeals his convictions of second and third degree theft, arguing that the trial court violated his right to both a timely trial under CrR 3.3 and a fair trial, and that he received ineffective assistance of counsel when his attorney failed to move to suppress the evidence seized after his arrest. Finding no prejudicial error, we affirm.

FACTS

On the evening of November 21, 2010, a man entered a Longview Walmart wearing dark shoes and pants, a dark jacket with gray stripes down the arms, and a white hat. He took a shopping cart to the store's electronics section, spoke on a phone, and put a television selling for $698 in the cart. When he pushed the cart toward the store's front door, Walmart greeter Irmgard Potter asked if he had a receipt. The man responded by grabbing the television andrunning out the door. Potter watched as the man with the television ran toward an older model light-colored car.

On the afternoon of November 22, 2010, a man who resembled the man described above entered the same Walmart through another entrance and pushed a shopping cart over to the computer section. The man was wearing a dark beanie, dark pants, a dark jacket, and white shoes. He spoke on a phone and put a computer selling for $898 in the cart. He approached the front of the store, grabbed the computer from the cart, and ran past Potter. As he fled the store, an older light-colored car drove up. The man left in the car with the computer. Potter believed the same vehicle was involved in both thefts.

On both days, the man's movements in and out of the store were videotaped from multiple security cameras. Matthew Shirley, the store's asset protection coordinator, contacted the police and showed Officer Calvin Ripp the video of the second theft and gave him still photographs from the video. Dispatch had already given Ripp a description of the vehicle involved as well as its license plate number.

Later that day, another officer stopped the suspect vehicle and arrested the driver on a separate matter. Officer Ripp told the driver, Kevin Atkinson, that he was investigating a theft at Walmart involving Atkinson's vehicle. Atkinson gave Ripp an address where he said Greenlee had been "hanging out." 2 Report of Proceedings (RP) at 173.

Officer Ripp showed the Walmart still photographs to Longview Police Captain Robert Huhta, who identified the man shown as Greenlee. Ripp and two other officers then went to the address Atkinson had provided. Ripp knocked on the front door and asked if Greenlee or Cory Freeman was inside; the woman who answered said that Freeman was upstairs and allowed theofficers entry. The officers found Greenlee and another man in an upstairs bedroom. Ripp verified Greenlee's identity and arrested him.

After receiving his Miranda¹ warnings, Greenlee denied knowing anything about the thefts. Officer Ripp observed that at the time of his arrest, Greenlee was wearing white shoes similar to those in the November 22 video and a jacket with stripes that looked like the jacket in the November 21 video. Greenlee also was wearing a ski mask rolled up into a beanie. When Ripp showed Greenlee a still photograph from the November 22 video and pointed out that his shoes resembled those the man was wearing, Greenlee replied that the shoes were "the same exact kind of shoes as mine, but they aren't my shoes because I wasn't there." 2 RP at 182. Ripp seized the beanie, shoes, and jacket as evidence.

The State charged Greenlee with second and third degree theft, and he was arraigned on the out-of-custody docket on December 22, 2010. The court set a trial date of March 14, 2011, which was 82 days from arraignment. On March 3, the State moved to continue the trial date because Shirley, Walmart's asset protection coordinator, would be on vacation from March 5 through 17. The State asserted that Shirley was a material witness who provided security footage of the thefts and identified Greenlee as the person shown on that footage.

A hearing on the continuance motion was held on March 10, 2011. Greenlee opposed the continuance and argued that Shirley was merely a foundational witness who could be replaced by another Walmart employee. The trial court disagreed and concluded that Shirley appeared to be a material witness. The court added that Greenlee had made no showing of specific prejudice asa result of the continuance. Defense counsel then agreed to the State's proposed March 28 trial date.

On March 24, the State moved for a second continuance because the prosecuting attorney in charge of Greenlee's case was in another trial. The court granted the continuance over Greenlee's objection and reset the trial for April 4, 2011.

At Greenlee's trial, Potter, Shirley, and Officer Ripp testified to the facts as set out above. The trial court admitted Greenlee's booking sheet and photograph during Ripp's direct examination. During cross-examination, Ripp admitted that he acted on Atkinson's information regarding Greenlee's whereabouts even though Atkinson initially gave a false name. Cross-examination also established the connection between the car, Atkinson, and Greenlee.

At trial, Department of Corrections Probation Officer Megan Hlavac testified that she had known Greenlee for several years and that he was the man in the video footage and the still photographs. Captain Huhta also testified that he had known Greenlee for several years, and he identified Greenlee as the man in the photographs as well.

The jury found Greenlee guilty of theft" as charged and the trial court imposed consecutive standard range sentences. He now appeals his convictions.

DISCUSSION

TIMELY TRIAL

Initially, Greenlee argues that the trial court violated his timely trial rights under CrR 3.3 when it granted the State's motion for a continuance to secure Shirley's presence.²

We review the application of the timely trial rules de novo. State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008), aff'd on other grounds, 166 Wn.2d 881, 214 P.3d 907 (2009). Objections to a trial date on timely trial grounds must be made within 10 days after notice of the trial date is given. CrR 3.3(d)(3). The objecting party also must promptly note the matter for hearing. CrR 3.3(d)(3). Any party who fails, for any reason, to file and note a motion to set the trial date within the time limits of CrR 3.3 loses the right to object. CrR 3.3(d)(3); Bobenhouse, 143 Wn. App. at 322; see also State v. Chavez-Romero, 170 Wn. App. 568, 587-88, 285 P.3d 195 (2012) (noting that with these requirements, CrR 3.3 sets out a clear standard).

Here, after the trial court granted the initial continuance to March 28, Greenlee did not object to the new trial date by filing a motion to set the trial within the time limits of CrR 3.3 or by noting the matter for such hearing. Greenlee now argues that the trial court could have timely set the new trial date for March 18, 21, or 22, but he never requested one of these trial dates with a corresponding motion or request for a hearing.³ Moreover, although he initially opposed a continuance, his counsel agreed to the new March 28 trial date.

We review a trial court's decision to grant a continuance for abuse of discretion: See State v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006) (decision to grant continuance under CrR 3.3 rests in sound discretion of trial court). The unavailability of a material State witness is a valid ground for continuing a criminal trial where there is a valid reason for the unavailability, where the witness will become available within a reasonable time, and where there is no substantial prejudice to the defendant's ability to present a defense. CrR 3.3(f); Statev. Day, 51 Wn. App. 544, 549, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). Based on the information before the court when it made its ruling, Shirley was a material witness who would be available after his vacation within a few days of the original trial date, and Greenlee made no showing of prejudice to his ability to present a defense from the short continuance granted to accommodate Shirley's testimony. The trial court did not abuse its discretion in this ruling.⁴

ADMISSION OF EVIDENCE

Greenlee argues next that the trial court denied him a fair trial by admitting irrelevant and unfairly prejudicial evidence. See ER 402 (irrelevant evidence is inadmissible); ER 403 (relevant evidence may be excluded if its probative value is outweighed by its prejudicial effect). Greenlee groups the allegedly unfair evidence into three categories: hearsay evidence that the driver of the getaway car was associated with Greenlee, Officer Ripp's opinion testimony regarding Greenlee's guilt, and Greenlee's booking sheet and photograph.

A. HEARSAY EVIDENCE

Greenlee argues that the trial court erroneously admitted hearsay evidence when it allowed Officer Ripp to testify that (1) someone said they saw the suspect vehicle, (2) someone said they obtained the license plate from the suspect vehicle, (3) another police officer said he had stopped that vehicle and arrested Atkinson, (4) Atkinson denied any involvement in the Walmart thefts, (5) Atkinson said he was acquainted with Greenlee, and (6) Atkinson told Ripp that Greenlee was staying at a specific Longview address. Greenlee argues that this evidencewas critical to the State's case because it connected him to the getaway vehicle used in both thefts.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is not admissible except as provided by the evidence rules, other court rules, or by statute. ER 802. A statement is not hearsay if it is used only to show the effect on the...