State v. Williams

STATE OF WASHINGTON, Respondent, v. SETH WILLIAMS, Appellant.

No. 40447-8-II

Court of Appeals of Washington, Division 2

April 17, 2012

UNPUBLISHED OPINION

ORDER AMENDING OPINION

The unpublished opinion in this matter was filed on February 7 2012. After review, the court amends the filed opinion as follows:

Page 10, line 1: In the citation for State v. Smith, 162 Wn.App. 833, 849, 262 P.3d 72, the year this case was filed is amended to reflect the correct date: (2011).

Armstrong, P.J.

Seth Thomas Williams appeals his convictions of two counts of first degree robbery as an accomplice with two firearm enhancements. Williams argues that (1) the State failed to prove the robbery; (2) the trial court erroneously instructed the jury such that the jury could have convicted him of robbery even if it believed he intended to participate in only theft; (3) the prosecutor improperly vouched for the truthfulness of a witness by inquiring about the witness's promise to testify truthfully in a plea agreement; and (4) his counsel ineffectively represented him by failing to object to the vouching and failing to properly prepare him as a witness. Finding no reversible error, we affirm.

FACTS

The State charged Williams with first degree robbery as an accomplice, including two firearm enhancements. Co-defendants James Briggs, Marces Sanders, and Larell Hartlett pleaded guilty to the robbery. Neither party called Briggs, Sanders or Hartlett to testify at Williams's trial.

One evening in April 2009, Efrem Peoples agreed to smoke marijuana with Briggs and possibly sell him some. Briggs and Peoples arranged to meet at a 76 gas station. When Peoples arrived, Briggs and Hartlett entered his Bronco and said they wanted to complete the transaction at the Sandman I apartments across the street.^[1] When Peoples drove into the Sandman I parking lot, Briggs suggested that he park next to a dumpster, which had very little lighting. Peoples refused and parked in an area with better lighting. Briggs exited the Bronco, claiming he needed to use a restroom.

Shortly thereafter, Sanders opened the Bronco's side door and pointed a gun at Peoples. Hartlett, seated on the passenger side of the Bronco, was also pointing a gun at Peoples. Sanders and Hartlett took Peoples's gold chain necklace cell phone, and some of his cash, and then demanded that Peoples exit the Bronco. Sanders told Peoples to lie on the ground while Sanders and Briggs searched the rest of the Bronco. As he exited, Peoples saw a van behind his Bronco. Instead of lying on the ground, Peoples slowly backed away from Sanders, eventually turning and running toward the 76 station across the street. As he did so, he glanced back and saw the van again.

A clerk at the 76 station called the police. An officer who heard the report from dispatch recognized Sanders's name and knew his mother lived nearby. Officers staked out the home and approximately 20 - 30 minutes after the initial report, the van arrived. The officers arrested all five occupants. At a crime scene line-up, Peoples identified Briggs, Sanders, and Hartlett as the robbers. He could not identify Williams as being at the scene of the robbery.

The police were given a surveillance video from the neighborhood where Peoples's Bronco was later recovered. The video shows the van pulling up near the Bronco and, as it is pulling up, two persons running toward the van. Then the video shows a person moving between the van and the Bronco.

During a search of the van, the police recovered property from the Bronco, including speakers, subwoofers, digital video disks (DVDs), a video player, and other electronic gadgets. The police found a speaker from the Bronco in the van's front passenger seat. Most of the other items were on the floor behind the van's front seats or on the back bench seat. The officers also found four firearms in the van: a .32 caliber revolver and a .40 caliber Glock on the floor board between the two middle row captain's seats; a Ruger P85 protruding from the passenger side, middle row seat; and another .40 caliber Glock in a drawer under the back bench seat.

Williams testified that Briggs called and asked him for a ride around 9:30 p.m. Williams attempted to pick up Briggs at Sandman II, but Briggs was not there. After attempting to reach Briggs by phone, Williams left Sandman II and headed for Sandman I in case Briggs was there. On the way, he encountered his friend James Bradford, ^[2] who asked for a ride to the store. At about the same time, Briggs called and gave Williams a new pick-up location. When he arrived at the new location, Briggs was there with Hartlett and Sanders. Williams did not know that the three had stolen goods or firearms. Williams agreed to drop off the three at Sanders's mother's house. When they arrived, the police arrested them. Williams testified that he did not know there were firearms or stolen goods in his van, and he never discussed a robbery with the others because the music was loud and he was alone in the front of the van. Although he was the only person who drove the van that night, he denied ever going to Sandman I.

Peoples agreed to testify pursuant to a plea agreement with the State. In the agreement, the State reduced Peoples's pending unrelated robbery charge to attempted second degree robbery and gave him immunity from any marijuana or firearm charges arising from the April 8, 2009 incident. During direct examination, the prosecutor questioned Peoples about the "testify truthfully" provision in his plea agreement:

Q: (By Mr. Howe [Prosecutor]) . . . The agreement, the plea agreement covering this case and your pending case, do you have to do anything besides appear?

A: [Peoples] No. No, sir.

Q: Well, what if you came up – let me just give you a hypothetical for a second, okay. What if you came up here, just for example, and said I don't know nothing about any of these cases. As far as I know some martian came down and did all this stuff. Would that be in accordance with the plea agreement?

A: No. The plea agreement is to tell the truth.

Q: Who decides if you told the truth or not. If it came down to it, would we litigate or would I have to take your word for it or do you not understand that part?

A: I don't understand that part. Report of Proceedings (RP) at 308-09. The jury convicted Williams and answered "yes" to both firearm enhancements.

ANALYSIS

I. Sufficiency of the Evidence

Williams challenges the sufficiency of the evidence supporting his robbery conviction.

We test the sufficiency of the evidence by asking whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in the State's favor. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Raleigh, 157 Wn.App. 728, 736-37, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011).

A person is an accomplice if he aids or agrees to aid another in planning or committing a crime with knowledge that his aid will promote or facilitate the crime. RCW 9A.08.020(3)(a)(ii). Mere presence during a crime is insufficient to show accomplice liability. State v. McDaniel, 155 Wn.App. 829, 863, 230 P.3d 245, review denied, 169 Wn.2d 1027 (2010). Instead, the defendant must have associated himself with the criminal conduct, participated in the criminal conduct, and sought to make the crime successful by his actions. State v. Robinson, 73 Wn.App. 851, 855, 872 P.2d 43 (1994) (citing In re Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979)). An accomplice does not have to participate in every element of the crime so long as the accomplice has general knowledge of the specific crime committed. State v. Roberts, 142 Wn.2d 471, 512-13, 14 P.3d 713 (2000).

The driver of a car is not guilty as an accomplice where there is no evidence he knew a passenger would suddenly jump out and rob a person on the street. Robinson, 73 Wn.App. at 857. Nor is a passenger liable as an accomplice where the driver stops the car, gets out, walks away, and then steals a truck, absent evidence the passenger knew the driver intended to commit the crime. State v. Luna, 71 Wn.App. 755, 756, 759, 862 P.2d 620 (1993). Williams cites both cases in support of his insufficiency claim. But both are factually distinguishable.

Williams testified that he was the only driver of the van on the day of the robbery. Peoples testified the van was not present at the scene when he first pulled into the parking lot. But Peoples saw the van briefly as he exited his vehicle and again as he ran for help. The van was parked behind Peoples's Bronco. The jury could have inferred that one of the robbers (Sanders) arrived in the van. Williams was driving the van filled with items stolen in the robbery when the police arrested the van's occupants. A large speaker stolen in the robbery was on the front passenger seat of the van. A jury could infer that Williams participated in planning the robbery because he drove one of the principals, Sanders, to the robbery location; he parked the van so that the robbery principals had access to Peoples and his vehicle; and then drove the robbery principals away with the stolen property.

Accordingly, we hold that the record contains sufficient evidence to sustain Williams's conviction.

II. Jury Instructions

Williams argues that the trial court erroneously instructed the jury as to accomplice liability such that they could have...