IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 78727-6-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION DAVID CORNELIUS CONYERS,
Respondent.
APPELWICK, J. — Conyers appeals six convictions for robbery in the second
degree. He makes several arguments. First, the trial court erred in denying his
motion to sever the counts. Second, the trial court erred in admitting his ORCA1
card records because the warrant to seize them was deficient. Third, the
prosecutor improperly coached a witness to identify him at trial. Fourth, the trial
court erred in allowing the record of when he signed in and out of his work release
housing. Fifth, the trial court erred in allowing improper opinion testimony from
various witnesses. Sixth, that the cumulative error doctrine entitles him to a new
trial. Seventh, a change in the law removing second degree robbery as a “strike”
should apply to his sentencing. Eighth, that his life sentence constitutes cruel and
unusual punishment. He also argues that the trial court displayed predetermined
bias which deprived him of a fair trial and that the trial court improperly allowed
testimony of Shae-Anne Mehus and Robert Zarate. We affirm.
The ORCA card (One Regional Card for All) is a contactless, stored-value 1
smart card system for public transit in the Puget Sound region of Washington.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 78727-6-I/2
FACTS
On July 14, 1995, David Conyers was sentenced to life in prison without the
possibility of parole. He was sentenced as a persistent offender after being
convicted of his sixth count of robbery in the second degree seven days earlier.
The Governor conditionally commuted his sentence on December 1, 2015.
Conyers was released from prison into work release on December 7, 2016. He
was employed at United Recycling in Seattle.
From February to March 2017, a series of robberies were committed in
Seattle. The robberies shared several similarities.
On February 6, 2017, a man in construction gear, a hard hat, and dust mask
walked into Pike Street Grocery in Capitol Hill. He approached the clerk, who was
alone in the store, and demanded all the money in the register. He was adamant
but soft spoken and had his hand in the pocket of the hoodie he was wearing under
his construction gear. Under the impression that the robber had a gun in his
pocket, the clerk gave the robber the money in the register. The robber took the
money and walked out.
Seven days later, on February 13, 2017, a man in construction gear, a hard
hat, and a mask entered a Bartell Drugstore in Wallingford. He approached the
clerk and calmly told her, “I have a gun,” and gestured to his belt area. He then
said, “I have a gun, don’t make a scene, give me the money, give me all the
money.” The clerk complied, the robber took the money, said, “[T]hank you,” and
left. There was another employee in the store at the time, but that employee was
distracted and did not notice the robbery taking place.
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Seven days later, on February 20, 2017, a man in mechanic coveralls and
a mask walked into a Rite Aid in Capitol Hill. He approached the lone clerk and
very quietly told the clerk he wanted cash and that he had a gun. The clerk
complied. The robber took the money, told the clerk not to do anything, and walked
out of the store.
Seven days later, on February 27, 2017, a man in a jacket and hard hat
walked into a Rite Aid in downtown Seattle. He approached the clerk and quietly
said, “[G]ive me your money.” The clerk, initially not understanding, said, “[W]hat
money?” The robber leaned forward, “popped his eyes” and said again, “Give me
the money.” The clerk complied. The robber took the money and walked out of
the store. The clerk and her manager went out of the store and observed the
robber get on a bus at a stop about two doors down from the store.
Two days later, on March 1, 2017, a man in a hard hat and surgical mask
walked into a Bartell Drugstore in lower Queen Anne. He approached the lone
clerk at the register and quietly said, “[G]ive me the money.” Unable to understand
what the robber said, the clerk replied, “[W]hat?” The robber quietly repeated his
demand. The clerk noticed that the robber had his right hand in his pocket, and
later surmised that he may have been attempting to indicate that he had a gun.
The clerk gave the robber the money in the register. The robber took the money
and walked out of the store.
The next day, March 2, 2017, a man in a hard hat, and a surgical mask
entered the DeLaurenti Deli in Pike Place Market. He approached the clerk at the
register, indicated that he had a gun, and quietly said, “[G]ive me the money.” The
3 No. 78727-6-I/4
clerk initially could not understand the robber and asked him to repeat himself,
which the robber did. The clerk asked the robber how much he wanted, and the
robber responded that he wanted $100. The clerk responded that he only had
$50, so the robber told her to give him that.
As the clerk was counting out the money, another customer approached the
counter. The customer observed the clerk appeared to be scared and that his
hands were shaking. The customer asked the clerk if he was ok. The clerk did
not respond. The robber then said words to the effect of he wanted his change.
The clerk handed the robber money from the register. Surmising that a robbery
was taking place, the customer reached out and grabbed the money that the clerk
had handed to the robber. The robber yanked the money away and left the store.
The customer pursued the robber into the market, followed him for some time, until
the robber turned around and lunged at him. The customer “back[ed] off” and the
robber turned around and headed south down First Avenue.
A camera recorded an image of the robber with his mask pulled down as he
exited the DeLaurenti Deli. In an effort to find the culprit, police released this photo
to the media to air on local news. Police dubbed the robber the “Bob the Builder
Bandit” to generate more attention and increase the likelihood of an identification.
An employee at United Recycling in Seattle approached the general manager,
Brian Moody, and brought the image to his attention. After viewing the image for
himself, Moody contacted the police and informed them that he believed that one
of his employees was the Bob the Builder Bandit.
4 No. 78727-6-I/5
Detectives went to United Recycling and spoke to Moody. He confirmed
his identification to them, saying he was 98 percent sure that the man in the image
was Conyers. Employees at United Recycling are provided with construction gear,
hard hats, and dust masks.
Police arrested Conyers at United Recycling that day. During the search
incident to his arrest, officers recovered an ORCA transit pass. They obtained his
timecards from Conyers’s work and determined that he was absent, had clocked
in after the time of the robbery for that day, or had not clocked out on the days of
the robberies. And, they obtained Conyers’s sign in and sign out records from
Bishop Lewis House, his work release housing. They also obtained a warrant for
transaction records associated with his ORCA card, which Conyers now
challenges.
The State charged Conyers with six counts of robbery in the second degree.
Conyers moved to sever the counts. The trial court denied that motion. Conyers
also moved to suppress the transaction history of his ORCA card. The trial court
denied that motion. Conyers moved to suppress evidence of his sign in and sign
out records from Bishop Lewis House. The trial court denied that motion.
Conyers was found guilty as charged. The court sentenced him to life in
prison pursuant to the Persistent Offender Accountability Act (POAA). RCW
9.94A.570. After his sentencing, the legislature amended the POAA to remove
robbery in the second degree from the list of “strike” offenses used to determine if
a person is a persistent offender. LAWS OF 2019, ch. 187 § 1(33)(o).
Conyers appeals.
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DISCUSSION
Conyers makes several arguments. First, the trial court erred in denying
his motion to sever the counts against him. Second, the search warrant for his
ORCA card records lacked probable cause. Third, the court erred in admitting
evidence related to his work release facility, Bishop Lewis House. Fourth, the
prosecutor committed misconduct by coaching a witness. Fifth, the trial court
improperly allowed lay witness opinion testimony and counsel was ineffective for
failing to object. Sixth, Conyers makes two arguments in a statement of additional
grounds (SAG): (a) the trial judge’s demonstrated bias against him deprived him
of a fair trial, and (b) the trial court erred in allowing testimony of Mehus and Zarate.
Seventh the cumulative error doctrine entitles him to a new trial. Eighth, he should
be resentenced because the legislature amended the law such that robbery in the
second degree no longer constitutes a “strike” for determining whether someone
is a persistent offender. Last, he claims his mandatory life sentence constitutes
cruel and unusual punishment.
I. Severance
Conyers argues that the trial court erred in denying his motion to sever the
six counts against him for trial. Because Conyers did not renew his motion to sever
the charges before or at the close of evidence, his claim is waived. CrR 4.4(a)(2).
He nonetheless attempts to seek review either through this court’s discretion, or
by claiming ineffective assistance of counsel.
6 No. 78727-6-I/7
A. Waiver
A defendant’s motion for severance of charges may be made before trial.
CrR 4.4(a)(1). If that motion is overruled, they must renew the motion before or at
the close of the evidence, or severance is waived. CrR 4.4(a)(2). Conyers
concedes that he did not renew his severance motion before or at the close of
evidence.
Conyers nevertheless urges us to exercise discretion to reach the merits of
the issue.2 He argues that the issues of joinder and severance were conflated
below. Because an objection to joinder need not be renewed in the same way as
a motion for severance, it would be preserved for review. See CrR 4.3; State v.
Bryant, 89 Wn. App. 857, 864-65, 950 P.2d 1004 (1998).
But, there were no joinder issues in this case. The state brought multiple
charges in a single charging document. It did not make a motion to join the
charges. In such situations, a motion to sever is the defendant’s sole remedy.
State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). The rule is clear that
a motion for severance must be renewed before or at the close of the evidence or
it is waived. CrR 4.4(a)(2). Conyers’s conflation of the two concepts is without
merit.
Conyers next urges the court to exercise its discretion because he
characterizes failure to renew the motion to sever as a minor technical error. He
argues that the issue was raised pretrial and the State had an opportunity to
2 RAP 2.5(a) provides that an appellate court may refuse to review any claim of error which was not raised in the trial. However, the rule never operates as an absolute bar to review. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
7 No. 78727-6-I/8
respond. Because nothing happened that would change the analysis, renewal of
the motion would serve no purpose and so should not serve as a waiver of the
issue. But, CrR 4.4(a)(2) clearly states that party must renew its motion for
severance before or at the close of the evidence and does not contain an exception
for futility. We decline Conyers’s invitation to disregard his waiver of the issue and
enforce the rule as written.
B. Ineffective Assistance of Counsel
Conyers next seeks review of his severance claim on the ground that his
counsel was ineffective in failing to renew the motion before the close of the
To establish ineffective assistance of counsel, Conyers must show that his
counsel’s performance fell below an objective standard of reasonableness and that
he was prejudiced by the performance. State v. Sutherby, 165 Wn.2d 870, 883,
204 P.3d 916 (2009). Counsel is presumed to be effective. Id. It is Conyers
burden to show that, but for counsel’s unprofessional errors, there is a reasonable
probability that the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We
presume, absent a challenge to the sufficiency of the evidence, the judge and jury
acted according to law. Id.
As a matter of law—Conyers cannot establish prejudice. In discussing the
showing of prejudice necessary to a successful ineffective assistance claim,
8 No. 78727-6-I/9
Justice O’Connor, writing for the Court, set forth several crucial requirements and
limitations.
Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on the defense.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.
Strickland, 466 U.S. at 693 (citation omitted).
Accordingly,
[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.
Strickland, 466 U.S. at 694-95.
Finally, Justice O’Connor observed that:
Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice
9 No. 78727-6-I/10
suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
Strickland, 466 U.S. at 697.
Severance exists to address the danger that a jury might wrongly consider
evidence, admitted on one count, to the detriment of the defendant on a different
count. On direct appeal from a trial judge’s denial of a severance motion, we
entertain the possibility that a jury might do so even if it was instructed not to do
so. See State v. Bythrow, 114 Wn.2d 713, 721, 790 P.2d 154 (1990) (concern with
multiple counts is whether the jury can be “expected to compartmentalize the
evidence”); State v. Philips, 108 Wn.2d 627, 641, 741 P.2d 24 (1987) (“[T]he
verdicts show that the jury in fact did compartmentalize the evidence.”). Indeed, it
is the possibility of such “residual prejudice” that is to be balanced against the need
for judicial economy in deciding whether a motion to sever is meritorious. State v.
Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
When the claim is one of ineffective assistance of counsel, however,
Strickland establishes a conclusive presumption that the jury followed its
instructions and properly applied the law. See 466 U.S. at 694 (“In making the
determination whether the specified errors resulted in the required prejudice, a
court should presume . . . that the judge or jury acted according to law.”); 466 U.S.
at 695 (“The assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the
10 No. 78727-6-I/11
standards that govern the decision.”); accord, State v. Grier, 171 Wn.2d 17, 41-44,
246 P.3d 1260 (2011).
Here, the jury was instructed: “A separate crime is charged in each count.
You must decide each count separately. Your verdict on one count should not
control your verdict on any other count.” Instruction 9.
Pursuant to Strickland, the jury is conclusively presumed to have followed
this instruction and not used any evidence to convict on a count on which that
evidence was not admissible. Thus, Conyers cannot, as a matter of law, establish
prejudice from the denial of the motion to sever or from his attorney’s waiver of the
ability to contest that ruling on appeal.
Because the jury is conclusively presumed to have followed its instructions
and properly applied the law, Conyers’ ineffective assistance of counsel claim fails.
II. ORCA Records
Conyers argues that the warrant to seize his ORCA card records was not
supported by probable cause. Specifically, he argues that the warrant lacked a
nexus between the robberies and his ORCA card records.
A search warrant may be issued only upon a determination of probable
cause. State v. Martinez, 2 Wn. App. 2d 55, 68, 408 P.3d 721, review denied, 190
Wn.2d 1028, 421 P.3d 458 (2018). Probable cause requires a nexus between
criminal activity and the item to be seized. State v. Thein, 138 Wn.2d 133, 140,
977 P.2d 582 (1999). The decision by a magistrate to issue a warrant is reviewed
for abuse of discretion. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002).
However, we review the trial court’s determination that the warrant was supported
11 No. 78727-6-I/12
by probable cause de novo. Martinez, 2 Wn. App. 2d at 66. We review search
warrants in a common sense, practical manner, rather than in a hyper technical
sense. State v. Stenson, 132 Wn.2d 668, 692, 940 P.2d 1239 (1997). Doubts as
to the existence of probable cause are generally resolved in favor of issuing the
search warrant. Vickers, 148 Wn.2d at 108-09.
The affidavit for search warrant indicates that Conyers’s ORCA card was
found on his person during the search incident to his arrest. It also recounted the
facts of each robbery including their time and location. The affidavit indicates that
the affiant compared Conyers’s driver’s license photo with a surveillance photo of
the robber’s face and found a “compelling likeness.” It also indicates that
Conyers’s manager at United Recycling identified the suspect in the surveillance
photo. The affidavit requested ORCA card records only for the date range of the
robberies.
The affidavit does not proffer evidence that the suspect used public transit
in the commission of the robberies. However, the affidavit outlined sufficient
evidence to establish probable cause to believe that Conyers committed at least
the DeLaurenti robbery. The affidavit included the affiant’s own conclusion that
there was a “compelling likeness” between the man in the DeLaurenti photo and
Conyers. It also included that Conyers’s manager had identified him as the man
in the DeLaurenti photo as well. The affidavit included similarities between the
robberies, including the use of construction gear and similar demeanor in all
robberies that created a strong inference that he committed the others as well.
That the ORCA card was found on Conyers’s person during the search incident to
12 No. 78727-6-I/13
his arrest creates a commonsense presumption that he uses the card for
transportation because ORCA cards must be purchased and they serve no other
purpose. That Conyers purposefully acquired the card and carried it indicates his
use and reliance on the card for transportation. The affidavit indicates that all the
robberies occurred in the city of Seattle and therefore they were accessible by
Seattle public transit. Common sense holds that it is reasonably likely that
evidence pertaining to the robberies, i.e., whether Conyers had used public transit
to get to the vicinity of those robberies at the time they occurred, would be found
in his ORCA card records.
Conyers seeks to compare this case to State v. Jackson, 150 Wn.2d 251,
76 P.3d 217 (2003). He claims the facts are similar in that police in that case also
sought to track a defendant’s movements. In that case, police investigating the
disappearance of Jackson’s daughter obtained warrants authorizing the
installation and use of global positioning system devices on his vehicles. Id. at
257. Police theorized that Jackson had hastily buried his daughter’s body or would
have some other reason to return to the location of her body. Id. at 221. Our
Supreme Court upheld the warrant because a thorough search of the area around
the defendant’s house had turned up no sign of the daughter, so it was reasonable
to infer that Jackson had used a vehicle to transport his daughter to another
location. Id. at 265. It was therefore a reasonable inference that Jackson might
use a vehicle to return to her location, either because she was still alive, or because
there was limited time to bury her such that he would need to return to the
gravesite. Id. at 266-67.
13 No. 78727-6-I/14
Conyers claims these facts are much more specific than the “bald request
to track location” present in his case. But, the fact that the Jackson warrant
application had more specificity, does not address whether the warrant application
here had too little specificity.
We find the warrant for Conyers’s ORCA card records was supported by
probable cause.
III. Bishop Lewis House
Conyers objects to the trial court’s admission of evidence of the logbook
and facility rules of Bishop Lewis House. He claims the evidence was unfairly
prejudicial under ER 403 and 404(b). Specifically, he is concerned that the jury
would infer Conyers’s criminal history because he was staying at Bishop Lewis
House. We review decisions on the admissibility of evidence for abuse of
discretion. State v. Giles, 196 Wn. App. 745, 756, 385 P.3d 204 (2016).
Only relevant evidence is admissible at trial. ER 402. Evidence is relevant
if it is probative of a material fact. Giles, 196 Wn. App at 757. A fact is material if
it is of consequence in the context of other facts and the applicable standard of
law. Id. It is probative if it tends to prove or disprove a fact. Id. ER 403 allows
that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. And, ER 404(b) prohibits the
introduction of character evidence to prove the defendant acted in conformity
therewith.
Here, Bishop Lewis House maintained a logbook in which residents were
required to sign in and out as they left or arrived at the facility. The trial court found
14 No. 78727-6-I/15
this evidence highly probative because it provided circumstantial evidence of
Conyers’s location during the robberies. The trial court nevertheless recognized
the prejudicial nature of Bishop Lewis House being a work release facility
supervised by the Department of Corrections (DOC). The court therefore excluded
all references to the DOC or Bishop Lewis House as a work release facility,
because then the jury could think the facility was a treatment facility, low income
housing project, or shelter. Conyers argues this was insufficient, because any
reference to the fact that residents were not allowed to leave without signing out
would imply they were being closely monitored. He further argues that the
evidence was minimally probative because the same information was available by
simply introducing Conyers’s timesheets from work.
Contrary to Conyers’s argument, the evidence is highly probative
circumstantial evidence of his location during the robberies. The value of this
circumstantial evidence comes from the State’s ability to combine it with other
circumstantial evidence, like Conyers’s timesheets from work. These two pieces
of evidence are not interchangeable without the assumption that when Conyers is
not at work, he is at Bishop Lewis. This is, of course, not what the State is seeking
to prove. The State seeks to prove that Conyers was not at work or Bishop Lewis
House, and therefore could have been the person who committed the robberies.
This requires both the Bishop Lewis logbook and Conyers’s work timesheets. And,
while there is some danger of unfair prejudice, that danger must substantially
outweigh the probative value of the evidence. ER 403. Here, the trial court
endeavored to sanitize the record by removing references to DOC or Bishop Lewis
15 No. 78727-6-I/16
House as a work release facility. This minimized the risk of unfair prejudice to the
point that it did not substantially outweigh the significant probative value of the
evidence. Its decision to admit the evidence with conditions to minimize the risk
that the jury would infer Conyers’s criminal history was not manifestly
unreasonable.
The trial court did not abuse its discretion in admitting information relating
to Bishop Lewis House.
IV. Witness Coaching
Conyers claims the prosecutor impermissibly coached a witness to identify
him during trial. He did not object to this alleged impropriety at trial. He
nevertheless seeks review because the prosecutor’s conduct was so flagrant and
ill-intentioned that no curative instruction could have erased the prejudice. In the
alternative, he suggests trial counsel was ineffective for failing to object. Because
we find that the prosecutor did not act improperly, we reject both arguments.
Counsel is not prohibited from consulting with his or her witness during trial.
See State v. Delarosa-Flores, 59 Wn. App. 514, 516, 799 P.2d 736 (1990).
However, the State is not permitted to urge a witness to create testimony. State
v. McCreven, 170 Wn. App. 444, 475, 284 P.3d 793 (2012). Generally, the party
alleging prosecutorial misconduct bears the burden of showing the challenged
conduct was improper. See State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653
(2012).
16 No. 78727-6-I/17
Here, Conyers’s manager, Brian Moody, was initially unable to identify
Conyers in the courtroom. After speaking to Moody at a later recess, counsel
elicited the following testimony:
Q Before the jury came out, you were looking at this individual dressed in the suit here (indicating) with the pattern tie, right?
A Yes.
Q And then you also, when I was sitting over at counsel table, then you looked at me, right? Is that a yes?
MR. CONROY: That’s leading as well.
THE COURT: It’s foundation, counsel.
Q (BY MR. GAUEN) And then did I come up and talk to you right here?
Q And did I ask you if you recognized anybody?
MR. CONROY: Now, now, we’re well beyond foundation. That is leading.
THE COURT: It’s leading. Ask it in a nonleading fashion.
Q (BY MR. GAUEN) What did I talk to you about?
A You asked me if I recognized Mr. Conyers now.
Q And what did you say?
A I said yes.
Conyers claims the testimony above shows that the prosecutor improperly
coached Moody during the recess. The State argues that the prosecutor merely
clarified Moody’s nonverbal cues during recess that he had recognized Conyers
by asking if he “recognized Conyers now.”
17 No. 78727-6-I/18
Conyers has not met his burden to establish that the prosecutor’s conduct
was improper. He seeks to differentiate this interaction from Delarosa-Flores, 59
Wn. App.at 516, where counsel utilized a recess to refresh a witness’s memory
with a prior statement. This is different, he says, because counsel’s interaction
here was a “purposeful interaction” that “coaxed Moody into responding
affirmatively.” Refreshing a witness’s recollection is also a “purposeful interaction”
that encourages a witness to alter testimony. The only difference is that a
refreshed witness is given stimuli in the form of prior statements to influence their
testimony, then asked if their recollection is refreshed. ER 612. Here, counsel
skipped step one and proceeded right to step two. That is, he asked the witness
if his recollection was refreshed without giving him any stimuli to influence that
recollection. If it is proper to ask a witness if they are refreshed after showing them
a previous statement, it is certainly proper to ask if their recollection is refreshed
without seeking to influence their testimony at all.
We find that the prosecutor did not act improperly.
V. Opinion Testimony
Conyers argues that the trial court erred in allowing improper opinion
evidence that invaded the province of the jury. Specifically, he claims that
detectives’ opinions on the similarity of Conyers’s appearance and clothing to
images from the robbery was improper because these detectives were in no better
position than the jury to determine such similarities. Trial counsel objected only
once on the basis of improper opinion testimony, which was overruled. Conyers
seeks review of the instances where he did not object on the theory that counsel
18 No. 78727-6-I/19
was ineffective for failing to do so. We review the trial court’s evidentiary rulings
for abuse of discretion. Stenson, 132 Wn.2dat 701. These decisions will not be
reversed unless manifestly unreasonable. Id.
A lay witness may give opinion testimony when it is (1) rationally based on
the perception of the witness, and (2) helpful to a clear understanding of his
testimony or the determination of a fact at issue. State v. Hardy, 76 Wn. App. 188,
190, 884 P.2d 8 (1994). A lay witness may give an opinion concerning the identity
of a person depicted in a surveillance photograph if there is some basis for
concluding that the witness is more likely to correctly identify the defendant from
the photograph than is the jury. Id.
Here, the trial court ruled that it would allow testimony concerning
similarities between Conyers and clothing in his possession and the images from
surveillance. However, it would not allow testimony that they were the same. The
State contends the former is helpful to the jury because it helped to focus its
attention on perceived similarities. This was helpful because of the sheer volume
of the evidence that the jury was being asked to consider. Conyers counters that
this is not helpful to the jury because the detectives were in no better position to
assess similarities than the jury.
The trial court’s distinction between similarities and an ultimate conclusion
of identity is not manifestly unreasonable. The trial court did not allow the
detectives to testify as to the ultimate conclusion of the identity of the person in the
photographs, instead leaving that determination to the jury. It cannot be said that
19 No. 78727-6-I/20
directing the jury’s attention to the similarities that the witness identified was not
helpful to the jury’s own determination of identity.
The trial court’s decision is therefore not manifestly unreasonable and not
an abuse of discretion.
In order to succeed on an ineffective assistance of counsel claim, Conyers
must show deficient performance by his counsel and that there is a reasonable
probability that the result of the proceeding would have been different but for that
performance. Sutherby, 165 Wn.2d at 883; Strickland, 466 U.S. at 694. The trial
court outlined its reasoning on this issue when Conyers objected to testimony
about similarities. We have no reason to believe that the trial court would have
ruled differently had Conyers repeated this objection to later instances of testimony
about similarities. Conyers does not demonstrate that the result of the proceeding
would have been different. The initial objection preserved the issue for appeal.
We reject Conyers’s claim for ineffective assistance of counsel.
VI. Statement of Additional Grounds
Conyers makes two arguments in a SAG: that the judge was biased against
him, and that the trail court improperly allowed testimony of Mehus and Zarate.
A. Judicial Bias
Conyers claims the judge declared a predetermined bias against him in the
proceeding. The appearance of fairness requires that a judge must appear to be
impartial. State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992).
However, a party seeking to invoke the doctrine must show evidence of actual or
potential bias. See Id. at 619. Pursuant to the doctrine, a judicial proceeding is
20 No. 78727-6-I/21
valid if a reasonably prudent, disinterested observer would conclude that the
parties received a fair, neutral, and impartial hearing. State v. Solis-Diaz, 187
Wn.2d 535, 540, 387 P.3d 703 (2017)
Conyers points to the following comments by the judge: “Mr. Conyers was
observed wearing construction clothing, particularly a dark colored backpack. And
in five of the six robberies, he was wearing an orange hard hat. And in all the
robberies, he was wearing a surgical mask.” He further takes issue with the
comment, “And also the, essentially the behavior of Mr. Conyers. He was very,
very polite during these robberies.” These comments by the judge occurred during
her oral ruling on Conyers’s motion to sever and not in the presence of the jury.
Conyers appears to argue that these comments indicate that the trial judge
had predetermined that he was the perpetrator of the robberies and therefore was
biased against him. He cites no case where the use of a defendant’s name to refer
to the perpetrator of the charged crime was considered evidence of bias. He points
to no other evidence that the judge possessed any bias. A reasonable observer
would conclude that the judge committed a minor error in language while
comparing the facts of each charge and was not biased against Conyers.
We therefore reject Conyers judicial bias claim.
B. Testimony of Mehus and Zarate
Conyers claims that the trial court erred in allowing prejudicial testimony of
Department of Corrections Officers Mehus and Zarate. He points to the fact that
the State originally stated it would have very few questions for them, but later asked
over 80 questions. He says many of the questions were “unfairly prejudicial.” He
21 No. 78727-6-I/22
does not say how they are prejudicial. We review the trial court’s evidentiary
rulings for abuse of discretion. Stenson, 132 Wn.2d at 701.
The dispute about these officers’ testimony at trial surrounded their status
as DOC employees. The trial court addressed this issue by prohibiting any
reference to their employment at DOC and by having them referred to as “case
managers” rather than corrections officers. Similar to the sanitization of the record
related to Bishop Lewis House, this decision was not manifestly unreasonable and
therefore was within the trial court’s discretion. Conyers cites no case where
allowing a witness to answer more questions than the State originally anticipated
asking is prejudicial.
We therefore reject Conyers’s claim that Mehus and Zarate should not have
been allowed to testify.
VII. Cumulative Error
Conyers claims that the cumulative error violated his due process right to a
fair trial. A defendant may be entitled to a new trial when errors, even though
individually not reversible error, cumulatively produce an unfair trial. See State v.
Coe 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Because we find no errors, the
doctrine is inapplicable here. We therefore reject Conyers’s cumulative error
claim.
VIII. Statutory Sentencing Amendments
Conyers claims he is entitled to resentencing because the legislature
removed robbery in the second degree from the list of “strike” offenses after he
was sentenced. Conyers was sentenced to life in prison pursuant to the POAA.
22 No. 78727-6-I/23
The POAA mandates a life sentence without the possibility of parole for persistent
offenders. RCW 9.94A.570. A persistent offender is a person convicted of a most
serious offense for the third time. RCW 9.94A.030(38). Most serious offenses are
identified in RCW 9.9A.030(33). At the time of his conviction, robbery in the second
degree was considered a most serious offense. Former RCW 9.94A.030(33)(o)
(LAWS OF 2018, ch. 166 § 3). However, the legislature has removed it from the list
of most serious offenses, effective July 28, 2019. RCW 9.94A.030(33) (LAWS OF
2019, ch. 187 § 1). Conyers’ prior adult criminal history at the time of sentencing
consisted of six convictions for robbery in the second degree. Conyers argues
either that the change in the law should be applied prospectively because his case
is on appeal, or in the alternative, that the law should be applied retroactively to
his case.
Since this case was heard, these arguments have been rejected in two
cases in our court. State v. Molia, ___ Wn. App. 2d ___, 460 P.2d 1086, 1090
(2020); State v. Jenks, 12 Wn. App. 2d 588, 595,-597, 459 P.2d 389 (2020). We
follow those cases and reject Conyers’s argument.
IX. Cruel and Unusual Punishment
Conyers argues that his mandatory life sentence constitutes cruel and
unusual punishment. He argues both that his sentence is grossly disproportionate
to his crime and it does not allow a sentencing court to take youthfulness into
account.
23 No. 78727-6-I/24
A. Proportionality
Conyers argues that a mandatory life sentence is grossly disproportionate
to his crime. He focuses his analysis on whether his sentence runs afoul of article
I, section 14 of the Washington Constitution, because that provision is more
protective than the Eighth Amendment to the United States Constitution in this
context. State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014).
Article I, section 14 of the Washington Constitution protects against
sentences that are grossly disproportionate to the crime committed. State v.
Gimarelli, 105 Wn. App. 370, 380, 20 P.3d 430 (2001). To determine whether a
punishment is grossly disproportionate, courts utilize four factors: (1) the nature of
the offense, (2) the legislative purpose behind the statute, (3) the punishment the
defendant would have received in other jurisdictions, and (4) the punishment
meted out for other offenses in the same jurisdiction. State v. Fain, 94 Wn.2d 387,
397, 617 P.2d 720 (1980).
Our Supreme Court has repeatedly found, after weighing the relevant
factors, that a life sentence for robbery in the second degree for persistent
offenders is not grossly disproportionate under Article I, section 14. Witherspoon,
180 Wn.2d at 889; State v. Manussier, 129 Wn.2d 652, 677, 921 P.2d 473 (1996).
The Witherspoon court found that factors (1), (2), and (4) supported a finding that
a life sentence in this context was not disproportionate, but that factor (3)
supported a disproportionality finding because only three other jurisdictions
impose a similar sentence. See, 180 Wn.2d at 888-89. Conyers does not
challenge the Witherspoon court’s analysis as to factor (1). However, he claims
24 No. 78727-6-I/25
that factors (2) and (4) must be reexamined because the legislature has removed
robbery in the second degree from the list of most serious offenses.
Factor (2) asks the court to consider the legislative purpose behind the
sentencing statute. Witherspoon, 180 Wn.2d at 888. The Witherspoon court found
this factor weighed against a finding of disproportionality. See id. It identified the
purpose of the POAA as to deter crime and to segregate those who continually
commit serious offenses from the rest of society. Id. Conyers argues this purpose
is no longer applicable to Conyers’s sentence because the legislature no longer
considers robbery in the second degree to be a “most serious offense.” Conyers’s
argument is misguided. The legislative purpose at the time he was sentenced did
not change because the legislature later amended the statute. That purpose, to
segregate persistent offenders from the rest of society, was upheld as legitimate
in Witherspoon 180 Wn.2d at 888. The legislature did not express any intent to
have previous sentences revisited when it changed the law, nor did it make any
findings that its purposes had not been served while robbery in the second degree
was considered a “most serious offense.” LAWS OF 2019, ch. 187 § 1. That the
legislature later decided to address robbery in the second degree in a different way
does not make its purposes while the crime was considered a “most serious
offense” any less legitimate.
Factor (4) askes the court to consider the punishments for other offenses in
the same jurisdiction. Witherspoon, 180 Wn.2d at 888. The Witherspoon court
found this factor did not support a finding of disproportionality because the
repetition of criminal conduct aggravates the guilt of the last conviction and justifies
25 No. 78727-6-I/26
a heavier penalty for the crime. Id. at 889. It pointed out that all persistent
offenders are sentenced equally under the statute. Id. Conyers argues that this
factor must be reexamined because the legislature removed robbery in the second
degree from the list of most serious offenses. Again, his argument is misguided.
That the legislature later decided to remove robbery in the second degree from the
list of most serious offenses does not change the fact that, at the time of his
conviction, the sentences given out for persistent offenders were consistent.
That the legislature chooses to move in a different direction does not
necessitate a reexamination as to our previous findings on the legitimacy of
legislative intent. Our Supreme Court’s holding in Witherspoon is not any less
applicable to Conyers’s sentence because the legislature has since changed the
law.
We reject Conyers’s claim that his sentence is grossly disproportionate to
his crime.
B. Youthfulness
Conyers argues that his sentence is cruel and unusual because it does not
allow for youthfulness at the time of his offenses to be considered. Conyers is 46
years old. At the time of the robberies, he was 42 years old. He nevertheless
argues that youthfulness should be considered here, because his earlier
convictions for robbery, which form the basis for his classification as a persistent
offender, occurred when he was between the ages of 18 and 20.
26 No. 78727-6-I/27
In making his arguments, Conyers cites to extensive case law that gives
Washington courts discretion to consider youthfulness when sentencing a
juveniles. Conyers is, of course, not a juvenile. He nevertheless argues that his
sentence must take his former youthfulness into account because he was not
sentenced “for his last strike conviction,” which occurred when he was 42, but
instead that his “sentence rested equally on all the strike convictions.” Thus, he
argues, his life sentence is as much a punishment for his previous strike offenses
at ages 18 through 20 as it was for his current strike conviction.
Since Conyers made his argument, our Supreme Court has ruled on this
issue. See State v. Moretti, 193 Wn.2d 809, 814, 446 P.3d 609 (2019). It
determined that that there is no constitutional prohibition against sentencing an
adult to life in prison under the POAA even when one of their prior strikes occurred
in their youth. Id. We see no reason why this logic would not apply to situations
where the defendant committed two prior strikes in their youth.
In any case, Conyers’s argument that his sentence rests equally on all his
convictions is misguided. Life sentences under the POAA are “not cumulative
punishments for prior crimes.” Witherspoon, 180 Wn.2d at 888-89. The repetition
of criminal conduct aggravates the guilt of the last conviction and justifies a heavier
penalty for the crime.” Id. at 889. Thus, Conyers’s sentence is not for his previous
crimes, where his relative youthfulness may have been a consideration, but for his
most recent crimes, that he committed when he was 42 years old.
27 No. 78727-6-I/28
We therefore reject Conyers’s claim that his youthfulness at the time of his
first strike offenses renders his current punishment cruel and unusual.
We affirm.
WE CONCUR: