State of Washington v. Keandre Deshawn Brown
Opinion
FILED
AUGUST 15, 2019
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36637-5-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
KEANDRE DESHAWN BROWN, )
)
Appellant. )
PENNELL, J. — A jury convicted Keandre Brown of several felonies related to the armed robbery of a pharmacy in Clark County, Washington. We affirm Mr. Brown’s convictions, but remand with instructions to strike the criminal filing fee and the use of motor vehicle finding from the judgment and sentence.
FACTS
In the summer of 2016, two masked gunmen entered the Mill Plain Medical and Pharmacy in Vancouver, Washington, demanding oxycodone. While one of the men purloined the drugs from the pharmacy’s safe, the other man ordered employees and customers around at gunpoint.
No. 36637-5-III State v. Brown
The two men exited the pharmacy through the front door and ran to a vehicle that was backed into a slot of the pharmacy’s parking lot. A police officer sitting in traffic nearby saw the two men run to the vehicle and drive away. Although his suspicions were aroused, the officer did not initiate a pursuit because he was not yet aware of any criminal conduct.
The pharmacy’s surveillance system recorded the robbery. The footage showed that during the robbery the suspects’ masks would sometimes slip down, revealing their faces. Law enforcement retained still images from the surveillance footage to help in their investigation. The photographs were of a high quality and showed a clear view of the suspects’ faces.
A probation officer identified Keandre Brown and his cousin as the two men depicted in the surveillance photographs. The officer knew Mr. Brown through his employment and had interacted with Mr. Brown numerous times, including approximately 10 conversations over the course of three and one-half years. The probation officer’s last contact with Mr. Brown occurred in early 2016.
The State charged Mr. Brown with first degree robbery with a pharmacy enhancement and two firearm enhancements, four counts of second degree assault, each
No. 36637-5-III State v. Brown
with two firearm enhancements, and two counts of first degree unlawful possession of a firearm.
Prior to trial, Mr. Brown moved to prevent the probation officer from identifying him in the surveillance photos. The trial court denied this request, finding the probation officer had sufficient contacts with Mr. Brown to permit an identification. The probation officer identified Mr. Brown in the still photos at trial.
A jury found Mr. Brown guilty as charged and found that both Mr. Brown and his accomplice possessed firearms during the robbery and assaults.
Mr. Brown’s attorney filed a memorandum in anticipation of sentencing, requesting an exceptional sentence downward based, in part, on Mr. Brown’s youth. The State also filed a sentencing memorandum. The State noted that Mr. Brown’s sentencing range, including firearm enhancements, was 549-591 months. The State also noted that current case law would permit an exceptional sentence downward based on mitigating circumstances related to Mr. Brown’s youth. However, the State declined to recommend an exceptional sentence downward. Instead, the State asked the court to vacate five firearm enhancements, thereby reducing Mr. Brown’s sentencing range to 333-375 months.
No. 36637-5-III State v. Brown
At sentencing, the State requested a sentence of 360 months. When asked for the defense position, Mr. Brown’s attorney no longer pursued his request for an exceptional sentence downward. Instead, defense counsel explained that the State’s favorable sentencing recommendation was the result of the parties’ negotiations. As stated by defense counsel:
Whether this young man at 19 was considered too youthful or too mature for any kind of alternative, the State has determined, after reading the defense’s request and argument under case law, that the compounding of the firearm enhancement created an unjust sentencing and has asked for 204 months to be reduced. That was our request. That is our goal.
Report of Proceedings (Oct. 10, 2017) at 681.
After hearing from the parties, the court noted its authority to impose a mitigated sentence based on Mr. Brown’s youth. The court commented that the parties’ sentencing recommendation reflected an acknowledgement of recent science related to juvenile brain development and the “legal trend” against life sentences for youthful offenders. Id. at 682. Had Mr. Brown received a sentence within the range determined by the jury’s verdict, the court observed that Mr. Brown would effectively receive a “life sentence.” Id. But with the parties’ recommendation, Mr. Brown would get out of custody at age 50. This was still a “stiff sentence,” but the court found it appropriate, given the significant negative impact on Mr. Brown’s victims. Id. at 683.
No. 36637-5-III State v. Brown
In addition to imposing a 360-month sentence, the trial court found a motor vehicle was used during the commission of Mr. Brown’s robbery and assault offenses, and that Mr. Brown was subject to a $200 criminal filing fee.
Mr. Brown timely appeals his judgment and sentence. A Division Three panel considered Mr. Brown’s appeal without oral argument after receipt of an administrative transfer of the case from Division Two.
ANALYSIS
Mr. Brown makes an evidentiary challenge to his conviction as well as several arguments related to sentencing. 1 Mr. Brown in his opening brief also objects to the trial court’s failure to enter findings of fact and conclusions of law after a pretrial CrR 3.5 hearing. Because uncontested findings and conclusions have since been entered, this final contention is now moot and we confine our analysis to the evidentiary and sentencing contentions. Evidentiary challenge Mr. Brown claims the trial court abused its discretion in allowing the probation
1 Mr. Brown has also filed a statement of additional grounds for review, in which he makes two challenges to his conviction. Because both arguments rest on facts outside the appellate record, they must be raised in a personal restraint petition, not on direct review. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
No. 36637-5-III State v. Brown
officer to identify Mr. Brown from the surveillance footage and still photos. According to Mr. Brown, the probation officer’s testimony unfairly bolstered the State’s case by invading the province of the jury. We disagree.
ER 701 permits a lay witness to “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.” State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994). The evidence here meets this standard. The probation officer testified to extensive contacts with Mr. Brown, occurring over the course of several years. Based on these contacts, the trial court had a tenable basis for determining the probation officer was better equipped to identify Mr. Brown from the surveillance footage than the jury. Cf. State v. George, 150 Wn. App. 110, 119, 206 P.3d 697 (2009) (Identification testimony was improper when the testifying officer lacked pre-offense contact with defendants.). There was no abuse of discretion. Ineffective assistance of counsel at sentencing Mr. Brown next argues that his counsel provided ineffective assistance at sentencing by failing to follow through on his motion for an exceptional sentence downward. To prove ineffective assistance, Mr. Brown must demonstrate his attorney’s performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668,
No. 36637-5-III State v. Brown
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When defense counsel’s conduct can be characterized as reasonably strategic, it will not be deemed ineffective. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Free access — add to your briefcase to read the full text and ask questions with AI
State of Washington v. Keandre Deshawn Brown (State of Washington v. Keandre Deshawn Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.