State v. Johnson

194 P.3d 1009, 147 Wash. App. 276
Court of Appeals of Washington·Decided October 28, 2008·No. 35492-6-II, 35499-3-II, 35502-7-II·Published·Cited by 15 cases

Opinion

194 P.3d 1009 (2008)

STATE of Washington, Respondent,
v.
Daniel Carl JOHNSON, Jason Zachary Balaski, and Michael Darrin Odell, Appellants.

Nos. 35492-6-II, 35499-3-II, 35502-7-II.

Court of Appeals of Washington, Division 2.

October 28, 2008.

*1011 Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, Peter B. Tiller, The Tiller Law Firm, Centralia, WA, Mark W. Muenster, Attorney at Law, Vancouver, WA, for Appellants.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, C.J.

¶ 1 Daniel Johnson, Jason Balaski, and Michael Odell[1] each appeal their convictions for one count of first degree murder, two counts of first degree assault, and one count of first degree burglary. They variously contend that: (1) the record is insufficient to allow appellate review; (2) the trial court erred when it denied their motions to sever; (3) the evidence is insufficient to support their convictions for the first degree assault of Laura Harrington; (4) the trial court improperly granted a continuance to Balaski and Odell over Johnson's objection; (5) the trial court erred when it denied their motions to suppress evidence; (6) a juror should not have been seated because he had met a victim at the crime scene; (7) Johnson received ineffective assistance of counsel; (8) the trial court erred in denying Odell's motion for a mistrial because Balaski's counsel commented on Odell's silence during opening statements; (9) the trial court erred in sentencing Odell for two crimes that encompass the same criminal conduct; and (10) cumulative error deprived them of a fair trial. Finding no error, we affirm.

FACTS

I. Background

¶ 2 Adrian Rekdahl, Johnson, Balaski, and Odell planned to unlawfully enter Gerald Newman's house in Vancouver, Washington and steal $1.2 million dollars. On August 6, 2005, Rekdahl asked Johnson to meet him at a Portland, Oregon area nightclub. When Johnson arrived, Rekdahl, Balaski, and Odell were already there. The four men discussed "a plan to get some money." Report of Proceedings (RP) at 2586. They left the nightclub, planning to meet at Odell's glass shop after Johnson purchased two sets of two-way radios.

¶ 3 Johnson armed himself and went to Odell's shop where he found Balaski and Rekdahl already wearing camouflage clothing. Johnson also changed into camouflage pants and boots. Odell's wife brought his Chevrolet Tahoe to the shop and left on foot. Odell drove them to Newman's house because he had earlier followed Newman home from a bar and knew where he lived.

¶ 4 Odell stopped the car near Newman's house and Balaski, Johnson, and Rekdahl exited the vehicle. They all carried firearms and wore face masks as they approached Newman's residence from the back yard and walked around the house to the front door. When they entered the house, Newman ran toward them from the kitchen. Rekdahl shot Newman and, then, Johnson subdued Newman by repeatedly hitting him with his pistol.

¶ 5 Rekdahl and Balaski ran toward the kitchen and back yard. Newman's guests, Laura and Robert Harrington,[2] ran out the *1012 back door, but Laura fell and her husband knelt down beside her. Either Rekdahl or Balaski stood over the Harringtons and pointed a gun at them. The Harringtons pleaded with the gunman, telling him they could not identify him and they had children and grandchildren; then they got up and started running across the yard. As they ran, Laura heard a gunshot and her husband raised his arms and cried out, "God, oh my God." RP at 717. She ran to a hedge and heard four or five more gunshots in quick succession. She crawled under the hedge and across the street to hide next to a curb.

¶ 6 Rekdahl returned to the foyer and began beating Newman with a rifle. Laura heard one of the men looking for her in the shrubbery and feared that he would shoot her. Someone from the front of the house yelled, "Come on, man, we gotta get the fuck outta here." RP at 718. Laura then heard the man retreat back into the house. The men exited through the front door and Odell drove them away in the Tahoe.

¶ 7 While driving away, Odell asked, "Did you kill him? Did you kill the motherfucker?" Balaski replied, "He's dead," and Odell pumped his fist in the air and said, "Yes." RP at 2598-99. According to Johnson, this was the first time he realized the men planned a murder rather than a burglary to obtain money.

¶ 8 Newman's neighbor let Laura into his home and called 911. Another neighbor also called 911 and reported that an unfamiliar white Chevrolet Tahoe left the scene shortly after the shooting. And a security guard reported the Tahoe and its license plate number.

¶ 9 Vancouver Police Sergeant Joseph Graaff found Newman lying in a bedroom with severe wounds to his head and leg. Newman identified the assailants as three black men wearing ski masks and camouflage clothing. Graaff also learned that Robert was dead in the back yard.

¶ 10 Clark County Deputy Sheriff Todd Young heard the dispatch about the shooting, including the Tahoe's license plate number. He spotted the Tahoe, radioed for backup, followed the Tahoe, and signaled with his lights for the vehicle to pull over. When the four men exited the vehicle, he activated his lights and spotlight, drew his gun, and ordered the men to get down. Three of them did, but Rekdahl fled.

¶ 11 Police later found Newman's blood on Johnson's clothing and trace gunshot residue on Johnson's and Balaski's hands. Police executed search warrants for the Tahoe, Rekdahl's pickup truck, and various buildings, including Odell's home and shop.

II. Procedure

¶ 12 The State charged Rekdahl, Johnson, Balaski, and Odell with the first degree felony murder of Robert Harrington predicated on first degree burglary (count I), first degree assault of Newman (count II), first degree assault of Laura Harrington (count III), and first degree burglary (count IV). The State alleged firearm enhancements for each count.[3] The State elected not to join Rekdahl's case because he was unavailable at the time of trial.

¶ 13 On February 8, 2006, Balaski and Odell waived speedy trial and asked for a continuance. The trial court granted the motion over Johnson's objection. All defendants unsuccessfully challenged Young's detention of the Tahoe and Odell unsuccessfully challenged the search warrants for his home and shop. Johnson, Balaski, and Odell also repeatedly moved to sever their trials, but the trial court denied the motions.

¶ 14 The jury returned guilty verdicts on all counts and found that the men were armed with firearms. Johnson, Balaski, and Odell appeal.

ANALYSIS

I. Sufficiency of Record for Appellate Review

¶ 15 We first address Johnson's claim that the trial court record is insufficient to allow our review. The record in a criminal case must be "`of sufficient completeness'" *1013 for appellate review of potential errors. State v. Larson, 62 Wash.2d 64, 67, 381 P.2d 120 (1963) (internal quotations omitted) (quoting Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963)). But a "`complete verbatim transcript'" is no

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State v. Johnson, 194 P.3d 1009, 147 Wash. App. 276 (Wash. Ct. App. 2008).

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