State v. Lewis

233 P.3d 891
Court of Appeals of Washington·Decided June 2, 2010·No. 38523-6-II·Published·Cited by 48 cases

Opinion

233 P.3d 891 (2010)
156 Wash.App. 230

STATE of Washington, Respondent,
v.
Daniel William LEWIS Jr., Appellant.

No. 38523-6-II.

Court of Appeals of Washington, Division 2.

March 2, 2010.
Publication Ordered and Amended June 2, 2010.

*892 Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Gerald R. Fuller, Grays Harbor Co. Pros. Ofc., Montesano, WA, for Respondent.

*893 HUNT, J.

¶ 1 Daniel Lewis appeals his first degree robbery conviction. He focuses on the lack of a jury instruction on self-defense, the trial court's refusal to instruct on a lesser included offense, prosecutorial misconduct in closing argument, and ineffective assistance of counsel. In his statement of additional grounds for review (SAG),[1] he argues ineffective assistance of counsel on other grounds; denial of his rights to compulsory process, to due process, to present a defense, and to a fair trial; and cumulative error.[2] We affirm.

FACTS

I. First Degree Robbery

¶ 2 On July 2, 2008, 69-year-old retired logger Thomas Crocker drove from his Raymond, Washington, residence to Aberdeen, planning to go to a casino. On the way, Crocker made some purchases at Walmart and put the receipt into his checkbook, which contained approximately $150 cash. Although he also carried a wallet, he used his checkbook specifically to store cash and receipts.

¶ 3 Later, Crocker encountered Andrea Flores outside the Crystal Steam Bath Apartments and went upstairs with her to the second floor. Daniel Lewis, an acquaintance of Flores, was loitering with two other people in the hallway outside Flores' apartment. Crocker and Flores went to the apartment of another acquaintance, Kimmie Obi, where they stayed for a short time, and then returned to Flores' apartment. Flores asked Crocker for $20 to "get these guys high so she could get them out of the hallway." Report of Proceedings (Oct. 14, 2008) at 11. Crocker gave Flores $20, she left, he remained in her apartment alone, and he did not see her again that day.

¶ 4 About 15 minutes later, Lewis came into Flores' apartment, borrowed a cigarette from Crocker, and left. Five minutes later, Lewis returned, borrowed another cigarette, and "blind sided" Crocker, punching him multiple times in the head and knocking him face-down onto a mattress on the floor. RP (Oct. 14, 2008) at 13. Lewis then "beat the crap out of [Crocker]," leaving his face and clothing spattered with blood. RP (Oct. 14, 2008) at 13. Crocker suffered a black eye, a bloody nose, and a swollen face. Demanding money, Lewis grabbed Crocker's wallet and checkbook from his pocket and approximately $150 in cash and threw the wallet and checkbook onto the bed. Lewis called himself "Chilly Willy," threatened the kill Crocker if he went to the police, and fled with the cash. RP (Oct. 14, 2008) at 31.

¶ 5 Crocker went directly to the Aberdeen police station and told Officer Robert Kegel that he had been attacked and robbed. Kegel observed Crocker's visible injuries, took Crocker's statement, and involved Officers Andy Snodgrass and Gary Sexton. When Crocker mentioned his attacker's nickname, "Chilly Willy," Snodgrass recognized it as a nickname for Lewis.

¶ 6 Having learned that they could find Lewis at the Pourhouse Tavern, the three officers left to arrest him. A search of Lewis incident to his arrest revealed Crocker's Walmart receipt; $113 cash; a single cigarette; and two folding knives, one of which displayed the engraving "Chilly" on the blade. RP (Oct. 14, 2008) at 44. Police later seized Lewis's tennis shoes and jeans, all of which bore dark red stains that later tested positive for blood.

¶ 7 Back at the police station, Snodgrass prepared a photo montage, which showed Lewis's photo among numerous booking photos of other individuals of similar age, race, and appearance. Within seconds of seeing the montage, Crocker positively identified Lewis as his attacker.

II. Procedure

¶ 8 The State charged Lewis with first degree robbery. Before the jury trial, the trial court granted the State's motion to exclude two pieces of evidence: (1) any reference *894 to the allegation that Flores might be a prostitute, and (2) any reference to Crocker's prior felony drug conviction. Lewis did not object.

¶ 9 During his trial testimony, Crocker described the attack and the robbery and twice denied that he used drugs. Defense counsel used neither denial to impeach Crocker with his excluded prior drug conviction.

¶ 10 Lewis testified that on July 2, 2008, (1) he had been at the Crystal Steam Bath Apartments with two friends, Dion Obi and Kimmie Obi, "waiting to get dope," RP (Oct. 14, 2008) at 77; (2) he had seen Flores retire to her room with Crocker, leave shortly after, and come to where he (Lewis) was waiting; (3) Flores handed him a doubly folded $20 bill and asked if he and his companions "could get some dope," RP (Oct. 14, 2008) at 79; (4) when he returned from making a phone call, Flores told him that Crocker "was being a—aggressive towards her in a manner that she didn't like" and asked "if [Lewis] could have [Crocker] leave," RP (Oct. 14, 2008) at 79; (5) he (Lewis) went to Flores' apartment and told Crocker that "he wasn't wanted there and he needed to leave," RP (Oct. 14, 2008) at 80, at which point Crocker became aggressive and "came at [Lewis] physically", RP (Oct. 14, 2008) at 80, "swinging on [Lewis]," RP (Oct. 14, 2008) at 88; and (6) Lewis "ended up defending [him]self." RP (Oct. 14, 2008) at 80.

¶ 11 Lewis denied having taken anything from Crocker. Lewis claimed that his mother had given him $150, of which $113 remained when he was arrested. When asked how he came to have Crocker's Walmart receipt, Lewis replied, "The only way that I know that I could have got it is through [Flores] when she handed me the [folded $20 bill]." RP (Oct. 14, 2008) at 91. Lewis denied having threatened to kill Crocker if he talked to the police and denied having identified himself to Crocker as "Chilly Willy." Lewis did acknowledge, however, that he sometimes used this nickname. But according to Lewis, Crocker had learned the nickname when Flores greeted Lewis using the nickname "Chilly Willy." RP (Oct. 14, 2008) at 89.

¶ 12 The State could not locate Flores, and she did not testify at trial. Despite having testified that he had injured Crocker in self-defense, Lewis did not request a self-defense jury instruction; nor did the trial court give one.

¶ 13 In closing, Lewis's defense counsel argued that Crocker was not telling the truth, as illustrated by the following excerpt:

You know, we're just not getting the whole story from Mr. Crocker about what happened that day. And I'm going to pointed [sic] out a few reasons why I think that he's just not—has not come into this courtroom and told you the truth.

RP (Oct. 14, 2008) at 103.

¶ 14 In rebuttal, the State argued:

[Defense counsel for Lewis] has told you in so many words that Mr. Crocker is lying about what happened, that he made this whole thing up apparently about the robbery, that he went down to the police station to tell some of the police that he had been robbed. You know, [Crocker] could have said, I have been beat up. But no, he told the truth about what happened, that he had been beaten up and robbed and that his money and his wallet and his checkbook had been rifled through, his money had been taken.

RP (Oct. 14, 2008) at 106-07.

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