State Of Washington, Respondent/cr-appellant v. James Holmes, Appellant/cr-respondent ( 2013 )

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COURT Cr APPEALS DiVI
STATE OF WASHlHuiOH
2013APR29 AH 10= 03
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 67843-4-1
Respondent, DIVISION ONE
v.
JAMES R. HOLMES, UNPUBLISHED
Appellant. FILED: April 29. 2013
Cox, J.—James Holmes appeals his convictions for robbery, burglary, and
assault, arguing that we should abandon Washington's long-standing test for
identification procedures in favor of a different test used in several other states.
Because we are bound by Washington State Supreme Court decisions adopting
the test Holmes seeks to abandon, and because we decline to exercise any
inherent authority we may have to entertain the issue, we conclude Holmes'
argument must be made to the state supreme court. We also conclude that
Holmes' sentence enhancements are supported by sufficient evidence and that
his remaining arguments, including his pro se claims, lack merit. We affirm.
In August 2007, police investigated a report that several armed men
unlawfully entered the home of Jessica Brevig and Jay Shelton and robbed and
assaulted them and their guests, Bryan Johnstone and Jennifer Tame.
That fall, Brevig and Shelton viewed two photo montages of possible
suspects, but did not identify anyone.
No. 67843-4-1/2
In January 2008, police showed two montages to Johnstone, but he also
could not identify anyone.
In June 2009, police learned that DNA found on a glove fragment at the
crime scene matched Holmes' DNA.
In February 2010, police prepared a montage that included a photo of
Holmes wearing wire framed glasses. Two other photos in the montage depicted
men wearing wire framed glasses. The other three photos were of men without
glasses. Brevig did not select any photo from the montage. Shelton, however,
picked Holmes' photo.
In August 2010, the State charged Holmes with one count of first degree
robbery, one count of first degree burglary, and four counts of second degree
assault, all with firearm allegations.
Prior to trial, Holmes moved to suppress the montage identification and
any in-court identifications on the ground that they were the product of an
impermissibly suggestive procedure. Dr. Jennifer Devenport, a psychology
professor and expert on memory and eyewitness identification, testified at the
suppression hearing. She concluded the montage procedure was suggestive
and created a likelihood of misidentification because only three of six photos
were of men wearing glasses, Holmes was the only person with a tattoo, the
witnesses were told before viewing the montage that police had obtained a DNA
match, the photos were presented simultaneously rather than sequentially, and
the presenting detective was aware of which photo was the suspect. Dr.
No. 67843-4-1/3
Devenport also identified several factors that could have affected the accuracy of
the witnesses' memory, including the stress and confusion of the robbery, the
limited ability of the witness to view the suspects during the robbery, the
presence of an apparent weapon, the difference in race between the suspects
and the witness, the poor lighting, the suspects' use of disguises, and the two-
and-a-half-year delay between the robbery and the photo montage procedure.
The court concluded the montage was suggestive, but not impermissibly
or unnecessarily so, and denied the motion to suppress.
At trial, the State's evidence established that on August 21, 2007, three
men, including Holmes, approached the Everett home of Brevig and Shelton.
They encountered Shelton outside the house. One of the men stuck a gun in
Shelton's stomach and threatened to kill him if he moved. The men then pushed
Shelton inside the house.
Once inside, a man with a gun pushed Shelton and Brevig to the floor and
threatened to kill them. One of the other men demanded to know if anyone else
was in the house. Brevig told them her sister, Jennifer Tame, and her sister's
boyfriend, Bryan Johnstone, were downstairs.
Two men went downstairs. While holding a gun, one of them ordered
Tame and Johnstone upstairs. The men then had all four victims sit on a sofa.
They demanded to know where money and keys to a safe were. One of them
took Brevig's wallet and keys out of her purse. One of the men with a gun took
Tame downstairs and then took her wallet, keys, and cell phone. In an attempt to
No. 67843-4-1/4
coerce them into revealing the location of the safe key, the men put a gun in
Brevig's mouth and held a gun to Shelton's head. One of the men repeatedly
struck Shelton in the head with the butt of a gun. One of the intruders struck
Johnstone with what appeared to be a gun.
The men considered setting the victims on fire with gasoline they found in
the garage. Eventually, they tied the victims up with electrical cords and left.
After untying himself, Shelton went to a neighbor's house and called police.
Johnstone later discovered that approximately $40,000 in cash of his was
missing.
Shelton identified Holmes in court as one of the robbers. None of the
other eyewitnesses identified Holmes.
The jury found Holmes guilty of first degree robbery, first degree burglary,
and second degree assault of Shelton and Brevig. The jury was unable to agree
on the other two assault charges. By special verdicts, the jury found that Holmes
was armed with a firearm during each of the offenses. Holmes appeals.
Identification
For the first time on appeal, Holmes contends this court should abandon
Washington's long-standing testfor the admissibility of eyewitness identifications1
and adopt a new test "that better deters suggestive police practices and guards
against the admission of unreliable evidence at trial." He asks that we remand
for the trial court to apply the proposed test to the montage identification admitted
1 State v. Vaughn. 1D1 Wn 7ri 604 610-11. 682 P.2d 878 M984V State v. Vickers. 148
Wn.2d 91, 118, 59 P.3d 58 (2002).
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at his trial. He acknowledges that our supreme court adopted,2 and has long
adhered to, the federal test set forth in Neil v. Biqgers3 and Manson v.
Brathwaite.4 He also does not dispute that this court is bound by decisions of our
supreme court.5 Nevertheless, he urges us to exercise our inherent supervisory
power to create rules furthering sound judicial practice.6 We decline to do so.
We need not consider issues raised for the first time on appeal.7
Moreover, Holmes' argument lacks a state constitutional analysis that could be
helpful in determining whether Washington should adopt the test used in a
minority of other states. In short, and in the absence of any challenge to the trial
court's application of Biggers and Brathwaite, we do not address these
arguments further.8
Firearm Enhancements
Holmes next contends the evidence is insufficient to support the jury's
special verdicts that he was armed with a firearm during the commission of the
offenses. We disagree.
Evidence is sufficient to sustain an enhancement if, when viewed in a light
most favorable to the State, it permits a rational trier of fact to find the elements
2Note 1, supra.
3409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972)
4432 U.S. 98, 97 S. Ct. 2243, 53 LEd.2d 140 (1977).
5 State v. Schmitt. 124 Wn.2d.662, 669 n.11, 102 P.3d 856 (2004).
6 See State v. Martin. 171 Wn.2d 521, 537, 252 P.3d 872 (2011).
7 RAP 2.5(a); In re Detention of Morgan. 161 Wn. App. 66, 85-86, 253 P.3d 394, 404
(2011).
8 See State v. Allen. 161 Wn. App. 727, 745, 756, 255 P.3d 784 (2011) (where state
supreme court had previously ruled on the subject, issue ofwhether cross-racial identification
instruction should be required in light of modern research was for the supreme court, not the court
of appeals, to decide).
No. 67843-4-1/6
of the enhancement beyond a reasonable doubt.9 A defendant challenging the
sufficiency of the evidence admits the truth of the evidence and all rational
inferences that may be drawn from it.10 Circumstantial and direct evidence are
equally probative, and we defer to the trier of fact on conflicting testimony,
witness credibility, and the persuasiveness ofthe evidence."11
To enhance Holmes' sentence in this case, the State had the burden of
proving that he or an accomplice was armed during commission of the crime with
a "firearm" -- i.e., "a weapon or device from which a projectile may be fired by an
explosive such as gunpowder."12 Holmes contends this burden required the
State to prove the firearms were "operable," even though the statute does not
use that word.13 The State disagrees, arguing that it was sufficient to show that
Holmes or an accomplice used a real gun.14
We need not resolve the parties' disagreement regarding the State's
burden, because even assuming proof of operability is required, we have
9State v. McKee. 141 Wn. App. 22, 30, 167 P.3d 575 (2007).
10 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
11 State v. Raleigh. 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010). review denied. 170
Wn.2d 1029(2011).
12 Instruction 20, CP 75. RCW 9.41.010(7).
13 See, e^, State v. Pam. 98 Wn.2d 748, 659 P.2d 454 (1983); State v. Recuenco, 163
Wn.2d 428, 437, 180 P.3d 1276 (2008) ("We have held that a jury must be presented with
sufficient evidence to find a firearm operable under this definition in order to uphold the
enhancement."); State v. Pierce. 155 Wn. App. 701, 714 n.11, 230 P.3d 237 (2010) (Where the
firearm is not presented as evidence, there must be "otherevidence of operability, such as bullets
found, gunshots heard, or muzzle flashes.").
14 See Raleigh, 157 Wn. App. at 734-35 (firearm need not be operable during
commission of crime to constitute a firearm; statement in Recuenco is dicta), review denied, 170
Wn.2d 1029 (2011Y State v. Padilla. 95 Wn. App. 531, 535, 978 P.2d 1113 ("a disassembled
firearm that can be rendered operational with reasonable effort and within a reasonable time
period is a firearm"), review denied. 139Wn.2d 1003 (1999); State v. Faust, 93 Wn. App. 373,
380, 967 P.2d 1284 (1998) (language in Pam on operability refers to the difference between a toy
gun and a gun in fact; a gun incapable of being fired due to a mechanical defect is still a firearm).
No. 67843-4-1/7
previously held that operability may be inferred from evidence showing a threat to
use a real gun. In State v. Mathe. 35 Wn. App. 572, 581-82, 668 P.2d 599(1983), affd, 102 Wn.2d 537, 688 P.2d 859 (1984), we held that the State proved
the defendant "used a real and operable gun" with testimony of two robbery
eyewitnesses who described the guns and the defendant's express or implied
threat to use them.15 Similarly, in State v. Bowman, 36 Wn. App. 798, 803, 678
P.2d 1273, review denied, 101 Wn.2d 1015 (1984), eyewitness testimony
describing a "real" gun and recounting a threat to use it was sufficient to establish
"the existence of a real, operable gun in fact.'AQ
Here, all of the victims testified that they were threatened and/or assaulted
with guns. Shelton, who had experience with guns, testified that a man pulled
out "a slide top type Glock gun," put it in his stomach, and told him not to move or
he would kill him. One of the men put a gun in Brevig's mouth and told Shelton
he was going to shoot her if Shelton did not give them keys to a safe. When
Shelton said he did not have the keys, the man then put the gun against
Shelton's head and told Brevig he would shoot Shelton ifshe did not give them
the keys. Shelton described the gun as a "hard metal gun" that "felt absolutely
real." Brevig also saw the men handling a rifle and someone hit Shelton in the
15 Mathe. 35 Wn. App. at 581-82.
16 (Court's emphasis); see also Faust, 93 Wn. App. at 380 ("eyewitness testimony to a
real gun that is neither discharged nor recovered is sufficient to support deadly weapons and/or
firearms penalty enhancements"); State v. Goforth. 33 Wn. App. 405, 412, 655 P.2d 714 (1982)
(evidence was sufficient to support inference that "gun was operable in fact" where witnesses
who were familiar with shotguns testified that the defendant used a real shotgun); McKee, 141
Wn. App. at 29-32 (evidence was sufficient to supportfirearm enhancement given victim's
description of the weight and feel of the gun, the way in which defendantwielded it, and evidence
that defendant had a real gun and had access to other guns).
No. 67843-4-1/8
head with the butt of a gun. Tame and Johnstone testified that when the men
first entered, one of them held a gun as he ordered them to go upstairs. Tame
also testified that one of the men threatened to shoot her dog.
Viewed in a light most favorable to the State, this evidence is sufficient to
support an inference that Holmes or an accomplice was armed with a firearm
during each of the offenses.
Offender Score
Holmes next contends the trial court erred in including a prior Texas
conviction for possession of a controlled substance in his offender score. He
argues that the State failed to carry its burden of proving that the Texas
conviction was comparable to a Washington felony. We review de novo the
calculation of an offender score.17
Holmes contends the controlled substance could have been marijuana
and, if so, the State failed to prove comparability because possession of
marijuana is a felony in Washington only if the defendant possesses more than
forty grams and the State did not prove the amount Holmes possessed. But as
the State points out, the record demonstrates that Holmes' conviction was not for
possession of marijuana.18 Accordingly, this argument fails.
17 State v. Parker, 132Wn.2d182, 189, 937 P.2d 575 (1997).
18 See Clerk's Papers at 246; Exhibit 1, Sentencing (charged Texas Code section did not
include marijuana); Exhibit 8, Motion to Suppress, pg. 21 (listing case No. F0854671 as "POSS
CS COCAINE").
No. 67843-4-1/9
Statement of Additional Grounds
Holmes raises additional arguments in his pro se statement of additional
grounds for review. Most of these arguments were either raised by Holmes'
counsel on appeal19 or involve witness credibility and the persuasiveness of the
evidence. These matters are solely for the trier of fact and are beyond the scope
of our review.20
Holmes also claims the jury was not properly instructed on the standard of
proof for the firearm enhancements. He is mistaken. Instruction 20 stated that
"[f]or purposes of a special verdict, the State must prove beyond a reasonable
doubt that the defendant or an accomplice .. . was armed with a firearm .. . ."21
Instruction 23 also stated that "[i]n order to answer the special verdict forms 'yes,'
you must unanimously be satisfied beyond a reasonable doubt that 'yes' is the
correct answer."22
We affirm the judgment and sentence.
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WE CONCUR:
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