State Of Washington, Respondent/cr-appellant v. Michael Thomas Lou, Appellant/cr-respondent ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78346-7-I
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION
MICHAEL THOMAS LOU,
Appellant. FILED: February 10, 2020
CHUN, J. — Michael Lou appeals his convictions for first degree identity
theft, forgery, first degree theft, second degree identity theft, and second degree
theft. He claims that two in-court identifications were impermissibly suggestive
and therefore violated his right to due process. He also contends that his trial
counsel performed ineffectively by failing to renew a motion to sever, move for a
mistrial, or request a limiting instruction after the court dismissed three counts at
the close of the State’s case. We determine that, because the identifications
contained sufficient indicia of reliability, Lou’s due process claim fails.
Additionally, we reject Lou’s ineffective assistance of counsel claim because he
fails to show that his counsel’s performance was deficient or that it prejudiced
him. Accordingly, we affirm except to remand to strike the criminal filing and
deoxyribonucleic acid (DNA) fees from the Judgment and Sentence.
No. 78346-7-1/2
I. BACKGROUND
On August 5, 2016, Lynden police arrested Ronald McKinney for using a
fake driver’s license to complete a credit application. Following his arrest,
McKinney told police the following: Lou made fake identifications (IDs) for him
and he used the IDs to purchase items on credit. The IDs contained McKinney’s
photograph but another person’s name and identifying information. McKinney
and Lou sold the items online for two-thirds of their price. The two split the profit.
On June 1, 2017, the State filed an amended information charging Lou
with 22 counts: leading organized crime (count 1), first degree identity theft
(counts 2,5, 11, 16, 21), forgery (counts 3,7,10,12-15, 17, 19, 22), first degree
theft (count 4), trafficking in stolen property (count 8), second degree identity
theft (counts 9, 18), and second degree theft (counts 6, 20). Lou’s attorney
moved to sever the trial, which motion the court denied. The court found that Lou
had “failed to demonstrate that [he] would be unduly prejudiced by having Counts
1-22 presented to a jury in a single trial.” Lou again submitted a motion to sever,
which the court denied.
Witness Jordan Giske testified at Lou’s trial as follows: On July 16, 2016,
while at work at a Washington Tractor store, Giske spent 20-25 minutes helping
a customer purchase equipment. Because the customer applied for financing,
Giske collected personal information. The customer identified himself as Michael
Avis and provided a driver’s license with that name. The customer was
“approximately 5’8” or so, 180 to 185 pounds, fit or stocky build and [C]aucasian
or Oriental.” Giske stated that he was “100 percent sure” that Lou was the
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customer he helped that day. Giske agreed with the defense that Lou was the
only person in the courtroom who matched his description of the customer.
Giske additionally stated that he had seen Lou walking outside the
courtroom. After Giske left the witness stand, the defense stated, because Lou
was in custody, he must have been in handcuffs and escorted by officers when
Giske saw him outside of the courtroom. The court agreed.
Josh Bair also testified for the State. Bair’s testimony provided the
following: While working at J & I Power Equipment on July 21, 2016, Bair spent
between 30 minutes and an hour helping a customer with financing for some
equipment. Bair recollects the interaction “exactly.” As part of protocol, Bair
copied the customer’s driver’s license. The customer signed the financing form
as Michael Avis. When Bair later provided a statement for the police, he wrote
that the customer was “a medium build Native American male.” By Native
American, Bair “meant [the customer] was darker complexion than [himself],
some sort of Asian type descent.” While in the courtroom, Bair identified Lou as
the customer he had helped. Bair acknowledged that Lou looked different than
the other people at the defense table. After a recess, Lou’s defense counsel
stated for the record that she saw Bair in the hallway before officers brought Lou
into the courtroom and therefore believed that Bair had seen Lou in handcuffs
prior to making his in-court identification.
After the witnesses testified, Lou moved to strike the in-court
identifications. Lou argued that the identifications violated due process because
the combination of (1) the witnesses seeing him in restraints and escorted, and
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(2) him being the only person at the defense table matching the witnesses’
descriptions, rendered the identification procedures unnecessarily suggestive.
The court denied Lou’s motion.
At the close of the State’s case, the court dismissed count 1 (leading
organized crime) due to insufficient evidence and counts 9 and 10 (second-
degree identity theft and forgery) for lack of venue.
On February 26, 2018, the jury acquitted Lou of count 8 (trafficking in
stolen property) but found him guilty on the remaining charges. Lou appeals.
II. ANALYSIS
A. In-Court Identifications
Lou argues that the two in-court identifications violated his federal right to
due process because the witnesses saw him in handcuffs and escorted by
officers outside of the courtroom prior to the identifications and because he was
the only person matching the descriptions of the suspect at the defense table.
Advancing several arguments, the State claims no due process violation
occurred. We conclude that Lou’s claim fails because the identifications bore
sufficient indicia of reliability.
This issue involves the admission of evidence, which we review for abuse
of discretion.1 State v. Birch, 151 Wn. App. 504, 514, 213 P.3d 63(2009).
1Though Lou did not address the standard of review in his briefing, at oral
argument he contended that we should review this issue de novo. Wash. Court of
Appeals oral argument, State v. Lou, No. 783467 (Jan. 16, 2020), at 1 mm., 51 sec.
though 2 mm., 27 sec. (on file with court). But this would contradict the case law directly
addressing this issue. ~ Birch, 151 Wn. App. at 514 (reviewing a due process
challenge to an in-court identification for an abuse of discretion).
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“A trial court abuses its discretion when it exercises its discretion in a manifestly
unreasonable manner or bases its decision on untenable grounds or reasons.”
Birch, 151 Wn. App. at 514.
An out-of-court procedure violates due process if it is impermissibly
suggestive such that it is substantially likely that irreparable misidentification will
occur. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58(2002). Courts use a
two-part analysis to determine whether an identification violated due process.
See Birch, 151 Wn. App. at 514. Under this analysis, the party challenging the
identification first bears the burden of showing that the procedure was
impermissibly suggestive. Vickers, 148 Wn.2d at 118. If the party makes this
initial showing, the court then considers whether, based on the totality of the
circumstances, the procedure “created a substantial likelihood of irreparable
misidentification.” Vickers, 148 Wn.2d at 118. In deciding this factor, courts
consider whether, despite the suggestiveness, the identification contained
sufficient indicia of reliability. State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d
343 (2002). To this end, courts analyze:
(1) the opportunity of the witness to view the criminal at the time of
the crime; (2) the witness’s degree of attention; (3) the accuracy of
the witness’s prior description of the criminal; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between the
crime and the confrontation.
Birch, 151 Wn. App. at 514.
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No. 78346-7-116
Assuming, without deciding, that the identifications were impermissibly
suggestive,2 Lou’s due process claim fails because the identifications contained
sufficient indicia of reliability.
Here, Giske helped the man he identified as Lou with purchasing
equipment for 20-25 minutes. As such, he had close contact with the customer
for an extended period of time. Prior to his in-court identification, he described
the person as “approximately 5’8” or so, 180 to 185 pounds, fit or stocky build
and [C}aucasian or Oriental.” And Lou’s Judgment and Sentence describes him
as 510” tall, 180 pounds in weight, and having black hair and brown eyes. Giske
further testified that he was “100 percent sure” that Lou was the customer he
helped that day.
Bair also spent an extended period of time at close contact with the man
he identified as Lou in court. In total, he spent between 30 minutes and an hour
helping with financing. Bair described the customer as “a medium build Native
American male,” though he later testified that “Native American” was how he
described people with darker skin than his own. Bair testified that he could
“recollect exactly” his interaction with the customer.
Though certain facts suggested that the witnesses could be mistaken in
their identifications of Lou, the shortcomings of their identifications went to the
weight of the evidence rather than its reliability. Birch, 151 Wn. App. at 515.
2 For purposes of this opinion, we also assume, without deciding, that there was
improper arrangement by law enforcement. See Perry v. New Hampshire, 565 U.S. 228,
242, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012) (holding that the Due Process Clause is
implicated only when the identification is procured under unnecessarily suggestive
circumstances arranged by law enforcement).
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No. 78346-7-117
Because both in-court identifications of Lou contained sufficient indicia of
reliability, we conclude the trial court did not abuse its discretion by admitting
them.
B. Ineffective Assistance of Counsel
Lou asserts that his trial counsel performed ineffectively by failing to renew
the motion to sever or move for a new trial after the court dismissed counts 1, 9,
and 10, and by not requesting an instruction to limit the jury’s consideration of the
evidence relating to the dismissed counts. The State asserts that Lou cannot
establish the elements of an ineffective assistance claim. We agree with the
State.
For only counts 1, 9, and 10 the State presented evidence of three
fraudulent transactions:
• A man and a woman entered a Washington Tractor store in
Snohomish on July 1, 2016. The woman filled out a credit application
to purchase two generators. The man appeared to be of “island
descent,” had brown hair, and was “[pjrobably six-foot to six-foot
two.” The employee helped the woman load the generators into a
baby blue hatchback-style vehicle.
• After impounding Lou’s vehicle, detectives found paperwork issued
by lssaquah Honda/Kubota containing the name Dana Marler.
• On June 8, 2016, an employee at a Washington Tractor store in
Aberdeen helped a customer who “was about 5’lO”, 5’ll” or so,
white, you know, white complexion, dark brown hair, bit of facial hair”
with a transaction to purchase equipment. The transaction turned
out to be fraudulent. The employee could not identify anyone in a
photo montage as the customer he had helped. At trial, the
employee described the customer as of “possibly Asian descent or
maybe white Asian, some kind of mix.” ~
~ The State does not argue that this evidence related to any count other than 1,
9, and 10.
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At the end of the State’s case, the court dismissed counts 1, 9, and 10. Lou’s
attorney did not renew the motion to sever, move for a mistrial, or request a
limiting instruction.
An ineffective assistance of counsel claim involves mixed questions of law
and fact that we review de novo. State v. Linville, 191 Wn.2d 513, 518, 423 P.3d
842 (2018).
Washington imposes a two-pronged test for determining whether a
defendant received constitutionally sufficient representation. State v. Estes, 188
Wn.2d 450, 457, 395 P.3d 1045 (2017). Under this test, the defendant bears the
burden of showing both deficient performance and resulting prejudice. Estes,
188 Wn.2d at 457-58. An attorney’s performance is deficient “if it falls ‘below an
objective standard of reasonableness based on consideration of all the
circumstances.” Estes, 188 Wn.2d at 458 (citing State v. McFarland, 127 Wn.2d
322, 334-35, 899 P.2d 1251 (1995)). “[S]crutiny of counsel’s performance is
highly deferential and courts will indulge in a strong presumption of
reasonableness.” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
To show prejudice, the defendant must demonstrate a reasonable probability
that, had their counsel performed sufficiently, the outcome of the proceedings
would have been different. Estes, 188 Wn.2d at 458. A reasonable probability
“is a probability sufficient to undermine confidence in the outcome.” Estes, 188
Wn.2d at 458 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct.
2052, 80 L. Ed. 2d. 674 (1984). Applying these standards, we conclude that
Lou’s ineffective assistance of counsel claim fails.
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No. 78346-7-119
Lou first argues that his counsel should have renewed the motion to sever
after the court dismissed counts 1, 9, and 10. But regarding the question of
deficient performance, counsel need not pursue strategies that reasonably
appear unlikely to succeed. State v. Brown, 159 Wn. App. 366, 371, 245 P.3d
776 (2011). Here, the court had twice before denied Lou’s motion to sever.
When the court first denied the motion, it found that Lou had failed to
demonstrate that a single jury trial would result in undue prejudice. Given the
court’s previous denials of his motions to sever and its finding that a single trial
would not cause undue prejudice, Lou’s attorney could have reasonably believed
that the court would have denied yet another motion to sever. As such, Lou’s
attorney did not perform deficiently by failing to renew the motion to sever.
Lou next claims he received ineffective assistance of counsel because his
attorney did not move for a mistrial after the court dismissed counts 1, 9, and 10.
But this claim also fails because Lou cannot show his attorney’s failure to move
for a mistrial constituted deficient performance. To obtain a mistrial, Lou would
have had to show that nothing the court could have said or done would have
remedied the harm to him. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172(1992). Given this high bar, Lou’s attorney again could have reasonably believed
that the court would have denied a motion for a mistrial. See Brown, 159 Wn.
App. at 371. Thus, Lou fails to satisfy the deficient performance prong as it
relates to his counsel’s failure to move for a mistrial.
Finally, Lou claims that his counsel was ineffective because she did not
request a limiting instruction after the jury heard evidence related to three
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No. 78346-7-1110
uncharged fraudulent transactions. But Lou cannot show that this constituted
deficient performance. Before the court instructed the jury, Lou’s counsel was
presumably aware that the court would provide a limiting instruction to evaluate
each count separately. And indeed, the court did so: the instruction provided that
“[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.” The court additionally instructed the jury to not consider charges 1,
9, and 10 for any reason. Jurors are presumed to follow the court’s instructions.
State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015). To be sure, an
additional limiting instruction would have potentially emphasized the evidence
related to the three uncharged transaction. Thus, we can presume that the
decision not to request one was legitimate trial strategy. State v. Donald, 68 Wn.
App. 543, 551, 844 P.2d 447 (finding that lawyer’s failure to request limiting
instruction was tactical). “Deficient performance is not shown by matters that go
to trial strategy or tactics.” State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d
563 (1996). Additionally, as to prejudice, because the court gave these two
instructions, Lou cannot show that the lack of a third limiting instruction
prejudiced him.
In light of the foregoing, Lou’s claims of ineffective assistance of counsel
fail.
C. Legal Financial Obligations
Lou seeks to have the $200 filing fee and $100 DNA fee stricken from his
judgment pursuant to State v. Ramirez, 191 Wn.2d 732, 739, 426 P.3d 71410
No. 78346-7-Ill 1
(2018). Ramirez, decided after the trial court imposed the fees in this case, holds
that trial courts may not impose discretionary costs on an indigent criminal
defendant. 191 Wn.2d at 746. Here, the trial court recognized Lou’s indigence
when it allowed him to pursue his appeal at public expense. The $200 criminal
filing fee is discretionary. Ramirez, 191 Wn.2d at 748. Additionally, the $100
DNA sampling fee is discretionary if the State has already collected an offender’s
DNA because of a prior conviction. RCW 43.43.7541. Lou’s Judgment and
Sentence recognized that he had prior convictions and that the State had already
collected a DNA sample from him. The State properly concedes this issue.
Affirmed except to remand to strike criminal filing and DNA fees from the
Judgment and Sentence.
WE CONCUR:
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