WA Legal Roundup: Division III
Birch appeals his first degree robbery conviction and persistent offender sentencing. Birch’s appeal is based on three issues: (1) the trial court erred in denying his juror cause-challenge; (2) the trial court erred in denying his motion to exclude courtroom identification testimony; and (3) the trial court erred in failing to conduct a comparability analysis for a prior conviction.
Birch was the suspect of a bank robbery. Even though the bank robber wore a disguise, portions of the disguise were found close to the bank and DNA testing led to Birch.
Cause-challenge: During voir dire, Juror 32 stated that she worked at a bank with investment brokers and had never worked as a teller. Birch moved to have Juror 32 removed for cause because of her affiliation with a bank and associated training for bank robberies. The trial court denied the challenge for cause because Juror 32 stated that she could uphold Birch’s constitutional rights and follow the court’s instructions. Birch did not use his remaining peremptory challenge and Juror 32 was seated on the jury. Division III held that there was nothing to show prejudice by Juror 32.
Courtroom identification: The bank teller who was robbed was never asked to identify the robber until the day she testified. The teller saw Birch in the hallway outside the courtroom in handcuffs and being escorted into the courtroom. The teller said she recognized Birch as the robber because she looked right at his face for “a good few seconds” and his eyes were identifiable.
Even though this was an in court identification, Division III held that the analysis was the same as a show up identification because the witness viewed the suspect and then identified the suspect as the perpetrator in court. Due process requires that an out-of-court identification must not be “so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002). Apparently, wearing handcuffs and being escorted by police officers do not alone demonstrate unnecessary suggestiveness. State v. Guzman-Cuellar, 47 Wn. App. 326, 734 P.2d 966 (1987). Hmmmmmmm.
Comparability analysis: In sentencing Birch, the State offered proof of his conviction of robbery in California and a previous Washington second degree assault conviction to arrive at a “three strikes” life sentence. There was some question as to the completeness of the documents to prove the California conviction, but Birch agreed that he had committed the crime. Out-of-state convictions are classified according to the comparable Washington offense. The State bears the burden of proving that the out-of-state conviction is comparable to a Washington conviction that is defined as a strike. However, if a defendant affirmatively agrees that the out-of-state conviction is included as a strike, they cannot later argue that a comparability analysis was not conducted and thus does not count. State v. Ross, 152 Wn.2d 220, 229, 95 P.3d 1225 (2004). Since Birch’s counsel agreed that the California conviction was properly included in his offender score…STRIKE THREE!! Birch took one more shot by stating that his attorney’s failure to object to the California conviction amounted to ineffective assistance of counsel. However, there was nothing in the record to indicate that even if a comparability analysis was conducted that the California conviction would not have counted.