State Of Washington v. Wayne Richard Dubois, Jr. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, No. 69036-1-1 — ZS>~^
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UNPUBLISHED OPINION
WAYNE RICHARD DUBOIS,
Appellant. FILED: January 13, 2014
Schindler, J. —Wayne Richard Dubois seeks reversal of his jury conviction of
first degree assault, second degree unlawful possession of a firearm, and possession of
cocaine. Dubois asserts his attorney provided ineffective assistance of counsel by not
renewing a motion to sever at trial. We affirm.
FACTS
Shortly after 10:00 p.m. on June 25, 2011, three police officers observed a young
man who appeared to be underage standing outside the open back door ofa bar in
White Center. When the man saw the officers, he ran into the bar. The officers
reached the sidewalk in time to see the young man get into a dark green Ford Crown
Victoria that quickly pulled away.
A few hours later, the officers watched as the same dark green Crown Victoria
parked near a Walgreens store in the same neighborhood. After parking the car, the
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same young man got out of the driver's door. Three passengers got out of the car and
joined the man on the sidewalk. When the officers approached the group, the driver,
later identified as Wayne Richard Dubois, was belligerent. The other men were quiet
and cooperative. While one officer spoke with Dubois, the other officers used flashlights
to look through the window of the car and saw what they believed to be a "substantial
amount of crack cocaine." When Dubois saw the officers looking into the car, he yelled,
"[Hjey, stay away from my fucking car."
The officers obtained the car keys from Dubois, impounded the car, and then
released Dubois. In a later search of the car, officers found two bags of cocaine in the
compartment next to the driver's door. In the glove box, the police found checks signed
by Wayne Dubois, mail addressed to Wayne Dubois, and a direct deposit form listing a
Chase Bank account and the name of Wayne Dubois.
On November 6, 2011, Dubois shot Alvin Hillis. About a week before the
shooting, Hillis found a rock of cocaine on the floor of his former girlfriend's house.
Over the next few days, Dubois asked other people to find out if Hillis took the cocaine.
Hillis denied taking the cocaine.
On November 6, Hillis was standing near Pamell's Mini Mart at the corner of 23rd
Avenue South and South Dearborn Street when he saw a dark green Crown Victoria
driving toward him. The car stopped and Dubois got out of the driver's seat and
approached Hillis. Dubois accused Hillis of stealing from him and said, "[Y]ou took
something from me, I need it back." Dubois then got into the passenger side of the car
and left. Hillis walked toward Martin Luther King Jr. Way South. When Hillis reached
the corner, the dark green Crown Victoria pulled into the intersection. Dubois got out of
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the passenger seat, approached Hillis, pulled out a gun and shot at him repeatedly.
One bullet hit Hillis in the abdomen, causing serious injury. Hillis told the police Dubois
shot him.
When the police arrested Dubois several days later, he agreed to a recorded
interview. Dubois admitted driving the Crown Victoria to Parnell's on 23rd Avenue and
Dearborn Street and confronting Hillis about taking "money" from him. But Dubois
denied owning the Crown Victoria and shooting Hillis, or being in the car at the time of
the shooting.
The State charged Dubois with first degree assault and second degree unlawful
possession of a firearm on November 6, 2011, and one count of possession of cocaine
on or about June 25 or 26. Dubois filed a motion to sever the possession of cocaine
count from the two other counts for first degree assault and second degree unlawful
possession of a firearm. Dubois argued that evidence connecting him to the Crown
Victoria in June had little probative value because he admitted driving the Crown
Victoria on the day of the shooting in November. Dubois also argued that he would be
prejudiced by the joinder because the jury would improperly consider the evidence of
the two separate crimes. The State argued that evidence collected during the
investigation of the possession of cocaine in June was highly probative of whether
Dubois owned the Crown Victoria. The State argued that this evidence was relevant to
rebut Dubois' claim that he did not own the car and did not know who was driving the
Crown Victoria at the time of the shooting.
The court denied the motion to sever. The court ruled, "The facts supporting the
[cocaine possession] charge tie the defendant to the vehicle which makes it more likely
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the defendant was in the vehicle at the time of the shooting." Citing State v. Bvthrow,
114 Wash. 2d 713, 718, 790 P.2d 154 (1990), the court also ruled the evidence was cross
admissible and "[a]ny prejudice does not outweigh the concern for judicial economy."
Dubois did not renew the motion to sever at trial. The jury found Dubois guilty as
charged. The trial court imposed a standard-range sentence.
ANALYSIS
Dubois claims he received ineffective assistance of counsel because his attorney
did not renew the motion to sever the charge of possession of cocaine from the charges
of first degree assault and second degree unlawful possession of a firearm. CrR 4.4(a)
requires a defendant to make a pretrial motion to sever and if overruled, to renew the
motion before the close of the evidence. State v. Henderson, 48 Wash. App. 543, 551,
740 P.2d 329 (1987).
To establish a claim of ineffective assistance of counsel, Dubois has the burden
to show that (1) counsel's performance fell below a minimum objective standard of
reasonableness and (2) but for counsel's errors, there is a reasonable probability that
the result of the trial would have been different. State v. West. 139 Wash. 2d 37, 41-42,
983 P.2d 617 (1999) (citing Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)). Dubois must establish both prongs to prevail on an ineffective
assistance of counsel claim. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d
1251 (1995).
To prevail on an ineffective assistance of counsel claim based on counsel's
failure to renew a motion to sever, Dubois must show both that the motion would have
been granted and that, but for the deficient performance, there is a reasonable
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probability that the outcome of the trial would have been different. State v. Standifer, 48
Wash. App. 121, 125-26, 737 P.2d 1308 (1987). Dubois cannot demonstrate that a
motion to sever at trial would have been granted.
Offenses properly joined under CrR 4.3(a) may be severed if "the court
determines that severance will promote a fair determination of the defendant's guilt or
innocence of each offense." CrR 4.4(b): State v. Bvthrow. 114 Wash. 2d 713, 717, 790
P.2d 154 (1990). The defendant has the "burden of demonstrating that a trial involving
both counts would be so manifestly prejudicial as to outweigh the concern for judicial
economy." Bvthrow. 114 Wash. 2d at 718. When weighing potential prejudice from joinder,
the court must consider whether (1) the State's evidence is strong on each count, (2)
the defenses are clear on each count, (3) the trial court instructs the jury to consider
each count separately, and (4) the evidence of each count is admissible on the other
count even if not joined for trial. State v. Russell. 125 Wash. 2d 24, 63, 882 P.2d 747
(1994).
Here, the State's evidence was strong on the charges of first degree assault of
Hillis and possession of a firearm in November 2011, and the charge of possession of
cocaine in June 2011. Dubois concedes that the State presented evidence supporting
the assault and firearm charges. Hillis identified Dubois to police and testified at trial
that Dubois shot him. Two witnesses to the shooting testified at trial to descriptions of
the shooter and the car matching Dubois and the Crown Victoria.
But Dubois asserts that the State's evidence on possession of cocaine was less
strong because no witness testified to seeing him "in actual possession of the cocaine"
or driving the Crown Victoria. We disagree. The cocaine charge was based on strong
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evidence of constructive possession. Police testified that Dubois got out of the driver's
seat of the car and told officers to stay away from "my" car. Fingerprint and
documentary evidence established Dubois had dominion and control over the Crown
Victoria and its contents.
The defense on the cocaine possession charge and the assault and firearm
charges were clear rather than inherently inconsistent or antagonistic. As to the assault
and possession of a firearm, Dubois argued the State did not prove that he shot Hillis or
that he intended to inflict great bodily harm. As to the possession of cocaine, Dubois
argued the State did not prove the cocaine was his. Further, the trial court properly
instructed the jury to consider each count separately.1 We presume the jury followed
the court's proper instruction. State v. Southerland. 109 Wash. 2d 389, 391, 745 P.2d 33
(1987).
Nonetheless, Dubois claims the jury could improperly infer guilt as to the
unrelated cocaine charge because the assault allegedly stemmed from a dispute over
drugs. Dubois relies on State v. Sutherbv, 165 Wash. 2d 870, 885-86, 204 P.3d 916
(2009), to argue the jury could have improperly considered evidence of the cocaine
possession to determine guilt in the shooting because the trial court did not provide a
limiting instruction telling the jurythat evidence of one crime could not be used to decide
guilt for a separate crime. Sutherbv is distinguishable. In Sutherbv. unlike here, the
prosecutor repeatedly argued the jury should consider evidence supporting one charge
1The court instructed the jury: "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."
See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 3.01, at 80 (3d ed.
2008).
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to determine the defendant's guilt on a separate charge of an unrelated crime.
Sutherbv. 165 Wash. 2d at 885-86.
Finally, as the court ruled pretrial, even if not joined for trial, the evidence was
cross admissible. The evidence connecting Dubois to the car for the cocaine charge
would be admissible to show his connection to the car involved in the shooting.
Evidence of Dubois's dominion and control over the Crown Victoria in June was relevant
to rebut his claim to police in November that he did not own the car and did not know
who was driving the car at the time of the shooting.
Because Dubois cannot show the trial court would have granted the motion to
sever if counsel renewed the motion at trial, his claim of ineffective assistance of
counsel fails.
In a statement of additional grounds for review, Dubois contends that the trial
court improperly admitted evidence of his prior felony juvenile adjudication of unlawful
possession of a firearm without engaging in a proper analysis under ER 404(b). Dubois
also claims that his attorney provided ineffective assistance by failing to object to the
admission of his prior juvenile adjudication. But the State was entitled to introduce the
prior juvenile adjudication for unlawful possession of a firearm in order to prove an
element of the charged crime of second degree unlawful possession of a firearm. RCW
9.41.040(2)(a)(i).
Dubois also challenges the trial court's denial of his CrR 3.6 motion to suppress
the cocaine found in the Crown Victoria. He claims the "unreasonable intentional
intrusive look into the car" violated his right to privacy. In its oral ruling on the CrR 3.6
motion, the trial court found that the officers were standing outside the car and looking
No. 69036-1-1/8
through the windshield when they observed the suspected crack cocaine in the driver's
door compartment. Under the well established open view doctrine, an officer looking
into a car from the outside and seeing contraband has not searched the car. See State
v. Kennedy. 107 Wn.2d 1,10, 726 P.2d 445 (1986) ("open view" involves an
observation from a nonconstitutionally protected area).
We affirm.
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WE CONCUR:
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