Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65715-1-I
                      Respondent,           )
                                            )       DIVISION ONE 
              v.                            )
                                            )
DEVON D. LAIRD,                             )       UNPUBLISHED OPINION 
                                            )
                      Appellant.            )       FILED:  February 27, 2012
________________________________)

       Becker, J.  --  Devon Laird challenges his conviction for second degree 

robbery, arguing that a show-up identification by three witnesses near the scene 

of the crime was impermissibly suggestive and created a substantial likelihood of 

misidentification in violation of his right to due process.  He also claims that the 

trial court erred in imposing sentence under the Persistent Offender 

Accountability Act (POAA) because his prior out-of-state conviction was not 

legally comparable to any Washington crime based on differences in available

defenses.  Based on the unchallenged findings of fact, we conclude that the trial 

court properly determined that the show-up did not create a substantial 

likelihood of misidentification and the admission of the witness identifications at 

trial did not violate due process.  Laird also fails to establish any error in his 

sentence.  We therefore affirm the conviction and sentence.   

65715-1-I/2

                                        FACTS

       After hearing Laird's motion to suppress, the trial court entered 

unchallenged findings that establish the following facts.  Late in the morning of 

October 14, 2007, Charles Aramaki sat in his car with the door halfway open 

while parked in a disabled parking space in front of a Rite Aid store.  A man 

approached and asked if Aramaki had a light.  When Aramaki said no, the man 

grabbed him by the neck and reached into Aramaki's coat to grab his wallet.  

The man then pushed the door of the car against Aramaki's legs as Aramaki 

tried to push the door open.

       Michael Patrick was leaving Rite Aid when he saw a man pushing against 

a car door, pinching the left foot of the occupant of the car.  Patrick asked if 

there was a problem.  The man let go of the door and started to slowly back 

away.  The occupant, Aramaki, told Patrick that the man had stolen his purse.  

Patrick called 911 and continued to speak to the dispatcher as he followed the 

man away from the Rite Aid and through traffic until losing sight of the man 

behind a Sam's Club store.

       As Alicia Anderson sat in her car near the Rite Aid parking lot, she 

observed Aramaki as he appeared to be falling into his car.  Anderson saw a 

man with his hand inside his coat walk past the front of her car and turned her 

car to follow him.  After she lost sight of the man, she returned to Aramaki, who 

appeared to be bleeding, and called 911.

                                           2 

65715-1-I/3

       Based on information received from dispatch, Renton Police Officer Paul 

Stratford headed for the east side of the Sam's Club to look for a robbery 

suspect.  Within minutes of receiving a description of the suspect, Officer 

Stratford got out of his car and found a man matching the description lying in the 

bushes.  Officer Mark Coleman arrived to assist Officer Stratford in taking the 

man from the bushes and detaining him in handcuffs. Officer Coleman found 

Aramaki's wallet directly under the place where the man had been lying in the 

bushes.  

       While speaking with Aramaki and Patrick at Rite Aid, Officer Michael 

Humphries learned that Officer Stratford had detained a suspect.  Officer 

Humphries drove Patrick to view the suspect.  Meanwhile, Commander Paul 

Cline spoke with Aramaki at the Rite Aid.  Commander Cline then drove Aramaki 

to view the suspect.  Later, Anderson followed in her own car as Officer 

Humphries drove to the place where the other officers detained the suspect.

       Based on the statements of the three witnesses, the police arrested 

Devon Laird, the man found in the bushes with Aramaki's wallet.  The State 

charged Laird with second degree robbery.  The jury found Laird guilty as 

charged.

       At sentencing, the trial court found that Laird had been previously 

convicted of first degree robbery and a Tennessee assault with intent to commit

murder, a crime comparable to a second degree assault in Washington.  The 

trial court imposed a life sentence under the POAA.  Laird appeals.

                                           3 

65715-1-I/4

                                      ANALYSIS

       Laird argues that the show-up identification procedure used by Renton

police was impermissively suggestive and the admission of evidence about the 

show-up at trial violated his due process rights. This court reviews de novo 

alleged violations of due process.  In re Detention of Fair, 167 Wn.2d 357, 362, 

219 P.3d 89 (2009).  

       To establish a due process violation in an identification procedure, a 

defendant must first show the procedure was unduly suggestive.  State v. 

Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999), review denied, 140 Wn.2d 

1027 (2000). Show-up identifications are not per se impermissibly suggestive. 

State v. Guzman-Cuellar, 47 Wn. App. 326, 335, 734 P.2d 966, review denied,

108 Wn.2d 1027 (1987). Generally, a show-up identification held shortly after a 

crime and in the course of a prompt search for the suspect is permissible.  State 

v. Springfield, 28 Wn. App. 446, 447, 624 P.2d 208, review denied, 95 Wn.2d 

1020 (1981), overruled in part on other grounds by State v. Freeman, 153 Wn.2d 

765, 108 P.3d 753 (2005).

       If the defendant establishes that an identification procedure was 

suggestive, the court then considers whether the procedure was so suggestive 

as to create a substantial likelihood of irreparable misidentification, or whether, 

on the other hand, the identification was reliable despite the suggestive 

procedure used.  Neil v. Biggers, 409 U.S. 188, 198-200, 93 S. Ct. 375, 34 L.

Ed. 401 (1972).  In this analysis, the "key inquiry in determining admissibility of 

                                           4 

65715-1-I/5

the identification is reliability." State v. Rogers, 44 Wn. App. 510, 515-16, 722 

P.2d 1349 (1986), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 

53 L. Ed. 2d 140 (1977).  In determining the reliability of an identification, courts 

consider the following factors:  (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.  Biggers, 409 U.S. at 199-200; Brathwaite, 432 U.S. at 

114 (restating the Biggers factors); Linares, 98 Wn. App. at 401.  As our 

Supreme Court has recognized, the development of these reliability factors was 

intended "to facilitate the admission of identification testimony, not hamper it."

State v. Vaughn, 101 Wn.2d 604, 609, 682 P.2d 878 (1984) (discussing 

Brathwaite ).

       If the identification carries a substantial likelihood of misidentification, it 

violates the defendant's right to due process of law.  Biggers, 409 U.S. at 197-

98. Here, after a CrR 3.6 hearing, the trial court entered written findings of fact 

and conclusions of law to support its determination that the identification 

procedure was not impermissibly suggestive.  Laird assigns error only to the trial 

court's conclusions of law and one finding of fact, which is actually a mislabeled 

conclusion of law.  We review a conclusion of law mislabeled as a finding of fact 

as a conclusion of law.  State v. Gaines, 122 Wn.2d 502, 859 P.2d 36 (1993).  

Unchallenged findings are verities on appeal.  State v. O'Neill, 148 Wn.2d 564, 

                                           5 

65715-1-I/6

571, 62 P.3d 489 (2003).

       The trial court determined that the show-up procedure was not 

impermissibly suggestive.  Laird challenges this determination, emphasizing 

Patrick's testimony at the CrR 3.6 hearing about being "very eager" to view the 

suspect "because it pretty much followed my prediction about how easily the guy 

was going to be apprehended." Laird claims this comment demonstrates Patrick 

expected that the person detained by the police was the robber.  Similarly, Laird 

claims that Anderson's testimony regarding the presence of officers next to the 

suspect and the fact that she could see that the suspect was handcuffed 

demonstrates that Anderson was influenced in her identification. 

       But even if the procedure here may have suggested that the police 

believed Laird was the individual who committed the robbery, the question is 

whether the identifications were nonetheless reliable.  We conclude they were. 

First, as the trial court found, all three witnesses had an opportunity to see the 

assailant "very clearly" at the time of the robbery in good lighting conditions on a 

clear day with no rain.  Aramaki looked at the man "while there was nothing 

unusual taking place" before he was grabbed by the neck.  Anderson saw the 

man staring right back at her as he walked past the front of her car.  Patrick 

spoke to the robber as they looked at each other, and the man stood for a few 

seconds before starting to move away from Aramaki's car.  

       Second, each of the witnesses paid sufficient attention to provide a 

description of the man and the trial court found all three were focused on the 

                                           6 

65715-1-I/7

robber and his conduct.  Anderson and Patrick described a black man and 

mentioned information about height, build, and clothing.  There was no evidence 

that any witness was impaired in any way.

       Third, as the trial court found, the three descriptions of the robber were 

not identical but similar and matched Laird's appearance in significant detail. 

Patrick and Anderson described the robber as a black man of medium height, 

and "not too skinny" and "heavy." This description fits Laird.  Anderson 

described the robber's jacket as having "blocks of color," while Patrick described 

his jacket as black with white sleeves. Laird was wearing a black and white 

jacket when Officer Stratford found him in the bushes.

       Fourth, all three witnesses demonstrated total certainty during the show-

up.  Each witness observed Laird from a car where he or she could observe him 

clearly.  Aramaki immediately identified Laird, saying "That's him." Anderson 

had no doubt of her identification of Laird, and Patrick was completely sure of his

identification of Laird at the show-up.

        Finally, only a very short time -- approximately 14 to 19 minutes -- elapsed 

between the dispatch description of the suspect and the show-up identification. 

See Rogers, 44 Wn. App. at 516 (finding a 6-hour delay within permissible 

range).

       An additional indicator of reliability is that the officers conducting the 

show-up separated the three witnesses.  Cf. Velez v. Schmer, 724 F.2d 249, 252 

(1st Cir. 1984) (finding reliability undermined where witnesses were permitted to 

                                           7 

65715-1-I/8

view suspect jointly, "doubtless viewing petitioner and commenting, reassuringly, 

together"). Moreover, there was no evidence that the officers made any 

suggestive statements at the time of the show-up.  On the contrary, for example, 

Commander Cline told Aramaki that the police had detained a person that might 

or might not be a suspect and told him he was under no obligation to make an 

identification.  Cf. Velez, 724 F.2d at 251 (describing the officer's comment upon 

presenting the suspect, "'This is him, isn't it?' as "particularly suggestive" and 

"totally unnecessary"), quoting Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 

1127, 22 L. Ed. 2d 402 (1969).

       On these facts, the reliability of the witnesses' identification of Laird

outweighed the harm of suggestiveness.  Therefore, the trial court properly 

admitted the identifications.

       Laird next challenges his sentence of life without parole under the POAA  

based on his previous convictions of two "most serious offenses," known as 

strikes. Former RCW 9.94A.030(28), (32)(a)(i)-(ii) (Laws of 2006, ch. 139, § 5); 

former RCW 9.94A.505(2)(a)(v) (Laws of 2006, ch. 73, § 6); RCW 9.94A.570; 

State v. Morley, 134 Wn.2d 588, 602, 952 P.2d 167 (1998).  If they are 

comparable to a Washington strike offense, foreign convictions count as strikes.  

In re Pers. Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005).  

       To determine comparability, sentencing courts employ a two-step 

process.  Morley, 134 Wn.2d at 605-06.  First, the trial court must compare the 

elements of the foreign crime to determine if they are substantially similar to the 

                                           8 

65715-1-I/9

elements of a Washington statute in effect when the foreign crime was 

committed.  Lavery, 154 Wn.2d at 255; Morley, 134 Wn.2d at 605-06.  "If the 

elements of the foreign conviction are comparable to the elements of a 

Washington strike offense on their face, the foreign crime counts toward the 

offender score as if it were the comparable Washington offense."  Lavery, 154 

Wn.2d at 255.  "If the elements are not identical, or if the foreign statute is 

broader than the Washington definition of the particular crime," the trial court 

may look to the defendant's conduct as described in the indictment or 

information to determine whether the conduct would have violated the 

comparable Washington statute.  Morley, 134 Wn.2d at 606.  

       Here, the trial court found Laird's prior Tennessee conviction for assault 

with intent to commit a felony comparable to the elements of second degree 

assault in Washington, which is a strike offense under the POAA.  RCW 

9.94A.570; former RCW 9.94A.030(29)(b).

       In 1984, Tennessee Code Annotated § 39-2-102 provided that Assault 

with intent to commit felony occurs "If any person assault another, with intent to 

commit any felony or crime punishable by imprisonment in the penitentiary." At

the same time, the relevant Washington statute provided a second degree 

assault occurred whenever a person "shall knowingly assault another with intent 

to commit a felony." Former RCW 9A.36.020(d) (Laws of 1979, 1st Ex. Sess.,

ch. 244, § 9).  Laird does not contend that the elements listed in the statutes are 

not similar.  Laird also does not challenge the evidence provided by the State at 

                                           9 

65715-1-I/10

sentencing to prove the Tennessee conviction, which apparently included a 

judgment, charging documents, and a fingerprint record. Laird does not make 

any argument as to whether his Tennessee conviction is factually comparable to 

a Washington crime.

       Laird contends that his Tennessee conviction is not comparable to any 

Washington felony solely because in Tennessee in 1984, a defendant had "no 

such method of negating a required mental state" equivalent to "what in 

Washington is commonly called the 'diminished capacity' defense."  He argues, 

"Because the concomitant consequence of different mental state elements may 

be the availability of defenses, which in turn narrows the scope of the statute 

requiring specific intent, the possibility of defenses should thus be considered 

part and parcel of the mens rea element itself."  

       This court has already rejected such an argument in State v. Jordan, 158 

Wn. App. 297, 301, 241 P.3d 464 (2010).  The claim in Jordan was that absence 

of self-defense is an element of a crime for purposes of comparability analysis 

and that a foreign conviction is not comparable to Washington offense if 

defenses available in the foreign state were not identical to defenses available in 

Washington.  As we observed in Jordan, requiring sentencing courts "to examine 

the jurisprudence of the state of conviction to ensure there were no defenses 

available here that were unavailable there" is contrary to the plain language of 

the Sentencing Reform Act (SRA), chapter 9.94A RCW.  Jordan, 158 Wn. App. 

at 303.  RCW 9.94A.525(3) provides that foreign convictions for offenses "shall 

                                           10 

65715-1-I/11

be classified according to the comparable offense definitions and sentences 

provided by Washington law."  "The statute contains no language suggesting 

that defenses must also be identical."  Jordan, 158 Wn. App. at 303.

       As the Supreme Court has stated, "the Legislature intended sentencing 

courts to include out-of-state convictions when making sentencing calculations 

under the SRA."  Morley, 134 Wn.2d at 597.  Requiring another state's 

procedures and court rules to "fully comply with all of Washington's rules and

statutes of criminal procedure . . . before allowing those convictions to be 

counted under the SRA" would exclude "every single out-of-state conviction . . . 

from consideration.  Such a result is clearly contrary to the purposes of the 

SRA." Morley, 134 Wn.2d at 597 (emphasis omitted).  

       Laird's reliance on Lavery is misplaced.  The Lavery court held that 

federal bank robbery is not legally comparable to first degree robbery in 

Washington because the mens rea elements differ.  154 Wn.2d at 255-56.  The 

Lavery court mentioned available defenses to "illustrate the practical differences 

between the two elements." Jordan, 158 Wn. App. at 302. As we said in 

Jordan, the Lavery court "did not hold that differences in the available defenses 

would render two offenses incomparable."  Jordan, 158 Wn. App. at 302.  Laird 

cannot rely on In re Pers. Restraint of Carter, 154 Wn. App. 907, 923-24, 230 

P.3d 181 (2010), reversed and remanded, 172 Wn.2d 917, 263 P.3d 1241 

(2011), to establish a contrary holding in Lavery.  First, as we pointed out in 

Jordan, Division Two held in Carter that the California crime at issue was not 

                                           11 

65715-1-I/12

comparable to a Washington offense based on differences in the intent 

elements, not the defenses.  Jordan, 158 Wn. App. at 303.  Second, the 

Supreme Court did not evaluate the language in the Division Two decision 

dealing with comparability but reversed on procedural grounds regarding the 

time bar applicable to personal restraint petitions and remanded Carter's petition 

to Division Two with instructions to consider his other claimed exceptions to the 

time bar.  In re Pers. Restraint of Carter, 172 Wn.2d 917, 934-35, 263 P.3d 1241 

(2011).  

       Laird claims that our treatment of the notion that comparability depends 

on similarity of available defenses in Jordan was "dismissive" and based on 

"expediency." Following the clear language of the SRA and the well-reasoned 

decisions in Morley, Lavery, and Jordan, we reject this characterization and his 

argument.  If Laird wishes to achieve such a drastic change to settled law, he 

should present his argument to the legislature or the Supreme Court.

       Finally, Laird contends that because the trial court, rather than a jury, 

made findings as to his prior convictions, his sentence violates his jury trial and 

due process rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 

2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 303-

04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).  As Laird recognizes, our 

Supreme Court has rejected this argument.  State v. Thiefault, 160 Wn.2d 409, 

418, 158 P.3d 580 (2007); State v. Smith, 150 Wn.2d 135, 156, 75 P.3d 934

(2003), cert. denied, 541 U.S. 909 (2004).  We adhere to these holdings and 

                                           12 

65715-1-I/13

likewise reject Laird's argument.

       Affirmed.

WE CONCUR:

                                           13