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State v. Williams

Court of Appeals of Idaho

January 11, 2018

STATE OF IDAHO, Plaintiff-Respondent,
KENT GLEN WILLIAMS, Defendant-Appellant.

         2018 Opinion No. 2

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Steven J. Hippler, District Judge.

         Judgment of conviction for two counts of robbery, with a deadly weapon enhancement, and unlawful possession of a firearm, affirmed.

          Kent Glen Williams, Boise, pro se appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.


         A jury found Kent Glen Williams guilty of two counts of bank robbery, one count of use of a firearm in the commission of a robbery, and one count of unlawful possession of a firearm. On appeal, Williams raises six issues: (1) that the district court abused its discretion by denying Williams' motion to sever the two robbery charges; (2) that the prosecutor committed misconduct in closing argument amounting to fundamental error; (3) that the district court deprived Williams of his state constitutional right to hybrid representation; (4) that the district court deprived Williams of his Fifth and Fourteenth Amendment rights to a fair trial and to be free from excessive restraints during pretrial proceedings; (5) that the district court deprived Williams of his Sixth Amendment right to self-representation; and (6) that the district court erred in denying Williams' motions to suppress the evidence obtained from Williams' detention and from his hotel room.[1] For the reasons provided below, we affirm.


         In July 2012, a Caucasian male wearing a maroon shirt, white baseball cap, and large mirrored aviator sunglasses entered a bank in Boise, minutes after opening. The man handed the teller a note demanding money, and the man indicated that he had a gun and would shoot. The teller described the robber, who did not have a mask, as having an upturned nose. The suspect fled the bank after receiving the money.

         In April 2015, a 5-foot-8-inch to 6-foot Caucasian male wearing mirrored aviator sunglasses approached a teller at another branch of the same bank, shortly after opening, and demanded cash bills consisting of twenty, fifty, and one hundred dollar bills. The man wore a long-sleeved maroon windbreaker jacket, a maroon handkerchief-type mask that he snapped over his mouth and nose, and a black baseball-style hat covering his ears. He explicitly told the teller to retrieve money from two specific tills, and the man did not want any die packs or "bait." At no time did he display a firearm or threaten to use a firearm. After receiving the money, he left on foot. Contrary to the robber's demand, the teller provided the man with bait money and one bill affixed with a tracking device.

         The tracking device sent out a tone alert to law enforcement, leading officers to an intersection where the bill, affixed with the tracking device, lay in the middle of the street. Officers then contacted a nearby HVAC business which had outside video cameras recording the street where the bill was located. The HVAC video contained footage of a Caucasian man in a green compact sedan with a lime-green bumper sticker centered on the trunk. The driver, who appeared to have no facial hair and closely cropped hair, dropped something out of the driver's side window. The driver's jacket and bandana matched the description of the April 2015 robber. The investigating officer determined the vehicle was a 1997 or 1998 Chevy Malibu with customized wheels and out-of-state plates. Additionally, the investigating officer also noticed, after reviewing internal surveillance videos from the bank, a small, yet visible, raised bump the size of a pencil eraser on the back side of the robber's left hand, located between the third finger and the wrist.

         In July 2015, a Caucasian male, between 5 foot 8 inches and 6 foot, entered the same bank, just after opening, as that in the 2012 robbery. The man wore a yellow long-sleeved jacket, a yellow handkerchief mask, a dark-billed hat, and mirrored aviator sunglasses. He demanded twenty, fifty, and one hundred dollar bills from two particular drawers and specifically asked for no trackers or die packs. As the teller pulled money from the drawers, the robber noticed a tracking device on one of the twenty dollar bills. After the man grabbed the bill and felt the tracking device inside, he lifted his shirt and pointed to a gun in his waistband.

         After investigation, which included the internal surveillance videos from the banks, the investigating officer suspected, due to noteworthy similarities, that the same individual committed all three robberies. Based on the HVAC video footage from the April 2015 robbery and still shots of the suspect from the banks' video footage during the three robberies, the investigating officer issued a bulletin to news and local police departments requesting any information on the suspect. That same day, a detective notified the investigating officer that a vehicle matching that described in the bulletin was parked at a nearby hotel. The detective took and sent pictures of the vehicle to confirm. The investigating officer requested that the detective, who was in plain clothes and an unmarked car, remain with the vehicle. The vehicle was a green, 1999 Chevy Malibu with wheels consistent with the images from the April 2015 HVAC footage. On the trunk there was a section of a bumper sticker which matched the same shape and size of the bumper sticker from the April 2015 footage. In addition, there was an adhesive residue with a greenish tint which was also consistent with the lime-green bumper sticker location seen in the April HVAC 2015 footage. The license plate also matched the April 2015 footage; a white and blue out-of-state license plate. Additionally, the rims on the wheels matched those depicted in the April 2015 HVAC photographs. Another detective confirmed with the hotel's manager that according to the hotel's records, the vehicle was registered in Williams' name and that Williams had been residing at the hotel in the same room for two weeks. Hotel staff also confirmed that Williams was the only occupant of the room.

         The vehicle's license number was run through the Washington Bureau of Licensing. The report confirmed Williams was the sole registered owner and had been since prior to the April 2015 robbery. The investigating officer also confirmed Williams' date of birth, height, and Washington address. Williams' DMV photograph, received by the investigating officer, revealed an upturned nose and closely cropped hair, consistent with the photograph and description of the suspect from the 2012 robbery. Moreover, another detective indicated that he believed, after observing Williams entering and leaving the room registered to Williams, that Williams was the same individual on the bulletin.

         In order to determine whether Williams had an identifying bump on the back of his left hand, matching that of the suspected robber, an officer dressed as a tow truck operator stood near a tow truck as it backed up to Williams' sedan. Williams exited his room and approached the tow truck. When the officer showed Williams his badge, Williams turned away and refused to speak.

         Law enforcement then placed Williams in handcuffs. The investigating officer confirmed that Williams' nose was similar to the description given by the witness in the 2012 robbery. Then, the investigating officer rolled Williams' left hand to the side and observed a visible bump, consistent with the one seen in the bank surveillance video. The investigating officer, believing that Williams was very likely the suspect wanted for the robberies, had a patrol car dispatched to the scene, and law enforcement placed Williams inside. The investigating officer testified that at this point he placed Williams under arrest.

         After peering through Williams' hotel room window and noticing two backpacks, the investigating officer applied for a search warrant for the vehicle and hotel room. In his affidavit, the investigating officer set out his investigation, including a description of the similarities between the three robberies and his corroborations regarding the vehicle; Williams' unique nose; and the similar bump on his left hand. Additionally, the investigating officer noted he had eighteen years of experience as a police officer in Idaho, serving as a detective for the violent crimes robbery unit for the last eight of those years. He also included photos from his investigation, including still shots from each of the three bank robberies; photos of the vehicle (both from the HVAC video and from the hotel parking lot); and Williams' DMV photo. A search warrant was issued for Williams' hotel room and the vehicle.

         During the search of a backpack inside the hotel room, the investigating officer found a green lightweight coat with a green piece of sewn triangular cloth, sewing needles, a handgun, and magazines. Inside the vehicle, the investigating officer found a blue and green coat with a blue and green acid washed cloth and several large mirrored "aviator" sunglasses in the jacket's center pocket.

         Police also found nearly $7, 000, with some of the bills bearing sequential serial numbers. Williams was indicted for one count of robbery and one count of a felon in possession of a firearm. Williams pled not guilty. Four months later, the State indicted Williams for an additional count of robbery with a firearm enhancement.

         Prior to trial, Williams made several motions, including a motion to sever the two robbery charges and two motions to suppress evidence. Williams also requested (1) to be released from the "black box handcuffs" during his pretrial proceedings; (2) to have substitute counsel because he was dissatisfied with his counsel's tactical decisions; (3) to have trial counsel perform voir dire, while Williams conducted the remainder of the trial pro se; and (4) to be free of restraints while representing himself during trial. The district court, after conducting hearings, denied Williams' motions. The district court determined that due to safety concerns Williams would wear the black box during pretrial proceedings. Further, the court instructed Williams he could either represent himself or have counsel, not both. Additionally, after being instructed that he would wear a leg tether during trial, Williams withdrew his request to self-represent.

         A jury found Williams guilty of two counts of robbery, one count of a firearm enhancement, and one count of a felon in possession of a firearm. The district court entered a judgment of conviction. Williams timely appeals.

         II. ANALYSIS

         A. Motion to Sever

         Williams first argues the district court erred in denying his motion to sever the two robbery charges. Williams argues the evidence of the two separate robbery charges would be inadmissible character evidence and that neither demonstrated a common plan, scheme, or identity. Alternatively, Williams argues that even if the evidence was admissible, the charges should have been severed because the probative value of the evidence of each offense was substantially outweighed by the prejudicial effect. The State argues the evidence revealed a common plan or scheme. Further, the State argues the evidence of each separate robbery was admissible to show identity.

         We review a district court's denial of a motion to sever under an abuse of discretion standard. State v. Orellana-Castro, 158 Idaho 757, 760, 351 P.3d 1215, 1218 (2015); State v. Eguilior, 137 Idaho 903, 907, 55 P.3d 896, 900 (Ct. App. 2002). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

         In determining whether to grant or deny a motion to sever, the antecedent issue for the district court is whether joinder was permissible under Idaho Criminal Rule 8. Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218. Joinder of offenses is permissible "if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan." I.C.R. 8(a).

         If such commonality requirement is met, the defendant may still obtain relief pursuant to I.C.R. 14 by showing that joinder would result in unfair prejudice. State v. Wilske, 158 Idaho 643, 644-45, 350 P.3d 344, 345-46 (Ct. App. 2015). Idaho Criminal Rule 14 provides that upon the showing of unfair prejudice, the court "may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires."

         There are three potential sources of prejudice for a court to consider when considering a motion to sever based on I.C.R. 14:

(1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep evidence properly segregated; (2) the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not to the other; or (3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition.

State v. Abel, 104 Idaho 865, 867-68, 664 P.2d 772, 774-75 (1983). On appeal, Williams focuses on the third potential prejudice; where the jury could find guilt based on a perceived criminal disposition. Thus, Williams argues, the robbery charges should have been severed because evidence pertaining to one robbery led the jury to find him guilty of the other robbery based solely on a perceived disposition of criminal activity.

         In considering whether to grant a motion to sever based on the third potential prejudice, the court must first determine whether the evidence of the multiple alleged offenses could have been admitted in the different trials had the counts been tried separately. Id. at 868, 664 P.2d at 775. If the answer is yes, there is no prejudice and a court may properly deny the motion. Id. In such a circumstance, "the analysis is the same as to whether the offenses are part of a common scheme or plan permitting joinder under Criminal Rule 8(a) and whether the defendant would be prejudiced by joinder because the offenses were not part of a common scheme or plan under Evidence Rule 404(b)." Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218. As stated in Orellana-Castro, "The events must be linked by common characteristics that go beyond merely showing a criminal propensity and instead must objectively tend to establish that the same person committed all the acts." Id. at 762, 351 P.3d at 1220 (quoting State v. Johnson, 148 Idaho 664, 668, 227 P.3d 918, 922 (2010)).

         In this case, the district court found that the evidence was sufficient to show a common scheme or plan because: (a) the April 2015 and July 2015 robberies were relatively close in time; (b) both locations were local branches of the same bank; (c) the robberies occurred shortly after opening; (d) the perpetrator in each was a Caucasian male between 5 foot 8 inches and 6 foot, or just over 6 foot; (e) he was described as having a similar general appearance; (f) in both, he wore a dark-billed cap with a long-sleeved jacket; (g) in both, he pulled a handkerchief up over his mouth and nose upon entering the bank; (h) the jacket and handkerchief in both robberies were "color-coordinated;" (i) he wore similar mirrored aviator sunglasses in each robbery; (j) he appeared to have knowledge of this particular bank's layout; (k) he demanded cash from two particular drawers, which were hidden from customer view; (1) in both he asked ...

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