Appeal from Superior Court King County. Docket No: 94-1-01651-9. Date filed: 10/4/94. Judge signing: Hon. Carmen Otero.
Petition for Review Denied February 4, 1997,
Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse.
The opinion of the court was delivered by: Agid
AGID, J. -- Keith Hall and Mark Thomas, aka Anthony Thompson, appeal their convictions for first degree robbery, assault and, in Thomas' case, attempted first degree murder and attempting to elude. Hall contends that the trial court erred when it denied his motion for a new trial after his attorney conceded during closing argument the strength of the State's evidence of his participation in the robbery. Thomas contends that, even though any reference to him was redacted, the trial court erred in denying his motion to sever after it admitted Hall's statement to police confessing to his participation in the robbery. He also argues that the trial court erred when it denied his severance motion because his and Hall's defenses were irreconcilable. We conclude that the trial court did not err in denying either Hall's motion for a new trial or Thomas' motion to sever and affirm.
At about 7 p.m. on March 7, 1994, Larry Ammon, a supervisor for the parts department at the Sears store on First Avenue South in Seattle, was preparing to end his shift when a man he later identified as Keith Hall walked up to him, grabbed his wrist and said, "I want the money." When Ammon responded that he did not have any, Hall repeated his demand, put a gun against Ammon's left side, pulled him down the hall and asked him where the safe was. Ammon pointed to the cashier's cage and complied with Hall's order to unlock the door, open the safe, and sit down. He then realized two other employees had joined him in the cage, one of whom was Wayne Chinn. Ammon also saw a man whom he identified as Thomas standing at the entrance to the anteroom outside the cage with his hand behind his back. Chinn testified that Thomas pulled a gun from behind his back and ordered him to sit down.
Hall removed the money from the safe and placed it in a black sports bag. While he was doing so, Ammon heard Thomas say "come on" a couple of times. After Hall emptied the safe, he walked out. Ammon waited about 10 seconds and then looked out the window of the cage. When he did not see Hall or Thomas, he opened the door and shouted that they had been robbed, directing two other employees, Darrall Nutt and David Feldmeir, to look for the two men who had robbed the store and try to get a description of their vehicle. Nutt went out the east exit because it was the only one open at that time in the evening and walked about 20 feet to peer around the corner of the building into the parking lot where he saw someone walk under a light. About 20 seconds later he saw a blue and white Chevy truck with a tall white canopy back up abruptly, almost hit another car, bounce over the sidewalk, head south on First Avenue and turn left at the first corner. Ammon called 911 and described the men and the truck to the operator.
Seattle Police Officer Nicholas Bauer was patrolling the area at the time. At about 7:15 p.m., he heard a police radio dispatch reporting an armed robbery at the Sears store and describing the suspects and the vehicle. Officer Bauer saw a truck matching the description stopped for a train on Sixth Avenue, pulled up behind it and reported his location to police dispatch. While the train was still passing, the truck suddenly made a U-turn and drove away. Officer Bauer turned on his emergency lights and followed. The truck pulled over, and the driver put his hands out the window. Officer Bauer, who thought the driver's gesture odd, stepped out of his vehicle with his gun drawn but pointed toward the ground and waited for other units to arrive. A second patrol car arrived. *fn1 Although no passenger was visible, Bauer used the public address system to tell any passenger to put his hands out the window as well. *fn2 As soon as he did so, the truck took off. A 40-minute chase ensued in which several patrol cars became involved.
Officer Alfred J. Thompson, who was driving the second patrol car following the truck, testified that the truck eventually came to a stop on 43rd Avenue South where the driver, whom he later identified as Thomas, jumped out and fired several times at another patrol car while it was still moving. Officer Thompson jumped out of his car and fired at Thomas three times. Thomas returned the officer's fire and then ran down 43rd Avenue with an individual who had jumped from the passenger side of the truck. Four police officers, including Officer Thompson, chased them and exchanged several more rounds of gunfire. Officer Thompson stopped firing when someone called out that both suspects had gone down. Thomas and Hall, who had both been shot, were transported to Harborview Hospital along with two officers who had also been injured.
The State charged Hall with first degree robbery and attempted first degree murder or, in the alternative, first degree assault, all with a deadly weapon. It charged Thomas with first degree robbery, three counts of attempted premeditated murder or, in the alternative, first degree assault, all with a deadly weapon, and with attempting to elude a pursuing police vehicle. Prior to trial, the State moved to admit a statement Hall gave to Officer James Mooney while he was in the hospital, confessing to the robbery. After hearing the testimony of several witnesses who were at the hospital when Hall gave his statement, the trial court found that it was admissible. Thomas, who denied participating in the robbery, *fn3 then moved to sever his trial from Hall's. The State offered to redact any references to Thomas from the statement, and the trial court denied his motion. Hall's statement came in through the testimony of Officer Mooney, as follows:
Hall told us he had borrowed the nine-millimeter handgun he was carrying from a friend. He told us that he walked into the store, that there was an employee walking towards him, and he asked this man where the money was. Hall said he showed the man he had a gun in his waistband and asked him again where the money was. The employee told him the money was in the back office where the other employees were at.
This man took Hall back to the office and had the safe opened up.
Hall said he got the money out of the safe and left the store. . . .
Hall remembers being pulled over by the police a short time later. . . .
Hall remembers crashing into some people at the Safeway parking lot, and later, when asked about where the money was, Hall said the money was thrown out around the area of the Safeway store. He could not or would not tell us exactly where. Thomas renewed his motion to sever after the State rested and again at the close of trial. The trial court denied both motions.
Thomas testified at trial that he and Hall had spent the day together but denied involvement in the robbery. During cross examination, the prosecutor asked Thomas whether Hall had been away from him at any time during the day long enough to go to the Sears store without his knowledge. Thomas answered that he had not. He also ...