Appeal from Superior Court of King County. Docket No: 91-1-07416-6. Date filed: 10/20/92. Judge signing: Hon. Norma S. Huggins.
Petition for Review Denied October 7, 1997,
PER CURIAM. Che Andre Taylor appeals his conviction after a bench trial for first degree rape, four counts of first degree robbery and two counts of second degree assault. He alleges prosecutorial misconduct, that the court erred in admitting his prior robbery conviction for impeachment purposes, and that defense counsel was ineffective for conceding at closing Taylor's guilt on all charges except the rape. We hold: (1) the State impermissibly commented on Taylor's right to be present at trial but the error was harmless; (2) the robbery conviction was per se admissible under ER 609 and therefore the court's erroneous basis for admitting the conviction was harmless; and (3) Taylor has failed to show counsel's performance prejudiced him. We therefore affirm.
Taylor *fn1 was charged by amended information with first degree rape, four counts of first degree robbery, one count of attempted first degree rape, and two counts of second degree assault. The State alleged each of the offenses was committed with a deadly weapon.
Pre-trial, the State sought to admit evidence under ER 609 of Taylor's prior convictions for robbery and taking a motor vehicle without permission. Taylor objected, arguing that while the latter conviction might be admissible, the robbery was not. The court admitted the robbery conviction as an unnamed felony, reasoning that the evidence was more probative than prejudicial because the rape charge involved a credibility determination between Taylor and the alleged victim, and "it is a crime that involves or could involve some falsity and some violence toward another individual[.]" Taylor thereafter waived his right to a jury trial.
At trial, Taylor admitted that he and his codefendant, Alonzo Warren, went to Tip Top Trailer court to steal drugs and money from two women he knew from prior drug dealings. Taylor said he knew Warren was armed with a loaded gun.
Taylor and Warren first entered Amber Scherbinske's apartment. They demanded Scherbinske give them crack cocaine. Shortly thereafter, Shawn Cowell and Mike Keller walked into the apartment. Taylor and Warren searched Cowell and Keller and threatened to shoot anyone who lied about having drugs. Taylor also admitted telling Warren to shoot Keller because he thought Keller was reaching for a kitchen knife. Warren pointed the gun at Keller but did not discharge the weapon.
Taylor admitted taking approximately $8 from Keller and $20 from Cowell. Cowell also testified that a $25 money order was taken from her.
Scherbinske testified that Taylor hit and kicked her repeatedly and that she suffered bruises, a back injury, and what she believed was a concussion. According to Scherbinske, Taylor took about $30 in food stamps, $5 in currency, and a money order from her. Taylor denied taking any cash or a money order from Scherbinske.
After leaving Scherbinske's apartment, Taylor and Warren entered J.C.'s apartment. J.C., her eight-month pregnant daughter, K.C., Waylon Rickert, David Gernackey, and Gary Stark were in the apartment. Taylor and Warren demanded cocaine from J.C. At some point, Gernackey advanced towards Taylor. Taylor admitted hitting Gernackey with a six-pack of soda.
Warren then jumped up, pulled out the gun and told everyone to get down on the floor, "this is a robbery[.]" Taylor admitted throwing a bookshelf at J.C. after she began yelling at him.
K.C., Rickert, and Stark testified that Taylor pressed himself against J.C. in a sexual manner before dragging her into a bedroom. J.C. testified that Taylor raped her vaginally while striking her several times. She said she attempted to fight Taylor off but did not scream because she feared for her daughter's safety.
Taylor admitted dragging J.C. into the bedroom, but claimed that he did so to search her and the room for drugs. He denied sexually assaulting J.C. He claimed that he "reached up, grabbed her pantyhose and pulled them down[,] separating her panties and her pantyhose" to look for drugs. About five to seven minutes later, Warren yelled to Taylor that they needed to leave. Taylor testified that at that point, he "walked up on the bed, I kicked [J.C.]. I spit on her and I turned and walked back in the living room."
Before leaving the apartment, Taylor admits kicking Stark and taking money from him. K.C. testified she gave Warren food stamps in the hopes that he and Taylor would leave the apartment. After they left, K.C. observed her mother curled up "in a little ball." J.C. told Stark that she had been raped and called 911 to report the crime. J.C. stated that her ...