Oral Argument October 22, 2013.
Appeal from Benton Superior Court. Docket No: 10-1-01156-4. Date filed: 09/23/2011. Judge signing: Honorable Carrie L Runge.
Eric J. Nielsen and David B. Koch (of Nielsen Broman & Koch PLLC ), for appellant.
Andrew K. Miller, Prosecuting Attorney, and Terry J. Bloor, Deputy, for respondent.
AUTHOR: Kevin M. Korsmo, C.J. George B. Fearing, J. concurs. Stephen M. Brown, J. (concurring in part, and dissenting in part).
[179 Wn.App. 347] ¶ 1 Cody Kloepper challenges his convictions for first degree rape, first degree burglary, and first degree assault, primarily arguing that the victim should not have been allowed to identify him at trial. We affirm the convictions and sentence.
¶ 2 D.W. awoke in her fourth floor Richland apartment at 4:00 a.m. to prepare for work. An unknown man with long hair attacked her and struck her repeatedly on the head with a metal bar. The two struggled and D.W. defecated in her pants. When asked why he was attacking her, the man responded " because Obama was elected president." The victim told the man that if he was there to rape her, " just do it and get it over with."
¶ 3 He made D.W. get down on her knees but was unable to penetrate her with his penis. She then heard a package being opened and what she thought was latex gloves. The man then used his fingers to penetrate her vagina and her anus. He covered her with a blanket and told her that if she told anyone, he would " come back and finish it off." A few minutes later D.W. called 911.
[179 Wn.App. 348] ¶ 4 D.W. was taken to a Spokane hospital for treatment of her head injuries. An officer there subsequently showed her a six-person photomontage that included a picture of Mr. Kloepper with short hair; D.W. did not identify anyone in the montage. Five days later she was shown a 23-person photomontage that included the same photo of Mr. Kloepper with short hair. D.W. told officers
that she recognized Mr. Kloepper  with the short hair, but identified Mr. Karl Goering from the montage as the man who attacked her. She also identified Goering from an in-person line-up. He was arrested and charged for the attack on D.W.
¶ 5 The crime scene investigators found what appeared to be the tip of a latex glove covered in D.W.'s blood. A small amount of male deoxyribonucleic acid (DNA) was recovered and subjected to Y-chromosome Short Tandem Repeat DNA testing. The result excluded Mr. Goering but matched 1/440 males in the United States population, including Mr. Kloepper. The police advised D.W. on May 5, 2010, that the DNA " matched" Mr. Kloepper and excluded Mr. Goering. The police also advised that they would continue their investigation and had not ruled Goering out as a suspect.
¶ 6 D.W. returned to the police station on July 28, 2010, and gave a recorded statement that she now believed Mr. Kloepper was the attacker. When asked why she changed her mind, D.W. said, " Well the DNA thing." Mr. Kloepper was charged with the three noted offenses, all of which carried a deadly weapon enhancement. Charges against Mr. Goering were dropped. Mr. Kloepper met the victim's original identification of the assailant far better than Mr. Goering did.
¶ 7 The defense moved to exclude D.W.'s anticipated in-court identification on the basis that her receipt of the DNA information was impermissibly suggestive and had tainted the identification. The trial court denied the motion on the basis that the information went to the weight to be given the testimony rather than its admissibility.
[179 Wn.App. 349] ¶ 8 Prior to opening statements, juror 8 indicated by note to the court that his parents were friends of D.W.'s parents while he was growing up. The court did not find a basis for excusal for cause, noting that Juror 8 had not seen D.W. in 40 years and probably would not recognize her.
¶ 9 The jury convicted Mr. Kloepper on all three counts and also found that he was armed with a deadly weapon on each count. The trial court ruled that the rape and assault convictions arose from separate conduct and the sentences would be served consecutively to each other, while the burglary count would be served concurrently with those counts. Mr. Kloepper then timely appealed to this court.
¶ 10 This appeal raises four claims. Mr. Kloepper contends that the trial court erred in denying his motion to exclude the in-court identification and in failing to remove juror 8. He also argues that his trial attorney provided ineffective assistance and that the court was required to have sentenced him to concurrent ...