473093MAJ

~

Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 47309-3-I
Title of Case: State of Washington, Respondent
v.
Marvin Vermillion, Appellant
File Date: 08/05/2002


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-1-05677-7
Judgment or order under review
Date filed: 08/15/2000
Judge signing: Hon. Patricia Hall Clark


JUDGES
------
Authored by Faye C. Kennedy
Concurring: H. Joseph Coleman
Marlin J Appelwick


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Washington Appellate Project
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101

Jason B. Saunders
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101

Marvin L. Vermillion (Appearing Pro Se)
Washington State Penitentiary
Doc# 957908
1313 North 13th Avenue
Walla Walla, WA 99362

Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Heather M. Jensen
W554
516 3rd Ave
Seattle, WA 98104

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) NO. 47309-3-I
Respondent, )
) DIVISION ONE
v. )
)
MARVIN LEE VERMILLION, ) PUBLISHED OPINION
)
Appellant. ) FILED

KENNEDY, J. -- Marvin Lee Vermillion was convicted of first-degree
robbery and threats to bomb property. Beginning six days before jury
selection, Vermillion repeatedly and unequivocally requested to represent
himself. The trial court denied his requests on the improper basis that
his appointed counsel was better educated and versed in the law and thus
would better serve his interests. However, assertion of the right to self-
representation does not require a showing of technical knowledge. If a
person is competent to stand trial, he is competent to represent himself.
Vermillion did not request that the trial be continued, and he was
courteous and respectful to the court; thus, there was no indication that
his purpose was to delay the trial or to obstruct the orderly
administration of justice. We reverse Vermillion's convictions and remand
for a new trial because the trial court failed to uphold Mr. Vermillion's
constitutional right to self-representation.
Even though Vermillion is charged with having committed the robbery by
displaying and threatening to detonate what appeared to be a bomb, the
State may retry him for both crimes, and if he is convicted he may be
punished for both crimes without violation of his constitutional protection
against double jeopardy. Also, the trial court properly ruled, at the
pretrial CrR 3.6 hearing, that a Frye1 hearing was not necessary to prove
the reliability of the confidential tracking device by which police located
Vermillion after the robbery, and properly admitted the evidence obtained
by use of the tracking device for the jury's consideration. Finally,
police had a sufficient basis to stop and frisk Mr. Vermillion.
Accordingly, although we reverse and remand for a new trial, we affirm the
CrR 3.6 rulings that were made for the first trial.
FACTS

On July 2, 1998, near the end of the business day, a white male in his
50's with gray hair and wearing light-colored clothing and gloves robbed a
downtown Seattle bank located on 4th Avenue between Pike and Pine Streets.
The robber, who was carrying a package, handed a note to the teller
indicating that the package contained a bomb and that he would detonate the
bomb if the teller told anybody that a robbery was in progress, or if
anyone followed him from the bank. The teller gave the robber a bag
containing money, a confidential tracking device, and bait money. The
robber then left the bank with the bag, leaving the package containing the
alleged bomb at the teller's window. The teller activated the tracking
device and promptly called the police, giving them a physical description
of the robber. Within moments, several officers converged on the area,
some of them in patrol cars that were equipped to locate the tracking
device.
The tracking device broadcast a radio signal that led police to Mr.
Vermillion, who fit the physical description of the robber except that he
was wearing dark clothing and was not wearing gloves. Three officers
stopped Mr. Vermillion near the crosswalk at 4th and Pine. One of the
officers patted Mr. Vermillion down for weapons and discovered a bag tucked
into his waistband containing several thousand dollars, the tracking
device, which was still operating, and the bait money. Mr. Vermillion was
placed under arrest and his pockets were searched. The note used in the
robbery was found in one of his pockets.
The Seattle Police Explosives Squad evacuated the bank building, cordoned
off the block surrounding the building, and sent a robot into the bank.
The robot moved the package to the floor, and opened it. Cameras showed
the package to contain a bundle of rolled up paper. A member of the bomb
squad, wearing a bomb suit, entered the bank to determine whether a bomb
was hidden in the bundle. There was no bomb.
The State charged Mr. Vermillion, by amended information, with one
count of robbery in the first degree, and one count of threats to bomb or
injure property. Mr. Vermillion pleaded not guilty.
On five occasions before and immediately after commencement of the trial,
Mr. Vermillion requested to represent himself. The court denied each
request.
A CrR 3.6 hearing was held and the court admitted the evidence obtained by
the confidential tracking device, denying a defense request for a Frye
hearing before admitting the evidence, and finding that the device was in
proper working condition when police utilized it to locate Mr. Vermillion.
After the jury found Mr. Vermillion guilty as charged, he moved for a new
trial on the ground that the court improperly denied his requests to
represent himself. Defense counsel moved to withdraw before sentencing and
for the appointment of substitute counsel. The court denied both motions.
Mr. Vermillion was sentenced to standard-range sentences on both counts.
He timely filed a notice of appeal.
ANAYLYSIS
Right to Self-Representation
The State and Federal Constitutions guarantee a criminal defendant the
right to self-representation. U.S. Const., amend. VI and XIV; Wash.
Const., art. I sec. 22. This right is afforded a defendant despite the
fact that exercising the right will almost surely result in detriment to
both the defendant and the administration of justice. State v. Fritz, 21
Wn. App. 354, 359, 585 P.2d 173 (1978). A defendant need not demonstrate
technical knowledge of the law and the rules of evidence. Faretta v.
California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
The right to self-representation is either respected or denied; its
deprivation cannot be harmless. McKaskle v. Wiggins, 465 U.S. 168, 177
n.8, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984).
The right is not absolute, however. In re Richardson, 100 Wn.2d 669, 674,
675 P.2d 209 (1983). For example, the court bears no affirmative duty to
inform a defendant that he has the right; the defendant must personally ask
to exercise the right. State v. Garcia, 92 Wn.2d 647, 654, 600 P.2d 1010
(1979). Once the issue is raised, however, the trial court should assume
responsibility for assuring that the defendant's decision is made with at
least minimal knowledge of what the task entails, preferably through a
colloquy on the record assuring that the defendant understands the risks of
self-representation. City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691
P.2d 957 (1984). At a minimum, a defendant should be apprised of the
seriousness of the charge, the maximum potential penalty involved, and the
existence of technical, procedural rules governing the presentation of the
accused's defense. Id.
In order to exercise the right, a defendant's request must be unequivocal,
knowingly and intelligently made, and must be timely. State v. Breedlove,
79 Wn. App. 101, 106, 900 P.2d 586 (1995). The right may not be exercised
for the purpose of delaying the trial or obstructing justice. Id. Even
when a request is unequivocal, a defendant may still waive the right of
self-representation by subsequent words or conduct. State v. Luvene, 127
Wn.2d 690, 699, 903 P.2d 960 (1995). Courts should indulge every
reasonable presumption against finding that a defendant has waived the
right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202
(1982).
Mr. Vermillion asserts that he repeatedly, consistently, and unequivocally
asserted his right to represent himself, and that he did so knowingly,
intelligently, and in a timely fashion. The record bears this out. He
sought to assert his right on five separate occasions, the first time at an
omnibus hearing held on September 30, 1998, before Judge Janice Niemi. At
the hearing, his counsel stated, "In addition, Mr. Vermillion would like to
make a motion to go pro se today and I don't know when the Court wants to
hear that." Vol. 3 Report of Proceedings at 3. Judge Niemi declined to
address the motion at that hearing.
At a pretrial hearing held on the following day, October 1, 1998, Mr.
Vermillion renewed the request before Judge Marsha Pechman, who had
convened court for the purpose of hearing a motion to exclude witnesses.
Mr. Vermillion moved to "discharge" his appointed counsel and to "go
forward pro se." Vol. 4 Report of Proceedings at 3. He explained to the
court: "I raised this with Judge Niemi yesterday, and she, for whatever
reason, didn't want to deal with it at that time." Id. Mr. Vermillion
then stated that he "would prefer to represent" himself because he felt
inadequately informed of the charges against him, he wanted to see a copy
of the police report, and he wanted to pursue an issue that his trial
counsel would not pursue, that being his claim that the police seized
$5,000 from his person at the time of his arrest but had reported seizing
only $862. Id. at 4-5. In response to questions from Judge Pechman, Mr.
Vermillion stated that he had taken a couple of years of college, had
studied some law, and was prepared to represent himself, examine witnesses,
and to be held to the same standard as a lawyer. However, he admitted to
having done "very little preparation" for trial. In an effort to satisfy
Mr. Vermillion's concerns, Judge Pechman allowed him to see the police
reports, with some of the information redacted. Moreover, the deputy
prosecutor informed Mr. Vermillion, on the record, of the charges against
him and the potential penalty for each charge. The court then denied Mr.
Vermillion's motion to represent himself, stating:
And sir, I believe it's really in your best interests to be able to have
counsel. These are serious charges, and you haven't convinced me that you
would be prepared to even meet the allegations or know how to proceed in a
courtroom, given the serious nature of these charges. And I just -- I will
enter an order that basically allows you to get copies of the reports,
although some information will be removed{.}

Id. at 10-11.
At the next pretrial hearing, held on October 5, 1998, before Judge Carol
Schapira, Vermillion immediately repeated his request to represent himself.
He explained in further detail that he had some experience in law,
including filing "several PRPs2 while at Walla Walla." Vermillion insisted
that "under the state and . . . federal constitutions I have a right to
defend myself." Vol. 5 Report of Proceedings at 5. Although Judge
Schapira did not disagree that Mr. Vermillion had a right to represent
himself, she stated, "The only question is whether or not that's going to
lead to a fair trial." Id. When Mr. Vermillion responded that he did not
believe he would get a fair trial with his current representation, Judge
Shapira asked, "why do you think you would do a better job." Id. at 6-7.
Vermillion responded, "I'm not saying I would do a better job. I think I
would bring up more than what's going to be brought up." Id. at 7. Judge
Schapira then denied the motion and proceeded with the CrR 3.6 hearing,
which had been started but not completed on September 15, 1998.
The following day, shortly before jury selection was scheduled to
commence, and with Judge Shapira still presiding, Mr. Vermillion
immediately requested, for the fourth time, to represent himself. The
following exchange took place:
THE DEFENDANT: Your honor, once again, I would like to renew my motion to
go pro se based on the fact that the State Constitution and the Federal
Constitution both give me the right to proceed pro se.
THE COURT: We had a brief counsel yesterday, Mr. Vermillion. My
recollection is that you had a high school education, that you haven't,
although you had participated in some legal proceedings like the personal
restraint petition, that you had never represented yourself.
THE DEFENDANT: Well, that is not entirely true. I did represent myself
once before.
THE COURT: In a prior trial?
THE DEFENDANT: Yes
THE COURT: And did you have a good outcome?
THE DEFENDANT: No, I didn't. But I am sure my attorney hasn't had a good
outcome in all of her trials. I am sure you know that shouldn't be - if
you had an attorney that lost his first case, you would still let him
proceed in trials.
THE COURT: Again, the attorneys that come before me have all had to study
law, take a bar exam, been tested, and many of them are selected either by
an office to work for them. So there's a lot of controls on the people
that come before me. Do you have a familiarity with the rules of evidence?
THE DEFENDANT: Somewhat, yes.
Vol. 6 Report of Proceedings at 4-5. Mr. Vermillion also stated that he
"just can't agree with the defense" and never really had a chance to speak
with defense counsel. Id. at 6-7. When the panel of prospective jurors
entered the courtroom, the judge said, "We will continue this later." Id.
at 8.
Following jury empanelment, Mr. Vermillion requested for the fifth
time to proceed pro se:
THE COURT: Again, we have had an opportunity at least briefly to go back
over your background in terms of education and experience. The crimes that
you are charged with, I am not fully familiar with your criminal conviction
background. I do know that there have been some, and certainly robbery in
the first degree is an offense which has a very serious penalty. Is that
something that you have had an opportunity to discuss with counsel?
THE DEFENDANT: I don't know just where it's at on the range, but I know,
yes, it carries quite a bit of time.
THE COURT: I am going to deny your motion. I am certainly happy to make
any accommodations that you need in order to ask an additional question or
have time to confer with your counsel to make sure that any defense you're
interested in asserting is asserted, any questions that you are interested
in asking are asked.

Id. at 10-11.

We review a trial court's denial of a request for self-representation for
abuse of discretion. Breedlove, 79 Wn. App. at 106. Discretion is abused
if the trial court's decision is manifestly unreasonable, or is exercised
on untenable grounds, or for untenable reasons. State v. Blackwell, 120
Wn.2d 822, 830, 845 P.2d 1017 (1993). In this context, a court's
discretion lies along a continuum, corresponding to the timeliness of the
request:
(a) if made well before the trial . . . and unaccompanied by a motion for
continuance, the right of self-representation exists as a matter of law;
(b) if made as the trial . . . is about to commence, or shortly before, the
existence of the right depends on the facts of the particular case with a
measure of discretion reposing in the trial court in the matter; and (c) if
made during the trial . . . the right to proceed pro se rests largely in
the informed discretion of the trial court.

Fritz, 21 Wn. App. at 361. "Where a court is put on notice that the
defendant wishes to assert his right to self-representation but it
nevertheless delays ruling on the motion, the timeliness of the request
must be measured from the date of the initial request." Breedlove, 79 Wn.
App. at 109.
Here, Vermillion's first request was made on September 30, 1998. A
trial "commences," tolling the speedy trial requirements of CrR 3.3, even
when the only matter before the court is a motion to exclude witnesses.
State v. Andrews, 66 Wn. App. 804, 808-10, 832 P.2d 1373 (1992) (trials
found to have started when, in the last minutes of the last possible day,
for purposes of speeding trial rules, the respective judges heard motions
to exclude witnesses). Even if Mr. Vermillion's trial "commenced" on
October 1 with the hearing before Judge Pechman, we cannot ignore the fact
that jury selection in Mr. Vermillion's trial did not take place until
October 6, nearly a week after he made his first request to represent
himself. Mr. Vermillion told the court on October 1 that, although he had
done little by way of trial preparation, he was prepared to examine
witnesses and to be held to the same standards as a lawyer. He did not
request that the trial be continued on any of the occasions that he renewed
his motion. There is no indication in the record that Vermillion made his
request for the purpose of delaying trial. Nor is there any indication in
the record that Mr. Vermillion made the request for the purpose of
obstructing the orderly administration of justice. Mr. Vermillion was at
all times courteous and respectful to the court. Certainly, the court
retained a "measure of discretion" under Fritz because the request was made
"shortly" before trial. But as the State itself points out, even where a
defendant's request is not timely, "the court may deny the request if it
finds that the defendant sought to exercise his right for the purposes of
delay or to gain tactical advantage, or if granting the request would
frustrate the orderly administration of justice." Respondent's Br. at 7-8
(citing Breedlove, 79 Wn. App. at 106). We conclude that Mr. Vermillion's
request was timely. Moreover, the court did not find that he made the
request for any improper purpose, and the record is devoid of any evidence
that would support such a finding.
Mr. Vermillion's request to represent himself was also unequivocal. The
State characterizes Mr. Vermillion's request before Judge Pechman as
equivocal, in that he may have thought that the only way he could see the
police reports was if he were representing himself. But even if we were to
agree with this characterization, we must review the record as a whole, and
there was nothing equivocal about Mr. Vermillion's three requests made
before Judge Shapira.
The record also demonstrates that Mr. Vermillion's requests were made
knowingly and intelligently, that is, he understood the risks of proceeding
pro se, the nature and seriousness of the charges, and the fact that he
would be held to the standards of a lawyer although he lacked technical
expertise and was only "somewhat" familiar with the rules of evidence.
The record reflects that both Judge Pechman and Judge Shapira were trying
to serve Mr. Vermillion's best interests by denying his requests for self-
representations. Their denials of Mr. Vermillion's motions were based on
the belief that self-representation wouldn't be in Mr. Vermillion "best
interest" because he was thought not sufficiently educated in the law to
adequately represent himself. However, that is not the test. No showing
of technical knowledge is required. Faretta, 422 U.S. at 835. If a person
is competent to stand trial, that person is competent to represent himself.
Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993).
The purpose of asking the defendant about his experience, if any, in
representing himself and his familiarity, if any, with the rules of
evidence and other aspects of courtroom procedure is not to determine
whether he has sufficient technical skill to represent himself. Rather,
the purpose is to determine whether he fully understands the risks he faces
by waiving the right to be represented by counsel, such as the risk that
lack of familiarity with evidentiary rules could result in admission of
prosecution evidence that could have been excluded by a proper objection,
or exclusion of defense evidence that the defendant would like to present
but cannot for some reason based on evidentiary rules of which he has no
knowledge. See State v. Hahn, 106 Wn.2d 885, 889-90 and n.3, 726 P.2d 25
(1986). A defendant need not himself have the skill and experience of a
lawyer in order to competently and intelligently choose self-
representation, but the record should establish that "'he knows what he is
doing and his choice is made with eyes open.'" Id. at 889, quoting
Faretta, 422 U.S. at 835. "{I}t is the responsibility of the trial court
to determine a defendant's competency intelligently to waive the service of
counsel and act as his own counsel, . . . {but} any consideration of a
defendant's ability to `exercise the skill and judgment necessary to secure
himself a fair trial' was rendered inappropriate by Faretta." Hahn, 106
Wn.2d at 890 n.2, citing Fritz, 21 Wn. App. at 360 (other citations
omitted).3
Again, the right of self-representation is afforded a defendant despite the
fact that its exercise will almost surely result in detriment to the
defendant, as well as to the administration of justice in the sense that,
notwithstanding the fact that pro se litigants are held to the same
standard as lawyers, trials with pro se litigants seldom run as smoothly as
trials with experienced counsel and may take longer, thus contributing to
court congestion. See Fritz, 21 Wn. App. at 359.
Because Vermillion's requests to represent himself were timely,
unequivocal, knowing, and intelligent, and because the trial court's
rulings denying the requests were based on the untenable ground that he
lacked the necessary skill and judgment to secure himself a fair trial, we
must reverse and remand for a new trial.
This ruling makes it unnecessary for us to review Mr. Vermillion's
claims regarding ineffective assistance of counsel and whether the trial
court should have allowed his appointed counsel to withdraw and to appoint
new counsel for sentencing. But we will review Vermillion's remaining
claims because they are likely to arise upon retrial.
Double Jeopardy
Fear and abhorrence of governmental power to try people twice for the same
conduct has deep historical roots. Bartkus v. Illinois, 359 U.S. 121, 151,
79 S. Ct. 676, 3 L. Ed. 2d 684 (1959) (Black, J., dissenting). The double
jeopardy clause of the United States Constitution provides that no person
shall be "subject for the same offense to be twice put in jeopardy of life
or limb." U.S. Const. amend. V. Likewise, Washington State's
constitution, which is given the same interpretation as the U.S. Supreme
Court gives to its federal counterpart, states, "No person shall be
compelled in any criminal case to give evidence against himself, or be
twice put in jeopardy for the same offense." Wash. Const. art. I, sec. 9;
State v. Gocken, 127 Wn.2d 95, 109, 896 P.2d 1267 (1995).
Within these constitutional constraints, the legislative branch has the
power to define and assign punishment for criminal conduct. State v.
Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). Accordingly, appellate
review of a double jeopardy claim requires the court to determine whether
the Legislature intended to authorize multiple punishments for criminal
conduct that violates more than one criminal statute. Id., citing Albernaz
v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275
(1981). If the Legislature has not expressly stated its intent, the court
turns to rules of statutory construction. Calle, 125 Wn.2d at 777. One
such rule is the Blockburger "same evidence" test, which asks whether the
offenses are the same in law and fact. Calle, 125 Wn.2d at 777-78;
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306 (1932). Offenses are the same "in fact" when they arise from the same
act or transaction. Calle, 125 Wn.2d at 777-78. Generally, two
convictions are the same "in law" when proof of one offense would also
prove the other. Id. at 777. Failure under the same evidence test creates
a strong presumption in favor of multiple punishments. Id. at 780.
Mr. Vermillion concedes that his convictions for both robbery in the first
degree4 and threats to bomb or injure property5 are not the same in law, as
each offense requires proof of an element not contained in the other. But
he argues that he was nevertheless placed in double jeopardy by being
punished for both crimes because first degree robbery requires the display
of a deadly weapon or what appears to be a deadly weapon, such as a bomb,
in the commission of a robbery; thus, he contends, the threat to bomb the
bank was only incidental to and an element of the robbery and the crimes
constitute the same transaction and offense -- namely, first-degree
robbery. See State v. Johnson, 92 Wn.2d 671, 679-80, 600 P.2d 1249 (1979)
(examining convictions for first degree rape, first degree kidnapping, and
first degree assault and striking the kidnapping and assault convictions
even though the offenses involve different legal elements because the
kidnapping and assault were incidental to, and elements of, the first
degree rape), disapproved on other grounds, State v. Sweet, 138 Wn.2d 466,
980 P.2d 1223 (1999). See also State v. Potter, 31 Wn. App. 883, 887-88,
645 P.2d 60 (1982) (holding that convictions for reckless endangerment and
reckless driving violated double jeopardy despite differing legal elements
because reckless endangerment through reckless driving always proves
reckless driving); State v. Birgen, 33 Wn. App. 1, 14, 651 P.2d 240 (1982)
(holding that convictions for third degree rape and statutory rape for a
single act of sexual intercourse violated double jeopardy, even though the
crimes were not the same in law and fact under the Blockburger test,
because proof of third degree rape committed by someone over 18 against a
victim under age 16 always proves statutory rape). Mr. Vermillion also
contends that because it was the display and threat to detonate what
appeared to be a bomb that raised the degree of robbery in this case to
that of robbery in the first degree, the offenses merged into the single
offense of first-degree robbery. See State v. Vladovic, 99 Wn.2d 413, 421,
662 P.2d 853 (1983) (offenses merge where Legislature has clearly indicated
that in order to prove a particular degree of crime, e.g., first degree
rape, the State must prove not only that the defendant committed that
crime, e.g., rape, but that the crime was accompanied by an act that is
defined as a crime elsewhere in the criminal code, e.g., assault or
kidnapping). See also Calle, 125 Wn.2d at 775 (there are no non-double
jeopardy reasons for the common-law doctrine of merger).
But even where a crime is elevated to a higher degree by proof of another
crime proscribed elsewhere in the criminal code, both convictions will be
allowed to stand where the legislative purpose for criminalizing the
conduct or the harm associated with each crime is unique, that is, where
the statutes in question address two separate evils. See Johnson, 92 Wn.2d
at 680 (where proof of one degree of crime requires proof of another crime,
the "additional conviction cannot be allowed to stand unless it involves
some injury to the person or property of the victim or others, which is
separate and distinct from and not merely incidental to the crime of which
it forms an element.") (emphasis ours); see also Calle, 125 Wn.2d at 780
(the crimes of rape and incest address two separate evils; a single act of
intercourse can violate both statutes).6
We conclude that the Legislature intended to punish both crimes where a
defendant commits first-degree robbery by means of displaying and
threatening to detonate what appears to be a bomb. The statutes serve
different purposes and address separate evils. The robbery statute is
designed to discourage the taking of property from the person of another by
use or threatened use of force, and serves to protect individuals from loss
of property and threat of violence to their persons. The threats to bomb
statute is designed to deter bomb threats, which inspire fear in many
individuals, disrupt their daily activities, require them to evacuate
buildings causing great loss of private resources, and require aggressive
response by bomb squads causing great expenditure of public resources.
Here, the robber not only took several thousand dollars of the bank's money
by use or threatened use of force, he also caused the bomb squad to be
called out, a downtown building to be evacuated, an entire city block to be
cordoned off and, presumably, at least some physical damage to the bank
premises in that the robot opened the package by use of a high-powered
stream of water. The crimes did not merge, and Vermillion's right of
protection from double jeopardy was not violated. Accordingly, he may be
retried for both crimes, and if convicted, punished for both crimes.
Confidential Tracking Device
We next hold that the trial court was not required to hold a Frye
hearing before determining that the evidence obtained by the use of the
confidential tracking device would be admitted at trial. First of all, the
tracking system does not involve a novel scientific theory. See State v.
Hayden, 90 Wn. App. 100, 103-04, 950 P.2d 1024 (1998) (if evidence does not
involve a novel scientific theory or principle, a Frye inquiry is
unnecessary). The tracking system employs common technology involving the
transmission and reception of radio signals between the tracking device,
receiving unit, and transmission towers. See People v. Cortorreal, 181
Misc.2d 314, 317, 695 N.Y.S.2d 244 (1999) (holding that a low-jack tracking
system using "nothing more sophisticated than radio communications emitted
from a source to a receiver" was based on generally accepted scientific
principles and established technology not subject to a Frye hearing).
Furthermore, use of the system only required objective observation of
information relayed from the tracking device to the receiving unit,
analogous to other scientific devices that are not subject to Frye. See,
e.g., City of Bellevue v. Lightfoot, 75 Wn. App. 214, 222, 877 P.2d 247
(1994) (affirming that police traffic radar evidence is not subject to a
Frye analysis); State v. Noltie, 57 Wn. App. 21, 29-30, 786 P.2d 332
(1990), aff'd, 116 Wn.2d 831 (1991) (finding that the colposcope is in
general use in the medical community and is no more a novel device or
scientific process subject to the Frye standard than binoculars or a weak
microscope).
The record reflects that police witnesses properly authenticated the
system by showing that it was working properly at the time police located
the device on Mr. Vermillion's person. Detective Gary Nelson testified
that the device, when activated, emits a radio signal on a confidential
frequency to stationary towers located throughout the greater Seattle area,
which in turn relay the signal to the command center, which in turn relays
the signal to patrol vehicles that are equipped with mobile units. The
mobile units enable officers in those vehicles objectively to locate the
device by means of a digital indicator, and to determine how close the
device is to the vehicle based on the strength of the radio signal and the
pitch and volume of an auditory signal. The system had been in use
nationally for about nine years, and by the Seattle police for about three
and a half years. Qualified experts testified that the system is regularly
checked and the mobile units are regularly calibrated to insure operational
accuracy. If a tracking device is not working properly, it emits no signal
at all, and since the system uses a confidential frequency police will not
accidentally track a signal broadcast by something other than the tracking
device. Here, the device led officers directly to Mr. Vermillion, who was
near the scene of the robbery and who generally fit the robber's
description. We affirm the trial court's ruling admitting the evidence
without first conducting a Frye hearing, and its determination that the
system was working properly when the device led police to Vermillion.
Investigatory Stop and Protective Frisk
The final issue concerns the investigatory stop and frisk of Mr. Vermillion
by which the bag containing money, the tracking device and bait money was
found on his person. The general prohibition against warrantless searches
and seizures is subject to a few jealously guarded exceptions, one of which
is the investigatory Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). We do not need to consider the State's
contention that there was a sufficient basis for a Terry stop even without
the evidence of the tracking device, because that evidence was properly
admitted. The cumulative evidence of the tracking device, Mr. Vermillion's
proximity to the robbery, and his physical description gave the officers
sufficient reasonable suspicion to justify their investigatory stop of Mr.
Vermillion. See State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982)
(officer may seize an individual if he has reasonable suspicion based on
specific and articulable facts that criminal activity is in progress). It
was lawful for the officers to frisk Mr. Vermillion for weapons, because
robbery is a crime of violence that poses a threat to others, including
pursuing police. See RCW 9A.56.190; State v. Collins, 121 Wn.2d 168, 173,
847 P.2d 919 (1993) (officer may conduct a protective frisk for weapons if
able to point to specific and articulable facts supporting an objectively
reasonable belief that the individual is armed and presently dangerous).
Although we reverse Vermillion's conviction and remand for a new trial
because his right to self-representation was violated, we affirm the trial
court's CrR 3.6 rulings admitting the evidence obtained by use of the
tracking device and refusing to suppress evidence obtained as the result of
the stop and frisk.

WE CONCUR:

1 Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923).
2 Personal Restraint Petitions.
3 We commend to trial courts the advisory list of questions for examining
prospective pro se defendants found in State v. Christensen, 40 Wn. App.
290, 295 n.2, 698 P.2d 1069 (1985) and the "textbook examination" of such a
defendant found in Hahn, 106 Wn.2d at 896 n.9. The trial court's colloquy
with the defendant in Hahn also illustrates the kind of conversation that
should have already taken place between the defendant and his appointed
counsel before the defendant asks the trial court to allow self-
representation.
4 RCW 9A.56.200 - Robbery in the first degree provides:
(1) A person is guilty of robbery in the first degree if in the commission
of a robbery or of immediate flight therefrom, he:
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly weapon; or
(c) Inflicts bodily injury.
5 RCW 9.61.160 - Threats to bomb or injure property provides:
It shall be unlawful for any person to threaten to bomb or otherwise injure
any public or private school building, any place of worship or public
assembly, any governmental property, or any other building, common carrier,
or structure, or any place used for human occupancy; or to communicate or
repeat any information concerning such a threatened bombing or injury,
knowing such information to be false and with intent to alarm the person or
persons to whom the information is communicated or repeated.
6 The converse is also true. Even where the crimes are not the same in
fact and law, two convictions may still violate double jeopardy if the
behavior resulted in the same harm. E.g., State v. Read, 100 Wn. App. 776,
792-93, 998 P.2d 897 (2000) (the harm is the same for an assault that ends
in murder); State v. Valentine, 108 Wn. App. 24, 29, 29 P.3d 42 (2001)
(behavior caused the same harm for purposes of assault and attempted
murder).

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