Opinion
No. 31522-0-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 03-1-00452-9. Judgment or order under review. Date filed: 02/26/2004. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Stacey R. Bales appeals his conviction of attempting to elude a pursuing police vehicle. He argues that (1) the evidence was insufficient to support the conviction; (2) the prosecutor committed misconduct by commenting on the lack of defense evidence; (3) the trial court erred in admitting evidence of Bales's 18 prior convictions for driving without a valid license; (4) ineffective assistance of counsel; and (5) cumulative error. Finding no harmful error, we affirm.
Facts
The State charged Bales by amended information with attempting to elude a pursuing police vehicle. The case went to a jury trial.
At trial, Mason County Sheriff's Deputy Jim Petraitis testified that at approximately 12:39 p.m., on December 4, 2003, a car drove past him at a high speed. As the car passed, he noticed there were at least two people in the car. The deputy followed the car and determined that it was going approximately 70 miles per hour in a 45 mile per hour zone. Because the car's trunk was open, Deputy Petraitis could not see into the car as he followed it.
After pacing the car for approximately a half mile, Deputy Petraitis turned on his emergency lights. When the car failed to pull over, the deputy activated his siren. Although it did not stop right away, the car eventually pulled over and someone got out of the passenger side and ran into the woods. The car then drove off again.
Deputy Petraitis continued to follow the car as it reached speeds of 60 miles per hour in a 35 mile per hour zone and drove in and out of the opposing lane of traffic. The car eventually turned on to another road and then on to a logging road where the driver lost control and the car high centered on a ditch and stopped.
Deputy Petraitis testified that he had a clear view of the car the entire time; that `[t]he very second that thing came to a stop, the driver's door popped open, and this guy got out and ran up this road'; and that he saw no one else get out of the vehicle. Report of Proceedings (RP) at 44. The deputy did not see anyone else inside the car as he ran past it in pursuit of the fleeing man. He also testified that there was not enough time between the time the car stopped and the time the man ran from the car for anyone to change seats inside the car.
Deputy Petraitis broke off the chase when the man entered the woods. He returned to the car to wait for backup and looked inside the car but did not see anyone else inside. Backup arrived in about 10 minutes, and Deputy Petraitis eventually found Bales hiding under a log in the woods. He testified that Bales was the person he saw jump out of the car.
When Deputy Petraitis found him, Bales was wearing jeans and a dark blue sweatshirt. The deputy had noted that the man who fled had been wearing what appeared to be a black coat or shirt and jeans. Deputy Petraitis did not find any discarded clothing in the woods.
After apprehending Bales, Deputy Petraitis learned that Bales's license was suspended and that there was a felony warrant for his arrest. Bales told the deputy that he knew about the warrant.
Bales testified in his defense, asserting that he was merely a passenger in the car. He admitted that the car was registered to him, but testified that his friend Jay Stephens had been driving and that he (Bales) had been sitting in the back seat on the driver's side of the car. He stated that he was not driving because he did not have a valid driver's license.
He also testified that Leroy Stephens was the man who ran from the car when it stopped for the first time.
According to Bales, Stephens jumped out of the car when it went into the ditch but before it stopped moving. He testified that he then crawled out of the driver's side door, twisted his ankle, crawled down the ditch, and then went off into the woods. Bales explained that even though he was not the driver, he tried to hide because he knew about the outstanding warrant. Bales also testified that Stephens was wearing a black jacket and a pair of blue jeans and that Stephens had told him that he had a warrant out for his arrest.
On cross-examination, the prosecutor asked Bales where Stephens was and where Stephens lived. Bales responded that he did not know where Stephens was but that he had lived on Krabbenhoft Road in Mason County. Defense counsel did not object to this inquiry.
The prosecutor then asked Bales why he was not driving on December 4, and questioned him about his prior convictions for driving without a valid license:
Q [PROSECUTOR]. You testified that you weren't driving because your license was suspended?
A [BALES]. Yeah.
Q. Did Jay have a valid license?
A. I believe he does.
Q. And your reason for not driving on December 4th is because you'd be breaking the law because you don't have a valid license, is that correct?
A. Well, Jay was going to borrow my car that day. He, he had asked me earlier in the morning to borrow it when we were at the house, and I told him, well, yeah, you can borrow it but I'd like to go with you, just because I didn't know where he was going or what he was gonna do. So I went ahead and told him you can go ahead and drive because I, you know, I just don't like driving if I don't have to.
Q. You don't like driving if you don't have to because you didn't have a valid license.
A. Yes.
Q. And you didn't want to break the law.
A. Yeah, at that point I didn't.
Q. You've been convicted of driving without a valid license before?
A. Many times.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
Q. Have you been convicted of driving without a valid license before?
A. Yes, I have.
Q. How many times?
A. Numerous.
Q. Would eighteen be accurate?
A. Very possible.
RP at 95-96.
In closing argument, Bales argued that the State failed to prove that he was the driver and that another person was in fact driving the car. In rebuttal, the prosecutor discussed Bales's defense and stated: `And where is Mr. — where is Jay Stephens? He lives in Shelton off Krabbenhoft according to the defendant. Where is he?' RP at 129. Defense counsel did not object.
The jury convicted Bales as charged. Bales appeals. Discussion
I. Insufficient Evidence
Bales first contends that the evidence was insufficient to support the conviction, arguing that it failed to establish that he was the driver of the car. We disagree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Where a defendant claims insufficient evidence, he admits the truth of the State's evidence and, thus, all reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence have equal weight. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And, in reviewing the evidence, we give deference to the trier of fact, which resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Deputy Petraitis testified that he observed only one person exit from the driver's side of the car immediately after it entered the ditch, that there had not been enough time for anyone in the car to change seats, that he saw no on else inside the car when he ran by it, and that no one else got out of the car after he returned to it. He also identified Bales as the person he saw jump out of the car. Additionally, the car was registered to Bales and, although Bales was not wearing a dark jacket, he was wearing a dark sweatshirt that could have easily been mistaken for a dark jacket. The fact Bales testified otherwise is a credibility issue, an issue the jury obviously resolved in favor of the State. Taken in the light most favorable to the State, this evidence was sufficient to allow a jury to find beyond a reasonable doubt that Bales was the only person in the car and, thus, the driver. Accordingly, this argument fails.
II. Prosecutorial Misconduct
Bales next argues that the prosecutor committed misconduct when she commented in her closing argument on the fact Jay Stephens did not testify. He also argues that his counsel was ineffective for failing to object to this comment.
In order to establish prosecutorial misconduct, Bales must establish that the prosecutor's conduct was improper and that her conduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only where "there is a substantial likelihood the instances of misconduct affected the jury's verdict." Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578 (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998)). Because Bales did not object to the prosecutor's comment below, he waived his right to assert prosecutorial misconduct on this basis unless he can show that the remark was so `flagrant and ill intentioned' that it causes `enduring and resulting prejudice' that a curative instruction could not have remedied. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
The State argues that the prosecutor's comment was proper under the missing witness rule. We disagree.
A prosecutor cannot imply that a defendant has a duty to present exculpatory evidence. See State v. Barrow, 60 Wn. App. 869, 872, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991). A prosecutor may, however, argue reasonable inferences from the evidence presented and may attack a defendant's exculpatory theory. See State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991); Barrow, 60 Wn. App. at 872-73. Under the `missing witness' doctrine, the prosecutor may comment on the defendant's failure to call a logical witness whose production is peculiarly within the control of the defense; whose testimony would corroborate the defendant's testimony; and whose testimony is not privileged, necessarily self-incriminating, unimportant, or cumulative. Blair, 117 Wn.2d at 488-90.
Here, in order to corroborate Bales's testimony Stephens would have had to incriminate himself. The State contends that Blair does not say that self-incrimination precludes the prosecutor from mentioning the missing witness. It argues that Blair's discussion of the self-incrimination exception to the missing witness doctrine was merely dicta and that excluding such testimony would not `comport with the fact that a defendant's theory is not immune from attack.' Br. of Resp't at 6.
Even presuming that Blair's discussion of the self-incrimination exception was dicta, there are important reasons for concluding that this exception should apply. The crux of the missing witness doctrine is that the party who would benefit from a witness's testimony would not knowingly fail to call the witness unless there was a reasonable probability that the testimony would be unfavorable. This inference loses much of its weight, however, if there are other legitimate reasons the party may have failed to call the witness. As noted by the Blair court, these legitimate reasons include privilege; the fact the testimony would merely be cumulative; or, as is the case here, the fact the witness could invoke his or her right against self incrimination if asked to testify in support of that party's defense.
Here, the testimony Stephens could have arguably provided in support of Bales's defense would have been self-incriminatory; by corroborating Bales's testimony, he would have had to admit to committing the offense himself. Thus, even assuming Bales's testimony was truthful, it highly was probable that Stephens would refuse to testify. The State argues that Stephens could have provided other, non-self-incriminatory, exculpatory testimony, apparently by testifying that a third person was the driver. But that testimony is utterly at odds with Bales's testimony and would not have been helpful to him.
Because the relevant exculpatory testimony Stephens could have provided was self-incriminatory, the prosecutor's comment regarding his failure to testify was error. We do not, however, conclude that this error was prejudicial.
Bales's testimony clearly put Stephens in the driver's seat during the pursuit, and it was patently clear to the jury that Stephens did not provide any corroborating testimony. The jury itself, without prompting from the prosecutor, could reasonably conclude that Stephens did not testify because his testimony would not have been helpful to Bales's defense. The prosecutor's brief comment on that issue in the context of the entire trial and argument was unlikely to have mattered and, although Bales's credibility was clearly a key issue in this case, we cannot say that it created a substantial likelihood that the jury would have come to a different conclusion had it not heard this comment.
Furthermore, because Bales cannot establish that his counsel's failure to object to the prosecutor's argument was prejudicial, his ineffective assistance of counsel claim also fails. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (to establish ineffective assistance of counsel, appellant must prove that counsel's performance was deficient and that this deficient performance resulted in prejudice) (citing Strickland v. Wash., 466 U.S. 668, 686-87, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
III. Prior Convictions
Relying on State v. Pogue, 104 Wn. App. 981, 17 P.3d 1272 (2001), Bales next argues that the trial court erred when it allowed the State to present evidence of his numerous prior convictions for driving without a valid license and that this error was not harmless. The State argues that Bales opened the door to this evidence by testifying that he was not driving because he did not have a valid license. We agree.
Bales also argues that his trial counsel was ineffective for failing to object to this testimony. The record shows that although defense counsel did not state the basis for his objection before the trial court overruled him, he did object to this line of questioning. Accordingly, we will address this issue, and Bales's related claim of ineffective assistance has no merit.
We review the trial court's admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). We may affirm on any ground the record adequately supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
`The long-standing rule in this state is that a criminal defendant who places his character in issue by testifying as to his own past good behavior may be cross-examined as to specific acts of misconduct unrelated to the crime charged.' State v. Brush, 32 Wn. App. 445, 448, 648 P.2d 897 (1982), review denied, 98 Wn.2d 1017 (1983). When a witness `open[s] the door,' the opposing party may introduce prior convictions to counter assertions of a law abiding past regardless of whether the conviction would have been admissible under ER 609. See Brush, 32 Wn. App. at 450. But a mere passing reference during direct examination to a prohibited topic does not serve to `open the door' to unrestricted questioning about prior misconduct. State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998).
In Pogue, a drug possession case, Division One of this court held that evidence that a defendant had prior experience with drugs and that he had possessed drugs in the past was not admissible to rebut his unwitting possession defense or to rebut his defense that the police had planted the drugs. Pogue, 104 Wn. App. at 986-87. Agreeing with the State's concession of harmful error, the appellate court held that the evidence was not admissible because it had no relevancy apart from suggesting that the defendant had a propensity to commit drug crimes. Pogue, 104 Wn. App. at 986-87. The court distinguished cases where the defendant had made sweeping assertions as to his or her good character, finding that Pogue had said nothing to imply that he was not the type of person to be involved in drugs. Pogue, 104 Wn. App. at 985-86.
Unlike the defendant in Pogue, Bales testified on direct that he was not driving because he did not have a valid license. Thus, he implied that he was not the kind of person to drive without a license and the rebuttal evidence here was directly relevant to Bales's testimony. Accordingly, the trial court did not abuse its discretion in admitting this evidence.
IV. Cumulative Error
Finally, Bales argues cumulative error. The cumulative error doctrine applies only when several trial errors occurred which, standing alone, may not be sufficient to justify a reversal, but when combined together, may require a new trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Bales has established only a single error and, as discussed above, that error was harmless. Thus, he is not entitled to a new trial under the cumulative error doctrine.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J., and VAN DEREN, J., concur.