Opinion
No. 30320-5-II, Consolidated with No. 32142-4-II
Filed: November 30, 2004
Appeal from Superior Court of Pierce County. Docket No: 03-1-00610-8. Judgment or order under review. Date filed: 05/02/2003. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), Gregory Lee Greer, Pierce Co Prosecutors Ofc, 930 Tacoma Ave S Rm 1033, Tacoma, WA 98402-2102.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Gerald Cole appeals his first degree robbery conviction. He argues (1) the showup identification procedure was unduly suggestive; (2) trial counsel rendered ineffective assistance in failing to question a prospective juror about his relationship with the prosecuting attorney; (3) the prosecutor committed misconduct during closing argument; and (3) the 'to-convict' jury instruction was erroneous and lacked an accompanying lesser included offense instruction. Cole also filed a personal restraint petition, which we have consolidated with his appeal. We affirm his conviction and dismiss his petition.
FACTS I. Robbery
As Jackson Moi was walking home from a convenience store, a car pulled up next to him at a stop sign and the driver said something that Moi could not hear. Moi approached the vehicle, and the driver pointed a gun at Moi, demanding that he empty his pockets. Moi handed the driver the cash in his wallet. The driver also demanded Moi's ID card. As the driver reached for the card, another car pulled up and Moi intimated that it was a police vehicle. The driver immediately fled, without Moi's ID card. Moi immediately returned to the convenience store and called 911.
II. Showup and Arrest
Within five minutes, Tacoma Police Department (TPD) Officers Hickman and Vause arrived at the store. Moi described the car as a grey and black Corvette and told the officers in which direction it had gone. He described the driver as a black male, in his 20s, with light colored skin and a large mark on his lower lip. Vause told Hickman that she had passed a vehicle fitting this description while responding to the 911 call.
Hickman left the convenience store to locate the suspect. Hickman spotted a car matching the description in a parking stall in front of a strip mall pub, blocked the suspect car into the stall, and determined that the hood was still warm and there were no occupants in the vehicle. Hickman and another officer entered the pub to look for the suspect, using the description Vause had put out over the radio. The officers were unable to identify anyone matching the description. As Officer Hickman was listening to a more detailed description by Vause, Gerald Cole came into the pub. Cole matched the physical description, including his clothing and the distinctive mark on his lip.
Hickman detained Cole and asked if he knew anything about the Corvette. Cole denied any connection to the Corvette. Hickman handcuffed Cole, placed him in the back of his patrol vehicle, and contacted Vause to bring Moi for a showup identification.
Before even entering the parking lot, Moi identified the Corvette as the vehicle involved in the robbery. Hickman removed Cole from the patrol car while another officer stood at the rear of the patrol car. As Vause pulled into the parking lot, Moi pointed at Cole and exclaimed, '[T]hat's him, that's him, that's him.' Report of Proceedings (RP) at 112. The officers placed Cole under arrest.
Cole had only one $5 bill and seven $1 bills on his person. A K-9 officer unsuccessfully attempted to locate the gun and cash from the robbery.
A forensic specialist processed the Corvette for fingerprints. He recovered two of Cole's fingerprints on a bag of chips found in the back of the Corvette.
III. Procedure
The State charged Cole with first degree robbery. The case proceeded to a jury trial.
During voir dire, the trial court asked prospective jurors if they knew any of the lawyers involved in the case; only juror number 19 answered in the affirmative. The State's attorney (Greer) disclosed that (1) he thought he had gone to high school with juror number 4 (Reiner); (2) he thought they had been good friends; and (3) they had not seen each other since their graduation in 1978, so it was possible Reiner did not remember Greer. Cole's counsel did not question Reiner further. Defense counsel exercised four peremptory challenges but did not challenge Reiner. The trial court excused prospective juror number 19 for cause. The court empanelled the jury, including Reiner, whom the jury elected presiding juror.
At trial, Moi positively identified Cole as the man who had robbed him. John Taylor, the registered owner of the Corvette, testified that he had loaned the car to Cole earlier in the day and that Cole never returned it.
Cole did not object to the jury instructions or to the prosecutor's closing argument. The jury convicted Cole as charged.
ANALYSIS I. Showup Identification Procedure
Cole argues that the showup identification procedure was unduly suggestive because:
(1) he was in handcuffs, (2) he was standing next to uniformed police officers, (3) he was illuminated by a police searchlight, and (4) the police officer guiding the victim did not inform him that the person he saw might not be the perpetrator.
Br. of Appellant at 7. We disagree.
Showup identifications are not per se unnecessarily suggestive. Showups held shortly after the crime is committed and in the course of a prompt search for the suspect are permissible. State v. Springfield, 28 Wn. App. 446, 447, 624 P.2d 208, review denied, 95 Wn.2d 1020 (1981). But a suggestive identification procedure violates due process when the totality of the circumstances creates a substantial likelihood of irreparable misidentification. State v. Maupin, 63 Wn. App. 887, 897, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992). Cole must first show that the identification procedure was suggestive. State v. Vaughn, 101 Wn.2d 604, 608-09, 682 P.2d 878 (1984). If the identification is suggestive, the defendant must show that the totality of the circumstances resulted in a substantial likelihood of irreparable misidentification. Maupin, 63 Wn. App. at 897. This is accomplished through consideration of the reliability factors set out by the U.S. Supreme Court:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
Even assuming, without deciding, that the showup was suggestive, it was nonetheless reliable according to the factors established in Brathwaite. 432 U.S. at 114. Moi had been in close-proximity to Cole during the robbery. Moi had observed Cole's face, clothing, and vehicle; and he had heard his voice. Moi gave police a detailed description of Cole's clothing and features, including a distinctive black mark on his lip, as well as the car. Before Moi and Vause even drove into the parking lot, Moi spontaneously identified the Corvette and Cole. Moi's identification occurred approximately 20 minutes after police responded to his 911 call. Moi unequivocally identified Cole, noting that he was wearing the same clothes he had worn during the robbery, with the exception of a bandana.
We hold that under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification from the showup. Maupin, 63 Wn. App. at 897.
II. Assistance of Counsel
To show ineffective assistance of counsel, Cole must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A defendant cannot rely on matters of legitimate trial strategy or tactics to establish deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
Prejudice occurs when, but for the deficient performance, the outcome would have been different. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). Moreover, we give great deference to counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A. Juror Reiner
Cole argues that his trial counsel rendered ineffective assistance at voir dire when he failed to follow up the prosecutor's revelation that juror Reiner had been a high-school friend. Cole argues that (1) there are no strategic reasons for having failed to excuse Reiner with a peremptory challenge or to request excusal for cause; and (2) there is a reasonable probability that the result would have been different if Reiner had not served as the presiding juror. We disagree.
As the State argues, it is reasonable to infer that counsel did not question Reiner individually because he did not want to remind Reiner of the past relationship. Such questioning could have resulted in the loss of an otherwise desirable juror. Cole's counsel took an active role in voir dire exercising four peremptory challenges against other jurors. It is reasonable, therefore, to presume that counsel did not excuse Reiner for tactical or strategic reasons.
Even if it could be said that counsel's performance was deficient for failure to excuse juror Reiner, Cole has not shown that the trial's outcome would have been different. The State presented an overwhelming amount of evidence against Cole. In addition to Moi's reliable identification, a forensics expert recovered two of Cole's fingerprints on a bag of chips found in the back of the Corvette, which the owner testified he had loaned to Cole earlier in the day and Cole never returned it. In contrast, Cole denied any association with the vehicle. Clearly, the jury believed the other strong witnesses and disbelieved Cole. Cole cannot show that Reiner's presence on the jury affected the verdict.
Cole additionally contends in his Personal Restraint Petition (PRP) that the trial court abused its discretion by not excusing Reiner, sua sponte, for cause. Here, the record does not show that there was any meaningful connection between the prosecutor and juror Reiner. When the trial court asked the venire whether they were acquainted with the parties or attorneys, Reiner did not respond in any way. The prosecutor then informed the court, outside the jury's presence, that he thought he knew Reiner from high-school. No one inquired further of Reiner. Absent some showing that Reiner could not be fair and impartial, his possible acquaintance with the prosecutor did not by itself warrant removal for cause. State v. Tingdale, 117 Wn.2d 595, 602, 817 P.2d 850 (1991).
Moreover, even assuming that Reiner might have been prompted to remember a high school acquaintance with the prosecutor, grant of Cole's petition would still not be warranted. 'A juror's acquaintance with a party, by itself, is not grounds for a challenge for cause.' Tingdale, 117 Wn.2d at 601 (citations omitted).
B. Other PRP Ineffective Assistance of Counsel Issues
Cole further asserts in his PRP that trial counsel was ineffective in failing (1) to discover that the Corvette had been released to the owner before forensic processing; and (2) to contact Melissa Hart, a defense witness who was supposed to testify as to Cole's alibi but had failed to appear at trial. Both of these claims lack merit.
1. Corvette
Police impounded the Corvette at the scene of Cole's arrest and sought a search warrant on February 6, 2003. Five days later, on February 11, 2003, detectives returned with the warrant and a forensics officer to process the vehicle. The police kept the Corvette impounded, with a hold on it, from February 6 until February 11.
Officer Hickman testified that placing a 'hold' on a vehicle at the towing yard secures the vehicle from the general public in order to preserve evidence. When a hold is placed on a vehicle, it cannot be retrieved by the owner or anyone else before detectives or forensics have examined it.
John Taylor, the Corvette's owner, however, testified that he got his Corvette back from the police only two days after he had loaned it to Cole. Cole contends that the police returned the car to Taylor two days after impounding it and then re-impounded it for the forensic examination, creating a 'gap' in time during which evidence could have been planted. This is pure speculation.
Even assuming arguendo that there was an opportunity for someone to have planted the chip bag with Cole's fingerprints inside the Corvette, Cole has shown no prejudice. There was substantial other evidence linking Cole to the Corvette besides the chip bag. Taylor testified that he had loaned the car to Cole in the early morning hours of February 6, 2003. Moi positively identified Cole as the robber and the Corvette as the car he used in the robbery. Finally, the Corvette was parked outside the pub where police detained and arrested Cole, a short time after the robbery. It is unlikely, therefore, that the absence of fingerprint evidence would have changed the outcome of the trial. Pirtle, 136 Wn.2d at 487.
2. Defense Witness
Similarly, even assuming deficient performance, we find no potential prejudice in Cole's counsel's failure to locate defense alibi witness Melissa Potts or to move for a continuance until she could be located. Counsel had subpoenaed Potts, but she failed to appear. Following a brief continuance until after the noon recess, defense counsel told the trial court, 'I don't feel I'm in a position to ask for [a] further continuance since we have no particular leads on her.' RP at 120.
Moreover, Cole failed to make an offer of proof or to include a testimonial affidavit from Potts to make a record of her potential testimony, especially how her testimony might have established an alibi for Cole. Absent such a showing and, again, in light of substantial other evidence, Cole does not establish prejudice from counsel's failure to locate Potts.
We hold that Cole has failed to overcome the presumption of effective assistance of trial counsel.
III. Prosecutorial Misconduct
Cole next argues the prosecutor committed misconduct in his closing argument by suggesting that Cole had demanded Moi's ID card in order to intimidate Moi and prevent his reporting of the robbery. He further argues that the prosecutor's remarks expressing the strength of the State's case and the reliability of the forensic specialist's testimony were improper. But Cole never objected to these remarks at trial.
A. Failure to Preserve Objection for Appeal
We do not review on appeal an alleged error not raised at trial unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice in order to establish that the error is 'manifest.' State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). "It is not enough that the Defendant allege prejudice[,] actual prejudice must appear in the record." State v. Contreras, 92 Wn. App. 307, 312, 966 P.2d 915 (1998) (quoting McFarland, 127 Wn.2d at 334). '[W]hen an adequate record exists, the appellate court may carry out its long-standing duty to assure constitutionally adequate trials by engaging in review of manifest constitutional errors raised for the first time on appeal.' Contreras, 92 Wn. App. at 313.
B. Prosecutor's Remarks
If a defendant does not object to a prosecutor's remark or request a curative instruction, he waives the error unless the remark is "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Binkin, 79 Wn. App. 284, 293-94, 902 P.2d 673 (1995), review denied, 128 Wn.2d 1015 (1996) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)). Cole does not meet this standard.
Prosecutorial misconduct requires a showing that the conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003), review denied, 151 Wn.2d 1039 (2004), citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727.
We review allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999). A prosecutor's remarks are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel's statements. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
1. Intimidation of Moi
Moi testified that Cole demanded his money and ID. The prosecutor's suggestion that Cole demanded the ID to intimidate Moi into silence is a reasonable inference from this evidence.
Moreover, it is not improper for the prosecutor to ask the jury to convict based on the strength of the State's evidence. The prosecutor did not prejudice the jury by arguing that the forensics expert was unlikely to jeopardize his career with improper expert testimony. See SAGR at 5. Rather, this was a legitimate response to Cole's closing argument that the jury did not need to believe the forensics expert's testimony. In other words, Cole invited this response by the State.
Cole fails to show that the prosecutor's remarks were 'flagrant and ill-intentioned' evincing 'an enduring and resulting prejudice.' Binkin, 79 Wn. App. at 294. Accordingly, his failure to object or to request a curative instruction below precludes his raising the issue on appeal.
2. PRP
Cole's PRP alleges additional improper prosecutorial comments to which he did not object at trial. First, the prosecutor argued that if the jury believed Moi's testimony, his testimony alone was sufficient to support a conviction. Next, the prosecutor argued that considerable circumstantial evidence refuted Cole's statement to the police that he was not connected to the Corvette. Finally, the prosecutor referred to Cole as a 'young black male' and a 'young light skinned black male.' RP at 131.
None of these remarks were improper. The first two remarks were proper argument about the evidence and its relationship to the elements of the crime. The prosecutor's comments about Cole's appearance did not appeal to racial bias but rather argued that Moi had credibly and reliably identified Cole as the robber. Cole's assertions of prosecutorial misconduct in his PRP fail for the same reason as those in his direct appeal.
IV. Jury Instructions
Lastly, Cole argues that (1) the 'to-convict' instruction is flawed because it was altered with added words; and (2) he was entitled to a lesser included offense instruction for second degree robbery. Cole neither objected to the to-convict instruction nor requested a lesser-included instruction. Again, we do not review such issues unless they amount to error affecting a manifest constitutional right.
A. To-convict
Arguably, a to-convict instruction affects a manifest constitutional right in that the burden is on the State to prove all elements of the charged crime beyond a reasonable doubt. But again, we do not address the issue, because Cole does not identify the words added to the 'to-convict' instruction that he claims were improper. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Nonetheless, our own examination of the 'to-convict' instruction discloses no impropriety. In a criminal case, jury instructions are sufficient if they 'correctly state the law, [are] not misleading, and permit counsel to argue his theory of the case.' State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). The 'to-convict' instruction meets that test here.
B. Lesser Included
The failure to give a particular instruction is not reversible error when no request was made for such an instruction. State v. Hoffman, 116 Wn.2d 51, 111-12, 804 P.2d 577 (1991), cert. denied, 516 U.S. 1160 (1996). Failure to instruct on a lesser included offense is not a manifest error affecting a constitutional right which would allow review in spite of a failure to object. State v. Scott, 110 Wn.2d 682, 688 n. 5, 757 P.2d 492 (1988). Because Cole failed to request a lesser included offense instruction at trial, we do not address this issue.
Accordingly, we affirm Cole's escape conviction and dismiss his personal restraint petition.
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.
MORGAN, A.C.J. and HOUGHTON, J., concur.