Opinion
No. 31727-3-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-04087-0. Judgment or order under review. Date filed: 04/30/2004. Judge signing: Hon. Kitty-Ann Van Doorninck.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
V Tyson Chavez Mathis appeals his Pierce County conviction of possession of a controlled substance, cocaine. He contends that (1) the evidence was not sufficient to support the juryRs verdict; (2) he was denied his Sixth Amendment right to confront the witnesses against him because police officers were permitted to testify about information received in a 911 call; and (3) in his closing argument, the prosecutor impermissibly commented on MathisRs right to remain silent and shifted the burden of proof to Mathis. We find no merit in any of these issues and affirm.
FACTS
The conviction was based on 56 rocks of cocaine found in the pocket of the driverRs door of a silver Honda. Tacoma Police Officer Tim Deccio made the discovery while he was investigating a 911 report of a black male at a gas station, waving a gun at passing cars. Mathis and his companions and the car fit the description provided by the caller, and so Officer Deccio and his partner contacted them. When the officers arrived, the car was parked at a pump island. Mathis was standing next to the driverRs door, between the car and the gasoline pump. He was talking to a woman (Ms. Matthews), who was standing toward the rear of the car. There was another man (Mr. Fortner) standing by the front passenger door, leaning over the car.
Mathis told the officers there was no gun, that he had been pointing a cell phone at a relative. He denied being the driver of the car, asserting that the driver had just walked away. He smelled of alcohol, and his eyes were bloodshot and watery. Fortner, too, smelled of alcohol.
While he was talking to Mathis, Officer Deccio noticed a bottle of brandy on the driverRs seat and a bottle of beer in a cup holder in the center console. He reached through the open window to retrieve them. As he did so, he noticed the baggie of cocaine in the door pocket. Deccio and his partner searched Mathis, Fortner, and Matthews. They found a baggie of unidentified white substance on Fortner but arrested him on outstanding warrants. Mathis had a cell phone and $810 in cash, but no gun. The officers arrested him for possession of the cocaine found in the car. They found no reason to detain Matthews and released her. She left in her car.
There was also no evidence that he was in possession of the car keys.
The State charged Mathis with possession of a controlled substance with intent to deliver and with making a false/misleading statement to a public official. At trial, the officers testified about the $810 found on Mathis, but it apparently had not been taken into evidence and could not be produced. The jury convicted Mathis of the lesser included offense of possession, and of making a false statement.
Mathis does not challenge the conviction of making a false/misleading statement to a public servant.
ANALYSIS I. Sufficiency of the Evidence
No one was in actual possession of the cocaine at the time the officers contacted the three people standing around the silver Honda. In order to prove that Mathis had constructive possession of the drugs, the State had to show that he had dominion and control over them or over the place where they were located. State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731 (1995); State v. Huff, 64 Wn. App. 641, 653, 826 P.2d 698 (1992). Mathis contends that the evidence is insufficient to prove he had constructive possession of the cocaine because it does not show that he was the driver of the Honda.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and requires that all reasonable inferences from the evidence be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is accorded equal weight with direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A reviewing court must give deference to the trier of fact, who 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 (1992). Thus, the jury's credibility determinations are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
This court must examine `the totality of the situation' in order to determine whether the evidence supports a reasonable inference that Mathis had dominion and control over the cocaine. See Morgan, 78 Wn. App. at 212 (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). The State's evidence, which must be accepted as true for the purposes of Mathis's claim, showed that Mathis was standing next to the driver's side of the car, in a position to pump gas; he smelled of alcohol, different from beer; and there was a partially consumed bottle of brandy on the driver's seat. Officer Deccio identified the odor of beer on Fortner. In addition, Mathis's assertion that the driver had just walked away was improbable. The officers had approached on foot from at least half a block away and did not see anyone leave the car. Finally, the jury could also consider the fact that Mathis gave the officers a false name. The giving of false information to the police is relevant to consciousness of guilt. See State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 1006 (2001). This evidence, viewed in the light most favorable to the State, is sufficient to support an inference that Mathis was driving the Honda; the cocaine was located next to him; and he had dominion and control over it.
There was also testimony that Fortner had admitted that he had been drinking the beer. The court sustained defense counsel's objection, but did not instruct the jury to disregard the testimony.
II. Violation of the Confrontation Clause
The sixth amendment to the United States Constitution guarantees a criminal defendant the right `to be confronted with the witnesses against him.' U.S. Const. amend. VI. Thus, it precludes admission of testimonial evidence where the speaker is unavailable, unless the defendant has had a prior opportunity for cross examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Mathis contends that the court should not have permitted the officers to testify about the 911 call because the two women involved in that call did not testify. The State did not charge Mathis with any crime involving a firearm; there was no allegation that he had been in possession of a firearm, and the two women had not provided information pertinent to the actual charges. As their testimony was not relevant to any issue before the jury, they were not witnesses against Mathis, and the State was not required to produce them. See State v. Darden, 145 Wn. 2d. 612, 621, 41 P.3d 1189 (2002) (rights of confrontation and cross-examination are limited by considerations of relevance). In any case, as they had no relevant information, the lack of cross-examination did not prejudice Mathis. Thus, any error would have been harmless beyond a reasonable doubt. See State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002) (error that violates a defendant's confrontation rights may be so inconsequential that it is rendered harmless).
III. Prosecutorial Misconduct
When a prosecutor improperly remarks on a defendant's failure to testify, it violates his Fifth Amendment privilege against self incrimination. U.S. Const. amend V; State v. French, 101 Wn. App. 380, 386, 4 P.3d 857 (2000). Such remarks may also improperly shift the burden of proof. See State v. Duckett, 73 Wn.2d 692, 696, 440 P.2d 485 (1968).
Mathis contends the deputy prosecutor committed both violations in his rebuttal argument when he questioned why the defendant had not called as witnesses Fortner, Matthews, and the registered owner of the car. In context, the remarks were:
Mr. DeCosta [defense counsel] indicates a lot of holes in the State's case and indicates and asks why hasn't the State called several witnesses? Why didn't they call Mr. Fortner? Why didn't they call Ms. Matthews? Why didn't they call the registered owner of the vehicle?
Mr. Mathis is riding around in a car, apparently with Mr. Fortner. He was certainly standing in the parking lot talking to him. He was talking to Ms. [Matthews] He was driving, I would submit, in a car owned by the registered owner. Where are those people? Certainly the defendant's a lot closer to those people than the State is.
For some reason, the deputy prosecutor begins using the name Williams instead of Matthews. They appear to be the same person.
For some reason, the deputy prosecutor begins using the name Williams instead of Matthews. They appear to be the same person.
The defendant objected at this point. The court overruled the objection, and the deputy prosecutor continued:
All these people were a lot closer to the defendant, apparently friends who rode around in the car with him, people he carried on conversation with in the evening, where are they?
Report of Proceedings at 162-63.
Where improper argument is charged, the defendant bears the burden of establishing both the impropriety of the arguments and their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). The deputy prosecutor's remarks addressed Mathis's failure to call witnesses, not his failure to testify. The potential witnesses were acquaintances of Mathis's and particularly within his ability to produce. The prosecutor's statements constituted valid missing witness argument. See State v. Blair, 117 Wn.2d 479, 490-91, 816 P.2d 718 (1991) (prosecutor properly commented on defendant's failure to produce any of the individuals listed on an alleged `crib sheet,' individuals defendant claimed simply owed him money); State v. Barrow, 60 Wn. App. 869, 873, 809 P.2d 209 (1991) (prosecutor could comment on defendant's failure to call his brother who would allegedly corroborate his explanation of events). This is particularly true in light of the defense's argument that the State had failed to present the registered owner of the Honda or testimony by the people who were in a position to know who was driving the car. See Russell, 125 Wn.2d at 86 (remarks of the prosecutor, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel, are a pertinent reply, and are not so prejudicial that a curative instruction would be ineffective). The deputy prosecutor's comments were a pertinent reply to the defense argument. The court reminded the jury that this was argument, and they would determine the facts. Mathis has demonstrated no prejudice.
Affirmed.
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.
BRIDGEWATER, P.J. and HUNT, J., Concur.