Opinion
Nos. 35366-1-II; 35574-4-II.
February 12, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 06-1-00352-9, Frederick W. Fleming, J., entered September 15, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Mark David Peterson and Laura Lee Smith appeal each of their convictions for various drug-related charges stemming from the execution of a search warrant on their shared property in Puyallup. We affirm.
FACTS
Mark David Peterson, a mechanic, lived in a mobile home on 20 acres of property located at 17320 82nd Avenue East in Puyallup, Washington. He maintained the property owner's heavy equipment and vehicles in exchange for use of the property. Peterson's sister, Laura Lee Smith, also lived on the property in a separate trailer. She moved in at some point prior to December 2005.
Peterson and Smith's homes were on the front portion of the property, along with a garage and several construction shacks. The back portion of the property was wooded and according to Peterson has many active trails running through it. He had an open door policy and let others store items in the shop on the property. Peterson did not look through other people's "stuff." 7 RP at 487. But there were times when he asked friends to remove their items from the property because it did not appear "legitimate." 7 RP at 482. Peterson also had an ongoing problem of trespassers on the 20-acre property. In the past, he had a haz-mat team or the fire department come to clean garbage and "[s]tuff that [he] believe[d] was related to this manufacturing of drugs" off of the property. 7 RP at 502.
On January 20, 2006, a multi-agency clandestine drug lab team executed a search warrant at 17320 82nd Avenue East. During the search, the deputies came in contact with both Peterson and Smith.
Smith denied knowledge of the manufacture of any methamphetamine on the property. She initially indicated that the police would not find any drug manufacturing related items or drug paraphernalia in her trailer, but later indicated that the police may find smoking pipes or drug pipes because she allowed friends to smoke drugs in her trailer. Smith also indicated that she allowed friends to store things in her garage. But she could not remember any names of those friends at the time. Peterson also denied any knowledge of the manufacture of methamphetamine and could not remember the names of any friends that stored items on the property.
The clandestine drug lab team found several alleged drug-related items in both Peterson's mobile home and Smith's trailer. In Smith's trailer, Deputy Shaun Darby of the Pierce County Sheriff's Department, found several glass pipes of the type commonly used to smoke narcotics. He also located a digital gram scale, several small Ziploc-style baggies in a jewelry box on top of a chest of drawers, and packages of Sudafed brand cold pills on top of the chest of drawers. In addition, Deputy Darby found two bottles of the fuel additive HEET in Smith's kitchen, which is a precursor to the manufacture of methamphetamine. He found coffee filters in the kitchen, but no coffee pot. Finally, Deputy Darby found an identification card of Smith and several documents in her name throughout the trailer.
In Peterson's mobile home, Deputy Robert Johanson of the Pierce County Sheriff's Office, found a test kit for acids and bases, used coffee filters with blue staining, a sauce pan, denatured alcohol, and a solvent in the laundry room. He also found a coffee grinder with white residue, a Mason jar with a white substance, coffee filters, a can of acetone, and a plastic milk bottle in the kitchen. In the bedroom, Deputy Johanson found a hand grinder, a respirator, a face mask, and a syringe filed with liquid. Additionally, there was a video monitor connected to a security camera and a handbook on chemistry and physics on a bookshelf in the dining room.
Deputy Johanson also found several items he believed to be related to the manufacture of methamphetamine in the garage, including vinyl tubing connected to a modified garden sprayer, deteriorated coffee filters, one with staining, a can of Coleman fuel, funnels, glass jars, drinking glasses, Red Devil lye, a propane tank containing anhydrous ammonia, and muriatic acid. He found a "meth[amphetamine] lab in a box" located in a blue portable tote which he located in the garage as well. 3 RP at 237.
At trial, Deputy Johanson testified that he referred to the materials in the duffel bag as a "meth lab in a box" because it contained evidence of all stages of methamphetamine in a portable tote. 3 RP at 237.
Finally, during execution of the search warrant, Deputy Darby escorted Peterson from the mobile home to a secured patrol car. He searched Peterson and found a small straw in his pocket. The straw later tested positive for cocaine.
The State charged Peterson with unlawful manufacturing of a controlled substance, methamphetamine, and unlawful possession of ammonia with intent to manufacture methamphetamine. RCW 69.50.401(1)(2)(b); RCW 69.50.440(1). It later amended the information to include one count of unlawful possession of cocaine and to allege that the manufacturing offense was committed within 1000 feet of a school bus route stop. RCW 69.50.4013(1); RCW 69.50.435.
The State charged Smith with unlawful manufacturing of a controlled substance, methamphetamine; unlawful possession of pseudophedrine and/or ephedrine with intent to manufacture methamphetamine; first degree possession of stolen property; and unlawful use of drug paraphernalia. RCW 69.50.401(1)(2)(b); RCW 69.50.440(1); RCW 9A.56.140(1); RCW 9A.56.150(1); RCW 69.50.102; RCW 69.50.412(1).
The trial court held a CrR 3.5 hearing and found all of Smith's and Peterson's statements were admissible. A jury convicted both Smith and Peterson in a consolidated trial.
Smith pleaded guilty to unlawful use of drug paraphernalia. The jury found Smith guilty of unlawful manufacturing of a controlled substance; unlawful possession of a controlled substance, pseduophedrine and/or ephedrine with intent to manufacture methamphetamine; second degree possession of stolen property. The jury also returned a special verdict, finding Smith was manufacturing methamphetamine within 1000 feet of a school bus route stop. The jury found Peterson guilty of unlawful manufacturing of a controlled substance, methamphetamine and unlawful possession of a controlled substance, cocaine.
ANALYSIS I. Peer Review of Forensic Evidence
Tammy Kee, a forensic scientist with the Washington State Patrol Crime Lab, testified that she received the items submitted for testing in this case. She analyzed the residue from the straw found in Peterson's pocket and concluded it contained cocaine. Kee also analyzed samples collected from Peterson's property and concluded they contained methamphetamine and its byproducts. In addition, Kee testified that these conclusions had undergone the peer review process that is in place at the Washington State Crime Lab. According to Kee, 100 percent of the cases she analyzes go through the peer review process. She then testified that the peer reviewer "agreed with the findings in my final report." 4 RP at 309.
Kee testified that she did not test all of the items submitted for analysis. She explained that once she determines that methamphetamine is being manufactured, based on her training and experience, she ends her analysis. In other words, she does not test the remaining items.
Peterson initially objected to Kee's statement that the peer reviewer agreed with her conclusions because it was impermissible opinion evidence. The court overruled the objection because Kee's testimony regarded the process of peer review and the court did not believe it rose to the level of being an inadmissible comment on the credibility of the witness. Smith's attorney then asked for a limiting instruction. The court agreed to offer a limiting instruction if the defense prepared one.
Then, Peterson immediately requested that the court strike Kee's statement as hearsay. The court denied that motion and advised Peterson to address the issue in his limiting instruction. Neither Peterson nor Smith presented any limiting instruction regarding Kee's statement.
Peterson argues that Kee's statement that the peer reviewer agreed with her conclusions that the straw contained cocaine and the tested samples contained methamphetamine violated his right to confrontation under the Sixth Amendment. Although Peterson is correct that the court erred when it admitted Kee's statement because it violated his right to confrontation, the error was harmless.
The State argues that Peterson has not preserved this argument for appeal because he did not propose a limiting instruction at trial. But the State's argument is misguided. Whether the trial court denied Peterson's right to confrontation is a manifest constitutional error and may be raised for the first time on appeal. RAP 2.5(a)(3); see State v. Clark, 139 Wn.2d 152, 156, 985 P.2d 377 (1999). Moreover, a challenge to the admission of evidence is preserved for appeal by a timely and specific objection to the admission of the evidence. ER 103; State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995), review denied, 129 Wn.2d 1007 (1996). Here, Peterson's counsel objected to Kee's statements at trial and thus has preserved the issue for appeal.
A. Confrontation Clause
Both the United States and Washington Constitutions guarantee an accused the right to confront prosecution witnesses. U.S. Const. amend. VI; Washington Const. art. I, § 22. Although an appellate court generally reviews a trial court's decision to admit evidence for an abuse of discretion, review of a claimed violation of the confrontation clause is de novo. State v. Chambers, 134 Wn. App. 853, 858, 142 P.3d 668 (2006).
Peterson alleges a violation of article I, section 22 of the Washington State Constitution, which guarantees a defendant the right "to meet the witnesses against him face to face." But his argument focuses exclusively on the federal constitution's confrontation clause.
The State may present prior testimonial statements of an absent witness only if the witness is truly unavailable and the defendant has had prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); see also State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87, cert. denied, ___ U.S. ___, 127 S. Ct. 553 (2006). A statement is testimonial if a reasonable person in the declarant's position would anticipate that his statement would be used against the accused in investigating or prosecuting a crime. Shafer, 156 Wn.2d at 389; see also State v. Hendrickson, 138 Wn. App. 827, 833, 158 P.3d 1257 (2007).
In this case, it cannot be disputed that the peer reviewer's opinion that Kee's conclusions were probably testimonial. After all, Kee conducted her forensic tests on the evidence at the request of the State in preparation for trial. It follows that the peer review process was also conducted in preparation for litigation and thus testimonial. Therefore, we must determine whether Kee's statement was hearsay and if so, whether it is admissible as an exception to the hearsay rule.
1. Kee's Statement
Peterson argues that Kee's statement that the peer reviewer agreed with her conclusions is hearsay. Hearsay is generally inadmissible. ER 803. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Generally, one expert may not relay the opinion of another non-testifying expert without running afoul of the hearsay rule. See State v. Nation, 110 Wn. App. 651, 662, 41 P.3d 1204 (2002), review denied, 148 Wn.2d 1001 (2003); State v. Wicker, 66 Wn. App. 409, 411-12, 832 P.2d 127 (1992).
In State v. Wicker, the State charged the defendant with second degree burglary. Wicker, 66 Wn. App. at 411. At trial, a Seattle Police Department fingerprint identification technician testified that latent fingerprints matched the defendant's fingerprints. Wicker, 66 Wn. App. at 411. The technician then testified that it was standard procedure that his comparison be "verified" by another senior technician. Wicker, 66 Wn. App. at 411. He specified that a comparison is verified if the other senior technician agrees with his conclusions. Wicker, 66 Wn. App. at 411. The technician ultimately testified that Karen Tando, another senior technician, verified his identification in the case, as evidence by her initials on the fingerprint card. Wicker, 66 Wn. App. at 411.
Division One of this court explained that the initials "'K.T.' [was] an out-of-court statement" that taken in conjunction with the technician's testimony amount to an assertion of Tando's opinion that the two sets of prints match. Wicker, 66 Wn. App. at 411-12. It rejected the State's argument that the evidence was properly admitted to explain procedures because the police procedures were not at issue in any way. Wicker, 66 Wn. App. at 412. Division One therefore concluded that "the evidence is classic hearsay, an out-of-court statement offered for the truth of what it asserts." Wicker, 66 Wn. App. at 412. It found that the trial court erroneously admitted the non-testifying technician's opinion and violated the defendant's right to confrontation. Wicker, 66 Wn. App. at 413-14. And, because the fingerprint evidence was the "sole basis of the State's case[,]" the Wicker court could not conclude the error was harmless. Wicker, 66 Wn. App. at 414.
Although no written documentation is at issue in this case, the Wicker analysis is still applicable. Similar to the technician in Wicker, Kee testified that a peer reviewer agreed with her conclusions. Also similar to Wicker, the State's peer review process was not at issue in this case. Therefore, under Wicker, Kee's statement is classic hearsay, an out-of-court statement offered to prove that her forensic conclusions were accurate.
2. Kee's Hearsay Statement Not Admissible Under ER 703 and ER 705
The State did not admit the crime lab reports into evidence. Nor does the State argue that Kee's statement is admissible under the business records exception to the hearsay rule. As such, the line of cases admitting lab reports under the business records exception is not applicable. See State v. Kreck, 86 Wn.2d 112, 118-19, 542 P.2d 782 (1975) (five-part test for admission of business records as evidence).
Peterson also correctly contends that Kee's statement is not admissible as an exception to the hearsay rule under ER 703 and ER 705. Under ER 703, a trial court may admit an expert's testimony that is based on facts or data which are not otherwise admissible, if those facts or data are of the type reasonably relied upon by experts in that field in forming opinions other than for the purposes of litigation. ER 703; Nation, 110 Wn. App. at 662-63; State v. Ecklund, 30 Wn. App. 313, 317-18, 633 P.2d 933 (1981); State v. Towne, 142 Vt. 241, 453 A.2d 1133 (1982); see also 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence, at 352 (2007-08 ed.) ("It is not sufficient to show that the particular expert in question customarily relies upon such material. The proponent of the testimony must show that experts in the witness's field, in general, reasonably rely upon such material in their own work; i.e., for purposes other than litigation.").
In State v. Nation, Division Three of this court addressed whether hearsay statements made by the supervisor of a forensic technician were admissible under ER 703. Nation, 110 Wn. App. at 661. There, the forensic technician who tested the controlled substances was on vacation and unavailable for trial. Nation, 110 Wn. App. at 656. At trial, the State called the forensic technician's supervisor to explain the types of testing the unavailable technician performed and the results of each test. Nation, 110 Wn. App. at 656. Division Three found that the supervisor testified that it is typical in his office to rely on the data of a subordinate technician to reach his own conclusion. Nation, 110 Wn. App. at 663. But, it also found that the supervisor failed to establish that others outside of his office customarily relied upon the material for purposes other than preparation for litigation. Nation, 110 Wn. App. at 663. Therefore, Division Three held that the State failed to meet the second requirement of ER 703 and thus the testimony was not admissible. Nation, 110 Wn. App. at 664.
Here, similar to the circumstances of Nation, Kee's statement does not meet the requirements for admission under ER 703. There is no testimony or other evidence suggesting that Kee relied upon the peer reviewer's opinion in reaching her conclusions. Nor is there any testimony that others outside of the Washington State Crime Lab rely upon such material for purposes other than preparation for litigation. Moreover, Kee did not refer to the peer reviewer's opinion in an effort to assist the jury in understanding her forensic conclusions regarding the evidence she tested. Therefore, her statement was not admissible as an exception to the hearsay rule under ER 703 or ER 705. The trial court erred when it allowed the statement and subsequently refused to strike it from the record.
Furthermore, because Kee's statement was inadmissible hearsay, testimonial, and the peer reviewer was not available for cross-examination, the trial court's erroneous admission violated Peterson's right to confrontation. Nevertheless, confrontation clause violations are subject to harmless error analysis. See Shafer, 156 Wn.2d at 395. Reversal is not required if the trial court's error was harmless. See Wicker, 66 Wn. App. at 414.
B. Harmless Error
"It is well established that constitutional errors, including violations of a defendant's rights under the confrontation clause, may be so insignificant as to be harmless." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). "'A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.'" Guloy, 104 Wn.2d at 425; accord Wicker, 66 Wn. App. at 414 and Nation, 110 Wn. App. at 666. Constitutional error is presumed to be prejudicial and the State bears the burden of providing that the error was harmless. State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980); Guloy, 104 Wn.2d at 425.
An appellate court uses the "overwhelming untainted evidence" test in its harmless error analysis. Guloy, 104 Wn.2d at 426. Under that test, we look only to the untainted evidence to determine whether the untainted evidence is so overwhelming that it "necessarily leads to a finding of guilt." Guloy, 104 Wn.2d at 426 (citing Parker v. Randolph, 442 U.S. 62, 70-71, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979)); see also State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff'd, 126 S. Ct. 2266 (2006). Here, Peterson has failed to show that, had the court properly denied admission of Kee's statement regarding the peer reviewer's conclusions the outcome of the trial would have been different.
In State v. Nation, Division Three found the trial court's erroneous admission of the supervisor's hearsay statements was prejudicial because "without [his] testimony, the State has not produced evidence from which a rational trier of fact could find each element of the possession of marijuana and methamphetamine crimes beyond a reasonable doubt." Nation, 110 Wn. App. at 666 (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
Likewise, in Wicker, Division One found the trial court's erroneous admission of the hearsay statements prejudicial. Wicker, 66 Wn. App. at 414. The Wicker court reasoned that the expert's hearsay statement that Karen Tando verified his conclusion was prejudicial because there was no evidence other than a single fingerprint linking the defendant to the burglary. Wicker, 66 Wn. App. at 414.
Unlike the circumstances of both Nation and Wicker, in this case the State admitted evidence other than Kee's statement regarding the peer reviewer's conclusions that supports Peterson's conviction. For example, Peterson conceded that methamphetamine was being manufactured on his property. He acknowledged there was a "[meth] lab in a box" that the deputies discovered in a blue tote in his garage. 7 RP at 556. Peterson also conceded that there was Sudafed ground up in his coffee grinder in his kitchen. Peterson's defense was that his fingerprints were not found on the items associated with the manufacture of methamphetamine.
Peterson additionally conceded that anhydrous ammonia was stored improperly on his property. His defense was that because he knew how to properly store anhydrous ammonia, it would have been illogical for him to improperly store such material. Similarly, Peterson did not challenge Kee's conclusion that there was cocaine on the straw that deputies found in his pocket. Instead, he argued that he merely found the straw and placed it in his pocket.
Furthermore, Kee's testimony alone, notwithstanding the one hearsay statement, provided overwhelming evidence that was untainted. Kee was a longtime employee of the Washington State Crime Laboratory. She held a bachelor's degree of science in chemistry and criminal justice. She had been trained to analyze suspected methamphetamine labs and had analyzed 350 suspected methamphetamine labs. She testified in detail about the red phosphorus method of manufacturing methamphetamine. She testified that she had examined the seized evidence and prepared a report of her analysis. Her analysis of the plastic straw revealed the presence of cocaine. She also testified to the results of her analysis that showed the presence of methamphetamine, pseudoephedrine, iodine, and red phosphorous.
Because there was other evidence to support the jury's verdict against Peterson, the trial court's erroneous admission of Kee's statements was harmless. Accordingly, we affirm Peterson's conviction despite the trial court's constitutional error in admitting Kee's statement.
II. Prosecutorial Misconduct
Peterson next argues that the prosecuting attorney "committed misconduct in closing argument by misstating the law on reasonable doubt." Br. of Appellant (Peterson) at 21. Peterson is misguided.
In closing argument, the prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983). But the prosecuting attorney's statements to the jury on the law must be confined to the law as set forth in the jury instructions given by the trial court.
State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). So far as improper argument is concerned, the defendant has the burden of establishing impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)). Reversal is not required if the error could have been obviated by a curative instruction that defense counsel did not request. Hoffman, 116 Wn.2d at 93.
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 by the court. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Even if the prosecuting attorney's remarks are improper, reversal is not required if they were invited or provoked by defense counsel and they are in reply to defense counsel's acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86.
Finally, failure to object to an allegedly improper remark constitutes a waiver of error, unless the prosecuting attorney's remark was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Russell, 125 Wn.2d at 86. "In other words, a conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." Russell, 125 Wn.2d at 86.
In this case, Peterson argued at closing that the State failed to prove its case beyond a reasonable doubt because it did not test many items suspected of pertaining to the manufacture of methamphetamine; resulting in a lack of evidence. Peterson's counsel argued:
Now, the bulk of these coffee filters, there was [sic] a couple that were tested by the lab and said they had red phosphorous, but most of them were never tested. The ones that turned blue or whatever from maybe Coleman fuel, that's one of the items, wasn't tested by the lab. All told, when I count, there's 37 items that the lab chose not to test.
7 RP at 560.
There's a lot of other things that they didn't test. I asked the police officer, "Why do you take a sample of a can that says acetone? Why don't you just believe its acetone?" And he said, "It's an open can. Anything could be in it." Right? Same with the Xylol. Same with the muriatic acid. All of those sampled, all of those collected diligently and given to the lab. What did the lab do with it? Ignored it. They didn't look at it. They didn't even sample it. They didn't even check to see what it was, okay?
So, really, what you have is . . . an acetone can with an unknown liquid. You got a Xylol can with an unknown liquid. You got a muriatic acid bottle with an unknown substance. You don't know what that is.
7 RP 560-61.
Peterson's counsel went on to argue, "[Y]ou don't know what's in those cans. That is reasonable doubt." 7 RP at 561. Then, in rebuttal, the State responded to Peterson's arguments that the untested items show reasonable doubt:
Yesterday, the defense moved to admit all of these photos. And you are going to have them all. And you might be wondering, geez, why didn't the State admit those? When you are considering evidence versus lack of evidence, consider the evidence I admitted. When you're determining whether or not I met my burden of proof, say, "Mr. Odell admitted this stuff. Why should we look at it?" Look at that. Did I prove my case with the evidence I admitted? I'm not trying to hide anything from you by not showing you this, but look at this and say, okay, Mr. Silverthorn is right, that's a pile of crap in the backyard. How is it relevant? A picture of a lamp in a kitchen. The State didn't prove anything was going on near that lamp. He's right, I didn't show you this, I didn't make that argument, I didn't waste your time. Consider it. Consider the evidence that's been presented to you.
7 RP at 585-86.
Contrary to Peterson's argument, the State did not instruct the jury not to consider all the evidence when determining whether it was convinced beyond a reasonable doubt. It merely asked the jury to consider the evidence it presented at trial to determine whether the State had met its burden of proof.
The State explained the concept of reasonable doubt using an analogy. It asked the jurors to imagine looking through a telescope to determine whether they were in Tacoma or Seattle. The first image seen through the telescope was a mountain, the second image was a body of water, and the final image was the Space Needle. The State contended that the first two images do not prove beyond a reasonable doubt which city the jury was in because the mountain and body of water could both be seen from either Seattle or Tacoma. But once the image of the Space Needle is seen through the telescope, the jurors knew beyond a reasonable doubt that they were in Seattle. The State argued that if the Space Needle had been the first image he showed, then the jurors would still have the same abiding belief that they were in Seattle as they did after seeing all three images.
The State then applied this analogy to the facts of the case: "If I show you this evidence and it's enough to convince you beyond a reasonable doubt, you don't need to consider the other things, the white sludge that wasn't tested. Well, I didn't tell you to consider the white sludge that wasn't tested." 7 RP at 587. To conclude its rebuttal, the State contended:
Peterson objected, stating the State was arguing contrary to the jury instructions. The court overruled the objection, stating, "It is argument. I'm going to allow it." 7 RP at 587.
Look at this evidence, look at the elements, because this is the law. This is what governs. There's only two things that matter now. This is the law that you all promised as officers of the court . . . to go into the back and apply this to the evidence. Has the State met its burden for proving each element beyond a reasonable doubt? It is not beyond a shadow of a doubt. It is not beyond all doubt. It is beyond a reasonable doubt. Is it reasonable? Do you believe it? Have you seen enough to convince you? I'm going to ask you to find the defendants each guilty as charged of each and every crime. . . .
7 RP at 588.
Despite Peterson's assertion, the State did not mislead the jury as to the law of reasonable doubt. Instead, the State made a fair and relevant reply to defense counsel's argument. When the credibility and sufficiency of the State's evidence is at issue, a prosecuting attorney is permitted reasonable latitude in arguing inferences from the evidence. Harvey, 34 Wn. App. at 739. Moreover, as an advocate, a prosecuting attorney is entitled to make a fair response to defense counsel's arguments. Russell, 125 Wn.2d at 87 (citing United States v. Hiett, 581 F.2d 1199, 1204 (5 Cir. 1978)). When the State's rebuttal closing argument is viewed in the context of the whole argument, it is apparent that the argument was proper. Therefore, it was not misconduct for the State in this case to argue during its rebuttal closing that the evidence it presented was sufficient to convict Peterson.
And even if the State's rebuttal closing was improper, the court cured any impropriety by the jury instructions. The trial court instructed the jury,
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers' statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement or argument that is not supported by the evidence or the law in my instructions.
CP [Peterson] at 67. The trial court also supplied the jurors with a jury instruction on reasonable doubt:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
CP [Peterson] at 70.
Peterson has not demonstrated that the State's comments regarding reasonable doubt during rebuttal closing were improper. The jury found Peterson guilty of some but not all of the charges against him. It is thus clear that the jury followed the court's jury instructions and were not swayed by any alleged improper argument at closing.
III. Sufficiency of Evidence to Convict Smith of Possession of Stolen Property
Smith's sole assignment of error contends that there was insufficient evidence to convict her of possession of stolen property. During execution of the search warrant on January 20, 2006, Deputy Simmelink-Lovely of the Pierce County Sheriff's Department came into contact with Smith. Deputy Simmelink-Lovely advised Smith of her Miranda rights. Smith acknowledged her Miranda rights and agreed to speak with the deputy.
Prior to being read Miranda warnings, Smith was yelling that she was going to notify the newspapers that the police were arresting a minister.
After reading Smith Miranda rights, Deputy Simmelink-Lovely read her the search warrant. Smith commented that "someone snitched us off." 2 RP at 67. Smith said she believed that someone had "snitched her off" because of the detailed description of her Chevy van in the search warrant. 2 RP at 68.
Located on the property was a silver Chevy Astro van. Deputy Simmelink-Lovely recalled observing Smith washing the van when she drove by the property two days prior to executing the search warrant. Smith told Deputy Simmelink-Lovely that it was her van. It was later identified as Rand Iselin's van which had been stolen in 1999.
During the execution of the search warrant, Deputy Simmelink-Lovely searched the van and noticed that the VIN plate typically affixed to the driver's side dashboard appeared to have been altered. It was only attached by one rivet and was unreadable. When she opened the driver's side door, she discovered that the second VIN plate had been removed. The deputy also noted that someone had tampered with the van's ignition. A device had been fashioned and attached to the ignition which enabled the van to be started without a key.
In searching the van, Deputy Simmelink-Lovely found a vehicle registration in the glove compartment for a black 1986 Chevy Astro van with a license plate number of A21690I. This license plate number matched the plates on the van, but without the VIN Deputy Simmelink-Lovely could not determine whether they were the correct plates for the van. Therefore, Deputy Simmelink-Lovely called Detective Brian Stepp to the scene to see if he could locate a hidden VIN on the vehicle.
Detective Stepp arrived at the property and identified the van as Iselin's stolen 1992 Chevy Astro van by the hidden VIN he located on the vehicle. Based on the VIN, the license plates on the van were incorrect. The correct license plates for the van were 257 EHT. The current Kelly Blue Book value of Iselin's stolen van was between $450 and $2,625 at the time.
At the time the van was stolen in 1999, the Kelly Blue Book value was approximately $7,000.
At trial, Iselin testified that his Chevy Astro van was stolen in November 1999. At that time, the silver van was in good condition. Also, a spare set of keys were in the ashtray of the van when it was stolen.
Also at trial, Smith's long-term boyfriend, Kevin Stanton, testified on her behalf. He stated that he purchased the van for Smith and paid $1,500 for it between six and eight years prior to trial. After purchasing the van, he registered it in Smith's name. He also testified that after Smith lost her keys, after which point he modified the van's ignition so that it could start with a permanently affixed key "like you [would] wind a clock." 6 RP at 439. Stanton stated that he did this to avoid having to start the van with a screwdriver or the like. On cross-examination, Stanton acknowledged that he registered the 1992 van in Smith's name using the VIN for a 1986 Chevy Astro Van.
Smith argues that the State "presented no evidence that [she] should have been aware of any facts which would lead her to the conclusion that the van was stolen." Br. of Appellant [Smith] at 28. But Smith's argument is misguided. We hold that sufficient evidence was admitted to establish Smith had knowledge that the van was stolen.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of a crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). An appellate court defers to the trier of fact regarding a witness's credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In this case, the jury convicted Smith of possession of stolen property in the second degree under RCW 9A.56.140(1). RCW 9A.56.140(1) provides:
"Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.
The elements of second degree possession of stolen property are (1) actual or constructive possession of stolen property and (2) knowledge actual or constructive knowledge that the property is stolen. State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381, review denied, 100 Wn.2d 1024 (1983) (citing RCW 9A.56.140(1)).
Here, Smith argues that the State presented insufficient evidence to establish the fact that she had knowledge that the van was stolen. A person knows of a fact by being aware of it or having information that would lead a reasonable person to conclude the fact exists. RCW 9A.08.010(1)(b). Possession of recently stolen property together with slight corroborative evidence of other inculpatory circumstances will support a conviction for possession of stolen property. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). Other corroborative evidence can consist of a false or improbable explanation or inconsistent explanations. See State v. Rockett, 6 Wn. App. 399, 402-03, 493 P.2d 321 (1972).
Smith relies on State v. Couet to argue that there was insufficient evidence to establish she had knowledge that the Chevy van was stolen. In Couet, someone stole a new car from a car dealership lot. Couet, 71 Wn.2d at 773-74. After the police observed Couet driving the car, he told them that his friend lent it to him and that he had no knowledge that the car was stolen. Couet, 71 Wn.2d at 774-75. The Washington Supreme Court affirmed the conviction, holding that sufficient evidence supported the finding that Couet knew the car was stolen because he possessed a recently stolen car and gave an improbable story that the police could not check or rebut. Couet, 71 Wn.2d at 776.
Smith correctly argues that unlike the circumstances in Couet, in her case the van was not recently stolen. Nonetheless, the State admitted sufficient evidence with which a reasonable jury could find Smith had knowledge that the van was stolen. The evidence adduced at trial that (1) the van Smith possessed was stolen in 1999; (2) a spare set of keys were in the van when it was stolen; (3) the VIN numbers on the stolen van had been tampered with in two different places; (4) the keys that Smith used to operate the van were lost and rather than replacing them, Smith's boyfriend modified the van's ignition to start with a permanently affixed turn-key; (5) Smith or her boyfriend registered and insured the 1992 Chevy Astro van by using a 1986 Chevy Astro van registration; and (6) when the deputy read Smith the portion of the search warrant regarding the van, Smith said, "[S]omeone snitched [them] off." RP at 67, 68.
Viewing this evidence in the light most favorable to the State, a jury could have reasonably found beyond a reasonable doubt that Smith knowingly possessed the stolen van. Therefore, we hold there was sufficient evidence supporting Smith's conviction of second degree possession of stolen property.
IV. Statement of Additional Grounds
In her Statement of Additional Grounds (SAG), Smith makes several factual assertions, alleging various errors from her trial but does not cite any authority to support her contentions. Nevertheless, a defendant who files a SAG need not cite to cases or the record, but he must provide details sufficient to inform the court of the objection for review. RAP 10.10(c). However Smith's arguments lack merit.
RAP 10.10.
A. Confrontation of Accuser
First, Smith contends that her "Constitutional Rights were violated" because she "never got to face, at trial [her] accuser [sic]." SAG at 7.
Apparently, Smith is arguing that because the State did not call her alleged confidential informant to testify at trial, she was denied her Sixth Amendment right to confrontation. But Smith confuses the constitutional right to confrontation. Moreover, there is nothing in the record regarding a confidential informant; nor is the search warrant included in record. An appellate court's review is limited to issues contained in the record. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record."). We do not consider Smith's first argument.
B. Biased Judge
Smith also argues that Judge Fleming was biased during her trial for several reasons. Specifically, she contends that the judge (1) overruled "30-plus" objections during her trial; (2) denied her motion to dismiss count IV as to unlawful use of drug paraphernalia; and (3) "hurried" Smith's presentation of her defense to finish the trial prior to a holiday weekend. SAG at 7-8. Smith's arguments are unconvincing.
Smith's argument implicates the appearance of fairness doctrine. "Due process, the appearance of fairness doctrine, and Canon 3(D)(1) of the Code of Judicial Conduct (CJC) [] require a judge to disqualify himself if he is biased against a party or his impartiality may reasonably be questioned." State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). Evidence of actual or potential bias is a threshold requirement for an appearance of fairness claim before the court considers whether the trial court violated the appearance of fairness by deciding "whether a reasonably prudent and disinterested observer would conclude [the defendant] obtained a fair, impartial, and neutral trial." Dominguez, 81 Wn. App. at 330.
Here, nothing in the record shows that the trial judge was biased in his evidentiary rulings or his rulings on the motion to dismiss. Moreover, the record does not show that Judge Fleming "hurried" Smith's defense. We hold that Smith's assertions, unsupported by the record, are not sufficient to establish judicial bias. See Dominguez, 81 Wn. App. 325.
C. Ineffective Assistance of Counsel
Finally, Smith contends in her SAG that she was denied the effective assistance of counsel based on her opinion that her counsel should have questioned certain witnesses more aggressively, stressed supposed inconsistencies in testimony and/or evidence to the jury, and should have severed the trial from her co-defendant. Although Smith vehemently argues that her counsel made poor decisions, she has failed to establish ineffective assistance under Washington's legal standards.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend. VI; Wash. Const. art. I, § 22. An appellate court reviews an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Counsel's performance is deficient when it 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). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). On review, we give great judicial deference to trial counsel's performance and begin its analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 335. "If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Here, all of Smith's factual contentions she cites to support her claim of ineffective assistance of counsel can be characterized as legitimate trial strategy or tactics. Just because her attorney did not ask the questions and stressed the evidence that she deemed necessary to her defense does not mean that his performance was ineffective. In addition, trying Smith's case with her co-defendant, Peterson, can be characterized as a legitimate tactical strategy. Thus, we hold that Smith was not denied effective assistance of counsel at trial.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.