Opinion
Nos. 47948-2-I, c/w 47949-1-I.
Filed: March 4, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 001075215, Hon. Charles W. Mertel, December 22, 2000, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D. Aza, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Kathryn Y. Kim, W554, 516 3rd Ave, Seattle, WA 98104.
In this consolidated appeal, Vinh Pham challenges two separate convictions for possession of cocaine. In the first case, he contends that the prosecutor improperly commented on his right to remain silent and shifted the burden of proof in closing arguments. We find that the prosecutor's arguments were proper and affirm his conviction. In the second case, he contends that a language barrier and his intoxication prevented his ability to knowingly, intelligently, and voluntarily waive his Miranda rights. We find that substantial evidence supports the trial court's determination that his waiver was valid; we affirm the admission of his statements and his conviction.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FACTS 47948-2-I
On July 25, 2000, Pham checked out of Room 202 of the Everspring Inn in Seattle, but did not return the key. When front desk clerk Gaines Meylan began his shift at 1 pm the next day, Pham was still in the room.
Because Pham had not paid for the extra night, Meylan knocked on the door and called the room several times to ask Pham to leave. Pham did not answer and did not leave. Concerned about Pham's well-being, Meylan called the police, asking them to check Pham's condition and escort him from the motel.
Officer Benjamin Morrison, along with three other officers, knocked on the door of Room 202, announced they were police officers, and explained that they were there to remove Pham from the room because he had stayed too long. Pham did not open the door, but called out to the officers that he understood why they were there and then told them to 'go away.' With permission from management, the officers unlocked the dead bolt and used a notebook to release the security latch from the outside. They found Pham lying on the bed, unresponsive. They found a cigarette case containing cocaine on the nightstand and a crack pipe in the drawer of the nightstand.
The State charged Pham with possession of cocaine. Following a jury trial, Pham was convicted as charged.
47949-1-I
On August 15, 2000, police responded to a 911 report of a person who appeared to be smoking cocaine while sitting in a car that was partially blocking an intersection. Police found Pham sitting in a car parked in the street as described in the report. As the officers approached on foot, Pham started the car and made furtive movements with his hands in his lap.
The officers shouted at him to turn off the engine and show his hands.
When Pham complied, Officer Richard Heideman opened the driver's side door and removed a green sports coat from Pham's lap to check for weapons. Heideman then observed a crack pipe and a large knife in the map pocket of the driver's door. Heideman removed Pham from the car, handcuffed him, and put him in a patrol car. Heideman then searched the jacket and found a piece of rock cocaine.
At the precinct, Heideman advised Pham of his Miranda rights in English. Pham said he understood his rights and agreed to speak to Heideman. In response to Heideman's questions, Pham admitted that he smoked crack that day and he put the rock cocaine in the sports coat pocket. He also said he could not go to jail because someone would hurt him, and that someone would steal his drugs and he would 'have to start all over.'
The State charged Pham with possession of cocaine and physical control of a vehicle while under the influence of intoxicants. The same judge presided over Pham's second trial. At a CrR 3.5 hearing, Pham testified that he had limited English skills. His attorney read each right in English and asked Pham to explain in Vietnamese what he understood each phrase to mean. Pham testified that he understood that 'whatever you say can be evidence in court' and that he had a right to an attorney. However, he was unable to translate the right to remain silent and the right to have an attorney appointed if indigent. Pham also testified that he asked for an interpreter at some point after the arrest but was not provided with one. Based on the testimony presented at the CrR 3.5 hearing as well as the testimony of witnesses from the previous jury trial, the court found that Pham was sufficiently fluent in English to understand his rights. The court concluded that Pham knowingly, intelligently and voluntarily waived his constitutional rights before making his statements to Heideman. The court denied Pham's motion to suppress. Pham agreed to proceed with a bench trial on stipulated facts. The court found Pham guilty of possession of cocaine.
Pursuant to an agreement between the parties, the State moved to dismiss the physical control charge and agreed not to file charges arising from an additional arrest.
DISCUSSION Prosecutorial Misconduct
Pham contends that in closing argument in the jury trial on the charge arising at the Everspring Inn, the prosecutor made improper remarks by shifting the burden of proof to the defense, commenting on Pham's right to remain silent, bolstering the credibility of State witnesses, and speculating about facts not in evidence. On a claim of prosecutorial misconduct, the defendant bears the burden of establishing the impropriety of the prosecutor's comments as well as their prejudicial effect. To establish prejudice, the defendant must demonstrate there is a substantial likelihood the misconduct affected the jury's verdict. Failure to object to an allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring prejudice that could not have been neutralized by a curative instruction to the jury. A prosecutor's allegedly improper comments are reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Pham first contends that the prosecutor improperly commented on his right to remain silent and implied that he had a burden to prove his innocence. The prosecutor argued:
State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Brown, 132 Wn.2d at 561.
Brown, 132 Wn.2d at 561.
Now, the final thing that I want to address with you is the credibility of the witnesses, and you all might recall that in voir dire we talked about what it would take for you to be convinced that I was 37. Would it be enough for my mother to come in and swear under oath the date that I was born. Now, in this case what you've heard is the testimony of five different witnesses from the State, and you've heard no testimony to the contrary, no dispute of fact, no testimony as you might in a case where say someone ran a red light, where one person says the light is red, one person says the light is green, and it would be up to you at that point to determine which one of them is the more credible witness, was the light red or was the light green. We simply don't have that kind of situation here. You have five people who told you certain things and no one who told you any thing different.
(RP 11/28/00 at 73-74)
Pham objected. The court stated, 'The objection is noted. It's overruled. Please proceed, Counsel. Limit your remarks to the evidence that was presented.'
Pham relies on State v. Traweek and State v. Fleming to support his contention that these comments improperly shifted the burden of proof to the defense. In Traweek, the prosecutor mentioned the defendant's right not to testify and then focused on his failure to present any other witnesses to provide alternative explanations of the evidence. In Fleming, the prosecutor improperly argued that if the defendants were not guilty, they would have explained the evidence presented by the State. Neither case is similar to the comments made here. The State is permitted to comment that certain testimony is undisputed, so long as it does not refer to who may or may not be in a position to dispute it. The prosecutor's comments relate to the lack of contradictory testimony to indicate that the State's witnesses were credible. The prosecutor did not suggest that Pham should have or could have disputed their credibility. In these circumstances, the comments did not improperly shift the burden of proof. Pham also alleges these statements infringed on his right to remain silent.
43 Wn. App. 99, 715 P.2d 1148 (1986).
83 Wn. App. 209, 921 P.2d 1076 (1996).
State v. Crawford, 21 Wn. App. 146, 153, 584 P.2d 422 (1978).
A prosecutor violates a defendant's Fifth Amendment rights if he or she makes a statement "of such character that the jury would naturally and necessarily accept it as a comment on the defendant's failure to testify." The prosecutor's comments here did not infringe on Pham's right to remain silent. They merely reminded the jury that certain testimony was undisputed. It was an argument suggesting that the jury could find the State's witnesses credible. There was no misconduct. Pham next contends that the prosecutor committed misconduct by improperly bolstering the credibility of the State's witnesses. The prosecutor continued her argument regarding credibility as follows:
Crawford, 21 Wn. App. at 152.
Now, you heard from Mr. Meylan who was the motel clerk, and he indicated to you that Mr. Pham was generally a good tenant. He had some experience having Mr. Pham at the motel on various occasions, and he told you he was a good tenant. He did not seem to bear Mr. Pham any ill-will. He told you that one of the reasons in fact that he called the police when he did was because he was concerned about Mr. Pham. He did not understand why Mr. Pham was not responding to his telephone calls or to the knocking on the door. Based on all of that, I think you could determine that Mr. Meylan had no motive to lie. He had no motive to tell you anything other than what he observed what had happened that day.
Let's talk about Officer Morrison. Now, Officer Morrison was quite frank with you that he was a new officer at the time this happened. He was in training, and he had made a few mistakes in his report. He got reprimanded for those mistakes. They didn't turn out to be fatal mistakes, they were little clerical mistakes, but officers like to be careful and their supervisors like to train them to be careful, okay. And he was quite frank with you about that, telling you that he had already been reprimanded.
So he really had no motive to come in here and try to cover up his mistakes or tell you that he didn't make a mistake in order to not have that affect his job or his reputation at his job. He had already had the reprimand. So he had no motive to fabricate or exaggerate the facts. He just came in and told you this is what happened. And I think you also got an opportunity to observe his demeanor and observe the way that he was on the stand.
Likewise with Officer Street, you had an opportunity to observe Officer Street's demeanor. Officer Street told you that he's been on the force about six years. And his testimony was straightforward. He showed no motive to exaggerate, to fabricate, to tell you anything other than the simple facts of what he had seen and what he had done that day. And finally you heard from the two forensic scientists, Mr. Strongman and Ms. Parangot, both of whom told you that each of them has extensive experience in forensic science. Ms. Parangot has ten years at the Crime Lab. Mr. Strongman has something like six years and then seven years previous to that doing other work for another organization but also in the sciences.
They told you that based on their experience — well, they also told you about the methods that they had used to determine that these substances were controlled substances, and they told you that these methods are considered reliable. In fact, Mr. Strongman said both methods were very reliable and together they were very, very reliable. Now, then they told you that based on their experience and based on their very, very reliable tests that both of these substances are cocaine and they were sure about that opinion.
(RP 11/28/00 at 74-76)
Pham did not object to any of these comments at trial. Relying on State v. Rivers, Pham contends that these remarks were uninvited, unnecessary, and improper appeals to the passions of the jury, thereby constituting flagrant and ill-intentioned misconduct. In Rivers, the prosecutor referred to defense witnesses as predators, jackals, and hyenas and called attention to their jail coveralls. But the comments here were nothing like the improper remarks in Rivers. Although a prosecutor may not express a personal opinion on the credibility of a witness during argument, he or she may argue inferences from the evidence, including why a witness is credible.
96 Wn. App. 672, 674, 981 P.2d 16 (1999).
State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996).
Here, without any inflammatory terms, the prosecutor simply argued how the jury could infer from the evidence presented at trial that the State's witnesses were credible. This was not misconduct.
Pham also argues that the prosecutor improperly commented on facts not in evidence. Again, Pham failed to object at trial. In closing, the defense drew attention to the very small amount of cocaine involved and argued that if Pham had known it was in his room, he would have attempted to get rid of it when he heard the police in the hall. In rebuttal the prosecutor argued:
Now, counsel raised another issue which is why perhaps — or explanations for Mr. Pham being nonresponsive to the officers and also to Mr. Melyan. And she raised an interesting question. The question was: Wouldn't it be normal, if you were inside the room and you knew there were police officers standing outside, wouldn't it be normal to scurry around and try to destroy the evidence?
One can conclude a lot of reasons why he was nonresponsive, but does that raise a reasonable doubt as to whether he was actually in possession of a controlled substance?
Now, you could draw a lot of other conclusions as well. You know there's only a small amount of cocaine, 54 milligrams. Maybe there was more. We don't know. There's a lot of other conclusions you could draw. But the main point I want to make is that it does not determine guilt or innocence in this case.
(RP 11/28/00 at 93-94) (Emphasis added.)
Even if the prosecutor's comments suggesting Pham may have had more cocaine were improper, they were in direct response to defense counsel's argument and are not grounds for reversal.
State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985).
We affirm the conviction.
Miranda Waiver
Regarding the August 2000 incident, Pham contends that the State failed to prove that Pham knowingly, intelligently, and voluntarily waived his Miranda rights. He claims a language barrier and intoxication rendered his apparent waiver invalid. Pham first challenges the court's finding that 'defendant is sufficiently fluent in English to understand the advisement of rights.'
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968).
CP at 37, Conclusion of Law Pursuant to CrR 3.5, no. 2.
If substantial evidence in the record supports the trial court's findings, we consider them verities on appeal. We defer to the trial court's assessments of credibility. Miranda rights may be waived provided such waiver is made knowingly, voluntarily and intelligently. Whether a waiver is valid depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. A valid waiver may be expressly made or implied 'where the record reveals that a defendant understood his rights and volunteered information after reaching such understanding."
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 313 (1994).
State v. Hill, 123 Wn.2d 641, 646, 870 P.2d 363 (1994).
Miranda, 384 U.S. at 444.
North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986).
A waiver may be valid despite a suspect's language difficulties. In State v. Teran, a flawed translation of Miranda warnings into Spanish did not render the defendant's waiver invalid because there was sufficient evidence that he understood his rights. Federal courts have considered facts similar to those presented here. For example, in United States v. Bernard S., the defendant was an Apache Indian who had difficulty with the English language.
State v. Teran, 71 Wn. App. 668, 672, 862 P.2d 137 (1993).
Teran, 71 Wn. App. at 673.
795 F.2d 749 (9th Cir. 1986).
An FBI agent advised the defendant of his Miranda rights in English and asked him if he understood them. The defendant responded in English that he understood each right and did not have any questions. He agreed to waive his rights, signed a written waiver, and at no time indicated that he did not understand what the agent said to him. During the questioning that followed, the defendant occasionally asked for an explanation of certain items in Apache but the translations were requested after the Miranda rights were read and waived and did not involve those rights.
When the defendant later argued that his limited English skills and the agent's failure to advise him of his rights in Apache rendered his waiver invalid, the court determined that the totality of the circumstances demonstrated a knowing and intelligent waiver. Similarly, in Campaneria v. Reid, the defendant's native language was Spanish but he was advised of his Miranda rights only in English. The court rejected his claim that his limited grasp of English prevented him from knowingly and intelligently waiving his rights, noting that on each occasion that he was advised of his rights, he indicated that he understood them.
Bernard S., 795 F.2d at 752-53.
891 F.2d 1014 (2nd Cir. 1989).
Although he spoke broken English with an accent and occasionally lapsed into Spanish, the court determined that his command of English was sufficient to understand his rights. Here, the totality of the circumstances demonstrates that Pham understood his Miranda rights and knowingly, voluntarily and intelligently waived them. Pham testified that he was 13 years old when he came to the United States. He attended and passed grades 7 through 11. Except for his first six months in the United States, all his classes were taught in English. He also testified that he owns a business, a Vietnamese-style pool hall, with his brother.
Campaneria, 891 F.2d at 1020.
Although relevant business documents and financial arrangements were in English, Pham testified that he received Vietnamese translations or was assisted by Vietnamese-speakers with better English skills. Although Pham testified that he asked Officer Heideman for an interpreter, the trial court apparently found Officer Heideman's testimony more credible. Officer Heideman testified that Pham had an accent but spoke 'pretty good English.'
Pham followed Heideman's instructions and gave appropriate responses to his questions. In the police car on the way to the precinct, Pham said that he wanted to go home and directed Heideman to his apartment. Because, during the time they spent together, Pham was able to communicate in English, Heideman did not suspect that Pham needed an interpreter. Heideman testified that, pursuant to department policy, he would have arranged for an interpreter if he thought Pham was having trouble with English or if Pham had requested one. Heideman testified that Pham indicated that he understood the Miranda rights he had been read.
The trial judge also took judicial notice of the testimony in the first trial of Gaines Meylan and Officer Morrison. Meylan, the Everspring Inn clerk, testified that he had had conversations with Pham in English and that Pham spoke and appeared to understand English. Officer Morrison testified that he spoke to Pham through the motel room door in English and that Pham replied in English and indicated that he understood what the officer said. Despite any language difficulties, substantial evidence supports the trial court findings that Pham was sufficiently fluent in English to understand and voluntarily and intelligently waive his Miranda rights.
Pham does not assign error to the judicial notice of the prior testimony and we do not address it.
Finally, Pham contends that his waiver was invalid because he was under the influence of cocaine when advised of his rights. A suspect's intoxication or use of drugs is a factor to be considered in determining the voluntariness of a waiver, but it does not necessarily render a waiver of Miranda involuntary. Here, Officer Heideman testified that he believed Pham was under the influence of drugs because he was fidgeting and appeared agitated.
State v. Rueben, 62 Wn. App. 620, 625, 814 P.2d 1177 (1991).
However, he also testified that Pham could walk on his own volition, did not slur his words, and appeared to be thinking clearly. Pham appeared to understand and respond appropriately to commands and questions. At the 3.5 hearing, Pham did not testify or otherwise allege he was impaired when he made custodial statements. Substantial evidence supports the determination that the waiver was valid.
Affirmed.