Opinion
No. 25496-8-III.
August 21, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-00524-5, Neal Q. Rielly, J., entered August 30, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Stephens, J.
Ardis Wilson appeals his conviction for escape from community custody. He asserts that the prosecutor committed misconduct by repeatedly referring to Mr. Wilson's failure to report to his community corrections officer as a "decision," and that the trial court erred in admitting hearsay evidence of Mr. Wilson's addresses. But a prosecutor is entitled to make characterizations that are objectively supported by the evidence. The trial court's admission of hearsay evidence about Mr. Wilson's addresses constituted harmless error. Furthermore, the evidence was irrelevant to the charge of escape from community custody. Overwhelming, untainted evidence supported the finding of guilt. We affirm.
FACTS
Ardis Wilson was on community custody status as the result of a felony conviction. Renee Cooper served as Mr. Wilson's community corrections officer. Mr. Wilson was instructed to report to Ms. Cooper every other week and to provide the Department of Corrections (DOC) with any changes of address, employment, phone number, or living conditions. Mr. Wilson read and signed a document that contained the relevant provisions of his community custody. Mr. Wilson had provided Ms. Cooper with his girl friend's address as his place of residence.
After a few months, Mr. Wilson stopped reporting to his community corrections officer. On several occasions, Ms. Cooper attempted, unsuccessfully, to locate Mr. Wilson at his last known address. Mr. Wilson did not report to Ms. Cooper that he had changed his address. The apartment manager, at that address, provided Ms. Cooper with a forwarding address for Mr. Wilson's girl friend. Mr. Wilson was eventually apprehended at this address.
When Ms. Cooper responded to the location where Mr. Wilson was apprehended, she conducted an authorized search of the premises. She located some "dominion and control" paperwork with Mr. Wilson's name on it. Report of Proceedings (RP) at 31. This paperwork showed that Mr. Wilson resided at the place where he was apprehended. In addition, Ms. Cooper found clothing that she recognized as Mr. Wilson's and photographs of Mr. Wilson at the residence.
Mr. Wilson was charged with escape from community custody.
At trial, Mr. Wilson's community corrections officer testified regarding the "dominion and control" paperwork that listed Mr. Wilson's name. Mr. Wilson objected that this constituted hearsay evidence because the State was offering the paperwork to establish the truth of the matter contained in the documents: that Mr. Wilson lived at that residence. The trial court overruled this objection.
Mr. Wilson's girl friend testified that she was no longer romantically involved with Mr. Wilson when she moved from the address that Mr. Wilson initially provided to Ms. Cooper. She stated that, while she had moved to the residence where Mr. Wilson was eventually apprehended, Mr. Wilson was not actually living there with her. But he did occasionally spend the night at the residence and stored some personal items there.
Mr. Wilson took the stand in his own defense. He testified that he stayed at several locations after moving out of the address that he provided to Ms. Cooper. He claimed that he provided Ms. Cooper with several of the addresses of the people that he was staying with. He also testified that Ms. Cooper knew where he worked and could have contacted him through his employer. Mr. Wilson claimed that he had attempted to contact Ms. Cooper about his failure to report. He asserted that Ms. Cooper was not there when he tried to call and that he was unable to leave a message for her. He also claimed that he physically reported to Ms. Cooper's office, but that she was never there when he reported.
The State cross-examined Mr. Wilson. During cross-examination, the prosecutor asked Mr. Wilson to read aloud portions of the community custody agreement that he had signed. The prosecutor elicited testimony from Mr. Wilson that he was aware of the requirements that he report to his community corrections officer and notify her of any changes of address.
As to the issue of whether Mr. Wilson's failure to report was willful, the prosecutor first asked Mr. Wilson if he had "made a decision" to meet with Ms. Cooper on the occasions when he did report to her. RP at 70. Mr. Wilson agreed that he had decided to meet with her on those occasions. The prosecutor then asked Mr. Wilson several times if his subsequent failures to report were also decisions. Mr. Wilson denied that he had made a "decision" not to report and responded that he was homeless at the time and, therefore, had no means of reporting to Ms. Cooper. RP at 73.
Mr. Wilson was convicted of escape from community custody. He was sentenced to 45 days' confinement.
ANALYSIS
Prosecutorial Misconduct
Mr. Wilson asserts that the prosecutor committed misconduct while cross-examining him. Specifically, he asserts that the prosecutor was essentially providing testimony when he repeatedly characterized Mr. Wilson's failure to report to Ms. Cooper as a "decision."
To prove prosecutorial misconduct, the defendant must establish both that the prosecutor's conduct was improper and that this conduct prejudiced the defendant. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). Failure to object to improper remarks waives the objection unless the remark was so flagrant and ill-intentioned as to result in prejudice that could not be obviated by a curative instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). This court views the allegedly inappropriate argument in the context of the total argument, the issues in the case, and the instructions provided to the jury by the trial court. Id. at 85-86.
To establish that Mr. Wilson was guilty of escape from community custody, the State was required to prove that he willfully discontinued making himself available to the DOC by making his whereabouts unknown or by failing to maintain contact with his community corrections officer. See RCW 72.09.310. Willfulness requires a purposeful act. See State v. Danforth, 97 Wn.2d 255, 258, 643 P.2d 882 (1982). As such, the State was required to prove that Mr. Wilson's failure to contact Ms. Cooper and inform her of his change of address was the result of his purposeful actions.
It is proper for a prosecutor to argue reasonable inferences from the evidence at trial and attack the evidence or theories put forth by the defendant. State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006). A prosecutor is also provided some latitude in rebutting the defense's interpretation of the evidence. State v. McKenzie, 157 Wn.2d 44, 56, 134 P.3d 221 (2006). Remarks of the prosecutor are not grounds for reversal, even if they were improper, if these remarks were invited or provoked by the defendant and were in pertinent reply to his acts or statements. Russell, 125 Wn.2d at 86.
Here, Mr. Wilson was attempting to portray his failure to report to his community corrections officer as involuntary due to his living situation. Therefore, the prosecutor could properly respond to Mr. Wilson's claims that his failure to report was not willful. The prosecutor was entitled to explore the issue of whether Mr. Wilson made a purposeful decision to discontinue contacts with Ms. Cooper.
And there was substantial evidence supporting the inference that Mr. Wilson acted willfully when he repeatedly did not attend his required meetings with his community corrections officer. Mr. Wilson testified that he was aware of the requirement to meet with Ms. Cooper and inform her of address changes as a part of his community custody plan. He admitted to signing the agreement that contained these requirements. He admitted that his attendance of prior meetings with Ms. Cooper was the product of his own choice. A prosecutor is entitled to make characterizations of the defendant where such characterizations are objectively supported by the evidence. See McKenzie, 157 Wn.2d at 57-58. Here, there was objective evidence supporting the conclusion that Mr. Wilson acted willfully when he terminated contact with Ms. Cooper and failed to inform her of his change of address.
Moreover, the jurors were instructed that the remarks of the prosecutor were not evidence and that the jury should disregard any remarks which were not supported by the evidence or the law. This court presumes that the jury followed the instructions of the trial court. See, e.g., State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d 567 (2006). In light of this presumption, and the fact that the prosecution's characterizations were legitimate inferences from the facts, there was no prosecutorial misconduct in this case.
Hearsay
Mr. Wilson claims that the trial court erred in admitting hearsay testimony. Specifically, Mr. Wilson's community corrections officer, Ms. Cooper, was permitted to read a document that listed Mr. Wilson as a resident at the location where he was apprehended. The State used this to establish that Mr. Wilson had changed his address without notifying Ms. Cooper.
The State does not argue that this evidence was not hearsay. Instead, the State claims that the admission of this hearsay evidence constituted harmless error. As such, the only issue for this court is whether the admission was harmless error.
The improper admission of hearsay evidence is reviewed for harmless error. See State v. Watt, No. 77281-9, 2007 Wash. LEXIS 461, at *12-13 (June 14, 2007). An error is harmless if this court is convinced beyond a reasonable doubt that the jury would have reached the same verdict absent the error. Id. at *13. In making this determination, this court applies the "overwhelming untainted evidence" test. Under this test, this court "looks only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt." Id. at *14.
The evidence at issue here was irrelevant to the overall charge of escape from community custody. The State was not required to prove that Mr. Wilson was residing specifically at the location where he was apprehended. Under RCW 72.09.310, the State was merely required to prove that Mr. Wilson had made his whereabouts unknown or failed to maintain contact with the DOC as required. By Mr. Wilson's own admissions, he ceased to reside at the address that he had provided to Ms. Cooper and the DOC. This was sufficient to establish that Mr. Wilson had made his whereabouts unknown. The admission of the irrevelant hearsay evidence regarding the address where Mr. Wilson was alleged to have been residing at the time he was apprehended was harmless error.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Wilson also presents this court with a statement of additional grounds for review in which he claims he was unconstitutionally compelled to be a witness against himself. In particular, Mr. Wilson asserts that he was compelled to bear witness against himself when the State asked him to read certain portions of his community custody agreement.
The Fifth Amendment to the United States Constitution grants every individual the privilege against self-incrimination. See, e.g., State v. Levy, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006). But this prohibition does not prevent the admission of physical or real evidence. City of Seattle v. Stalsbroten, 138 Wn.2d 227, 232, 978 P.2d 1059 (1999). Mr. Wilson's community custody agreement was physical evidence of the type not covered by Fifth Amendment privilege.
Moreover, a person must affirmatively invoke the privilege against self-incrimination. See State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992). Mr. Wilson voluntarily responded to the State's request to read the provisions of the community custody agreement. At no time did he attempt to invoke his Fifth Amendment privilege. Therefore, there is no merit to Mr. Wilson's claim that his constitutional protection against self-incrimination was violated by the State.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
STEPHENS, J., SCHULTHEIS, J., concur.