Opinion
No. 37307-6-II.
January 20, 2010.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 07-1-00749-8, James J. Stonier, J., entered January 3, 2008.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Houghton, J.
Steven R. Boldt appeals his convictions for resisting arrest and failure to obey a law enforcement officer. We affirm the convictions.
FACTS
On June 4, 2007, responding to an informant's tip of erratic driving, Longview Police Department Officer Dawn Taylor observed a vehicle cut diagonally across oncoming traffic lanes into a Minit Shop parking lot. Officer Taylor activated her emergency lights and stopped the vehicle in the parking lot. Officer Charles Davis, in a patrol vehicle behind Officer Taylor, also witnessed the driver's erratic turn.
Officer Taylor explained the reason for the pullover and asked the driver, later identified as defendant Steven R. Boldt, to produce a driver's license, registration, and insurance. Boldt refused to comply and told Officer Taylor to "eff off." RP (Dec. 11, 2007) at 76; 1 RP at 96, 99. After noticing that Boldt had constricted pupils, Officer Taylor asked him to perform a field sobriety test. Again, Boldt refused and said "eff off." 1 RP at 99. Instead, Boldt handed Officer Taylor vials of prescription pain killers and said, "If I wanted to be under the influence, I would be. That's some Oxycontin, and, you know, like heroin." RP (Dec. 12, 2007) at 17.
Officer Taylor advised Boldt that he was under arrest for failing to provide information and instructed Boldt to exit his vehicle and place his hands behind his back. Boldt complied briefly but suddenly turned around and swung at Officer Taylor. A struggle ensued, but with Officer Davis's help and after deploying her taser gun, Officer Taylor was able to subdue and arrest Boldt.
In a second amended information, the State charged Boldt with third degree assault against Officer Taylor (count I), third degree assault against Officer Davis (count II), reckless driving (count III), failure to obey a law enforcement officer (count IV), and resisting arrest (count V).
During trial, Officer Taylor took her annotated police report to the stand to testify, and, after noticing her annotations, Boldt's trial counsel requested to see them. Officer Taylor complied and the defense used her annotations to impeach her testimony.
Boldt testified at trial, generally asserting that he had complied with Officer Taylor's requests for identification, vehicle registration, and insurance. He also testified that, in response to Officer Taylor's questions, he denied being under the influence and that, in response to Officer Taylor's requests, he refused to perform field sobriety tests.
In addition, outside the jury's presence, trial counsel frequently discussed the admissibility of a video depicting the incident that a Minit Shop security camera recorded. Ultimately, the trial court agreed to admit the Minit Mart video with portions edited out and restrictions on its playback during jury deliberations.
The jury found Boldt not guilty of third degree assault against Officer Davis (count II) and not guilty of reckless driving (count III). The jury found Boldt guilty of failure to obey law enforcement officer (count IV) and resisting arrest (count V). The jury, however, hung on third degree assault against Officer Taylor (count I).
ANALYSIS I. Prosecutorial Misconduct
Boldt first argues that the prosecutor committed misconduct during closing arguments by (1) failing to provide discovery of witness notes; (2) commenting on excluded evidence; and (3) shifting the burden of proof to the defense. These arguments fail.
Every prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that an accused receives a fair trial. State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096 (1969); State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). To establish prosecutorial misconduct, the defendant bears the burden to establish that the conduct complained of was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). If the defendant proves the conduct was improper, the misconduct still does not constitute prejudicial error unless we determine there is a substantial likelihood that the misconduct affected the jury's verdict. Stenson, 132 Wn.2d at 718-19. Absent a timely objection at trial, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995).
A. Discovery Violation
Boldt contends that the prosecutor committed misconduct because she permitted Officer Taylor to take an annotated police report to the stand without first notifying the court or producing a copy for Boldt. Boldt fails to cite authority, and the record does not support his claim.
Without argument or authority to support it, an assignment of error is waived. Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986); see also State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990). We need not consider arguments that are not developed in the briefs and for which a party has not cited authority. King, 106 Wn.2d at 451-52; RAP 10.3(a)(6) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record). Here, Boldt argues that the prosecutor violated CrR 4.7(a)(1)(i), but he fails to cite any authority to support his contention that this rule obligated the prosecutor to provide Boldt with a copy of the annotated police report. Instead, he knew about Officer Taylor's notes, and, at the beginning of cross-examination, asked her to read portions of her annotated report while she testified. Boldt cannot argue that failing to provide a copy of the annotations violated CrR 4.7(a)(1)(i) when he actually used them to impeach the author.
"Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing: (i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses." CrR 4.7(a)(1)(i).
Even to the extent that CrR 4.7 is implicated, Boldt waived this issue on appeal because he failed to object at trial. Because Boldt cannot show why the prosecutor had an affirmative duty to disclose the annotations, he cannot show that the prosecutor's conduct was flagrant and ill intentioned.
B. Commenting on Excluded Evidence
Boldt next argues that the prosecutor committed misconduct in asking him how his refusal to take field sobriety tests affected Officer Taylor's investigation. Boldt asserts that the trial court granted a motion in limine to exclude evidence that the defendant decline to take field sobriety tests, but Boldt fails to properly cite the record in support of this contention.
Although evidence of Boldt's refusal to take sobriety tests is introduced on numerous occasions, Boldt maintains that the prosecutor committed misconduct in asking two specific questions. The prosecutor first asked:
Would you agree that you, then, refused to cooperate with the investigation to the extent that it would allow Officer Taylor to confirm or dispel the suspicion that you were operating the vehicle under the influence of alcohol or drugs?
RP(Dec. 12, 2007) at 34. Boldt objected, saying, "the Court has ruled that he had a lawful right to refuse to do physical tests," and the trial court sustained the objection. RP (Dec. 12, 2007) at 35. Boldt cites only this statement to support his contention that the trial court granted a motion in limine to exclude this evidence, ostensibly because the record does not indicate that the trial court ever granted such a motion.
The prosecutor then asked:
Would you agree that based on the information that Officer Taylor was provided, that she was unable to confirm or dispel the suspicion you were operating the vehicle under the influence of alcohol or drugs?
RP(Dec. 12, 2007) at 35. Boldt did not object but argues that, in rephrasing the question, the prosecutor was in "blatant contempt" of the trial court's order. Brief of Appellant at 31. As explained, supra, Boldt's argument is meritless because he does not cite anywhere in the record where the trial court actually made such a ruling.
C. Burden of Proof
Lastly, Boldt argues that the prosecutor committed misconduct in shifting the burden of proof to the defense. Specifically, Boldt faults the prosecutor for asking questions during trial that suggested he had a duty to take sobriety tests and a duty to provide exculpatory information to police. Boldt also asserts the prosecutor did the same in closing.
We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Boehning, 127 Wn. App. at 519. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. Boehning, 127 Wn. App. at 519. But a prosecutor commits misconduct by making an argument during closing arguments that shifts the burden of proof to the defendant. See United States v. Perlaza, 439 F.3d 1149, 1171 (9th Cir. 2006). Such misconduct affects a constitutional right and requires reversal unless the error is harmless beyond a reasonable doubt. State v. Moreno, 132 Wn. App. 663, 672, 132 P.3d 1137 (2006).
Here, Boldt was charged with resisting arrest and failure to obey a law enforcement officer. As part of the State's prima facie case of failure to obey a law enforcement officer, the prosecutor had to prove that Boldt willfully failed to identify himself to Officer Taylor. But because Boldt testified that he provided identification, the prosecutor, to impugn his credibility, argued that Boldt was uncooperative during many aspects of the pullover through the arrest. Part of his noncooperation involved hindering Officer Taylor from ascertaining whether she was investigating a potential driving while under the influence. To this end, in response to Boldt earlier testifying on direct that gave Officer Taylor a bottle or prescription pills but refused to perform a field sobriety test, the prosecutor asked Boldt on cross-examination:
"A person commits the crime of Resisting Arrest when he intentionally prevents or attempts to prevent a peace officer from lawfully arresting him." RP (Dec. 12, 2007) at 85. "A person commits the crime of Failure to Obey [an] Officer when he willfully fails to identify himself to a law enforcement officer, pursuant to an investigation of a traffic infraction, by willfully failing to give his name and his current address." RP (Dec. 12, 2007) at 86-87.
Would you agree that based on the information that Officer Taylor was provided, that she was unable to confirm or dispel the suspicion you were operating the vehicle under the influence of alcohol or drugs?
RP(Dec. 12, 2007) at 35. Boldt did not object. The prosecutor then asked, "Did you tell [Officer Taylor] how recently you used these medications?" RP (Dec. 12, 2007) at 35. Again, Boldt did not object. The prosecutor then argued in closing:
But, then, he acknowledges for us that, yeah, I didn't . . . provide the information. And, sure, he had . . . a right to refuse those field sobriety tests. Absolutely. I'm not going to stand up here and argue anything differently. But what he contends is that he wasn't operating a vehicle under the influence of alcohol. Officer Taylor had a duty to enforce the traffic laws. . . . to investigate what reason . . . is causing the Defendant to drive in the manner that he is driving.
RP(Dec. 12, 2007) at 97 (emphasis added). Boldt did not object. The prosecutor then argued,
[T]he Defendant agrees that he never told [Officer Taylor] how recently he'd taken these drugs, he just simply tells her that he takes these medications. . . . [Officer Taylor] has every reason to suspect, at this point, that he's taken them very recently.
RP (Dec. 12, 2007) at 97-98. Boldt did not object.
First, Boldt did not object to any of these statements. "Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on a motion for new trial or on appeal." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990) (internal quotations marks omitted), cert. denied, 498 U.S. 1046 (1991). Second, at no point did the prosecutor argue or suggest that Boldt had a duty to take sobriety tests or offer statements regarding the pain killers. Contrary to Boldt's claim that the prosecutor said he had a duty to perform sobriety tests, the prosecutor acknowledges in closing that he had a right to refuse them. The prosecutor mentioned the sobriety tests to show that Boldt was generally uncooperative: not only did he hinder Officer Taylor in determining his sobriety but he also hindered her in determining his identity. Given the context of the case as one involving Boldt's credibility vis-á-vis Officer Taylor's credibility — as both testified to different effect — the prosecutor's argument was proper and perhaps necessary to impeach Boldt's credibility and prove that he refused to reveal his identity.
II. Ineffective Assistance of Counsel
Boldt next argues that he received ineffective assistance of counsel because his trial counsel (1) failed to request a copy of Officer Taylor's annotated police report; (2) failed to propose a Petrich instruction; and (3) failed to object to prosecutorial misconduct. These arguments fail.
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 406, 756 P.2d 105 (1988).
A claim of ineffective assistance of counsel is a mixed question of law and fact that we review de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
To show ineffective assistance of counsel, appellant 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). Counsel's performance is deficient when it falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our 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); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A. Requesting Notes
Boldt contends that he received ineffective assistance of counsel because his counsel failed to request a copy of Officer Taylor's annotated police report.
Here, Boldt's trial counsel was not deficient. Contrary to what Boldt argues, his trial counsel immediately asked Officer Taylor to provide her the annotated police report after she was called to testify. In fact, defense trial counsel even used her annotations to impeach her credibility. Boldt overlooks these facts in the record, and as result, his argument lacks merit.
B. Petrich Instruction
Next, Boldt contends that trial counsel was ineffective for failing to propose a Petrich instruction. To support this contention, he asserts that several different acts could have given rise to his resisting arrest conviction.
The court reviews the adequacy of jury instructions de novo as a question of law. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Jury instructions are sufficient if substantial evidence supports them, they allow the parties to argue their theories of the case, and, when read as a whole, they properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 908 n. 1, 909, 976 P.2d 624 (1999).
To convict a defendant in Washington, a jury must unanimously find that the defendant committed the criminal act charged. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled on other grounds by State v. Kitchen, 110 Wn.2d 403, 406, 756 P.2d 105 (1988). When the State presents evidence of several distinct criminal acts but only charges the defendant with a single crime, either the State must elect the act on which it will rely for conviction, or the trial court must instruct the jury to unanimously agree that the same underlying criminal act has been proven beyond a reasonable doubt. Petrich, 101 Wn.2d at 572. Failure to elect or failure to give a unanimity instruction is a constitutional error that may be raised for the first time on appeal. Kitchen, 110 Wn.2d at 411.
But these requirements do not arise when the evidence demonstrates a continuous course of conduct. Petrich, 101 Wn.2d at 571. To determine whether the defendant's conduct constitutes one continuous act, we evaluate facts in a commonsense manner. Petrich, 101 Wn.2d at 571; State v. Elliott, 114 Wn.2d 6, 14, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990). "[E]vidence that a defendant engages in a series of actions intended to secure the same objective supports the characterization of those actions as a continuing course of conduct rather than several distinct acts." State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995) (citing State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)).
Here, a jury convicted Boldt of resisting arrest, after having heard evidence that he refused to comply with Officer Taylor's orders and evidence that he swung at her. Specifically, Officer Taylor testified that only a short second elapsed between Boldt placing his hands behind his back and Boldt swinging at her. Viewing this evidence in a commonsense manner, Boldt's series of conduct, including disobeying orders and physical confrontation, was intended to resist arrest. Because Boldt's conduct was a continuous course of conduct, there was no basis for a Petrich instruction and, thus, trial counsel was not ineffective for failing to propose it.
C. Not Objecting to Prosecutorial Misconduct
Finally, Boldt contends that his trial counsel was ineffective in failing to object to remarks that the prosecutor made in closing. He hinges this argument on a finding that the prosecutor committed misconduct, as discussed supra, in commenting during closing arguments on his failure to take sobriety tests and to provide exculpatory information to police. Because the prosecutor did not commit misconduct, the trial counsel did not have reason to object and was thus not deficient.
III. Petrich Instruction
Boldt argues that the trial court erred in failing to give a Petrich instruction. Again, his claim fails because all of Boldt's acts constituted a continuous course of conduct aimed at resisting arrest.
IV. Limiting Evidence
Boldt contends that the trial court abused its discretion in failing to admit the entirety of the Minit Mart video and in limiting the number of times he could play the tape at trial. He also argues that the trial court's ruling denied his constitutional right to cross-examine witnesses. These arguments fail.
We will not revisit a trial court's discretionary decision to admit video evidence absent an abuse of discretion. See State v. Davis, 141 Wn.2d 798, 853 10 P.3d 977 (2000). A trial court abuses its discretion when it exercises discretion on untenable grounds or for untenable reasons. Davis, 141 Wn.2d at 853.
Here, after numerous offers of proof and discussions, the trial court ruled:
As to the section that — that I'm not playing, or not allowing to be played, I looked at the tape. The Defendant had — had been arrested, placed in the police vehicle, he's out of view. There's no indication that either of the two police officers involved in this case were in view, and it is basically police officers moving around the scene, after the fact, and that's just not relevant. So, I did not allow you to play that for the jury; I don't see it as relevant; and — and so, at this point, that's the basis for my ruling.
RP (Dec. 12, 2007) at 71. A trial court may exclude relevant evidence if its prejudicial effect substantially outweighs its probative value. ER 403. The danger of unfair prejudice exists when the evidence is likely to stimulate an emotional rather than a rational response. State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995). Here, the trial court provided sound basis for excluding a portion of the video as irrelevant and, accordingly, did not abuse its discretion in making the ruling.
Boldt is also incorrect in arguing that the trial court abused its discretion in limiting the number of times that the jury could view the video. In State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983), the trial court admitted a tape-recorded exhibit without a playback machine to ensure that it would be apprised of and would retain some degree of control over the number of times a jury could review the evidence. Frazier, 99 Wn.2d at 191. The appellate court found no abuse of discretion and held that a trial court has sound discretion to admit recorded exhibits. Frazier, 99 Wn.2d at 189-91. Here, the trial court employed the same mode of control over the Minit Shop tape, limiting its playback but agreeing to field jury requests for additional views.
Finally, Boldt does not persuasively argue that excluding a portion of the video impinged his right to confront witnesses under the Sixth Amendment. Although we generally review the admission of evidence for abuse of discretion, State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001), we review an alleged confrontation clause violation de novo. State v. Chambers, 134 Wn. App. 853, 858, 142 P.3d 668 (2006). The record is entirely absent of any evidence that Boldt was unable to cross-examine witnesses with the video. Instead, trial counsel confronted several of the State's witnesses with the video in an effort to impeach their testimony. Although Boldt could not impeach them with portions of the video that the trial court excluded, there was no error because the trial court properly excluded those portions.
V. Sufficiency of Evidence
Boldt further argues that the State did not present sufficient evidence to convict him of resisting arrest and failure to obey a law enforcement officer.
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 a crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. Salinas, 119 Wn.2d at 201.
Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Here, the State presented sufficient evidence to convict Boldt of resisting arrest. Officer Taylor saw Boldt drive diagonally across oncoming traffic lanes on Ocean Beach Highway into a parking lot. Upon instructing Boldt to exit his vehicle and place his hands behind his back, Boldt complied briefly but suddenly turned around and swung at Officer Taylor. Only with Officer Davis's help and after deploying her taser gun was Officer Taylor able to subdue and arrest Boldt. The incident was also caught on video, which the jury had an opportunity to review.
Jury instruction number 19 states: "A person commits the crime of Resisting Arrest when he intentionally prevents or attempts to prevent a peace officer from lawfully arresting him." CP at 150.
The State also presented sufficient evidence to convict Boldt of failing to obey a law enforcement officer. Officer Taylor testified that Boldt refused to comply with her requests for a driver's license, registration, or proof of insurance. Contrary to Boldt's argument that the State did not adduce evidence that police were investigating him for a traffic infraction, which is an element of the crime, Officer Taylor saw Boldt erratically cut across oncoming traffic lanes, which she testified was a traffic violation.
Jury instruction number 23 states: "A person commits the crime of Failure to Obey An Officer when he willfully fails to identify himself to a law enforcement officer pursuant to an investigation of a traffic infraction by willfully failing to give his name and his current address." CP at 154.
VI. Cumulative Error Doctrine
Finally, Boldt asserts that he did not receive a fair trial due to cumulative error. We disagree.
Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. In re Lord, 123 Wn.2d at 332. Where the defendant fails to show that an accumulation of error was prejudicial, this court must dismiss the claim. See State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990).
Here, the prosecutor did not commit misconduct and Boldt received effective assistance of trial counsel. The trial court did not abuse its discretion in limiting the video evidence, nor did it violate Boldt's right to confront witnesses. Further, the jury had sufficient evidence to convict Boldt of resisting arrest and failure to obey a police officer. Accordingly, Boldt's cumulative error argument fails.
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.
HOUGHTON, J. and VAN DEREN, C.J., concur.