Opinion
No. 25196-9-III.
October 23, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 05-1-02418-1, Michael E. Schwab, J., entered May 3, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Schultheis, J.
Donald Broers, by appointed appellate counsel, appeals his convictions for second degree identity theft and second degree theft. He contends he was denied the right to a fair trial based on prosecutorial misconduct and the court's failure to grant a mistrial. We reject these contentions and his pro se speedy trial additional grounds, and we affirm.
FACTS
In 2005, Mr. Broers worked for Borton Sons Fruit Company and Chief Orchards Packing and Storage, LLC (Borton). Borton Fruit and Chief Orchards have business agreements to work together. In October 2005, Mr. Broers left his employment with Borton. Borton discovered Mr. Broers had made multiple unauthorized purchases on its account at the Hometown Ace Hardware Store (Ace), charging $927.85 in merchandise to the Chief Orchards' account. Police Officer Ritchie Fowler responded to Borton's complaint.
According to Ace employee Cindy Carlson, she waited on Mr. Broers twice in October, charging two separate purchases of power tools to the Chief Orchards account. On each occasion, Mr. Broers wore navy blue Borton coveralls. Ace employee, Tyler Beehler, recalled ringing up a drill for Mr. Broers in October 2005 and charging it to the Chief Orchards account. Ace employee, Paul Koverman, testified Mr. Broers charged a Dremmel set to the Chief Orchards account in October 2005. He remembered Mr. Broers was dressed in blue Borton coveralls, and was taller than he was at six foot one and a half inches. Mr. Broers fit this description.
Each of the unauthorized purchase invoices was signed with a first name looking like "Dan," using various last names. Report of Proceedings (RP) at 186-88. According to David Eggers, maintenance supervisor for Borton Fruit Company, he recognized Mr. Broers' signature on a purchase invoice and believed it matched his signature on Borton paperwork. He stated Mr. Broers was not authorized to make purchases under the company account.
The State charged Mr. Broers with second degree identity theft and second degree theft. During a pretrial hearing, Officer Fowler testified he went to Mr. Broers' home after receiving information he was involved in the thefts. Officer Fowler arrested Mr. Broers and asked if he could search his truck, and Mr. Broers responded, "not without a search warrant." RP at 20. Officer Fowler stated Mr. Broers asked him why he wanted to search the truck and then consented to the search. The prosecutor told the court he did not intend to admit evidence of Mr. Broers' initial denial of consent. The court indicated the evidence was not to be presented to the jury.
At trial, Officer Fowler testified he arrested Mr. Broers and asked if he could look inside his truck, and Mr. Broers told him not "without a search warrant." RP at 238. Mr. Broers immediately objected and moved for a mistrial. The court denied the motion and ruled future testimony showing he consented to the search would cure the error. It stated the testimony could not be pulled out of context since the totality of the evidence showed Mr. Broers consented to the search. The court offered Mr. Broers a curative instruction and he declined. It then recommended doing nothing and not raising the matter again, and Mr. Broers agreed without waiving his mistrial objection.
The trial resumed and Officer Fowler testified Mr. Broers gave him permission to search his truck. He testified he asked Mr. Broers for permission to look inside a toolbox in the truck bed, and Mr. Broers said, "you sure can." RP at 252. Mr. Broers pulled out a key, unlocked it, and said, "go ahead." RP at 252. Officer Fowler found a pair of blue Borton coveralls with a tag with the name "Don" on the left side. RP at 252.
The jury found Mr. Broers guilty as charged. Mr. Broers appeals.
ANALYSIS
The issue is whether the trial court erred in denying Mr. Broers' mistrial motion for prosecutorial misconduct. Mr. Broers contends the State violated the court's preliminary ruling, and his fourth amendment rights, by presenting evidence that he originally refused a warrantless search of his truck.
We review for abuse of discretion a trial court's prosecutorial misconduct rulings and the denial of a motion for a mistrial. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995); State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). A claim for prosecutorial misconduct places the burden on the defendant to show, first, prosecutor misconduct, and second, its prejudicial effect. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prosecutorial misconduct may be neutralized by a curative instruction. See id. This court will overturn the denial of a motion for a mistrial only where "there is a `substantial likelihood' the prejudice affected the jury's verdict." Russell, 125 Wn.2d at 85. A mistrial should be granted only when no other curative measures can be taken to ensure a fair trial. Id.
Mr. Broers has not shown the court abused its discretion. First, although the court intended evidence of Mr. Broers' initial denial of consent to be excluded, when taken in context with the following testimony, we agree with the trial court that it was not so prejudicial as to affect the jury's verdict. The jury heard evidence that Mr. Broers allowed a search of the truck and the toolbox in the truck bed. Second, Mr. Broers tactically declined the court's offer of a curative instruction. Third, overwhelming, untainted, evidence of guilt is present. State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985). Multiple store employees identified Mr. Broers, the police found the coveralls described by the hardware employees in Mr. Broers' truck, Mr. Broers matched the description given by one of the hardware employees, and Mr. Eggers recognized the handwriting on one of the unauthorized invoices as Mr. Broers'.
ADDITIONAL GROUNDS
Speedy Trial: Mr. Broers contends the State violated his speedy trial rights. He contends he differed with his counsel about a trial continuance. Under this record, this is not a valid complaint. If other facts exist supporting this contention, they may be presented in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1955).
Affirmed.
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.
CONCUR:
SWEENEY, C.J.
SCHULTHEIS, J.