Opinion
No. 36761-1-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-01686-6, Thomas P. Larkin, J., entered September 14, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
Scott Evatt appeals his convictions from a shoplifting incident, claiming that the prosecutor made comments during closing argument that deprived him of his constitutional right to a fair trial. Specifically, Evatt alleges that the prosecutor improperly commented on his decision to not testify on his own behalf. We affirm.
FACTS
The evening of March 27, 2007, Evatt entered a Tacoma Rite-Aid drugstore. The Rite-Aid loss prevention agent, Christopher Comstock, immediately recognized Evatt from previous encounters, and watched security cameras as Evatt walked straight to the cooler section, at the back of the store. Comstock watched as Evatt took a can of beer from one of the coolers. Next, Evatt turned to a store display of beer and selected an 18-pack of beer. Comstock watched as Evatt struggled for several minutes to conceal the 18-pack of beer beneath his coat.
With the 18-pack finally concealed beneath his coat, Evatt walked to the register with the single can of beer. Evatt placed the single beer on the counter, while concealing the left side of his body — where the 18-pack was hidden — behind a counter sales rack. Evatt paid for the single can of beer, and left the store with both the can and the 18-pack. Seeing this, Comstock ran to the front of the store to apprehend Evatt and retrieve the stolen beer.
Comstock encountered Evatt just outside the door and he tried, unsuccessfully to get Evatt to come back into the store. Evatt told Comstock that "I can pick up that beer and walk right out, and there's nothing you can do about it." 3 Report of Proceedings (RP) at 110. Evatt then pushed Comstock in the chest and started walking across the parking lot.
The Tacoma police department arrived just as Evatt started to walk away from the Rite-Aid. Two uniformed officers, Officer Birge and Officer Metzger arrived in separate but fully marked police vehicles. The officers made eye contact with Evatt and then Evatt turned and ran. The officers identified themselves as police and told Evatt to stop. Both officers pursued Evatt on foot while yelling for him to stop. Birge tackled Evatt to the ground after a 150 yard pursuit.
Once on the ground, Evatt refused to cooperate with the officers. After a brief struggle, the officers handcuffed Evatt and took him back to their patrol cars. Metzger advised Evatt of his Miranda rights. Evatt responded to this by swearing at Metzger. Evatt continued yelling profanities at Metzger and threatened to sue her for arresting him for a felony, until she booked him at the jail.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Evatt with first degree burglary, third degree assault, third degree theft, resisting arrest, and obstructing a law enforcement officer. At arraignment, Evatt asked to appear pro se. Before granting his request, the trial court sent Evatt to Western State Hospital for a mental evaluation, at the State's request. On July 31, 2007, the trial court found Evatt competent and again, the trial court engaged in a colloquy with him to ensure that he understood the risks inherent with representing himself at trial. Finding that Evatt was making a knowing, intelligent, and voluntary waiver of his right to counsel, the trial court permitted him to represent himself.
The jury trial began on August 16, 2007. As witnesses, the State called both responding police officers, Comstock, and Georgiana Braddick, the clerk working at Rite-Aid the night of the incident. Evatt cross-examined all witnesses questioning them on inconsistencies between various statements made, and inconsistencies between the witnesses' versions of events. Evatt had a difficult time during trial refraining from making inappropriate comments to witnesses, in front of the jury.
Evatt called one witness, Lea Sanders, a defense investigator. Sanders testified about interviewing Comstock and Braddick about a month and a half after the arrest. Sanders also took photographs of the Rite-Aid during her interview with its employees. The jury returned a verdict of guilty of third degree theft, resisting arrest, obstructing a law enforcement officer, and the lesser included crime of second degree burglary.
Evatt now appeals.
ANALYSIS
I. Prosecutorial Misconduct
Evatt alleges that his right to a fair trial was violated by the prosecutor's improper remarks during closing argument. Evatt failed to object to the comments and he cannot show they were flagrant and ill intentioned. Thus, we affirm Evatt's convictions.
The failure to object to a prosecuting attorney's improper remark constitutes a waiver of such error unless the remark is so "flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). To determine whether the prosecutor's comments were flagrant or ill intentioned, we must view all comments in context of "the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Further, the prosecutor's remarks, even if determined improper, are not grounds for reversal if "they were invited or provoked by defense counsel and are in reply to his or her acts and statements. . . ." Russell, 125 Wn.2d at 86.
Prosecutorial comment on the accused's exercise of his constitutional right to remain silent is forbidden. State v. Reed, 25 Wn. App. 46, 48, 604 P.2d 1330 (1979) (citing U.S. Const. amend. 5; Const. art. I, § 9). The State cannot be permitted to put forward an inference of guilt, which necessarily flows from an imputation that the accused has suppressed or is withholding evidence, when as a matter of constitutional law, he is not required to testify. Reed, 25 Wn. App. at 48 (citing State v. Charlton, 90 Wn.2d 657, 662, 585 P.2d 142 (1978)).
It is not misconduct, however, for the prosecutor to make a fair response to defense counsel's arguments. State v. Russell, 125 Wn.2d at 87. Prosecutors may comment on the absence of certain evidence if a person other than the defendant could have testified regarding that evidence, State v. Ashby, 77 Wn.2d 33, 37-38, 459 P.2d 403 (1969), and may comment that the evidence is undisputed, State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978).
Evatt argues that several of the prosecutor's comments in closing arguments improperly commented on his rights under the Fifth Amendment and article I, section 9 of the constitution, because he, the non-testifying defendant, was the only person who could have testified to contest the State's evidence. Because Evatt did not object to the prosecutors statements in closing, he must show that, when taken in context, the statements were "so flagrant and ill intentioned" that an admonition to the jury could not neutralize prejudice. Gentry, 125 Wn.2d at 596.
The first comment we review, in context states:
What I want you to do is, look at all the evidence in this case. The defendant is going to come up here and say, "Well, not every person's story was exactly the same." Of course, they're not. It would be odd if they were. If everybody came up here and said exactly the same thing word for word, that would be really suspicious. What we talked about in voir dire is, basically, that overtime, people's memories slightly fade. And what you saw here was four people, four witnesses, give, basically, the same account of this incident. There was no real contradiction between any of their versions. They, basically, gave the same account of what occurred, and it has been uncontradicted throughout. I want you to take that into account when you're looking at this evidence.
4 RP at 290 (emphasis added). The second challenged argument occurred during the State's rebuttal argument. The prosecutor stated:
You and you alone are the sole judges of the credibility of the witnesses, and Jury Instruction 1 talks about that. You heard all of the testimony from my four witnesses, from his investigator. You get to judge their credibility. You also get to judge what was said here. There's one consistent story, and that is the defendant is guilty of these crimes. I'm asking that you find him guilty of the five that were originally charged.
4 RP at 303-04. Evatt also now challenges several other comments made by the prosecutor in closing argument:
The [Rite-Aid surveillance] video, you have seen it; you have watched it. There's no contradiction of the video. That is really him exerting control over the beer and taking it out of the store without paying for it.
4 RP at 281-82 (emphasis added).
And the other thing on obstruction is, there's no — all of the witnesses testified, basically, the same way, that he took off running after he was told and he had to be tackled. There's no evidence that contradicts that.
4 RP at 284.
For resisting arrest, the prosecutor argued that the charge had been proven because the jury had heard from Birge and Metzger that Evatt had struggled with them while he was down on the ground, even after they told him to stop. The prosecutor then said:
That is the proof that you have on that. Again, [the officers] both testified to the same thing, and there was no evidence that contradicts that.
A moment later, in arguing that he had met his burden of proving that the arrest Evatt was alleged to have been resisting was "lawful," the prosecutor declared the burden met because "[n]o one is claiming" that the arrest was unlawful and "there's been no evidence" the arrest was not lawful. 4 RP at 285. Evatt also challenges this assertion.
Taken in context, the prosecutor's comments were proper. The prosecutor did not refer to evidence not in the record, nor did he refer to statements the defendant could have made but did not. Instead, the prosecutor discussed all the evidence he had produced and commented on its consistency, in general. His comments focused on whether his witnesses' statements were consistent with each other, or whether they contradicted each other. None of the prosecutor's comments can be construed as an implication that Evatt was "suppress[ing] or is withholding evidence" on any of the issues before the jury nor could the comments be considered "flagrant or ill intentioned." Reed, 25 Wn. App. at 48; Gentry, 125 Wn.2d at 596. It was no more improper for the prosecutor to comment on the consistency of the testimony of those witnesses who testified in the State's case in chief that it was for the defendant to point out the inconsistencies in that same testimony.
Throughout trial, Evatt made consistency among the State's witnesses an issue. He questioned every witness about the consistency of their statements and frequently — and improperly — noted those inconsistencies in front of the jury. Further, the only witness he called, Lea Sanders, a defense-hired investigator, was called solely for the purpose of highlighting the inconsistencies between the State's witness' stories. Given this strategy, it was not misconduct for the prosecutor to comment on the consistency among the State's witnesses. The prosecutor's comments were in "reply to [Evatt's] acts and statements," during trial. Russell, 125 Wn.2d at 86.
Several examples of Evatt's behavior include:
1. During opening statement, Evatt stated to the jury that "[Comstock] has no proof, just his word, his uncredible [sic] word, I will say that — because he's inconsistent on everything." RP (Aug. 20, 2007) at 6.
2. After objection, Evatt continues: "I will show that this [Comstock] is changing his statements over and over to go along with this alleged fictitious assault . . . he's untruthful." RP (Aug. 20, 2007) at 6-7.
3. Evatt interrupted Comstock's testimony on cross-examination stating: "So there's multiple inconsistencies from these three different authority figures." 3 RP at 140.
4. Evatt then asked Comstock this "question": "Do you know that following statements of that person who gave the first inconsistent statement means the following statements of that person will be assumed to be false?" 3 RP at 155.
5. Finally, during closing argument, Evatt described Comstock by saying, "Another inconsistent statement because that is all it is, is inconsistent with this guy." 4 RP at 297.
Moreover, the trial court instructed the jury that "[t]he defendant is not compelled to testify, and the fact that the defendant has not testified cannot be used to infer guilt or prejudice him in any way." CP at 223 (Jury Instr. 4). We presume that the jury followed the trial court's instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
We affirm Evatt's convictions.
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.
VAN DEREN, C.J. and QUINN-BRINTNALL, J., concur.