Opinion
No. 58238-1-I.
November 13, 2007.
Quinclyn Johnson appeals his conviction for burglary in the second degree, arguing that the evidence was insufficient to find him guilty, the trial court erred by failing to instruct the jury regarding dog tracking evidence, prosecutorial misconduct deprived him of a fair trial, he received ineffective assistance of counsel, and cumulative errors require this court to reverse his conviction. We affirm.
Facts
Early in the morning on December 19, 2005, an employee of an electronic security and monitoring company heard sounds of movement inside a Schuck's Auto Parts store in Kirkland, Washington. The employee alerted the police to a possible break-in at the store, then activated a recording device and continued to monitor the sounds coming from inside the store. The employee heard two male voices. One voice sounded to the employee like that of a Caucasian man. The other person spoke with an accent, which sounded "ethnic," possibly "Arabic." Eventually, she heard the sound of a vehicle driving off.
When City of Kirkland police officer Mark Brown reached the shopping center where Schuck's was located, he saw a green pickup truck in front of the store's doors. The lower part of one of the store's glass doors was shattered. As Officer Brown drove into the parking lot, the headlights of the truck came on, and the truck came toward his car. Officer Brown could see two people in the truck, but did not see anyone else around. He stopped his car, got out, drew his gun, and told the occupants of the truck to stop, but the truck sped away instead.
Officer Brown and his partner, Joseph Indahl, who was in a separate car, followed the green truck until it stopped on a dead end street in a residential area in Mukilteo. The driver of the truck and his passenger opened the doors and ran. The officers could see a cash register, tools, and other items sold at Schuck's in the bed of the truck.
A police dog and his K-9 handler from the City of Everett police department, Timothy Reeves, tracked a scent from the green truck to a hillside covered with sticker bushes. When the dog approached a large tree, Officer Reeves heard a man say, "I'm right here. Don't let your dog bite me." Officer Reeves immediately arrested the man, Quinclyn Johnson. Later, another police dog located Michael Easley, who matched the description of the driver of the green truck.
Johnson was charged with and found guilty of burglary in the second degree.
Sufficiency of the Evidence
In this appeal, Johnson first argues that the evidence was insufficient to find him guilty of second degree burglary. He contends that the dog tracking evidence was the only evidence connecting him to the crime, and dog tracking evidence alone is not sufficient to support a conviction.
Evidence is sufficient if, after reviewing it in the light most favorable to the State, "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
Dog tracking evidence alone is not sufficient to sustain a conviction.State v. Loucks, 98 Wn.2d 563, 569, 656 P.2d 480 (1983). A conviction must be supported by other evidence that tends to strengthen or confirm the dog tracking evidence. State v. Ellis, 48 Wn. App. 333, 335, 738 P.2d 1085.
In Loucks, a husband and wife were awakened by noises coming from inside their home. Their home security system indicated that someone had entered their house. When police officers investigated, they found a window open on the main floor and a broken glass panel in the basement door. They also found blood smears and fingerprints inside the home. An oak prayer desk had been moved from the basement to the back porch.
A police dog picked up a scent in the basement, circled the desk on the porch, and led his handler to Allen Loucks, who was at the bottom of a stairwell at a nearby residence. Loucks had been ticketed for jaywalking approximately an hour before the burglary. He claimed then to be looking for an address in a different neighborhood. Neither the blood nor the fingerprints that were found inside the burglarized house matched Loucks'.
Despite the absence of evidence to corroborate the dog tracking evidence, Loucks was charged with and convicted of second degree burglary. At trial, the State's theory was that an accomplice assisted Loucks in removing the desk from the house. Our Supreme Court reversed, holding that the dog tracking evidence identifying Loucks as the burglar was insufficient to sustain his conviction. Loucks, 98 Wn.2d at 569.
This case is distinguishable from Loucks because substantial evidence corroborated that Johnson was one of the men who burglarized Schuck's. The electronic security company employee heard two male voices inside Schuck's. When Officer Brown arrived on the scene, a green truck with two men inside was in front of the store. Officer Brown did not see anyone else in the area. While Officers Brown and Indahl were following the green truck, two other Kirkland police officers searched Schuck's. One officer parked his car against the back doors of the store to prevent anyone inside from leaving while he went around to the front of the building. The officers did not find anyone else in or around the store. The evidence established that the burglars entered and exited through the broken glass at the front of the store.
When the green truck stopped at a dead end street in Mukilteo, Officer Brown saw two people run away. Inside the truck, officers found a generator that showed no signs of having been scraped or otherwise damaged even though it was so heavy it would be awkward for one man to carry alone.
Johnson argues that although the State proved that someone helped Michael Easley burglarize the Schuck's store, the evidence implicates someone other than Johnson. He points out that the security company employee reported that one of the burglars sounded Caucasian and the other burglar spoke with an accent that sounded Arabic. Easley is Caucasian; Johnson speaks with a slight southern accent. But the security company employee testified at trial that she was not sure the accent was Arabic. Moreover, there was no evidence indicating that a third, unidentified person had been at the store. When the evidence and all reasonable inferences from it are considered in the light most favorable to the State, the evidence was sufficient to find Johnson guilty of second degree burglary.
Dog Tracking Instruction
Johnson next argues the trial court erred when it failed to caution the jury that it could not convict Johnson based upon dog tracking evidence alone. But even if failing to give such an instruction constituted error, any error was harmless.
As discussed above, dog tracking evidence alone is not sufficient to sustain a conviction. Therefore, a trial court errs when the State relies upon dog tracking evidence to prove its case, and the court refuses to instruct the jury that it may not find the defendant guilty based upon dog tracking evidence alone. State v. Wagner, 36 Wn. App. 286, 287-88, 673 P.2d 638 (1983). Johnson did not ask the court to instruct the jury that dog tracking evidence must be corroborated by other evidence. Nevertheless, he argues that the trial court erred by not giving such an instruction.
No Washington case has specifically required courts to give a limiting instruction on dog tracking evidence sua sponte, although courts in some other jurisdictions have. See People v. Malgren, 188 Cal. Rptr. 569, 574 (1983); People v. Perryman, 280 N.W.2d 579, 582-83 (1979). The issue was before this court in State v. Ellis, supra, but it was not resolved because we concluded that even if such an instruction should have been given, the failure to do so constituted harmless error:
We certainly agree that when requested in an appropriate case the instruction must be given, but the constitutional question in the final analysis is one of sufficiency of the evidence. Thus, dog track evidence standing alone is not sufficient to support a conviction. The sufficiency of the evidence to convict implicates the defendant's due process rights and may be raised for the first time on appeal.
State v. Ellis, 48 Wn. App. at 335-36 (internal citations omitted).
In this case, there is sufficient evidence taken as a whole, including the dog track evidence, to find Ellis guilty beyond a reasonable doubt.
Similarly, there was sufficient evidence in this case to find Johnson guilty beyond a reasonable doubt. As discussed above, ample evidence established that Johnson was one of the two people who committed the burglary. Therefore, even if the trial court should have given the instruction without being asked, the error does not warrant reversal.
Prosecutorial Misconduct
Johnson next argues that he was denied a fair trial as a result of the prosecutor's misconduct. He claims that the prosecutor improperly shifted the burden of proof in closing argument by suggesting that Johnson failed to produce the burglar who sounded "Arabic".
The State must prove each element of its case beyond a reasonable doubt. State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996). The defendant has no duty to present evidence or provide innocent explanations for the State's evidence. Fleming, 83 Wn. App. at 214-15. An argument that the defendant failed to present witnesses or evidence may infringe on the defendant's constitutionally guaranteed right to remain silent. Id.
To establish prosecutorial misconduct, the defendant must show both that the prosecutor's conduct was improper and that the misconduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established if there is a substantial likelihood that the misconduct affected the jury's verdict. Dhaliwal, 150 Wn.2d at 578. This court reviews 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.Id. Even if the prosecutor's remarks were improper, they are not grounds for reversal if they were a pertinent reply to or were provoked by defense counsel unless they were so prejudicial that a curative instruction would be ineffective. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 115 S. Ct. 2004 (1995). Moreover, unless an improper remark is so flagrant and ill-intentioned that a jury instruction could not neutralize it, the defendant waives the error if he fails to object to the improper remark. Russell, 125 Wn.2d at 86.
Johnson complains about the following comments that the prosecutor made during her rebuttal closing argument, which he contends improperly shifted the burden of proving each element of the case beyond a reasonable doubt:
Now, I listened to the doubts that [defense counsel] tried to sprinkle through her closing argument, and for all intents and purposes, what [defense counsel] wants you to buy is the "Arab did it" defense, some ethnic guy that no one knows where that person went did this. Well, if that's the case, where the heck is the Arab? Where is this ethnic person that supposedly committed this crime?
The prosecutor's argument was a pertinent reply to defense counsel's argument. Defense counsel acknowledged that someone helped Easley to commit the burglary, but suggested that the true accomplice was someone with an Arabic accent who did not leave Schuck's in the green truck:
There was a crime that took place in this case. There was obviously a burglary at the Schuck's back on December 19th. The government — the State is accusing Mr. Johnson of being inside that store. They are saying that he was the person inside that store, along with someone else, or who knows how many other individuals. What evidence is there that Mr. Johnson was inside that store?
Jessica Culver, the Sonitrol employee, was listening in to that store. . . . She is listening closely. She is trying to obtain identifying information; she is trying to figure out what's taking place inside that store. She didn't say that there is [sic] only two people in that store. She said she heard two voices. She heard footsteps. She heard crashing. She heard rummaging.
The two voices that she heard, she described in the early morning hours of December the 19th when her memory is freshest, when her impressions are clearest about what took place. The one voice she describes as being possibly Arabic. A couple of weeks ago, she couldn't say for certain whether or not now it's Arabic or possibly Arabic, but it sounded ethnic. The other voice she described that night on December 19th in the early morning hours as sounding white.
. . . .
Officer Brown, when he arrived, he didn't see anyone getting inside the pickup truck. That pickup truck is already in motion. He is focused on that pickup truck, and he is focused on detaining it. Whatever took place in the second before he arrived, whether someone is hiding back in the back part of that Schuck's auto store waiting for the time in which to get away, whether or not there is a car a little bit further to the east that is observed by no one because they don't go in that part of the direction, they don't go over there, we don't know.
Considering the prosecutor's comments in the context of her total argument, the issues and evidence, and the jury instructions, her remarks were not improper. They were a pertinent response to Johnson's suggestion that the person who helped to burglarize Schuck's was someone who the police negligently failed to find.
Johnson argues that the prosecutor's rebuttal argument also constituted misconduct because the State was not entitled to rely on the "missing witness" doctrine. That doctrine allows the prosecutor to comment on the defendant's failure call a witness under certain, limited circumstances.See State v. Gregory, 158 Wn.2d 759, 845-46, 147 P.3d 1201 (2006). But Johnson did not object to the prosecutor's argument, and it was provoked by defense counsel. Therefore, even if it was improper for the prosecutor to suggest that Johnson should have called the unknown person with an Arabic accent as a witness, the argument was not so flagrant or ill-intentioned that it could not have been neutralized by a proper jury instruction.
Ineffective Assistance of Counsel
Johnson next argues that he was denied his right to effective assistance of counsel. To prevail on such a claim, the defendant must make two showings:
(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either part of the test is not satisfied, the inquiry need not continue.State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Courts presume that counsel's representation was effective. McFarland, 127 Wn.2d at 335.
Johnson contends that his defense counsel was ineffective because she failed to request an instruction cautioning the jury that it should not convict him based upon dog tracking evidence alone. As discussed above, however, ample evidence corroborated the dog tracking evidence. Therefore, even if defense counsel's failure to ask for a cautionary instruction fell below an objective standard of reasonableness, the outcome of the proceeding is unlikely to have been different.
Johnson also argues that he was denied effective assistance of counsel because defense counsel failed to object the prosecutor's rebuttal argument. Again, however, even if defense counsel's performance fell below an objective standard of reasonableness, Johnson was not prejudiced. The jury was instructed that the State had the burden of proof and the defendant did not have to prove anything. The jury also was instructed that the attorneys' remarks were not evidence and should be disregarded if not supported by the evidence. There is no reasonable probability that the outcome would have been different had defense counsel objected to the prosecutor's rebuttal argument. Therefore, Johnson's claim that he was denied effective assistance of counsel fails.
Conclusion
Johnson has not established that any of the errors he asserts entitle him to relief. Therefore, he is not entitled to a new trial based upon any individual error or based upon the cumulative effect of all of the alleged errors. Johnson's judgment and sentence is affirmed.