Opinion
No. 34539-1-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02265-7, Bryan E. Chushcoff, J., entered March 10, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Claiming multiple errors, Leland Johnson appeals his convictions of prostitution promotion, identity theft, and unlawful firearm possession. We reverse the conviction for prostitution promotion and affirm the remaining convictions.
FACTS The Arrest
On May 9, 2005, Pierce County Sheriff Deputies David Shaffer and Kory Shaffer and Sergeant William Cassio conducted an undercover prostitution investigation. David saw a woman walking on Pacific Avenue whom he suspected worked as a prostitute. As the woman walked by his car, she made eye contact and nodded. He nodded back, and the woman immediately got into the passenger side of his vehicle.The woman asked if David was a police officer and he denied it. She then reached over and rubbed his genitals through his clothing. Satisfied that he was not a police officer, she asked what he wanted and she agreed to perform oral sex for $40.
David testified that prostitutes often do this as a "cop test." 1 Report of Proceedings (Aug. 17, 2005) at 14.
David then drove her to a prearranged location where Cassio awaited in uniform to make the arrest. The woman first claimed she was only getting a ride from David but then admitted that she worked as a prostitute. She told Cassio that she listed her pimp in her cellular telephone as "Daddy." 1 Report of Proceedings (RP) (Aug. 17, 2005) at 17. She described him as a 25-to 30-year-old black male named Wayne who drove a 1995 or newer red car with a black hood.
The woman's cellular telephone rang while she talked to Cassio; she asked David to answer it and tell the caller that she was being arrested. David did not reach the telephone in time to answer it, but he saw on the display that the call came from "Daddy." David called "Daddy" back and a man answered, demanding to know what was going on. David told him that the woman had been arrested.
The deputies cited the woman for prostitution and released her. Believing her pimp would try to contact her, David and Kory followed her for about 45 minutes as she walked around. At one point, she walked in front of Kory's car and he overheard her talking on her cellular telephone, saying "I don't think you should come over here, I think they're watching me and watching for you." 1 RP (Aug. 17, 2005) at 48. Eventually Kory saw her get into a red convertible with a black top, driven by a black male.
Believing the man in the car was the woman's pimp, the deputies decided to stop the car to investigate. When Cassio approached the car, the driver started to reach into the console. Cassio saw a knife within the driver's reach and ordered him out of the car. The driver said his name was Wayne. But Cassio recognized the driver and thought he had another name.
David asked the woman if the driver was her pimp. She looked frightened but said, "[Y]es." 1 RP (Aug. 17, 2005) at 23. Cassio then arrested the driver.
The driver provided an Oregon identification card, a Washington driver's license, and credit cards in Wayne King's name. Eventually, Cassio remembered that the driver's real name was Leland Johnson. When Cassio brought up a picture of Johnson on his computer, he confirmed it was the same person as the driver. When he showed the driver the picture, he admitted he was Johnson.
David searched the car and found a loaded gun in the console. He also found several pictures of semi-nude women, including pictures of the woman who had gotten into his car. Cassio advised Johnson of his Miranda rights and Johnson stated he understood them. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Johnson told Cassio that he had obtained a false birth certificate and took it to Oregon, where he obtained the identification card. He then used the Oregon card to obtain a Washington driver's license and opened several bank accounts using the license. Johnson said that he had a warrant for escape and was trying to start a new life.
Procedural History
The State charged Johnson with second degree unlawful possession of a firearm, second degree promoting prostitution, and first degree identity theft.
1. Evidentiary Rulings
Johnson moved to exclude his statements to the deputies and the evidence seized from his car. Midway in the proceedings, Johnson requested a continuance and a new attorney because he questioned his attorney's competence and claimed that his attorney had a conflict of interest. The trial court denied his request and denied Johnson's motion to exclude evidence seized from his car.
Johnson also moved in limine to exclude several other portions of the State's evidence. First, he moved to exclude hearsay statements by the State's witnesses. Relying on Crawford v. Washington, the trial court ruled inadmissible the out-of-court statements of the woman arrested for prostitution. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
2. Prostitution Promotion
During opening statement, the prosecutor told the jury how the deputies arrested the prostitute, indicating that she had spoken to them and given them a description. The trial court overruled Johnson's objection to the comments.
While testifying about the sting operation, both Cassio and Kory revealed that they had spoken with the prostitute and relied on the information that she had given them. Kory also testified that he had a description of a red vehicle with a black top, as well as a middle-aged black male driver that they believed to be the pimp. The description matched Johnson and the car he drove. The trial court allowed the testimony over Johnson's objection.
David also testified about Johnson's arrest and the photographs he found in the car. When the prosecutor asked for his opinion about the photographs, he stated that he had seen those types of pictures before while investigating prostitution. Despite the ruling excluding testimony about the possible uses of the photographs, David testified that such photographs were used to show potential clients "what type of women are available." III RP (Feb. 13, 2006) at 214. The prosecutor asked, "Are these the same types of photos then for the same essential purpose that you, based on your training and experience, believe that [the prostitute's] were, that they were sort of advertisement for the type of women available for escort services?" III RP (Feb. 13, 2006) at 215. David responded that they were.
In closing argument, the prosecutor described the conversation Cassio had with the prostitute, repeated the description of the car and the driver, and stated that the deputies believed Johnson was the woman's pimp because he matched the description that she had given.
3. Identity Theft
To prove the identity theft charge, the State presented testimony from bank employees. A Bank of America executive testified that the debit card found in Johnson's wallet had been opened under the name Wayne King in May 2004. The applicant provided a social security number and a Washington driver's license. The account was closed after five months due to an overdraft of more than $8,800 from Hertz Rent-a-Car.
The State also called a fraud investigator from Washington Mutual Bank. She testified that a debit card issued to Wayne King and found in Johnson's wallet was associated with an account Erica Brown opened in California. The account was closed in early 2005, due to a $1,666 overdraft.
Testifying in his defense, Johnson stated that he tried to change his identity to Wayne King because his felony conviction made it hard to rent a home or obtain a professional license. He claimed that he opened the Bank of America account because "you are supposed to have a bank account to be a productive citizen in society." V RP (Feb. 15, 2006) at 360. Regarding the overdraft, Johnson testified that it occurred when he rented a Lincoln Navigator and had an accident after the insurance lapsed. He claimed he was never notified about the damage claim until Bank of America closed his account.
Regarding the Washington Mutual account, Johnson testified that Brown was his friend and had given him permission to add his name to her account. He did not know how the overdraft was incurred and he did not receive statements for the account.
The jury convicted Johnson of all three counts and he appeals.
ANALYSIS Confrontation Clause
First, Johnson argues that the prostitute's statements describing her pimp and his car constituted testimonial hearsay. Because the substance of those statements was communicated to the jury, Johnson asserts that the trial court's admission of the testimony violated his constitutional right to confront all adverse witnesses. We agree.
The Sixth Amendment's guarantee that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" applies to state prosecutions. U.S. Const. amend. VI; Crawford, 541 U.S. at 42. Under the Sixth Amendment, courts may admit only testimonial hearsay statements of witnesses who do not testify at trial when the declarant is unavailable and the defendant has had an opportunity to cross-examine. Crawford, 541 U.S. at 59.
The Supreme Court has yet to articulate a precise definition of "testimonial statements," but it is well established that they include statements made during police interrogation. Crawford, 541 U.S. at 68; State v. Davis, 154 Wn.2d 291, 300, 111 P.3d 844 (2005) ("Interrogations by law enforcement officers fall squarely within the classification of testimonial statements."), aff'd in Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). The rule, however, implicates only statements that are hearsay; testimonial statements of non-testifying witnesses are admissible if they are not offered to prove the truth of the matter asserted. In the Matter of the Pers. Restraint of Theders, 130 Wn. App. 422, 425, 123 P.3d 489 (2005), review denied, 156 Wn.2d 1031 (2006).
We review the admission of testimony that violates the confrontation clause under a harmless error standard. Davis, 154 Wn.2d at 304. In applying that standard, we consider whether there is overwhelming untainted evidence, such that the jury would necessarily reach a finding of guilt. Davis, 154 Wn.2d at 305.
The testimonial statements at issue here are the statements the prostitute made to Cassio while she was under arrest. The substance of those statements was that she had a pimp, a 25-to 30-year-old black man named Wayne who drove a red car with a black hood. Johnson claims that the deputies' testimony improperly communicated to the jury that the prostitute had described her pimp and the car he was driving. The State counters that the descriptions were admissible to show how the deputies conducted their investigation and were not offered for their truth.
Because the statements occurred during a police-initiated custodial interrogation, they fall squarely within the Crawford court's description of testimonial statements. 541 U.S. at 52 ("Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.").
We acknowledge exceptions to Crawford's exclusionary rule, but those exceptions are limited. If we were to accept the State's argument, then, as noted by the 7th Circuit, "every time a person says to the police 'X committed the crime,' the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one's accusers." United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004); see also United States v. Maher, 454 F.3d 13, 22 (1st Cir.) (quoting Silva), cert. denied, 127 S. Ct. 568 (2006); United States v. Cromer, 389 F.3d 662, 674 (6th Cir. 2004) (quoting Silva). Several courts have rejected claims that testimonial statements are relevant to show how the investigation was conducted as "impossibly overbroad . . . backdoor attempts to get statements by non-testifying confidential informants before a jury." Maher, 454 F.3d at 22, 23.
On two occasions, Division One has upheld the introduction of out-of-court statements because the statements were not offered for their truth. See Theders, 130 Wn. App. at 433 (out-of-court statements were admissible to show collusion between co-defendants); State v. Lillard, 122 Wn. App. 422, 437, 93 P.3d 969 (2004) (testimony about officer's calls to owners of Nordstrom gift cards was offered to show how the investigation was conducted).
Cromer is indistinguishable from the case before us. In Cromer, the court upheld the introduction of testimony that provided background information to explain how the investigation unfolded and referred to the informant's statements "in the vaguest possible terms." 389 F.3d at 677. But the court reversed the admission of testimony relating the informant's description of the defendant to the jury. Cromer, 389 F.3d at 679. The Cromer court concluded that the United States offered the description to prove its truth, considering that the prosecutor relied on the description to argue in closing that Cromer was guilty. 389 F.3d at 378 n. 10.
Here, the State elicited testimony that the woman had described her pimp and the car he was driving to the deputies, and they stopped Johnson's car based on the information she gave them. Kory's testimony that he was given a description of a red and black car from Cassio placed before the jury the prostitute's out-of-court statements. Although the prosecutor framed her question as though Cassio were the source of the description, it is clear that Cassio merely relayed the description he received from the prostitute. This allowed the State to repeat the prostitute's statements without subjecting her to cross-examination.
Moreover, as in Cromer, the State's contention that the description was offered merely "to show why the officers felt they had probable cause to pull over the car that picked up [the prostitute]" is belied by the prosecutor's use of the descriptions in opening statement and closing argument to show Johnson's guilt. Resp't's Br. at 15. In opening statement, the prosecutor told the jury that the prostitute had a conversation with the deputies that led them to believe she had a pimp in the area, and Johnson and the car matched the descriptions they got from her. The prosecutor drew this inference of guilt even more clearly in closing argument, describing how Cassio questioned the prostitute; obtained a description of the pimp; and then "[l]o and behold," Johnson arrived at the scene matching the description, leading the deputies to conclude he must be the pimp. VI RP (Feb. 16, 2006) at 457. Like the prosecutor in Cromer, the prosecutor in this case clearly relied on the descriptions as proof that the person described was the pimp; further, the statements clearly identify the prostitute as the source of the descriptions.
Additionally, the evidence was far more detailed than what would be required to explain why the deputies arrested Johnson. It might have been sufficient to elicit that the deputies acted on a tip, or that they received information consistent with Johnson, without setting forth the details that Cassio spoke with a prostitute and received a description of a pimp matching Johnson. See Maher, 454 F.3d at 23 ("As McCormick points out, the officer, for example, could merely have said he 'acted upon information received, or words to that effect.'") (quoting 2 Broun, et al., McCormick on Evidence § 248, at 103 (5th ed. 1999). Because Johnson did not dispute the conduct of the investigation, the description was only relevant to establish that he was the woman's pimp. See Cromer, 389 F.3d at 677.
We conclude that the deputies' testimony, considered with the prosecutor's opening statement and closing argument, violated Johnson's right to confront the witnesses against him. Moreover, the error was not harmless because the remaining evidence is less than overwhelming.
The State charged Johnson under RCW 9A.88.080(1)(a), which requires proof that he knowingly profited from prostitution. Other than the prostitute's statements, the only evidence introduced was that he picked the woman up after her arrest, their Nextel cellular telephones directly connected, and he had semi-nude photographs of two women in his car. None of this evidence proves that Johnson had any connection with the prostitute's activities, much less that he directly profited from them.
Because the untainted evidence of guilt is insufficient to support the conviction of prostitution promotion, we reverse and remand with instructions to dismiss the count with prejudice. State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993) (when all the evidence, including that erroneously admitted, is insufficient to prove the charge, double jeopardy precludes retrial).
Ordinarily, the remedy for a Crawford error is a new trial. See, e.g., Cromer, 389 F.3d at 671. But when all the evidence, including that erroneously admitted, is insufficient as a matter of law, double jeopardy precludes retrial. State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993). Although the trial court instructed the jury on both advancing prostitution and profiting from prostitution, the State only charged Johnson with profiting from prostitution. Even considering the inadmissible hearsay descriptions, the State failed to present any evidence that Johnson benefited financially from prostitution activities. That the prostitute may have referred to Johnson as her pimp is insufficient, because a pimp can be someone who merely "panders or procures" for the prostitute. Webster's Third New Intern'l Dictionary 1717 (2002). Having elected to charge Johnson with profiting from prostitution, the State was obligated to present evidence that he received a benefit and failed to do so. Accordingly, the appropriate remedy is dismissal with prejudice.
Prosecutorial Misconduct
Johnson assigns error to several statements the prosecutor made in closing argument, claiming prejudicial misconduct.
We review allegations of prosecutorial misconduct for abuse of discretion. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). "The defendant bears the burden of establishing both the impropriety of the prosecutor's conduct and its prejudicial effect." Brett, 126 Wn.2d at 175 (quoting State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993)).
To prevail on the claim, the defendant must show that counsel did not act in good faith. State v. Weekly, 41 Wn.2d 727, 728, 252 P.2d 246 (1952). We deem improper comments prejudicial only when there is a substantial likelihood that the misconduct affected the jury's verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). We evaluate allegedly improper statements in the context of the total argument, the issues in the case, the evidence, and the instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Prosecutors have wide latitude in drawing reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
We do not reverse the conviction if a jury instruction could have cured the error and the defendant did not request one. Russell, 125 Wn.2d at 85. The defendant waives the error by failing to object, unless the statement is so flagrant and ill intentioned that no curative instruction would suffice and there is a substantial likelihood it affected the verdict. Russell, 125 Wn.2d at 86.
Johnson objected only once to the State's assertion that "[t]he bank is going after Wayne King in New York who has that social security number." VI RP (Feb. 16, 2006) at 485. His objection appeared to be that the fact was not in evidence. The trial court promptly instructed the jury that the attorneys' remarks were not evidence, and it should disregard any statement the evidence did not support. Because we presume the jury followed the instruction, it cured any error the statement created. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
Johnson did not object to the remaining statements, thus he must show that they were so flagrant or ill intentioned as to have affected the verdict and no instruction would have cured it. Russell, 125 Wn.2d at 86.
First, Johnson claims it was misconduct for the prosecutor to argue that Johnson committed crimes of theft against Bank of America and Washington Mutual. Even if this statement was improper, Johnson has not shown that it was so egregious as to warrant reversal. The evidence was substantial that Johnson's use of false information caused Bank of America to suffer a loss of over $8,800, supporting the inference that Johnson intended to defraud the bank. Because the jury probably would have reached the same result, we will not reverse.
Likewise, Johnson argues that the prosecutor misstated the law when she said, "If you use a social security number that belongs to any person living or dead, you're guilty of identity theft." VI RP (Feb. 16, 2006) at 453. While Johnson correctly argues that this statement is legally inaccurate, he fails to show that it affected the verdict. The trial court properly instructed the jury on the elements of identity theft. The trial court also instructed the jury to disregard any remark the attorneys made that the law, as stated by the court, did not support, thus curing any error.
Johnson fails to show that the prosecutor's statements warrant reversal.
Sufficiency of the Evidence
Johnson next argues that the State did not present sufficient evidence of identity theft because it did not prove that he intended to commit a crime when he obtained Wayne King's birth certificate and social security number.
We determine the sufficiency of the evidence by considering whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) In challenging the sufficiency of the evidence, the appellant admits the truth of the State's evidence and all reasonable inferences drawn from it. State v. McNeal, 145 Wn.2d 352, 360, 37 P.3d 280 (2002). We give circumstantial and direct evidence equal weight and we may infer criminal intent from conduct. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We do not review credibility determinations on appeal; instead, we defer to the fact finder. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Identity theft prohibits "knowingly obtain[ing], possess[ing], us[ing], or transfer[ing] a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime." RCW 9.35.020(1). The charge is in the first degree when the defendant uses the identification or financial information to obtain credit, money, goods, or services exceeding $1,500. RCW 9.35.020(2).
Johnson concedes that he obtained the personal and financial information of a person living in New York and used it to open a bank account, which was later overdrawn by over $8,800. But he argues that because the overdraft resulted from car accident, insufficient evidence showed that he intended to commit any crime when he used the information. This argument fails.
It is a gross misdemeanor for a deposit account applicant to knowingly make a false statement to a financial institution regarding his identity. RCW 9.38.015(1)(a). Johnson admitted that he used Wayne King's identification to open an account with Bank of America and that he made deposits and withdrawals from the account. He also admitted that he never legally changed his name to Wayne King. The evidence sufficiently showed that Johnson knowingly provided false information to Bank of America in his account application, violating RCW 9.38.015(1)(a).
Johnson obtained the false identification to avoid the civil and criminal consequences of his conduct. He used the information in a manner that was criminal. The jury could reasonably infer that Johnson obtained Wayne King's information with the intent to commit a crime.
Cumulative Error
Johnson next asserts that cumulative error deprived him of a fair trial, requiring reversal of his convictions.
The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003). Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963). But cumulative error does not deprive the defendant of a fair trial when there is no prejudicial error. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. In the Matter of the Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994).
Although it was prejudicial error for the trial court to allow testimony describing Johnson, that violated his Sixth Amendment rights, Johnson fails to demonstrate that this error affected his convictions of identity theft and unlawful possession of a firearm, which did not depend on the prostitute's testimonial statements. Thus, there is no reason to believe that the improper testimonial description affected the jury's verdict except as to the prostitution promotion charge. Johnson's cumulative error argument fails.
Statement of Additional Grounds, RAP 10.10
Johnson also argues in his statement of additional grounds that he received ineffective assistance of counsel at the suppression hearing and that the trial court abused its discretion by failing to examine the conflict of interest. Johnson fails to show that counsel's decision not to call witnesses at the suppression hearing was unreasonable or prejudicial. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Moreover, he does not establish that the conflict with his attorney, which apparently concerned differences in strategy, was of constitutional magnitude requiring new counsel. State v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006). Because the arguments have no merit, we do not consider them further.
We reverse and remand with instructions to dismiss with prejudice the prostitution promotion conviction. We otherwise affirm.
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.
We concur:
Quinn-Brintnall, J.
Van Deren, J.