Opinion
No. 64407-6-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-01025-5, George F.B. Appel, J., entered October 22, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Cox, JJ.
Absent an objection, prosecutorial misconduct is not reviewable unless it was so flagrant and ill-intentioned as to be incurable. Because the alleged misconduct in this case was neither objected to nor incurable, and because the court's alleged errors in answering a jury inquiry and denying an alternative sentence are either unreviewable or unpersuasive, we affirm.
FACTS
On the morning of June 5, 2009, employees of Best Auto Parts, a wrecking yard and used car lot, discovered that a 1997 black Ford Mustang was missing. Because no one had been given permission to take the car out of the yard, the yard manager called 911.
Police immediately broadcast a description of the Mustang to local police agencies. Brier police responded, indicating that they had seen the vehicle driving through their jurisdiction.
That same morning, Bothell resident Darren Holdt noticed a black Mustang near his home that had not been parked there earlier in the day. Holdt watched as a man got out of the Mustang and walked away with a red, one-gallon gas can. When police arrived a short time later, Holdt gave them a description of the man.
That afternoon, police located a man matching Holdt's description in the general vicinity of Holdt's residence. The man, later identified as Knowles, was sitting next to a red gas can. Knowles gave the officers a false name and two different birth dates. He also denied having a wallet. The officers arrested him and found his identification, bearing his real name, in his wallet. Holdt subsequently identified Knowles in a "show-up."
Police found a cell phone and a car key in Knowles' jacket. The key said, "Ford" on it, and was attached to an alarm "fob." The key fit the door of the Mustang and matched a duplicate key and alarm at the dealership.
The State charged Knowles with possession of a stolen vehicle. Instruction 8 stated in pertinent part:
To convict the defendant of the crime of possessing a stolen motor vehicle, each of the following elements of the crime must be proved beyond a reasonable doubt:
1. That . . . the defendant knowingly possessed or disposed of a stolen motor vehicle;
2. That the defendant acted with knowledge that the motor vehicle had been stolen;
3. That the defendant withheld or appropriated the motor vehicle to the use of someone other than the true owner or person entitled thereto.
During closing arguments, the prosecutor told the jury they had to find that Knowles "knowingly possessed or disposed of a stolen vehicle" and that he "acted with knowledge that the vehicle had been stolen." He then argued that "when you give a false name and date of birth . . ., you know you did something wrong and you know you shouldn't have driven the stolen vehicle." Defense counsel reiterated the elements of the offense, stating, "The crime is driving that car and knowing it's stolen." In rebuttal, the prosecutor stated:
My understanding from the Defense argument is that the Defendant [has] admitted to possessing the key and he was driving the vehicle. Well, then he's committed the crime. He possessed a stolen vehicle. I'm not proving that he committed the theft. I'm proving that he possessed the stolen vehicle. So now we're at the point where I'm at rebuttal and my understanding is that he's admitted to the crime.
The prosecutor then repeatedly told the jury to follow the instructions, stating in part, "The to-convict instructions, follow those. That's the law." Near the end of his argument, the prosecutor stated, "There's this argument that he admitted driving the vehicle. Maybe he didn't know it was stolen. I would submit to you he gave a false name because he knew he was caught."
When the jury retired to deliberate, the prosecutor told the court he would be in his office and defense counsel gave the court her cell phone number. During deliberations, the jury sent out a question regarding the to-convict instruction: "Instruction #8, Question #1. Does the defendant have to knowingly know the vehicle was stolen or just be in possession of the vehicle to prove or not approve [sic] question #1?" Twenty minutes later, the court replied, "The jury must render its verdict according to the instructions already given." The record is silent as to whether the court contacted counsel before responding to the jury's inquiry.
The jury found Knowles guilty as charged. He appeals.
ANALYSIS
Knowles contends the prosecutor committed reversible misconduct when he suggested in closing argument that possessing the key and driving the car were sufficient to convict. He claims this argument misstated the law because it implied that the jury need not find that he knew the car was stolen. But because Knowles did not object to the remarks, any misconduct is not reviewable unless the remarks were "`so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice'" that could not have been cured. The remarks do not meet this standard.
State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006) (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).
We review remarks in closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given. The court's instructions in this case required the jury to find that Knowles "acted with knowledge that the motor vehicle had been stolen" and to disregard any remark, statement, or argument that was not supported by the law set forth in the instructions. Both counsel reviewed the instructions with the jury and reminded them that they had to find that Knowles knew the car was stolen. Although some of the prosecutor's remarks in rebuttal omitted that element, they were not, when viewed in the context of his entire argument, flagrant or ill-intentioned and were easily curable.
State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984), cited by Knowles, and State v. Gotcher, 52 Wn. App. 350, 759 P.2d 1216 (1988) are distinguishable because the defendants in those cases objected at trial.
For the first time on appeal, Knowles contends he is entitled to a new trial because, contrary to CrR 6.15(f)(1), due process, and the Sixth and Fourteenth Amendments, the court did not consult him or his counsel before answering the jury inquiry. But while the record establishes that the court answered the jury's inquiry, it is silent as to whether the defendant and counsel were present or consulted. Although Knowles claims a minute entry "fail[s] to show that the defendant and counsel were consulted by the court," the minute entry he cites, and the only one in this court's record, is from sentencing, not jury deliberations. He has thus failed to carry his burden of providing a sufficient record to review this claim on appeal.
When a jury asks questions during deliberations, the court "shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response." CrR 6.15(f)(1). This rule has a constitutional underpinning, i.e., the defendant's right to be present at all critical stages of trial, including the court's handling of jury inquiries. State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d 79 (2004).
In any event, absent affidavits from counsel or the court, it is doubtful that a silent minute entry would, by itself, constitute a sufficient record to review Knowles' claim of error.
State v. Rienks, 46 Wn. App. 537, 545, 731 P.2d 1116 (1987) (where record and affidavits established only that the judge answered the jury's inquiry, the defendant failed to provide a sufficient record to review "his claim that the court erred in communicating with the jury outside of his presence").
Even if the court failed to consult counsel before answering the inquiry, the error was harmless beyond a reasonable doubt. In general, a court's response to a jury inquiry will be deemed harmless if it conveyed no affirmative information. The court's response in this case did nothing more than refer the jury to its instructions. Those instructions clearly required the jury to find that Knowles knew the car was stolen. Contrary to Knowles' assertions, the jury's inquiry did not indicate confusion about whether it had to find that he knew the car was stolen in order to convict. Rather, the inquiry indicates the jury was confused only about whether such knowledge was a requirement of section "(1)" of the to-convict instruction. The jury did not express confusion about section "(2)" of that instruction, which plainly required them to find "[t]hat the defendant acted with knowledge that the motor vehicle had been stolen."
Ratliff, 121 Wn. App. at 646.
See, e.g., State v. Allen, 50 Wn. App. 412, 419, 749 P.2d 702 (1988) (jury told to read instructions and continue deliberations).
Last, Knowles contends the court abused its discretion in denying his request for a drug offender sentencing alternative, or DOSA. Ordinarily, a trial court's reasons for denying a DOSA and imposing a standard range sentence are not reviewable on appeal. However, a trial court's "categorical refusal to consider [a DOSA] sentence, or the refusal to consider it for a class of offenders, is effectively a failure to exercise discretion and is subject to reversal." Knowles claims the trial court categorically refused to grant him a DOSA. The record belies this claim. The court's decision was based on Knowles' criminal history, information in the presentence report, and the court's conclusion that Knowles' risk to the community weighed against a DOSA. The court's decision was thus specific to Knowles' circumstances, not categorical, and a proper exercise of its discretion.
Decisions regarding DOSA sentences rest within the trial court's discretion. State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998).
State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003); State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998) (a court's decision, after consideration, not to apply DOSA is not reviewable).
State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
The presentence report indicated that Knowles had twice walked away from residential treatment programs. The evaluator recommended against a DOSA, noting that Knowles' "dismal" previous compliance with community custody, prior assaultive behavior, and other negative traits made him a risk to community safety.
Affirmed.
WE CONCUR.