Opinion
No. 31518-1-II
Filed: April 19, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00438-3. Judgment or order under review. Date filed: 02/26/2004. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Karen L. Korthals appeals her methamphetamine possession conviction. She argues that the State violated her constitutional right to remain silent, the State engaged in prosecutorial misconduct, and her trial counsel rendered ineffective assistance. Finding no error, we affirm.
FACTS I. Arrest
Mason County Sheriff's Deputy William Reed arrested Karen Korthals on an outstanding warrant. She was alone in her car at the time of her arrest. She asked Reed to move two bags from the front passenger seat to the trunk of her car so they would not be stolen.
Reed searched both bags incident to Korthals' arrest. Korthals referred to the larger bag as her `briefcase.' Tucked well inside the briefcase, he found a Crown Royal bag, a small black zipper bag, VISA cards belonging to Korthals' husband, and mail addressed to Korthals. The Crown Royal bag contained two glass smoking pipes with a burnt residue, two small plastic bags containing a white powder residue, and a metal waterproof matches container, in which there were a small piece of straw and six small plastic bags containing a white powder residue. Inside the black zipper bag Reed found a small plastic container, in which there was (1) a small plastic bag containing white powder residue, and (2) a black leather pouch containing a glass tube with burn marks and several Q-tips. Reed performed a field test on the white powder, which tested positive for amphetamine.
Reed characterized the larger bag as a handbag. For clarity's sake we adopt Korthals' characterization.
II. Trial
The State charged Korthals with one count of illegal possession of methamphetamine. At trial, she admitted having possessed the methamphetamine; but she asserted as an affirmative defense that she was unaware she was in possession of an illegal drug.
After Reed finished describing what he had found in the two bags in Korthals' car, the prosecutor asked, `Now, Deputy Reed, did the defendant claim ownership of any of these items that you found in the car?' Reed answered:
The defendant stated to me that the Crown Royal bag did not belong to her. I asked her which items belonged to her, and she said the Crown Royal bag belongs to a friend of mine by the name of Teresa. I said, okay, is that it. She said, yes. Then I asked her about the black zipper bag that also had the white powder residue in the plastic baggie, and she refused to answer any more questions.
Report of Proceedings (RP) at 39.
The prosecutor asked Reed whether Korthals had `any surprise reaction' when Reed told her he had found what he believed to be methamphetamine. Reed responded, `In my opinion, no.' RP at 44. Later, the prosecutor asked whether Korthals ever told him that the black zipper bag belonged to Teresa, and Reed responded, `No, she did not.' RP at 58.
Korthals testified that (1) she believed the Crown Royal bag belonged to her friend Teresa, whom she had picked up the evening before; (2) she had seen the Crown Royal bag on her car's floor shortly before she encountered Reed; (3) she tossed the Crown Royal bag on her briefcase; (4) the black zipper bag, which had been inside the Crown Royal bag, must have fallen out of the Crown Royal bag and into the her briefcase when she or her dog jostled her briefcase; and (5) she had no idea that the black zipper bag contained drugs.
On cross examination, the prosecutor asked Korthals whether she had told Reed that the methamphetamine belonged to Teresa. Korthals replied she was not sure. She also said she had been trying to contact Teresa without success.
Korthals neither called Teresa to testify at trial nor provided her full name to the State.
During closing argument, the prosecutor listed reasons why the jury should not believe Korthals: `If you listen to Deputy Reed's testimony, when he confronted her about those items, he said in his opinion there was no surprise reaction.' RP at 76.
The parties stipulated to Washington State Patrol Crime Laboratory forensic scientist Tami S. Kee's testimony that the white powder was methamphetamine.
The jury found Korthals guilty of the single count of possessing methamphetamine. RP at 85. Korthals appeals.
ANALYSIS I. Comment on Korthals' Silence
Korthals argues that the State violated her constitutional right to remain silent and denied her a fair trial. U.S. Const. amend. V. She contends the State improperly elicited and later commented in closing argument on the following portions of Deputy Reed's testimony: (1) `Then I asked her about the black zipper bag that also had the white powder residue in the plastic baggie, and she refused to answer any more questions'; (2) Korthals did not seem surprised when he told her he had found what he believed to be methamphetamine; and (3) Korthals did not tell him at the time of arrest that the black zipper bag belonged to her friend Teresa. RP at 39.
The State concedes error as to at least one of Reed's comments, but it argues the error was harmless. Assuming, without deciding, that all three challenged statements were improper comments on Korthals' right to remain silent, we address harmless error directly.
A. Harmless Error
The State bears the burden of demonstrating that a constitutional error was harmless. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). A constitutional error is harmless only (1) if the court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error, Easter, 130 Wn.2d at 242; State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995); and (2) the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Easter, 130 Wn.2d at 242; State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990).
The State's evidence meets the harmless error test here. First, the evidence of Korthals' guilt is overwhelming. Deputy Reed found a Crown Royal bag and a black zipper bag inside a briefcase in Korthals' car. Both of these smaller bags contained methamphetamine and paraphernalia. The briefcase also contained mail addressed to Korthals. Korthals was the only person in the vehicle.
At trial, Korthals raised unwitting possession as a defense. She testified that (1) the Crown Royal bag belonged to her friend Teresa; and (2) she had not seen the Crown Royal bag until immediately before her arrest, when she picked it up off the floor and placed it on top of her bag. In contrast, on redirect, Deputy Reed testified that the two bags were well inside the briefcase. Korthals presented no evidence, other than her own testimony, that Teresa was in her car the previous day or that she even existed.
Because the facts overwhelmingly support Korthals' conviction, we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. We hold that error, if any, was harmless.
B. Closing Argument
Korthals further argues that prosecutorial misconduct during closing argument unfairly prejudiced her. Specifically, she challenges the prosecutor's argument that Korthals did not appear surprised when Reed told her he had found what appeared to be methamphetamine in her car.
`Absent an objection by defense counsel to a prosecutor's remarks, the issue of prosecutorial misconduct cannot be raised on appeal unless the misconduct is `so flagrant and ill intentioned that no curative instruction could have obviated the prejudice engendered by the misconduct.'' State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990) (quoting State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)). Korthals failed to object below. Thus, because the prosecutor's closing statement does not reach the threshold articulated in Ziegler, 114 Wn.2d at 540, she cannot raise this issue for the first time on appeal, and we do not address it.
II. Ineffective Assistance of Counsel
Korthals argues her trial counsel was ineffective in failing to object to (1) Deputy Reed's comments on her right to remain silent; (2) the prosecutor's closing argument predicated on Reed's allegedly improper testimony; and (3) the trial court's `failure to produce a witness' instruction. We address each argument in turn.
A. Standard of Review
We presume the defendant was properly represented at trial. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996); Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A criminal defendant claiming ineffective assistance must prove (1) the attorney's performance was deficient, i.e. that the representation fell below an objective standard of reasonableness under the prevailing professional norms; and (2) prejudice resulted from the deficient performance, i.e., that there is a reasonable probability that, but for the attorney's unprofessional errors, the results of the proceedings would have been different. State v. Early, 70 Wn. App. 452, 460, 853 P.2d 964 (1993), review denied, 123 Wn.2d 1004 (1994). We determine competency of counsel based on the entire record below. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (citing State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969)). Korthals fails to make this showing here.
Because trial strategies and techniques may vary among lawyers, a defense attorney's decision constituting a trial tactic or strategy will not support a claim of ineffective assistance of counsel. In re Personal Restraint of Benn, 134 Wn.2d 868, 888, 952 P.2d 116 (1998). `Only when defense counsel's conduct cannot be explained by any tactical or strategic justification which at least some reasonably competent, fairly experienced criminal defense lawyers might agree with or find reasonably debatable, should counsel's performance be considered inadequate.' State v. Adams, 91 Wn.2d 86, 91, 586 P.2d 1168 (1978).
B. Reed's Testimony
Korthals argues that defense counsel was ineffective in failing to object to Reed's testimony that she `refused to answer any more questions.' Under Adams, 91 Wn.2d at 91, assistance of counsel is not ineffective unless counsel's conduct cannot be explained by any tactical justification. As the State argues, counsel's decision could have been a tactical choice to avoid the greater harm of drawing additional attention to Reed's statement. This failure to object, therefore, does not establish that counsel's performance was deficient.
C. Prosecutor's Closing Argument
Korthals next argues that trial counsel ineffectively failed to object to the prosecutor's closing argument about Korthals' lack of a surprise reaction when Reed told her about finding the methamphetamine. Contrary to Korthals' assertion, her demeanor and appearance are not protected by the Fifth Amendment privilege against self-incrimination. See State v. Ruelas, 35 Wn. App. 595, 597-98, 668 P.2d 617, review denied, 100 Wn.2d 1032 (1983); Easter, 130 Wn.2d at 241, n. 10. Thus, defense counsel was not deficient in failing to object.
D. Missing Witness Instruction
Nor did Korthals' counsel render ineffective assistance in failing to object to the following jury instruction on `failure to produce a witness':
If a party does not produce the testimony of a witness who is peculiarly available to that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.
11 Washington Pattern Jury Instruction: Criminal 5.20, at 130 (2d ed. 1994).
As Korthals acknowledges in her brief,
The accepted rule in Washington is that the missing witness doctrine is appropriate only when the uncalled witness `is peculiarly available' to one of the parties. State v. Davis, 73 Wn. 2d 271, 277, 438 P.2d 185 (1968).
Brief of Appellant at 20. Korthals goes on to argue, however, that the missing witness inference is not appropriate if the witness's testimony would be necessarily self-incriminatory, even if such testimony would be favorable to the party who could have called the witness. State v. Blair, 117 Wn.2d 479, 489-90, 816 P.2d 718 (1991). We assume without deciding that Korthals is correct.
The State argues that the self-incrimination exception does not apply to Korthals, citing another Blair passage: `[T]he fact that the testimony might be self-incriminatory if adverse to the party not calling the witness does not preclude use of the missing witness instruction.' 117 Wn.2d at 490. The State misconstrues Blair. Teresa's testimony would not be `adverse to the party not calling the witness' (i.e., Korthals); Teresa's testimony would support Korthals.
As we noted above, we will not reverse a conviction for ineffective assistance of counsel unless there is a reasonable probability that, but for the attorney's unprofessional errors, the results of the proceedings would have been different. Early, 70 Wn. App. at 460. Here, defense counsel's failure to object to the `missing witness' did not prejudice Korthals. The instruction did not pertain to the elements of the crime or any other substantive point; rather, it simply permitted the jury to make an inference from Theresa's absence that it likely could have made anyway.
Moreover, Korthals presented no evidence, other than her own testimony, that Theresa was an actual person, let alone that she had been in Korthals' automobile the previous day and was likely to have left her methamphetamine-laden bags on the passenger seat floor. Furthermore, in light of the strong evidence of Korthals' guilt, it is highly unlikely that the jury would have acquitted Korthals but for the `missing witness' instruction. Therefore, counsel's failure to object to the missing witness instruction did not prejudice Korthals.
We hold that Korthals has failed to establish ineffective assistance of counsel.
IV. Sufficiency of Evidence
Korthals argues that the State presented insufficient evidence to support her conviction for possession of methamphetamine.
`The test for determining the sufficiency of the evidence is 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). The court draws all reasonable inferences from the evidence in favor of the State and against the defendant. Salinas, 19 Wn.2d at 201. The court accords equal weight to circumstantial and direct evidence. State v. Holt, 119 Wn. App. 712, 720, 82 P.3d 688 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)). We defer to the trier of fact, who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Holt, 119 Wn. App. at 720 (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)).
Extensive evidence supports Korthals' conviction. As we noted above, Korthals conceded that Officer Reed found methamphetamine in her car. She was alone in her car at the time. Korthals relied on the affirmative defense of unwitting possession, claiming that her absent friend Teresa owned the drugs. Korthals failed to sustain her burden of proving such affirmative defense by a preponderance of the evidence. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). The jury was justified in not believing Korthals' uncorroborated story. We hold there was sufficient evidence to support Korthals' conviction.
III. Cumulative Error
Korthals next argues that the cumulative effect of the trial court's errors requires reversal of her conviction. We disagree.
The application of the cumulative error doctrine is limited to instances when there have been several trial errors that, standing alone may not be sufficient to justify reversal, but when combined, may deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Here, we found two potential harmless errors: Officer Reed's comment at trial on Korthals' silence, and defense counsel's failure to object to the missing witness instruction. Given the weight of the evidence against her, the errors taken together were still insufficient to have denied Korthals a fair trial.
Affirmed.
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.
ARMSTRONG, P.J. and VAN DEREN, J., concur.