Opinion
41987-4-II
01-16-2013
STATE OF WASHINGTON, Respondent, v. ALLEN EMILE McCAIN, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, J.
Allen E. McCain appeals his convictions of first degree unlawful possession of a firearm, second degree vehicle prowling, and third degree theft, arguing that the prosecuting attorney committed misconduct during closing argument by commenting on his right to remain silent. He also challenges the forfeiture of property conditions imposed during sentencing. Finding no error, we affirm.
FACTS
On October 22, 2010, Jorge Melgar-Acosta was pulled over while driving his 1992 red Ford Explorer. Because one of his passengers possessed marijuana, Melgar-Acosta was arrested and the Explorer was left on the side of the road for impoundment. Prior to leaving, the arresting officer told Melgar-Acosta that the Explorer was locked, and Melgar-Acosta took his keys with him. Melgar-Acosta had speakers and an amplifier in the Explorer that were hooked up to the stereo system.
On October 23, Pierce County Deputy Sheriff Adam Pawlak was dispatched to a report of a vehicle prowl concerning the Explorer. When he arrived at the scene, Pawlak saw McCain and another person standing by a white car parked behind the Explorer. When Pawlak asked what was happening, McCain explained that he thought the Explorer was his because his Ford Explorer had been stolen the night before.
Another deputy arrived at the scene, ran a warrant check on McCain, and discovered that he was a convicted felon. McCain denied having any weapons on his person and consented to a frisk. Deputy Pawlak then felt a hard object in McCain's left front jacket pocket. As soon as he touched it, McCain said, "Okay, it's a gun." 1 Report of Proceedings (RP) at 166. Pawlak handcuffed McCain, removed the loaded gun from his pocket, and found a pair of wire cutters in McCain's other front pocket. McCain acknowledged that he was not supposed to possess any firearms because he was a convicted felon.
McCain explained that he had been looking inside the Explorer to find paperwork to identify whether it was his vehicle. McCain said the Explorer was unlocked when he arrived and that he had entered it through the passenger door. Even though he could not confirm the Explorer was his, McCain admitting removing its speakers and amplifier and placing them in the white car. Deputy Pawlak found the speakers in the white car's trunk and the amplifier in the back seat, and he also found a flathead screwdriver on the back seat, near the amplifier. Pawlak noticed that someone had pried out the passenger door lock, and he thought a flathead screwdriver could have been used on the lock.
The State charged McCain with first degree unlawful possession of a firearm, second degree vehicle prowling, and third degree theft. During his trial, Deputy Pawlak and Melgar-Acosta testified to the facts set out above.
McCain's mother testified for the defense that she had purchased a Ford Explorer for her son to drive, and the court admitted her sales contract. She testified that her Explorer had been stolen on October 22 and that when she got it back, the stereo system and speakers had been removed along with a GPS tracking device and a laptop computer. She also testified that the speakers and amplifier found in the white car might have been from her Explorer but that all stereo equipment looked the same to her. McCain did not testify. The trial court instructed the jury that his failure to testify could not be used to infer guilt or to prejudice him in any way.
During closing argument, defense counsel asserted that McCain's "intent was to get his own property, and the only property he could get that night were the valuables in the car, the speakers." 2 RP at 251. The prosecutor responded as follows:
And one thing that Mr. McCain, toward the end of the conversation, a dialogue with the officers, he said, I thought the vehicle was mine; it could have been mine. He never told the officer, [o]h these are my speakers. And the question is, [w]here did that evidence come from?
[Defense counsel] just stood before you and stated that [McCain] wasn't committing theft because he was removing his own speakers. Where does that evidence come from? Who testified to that? His own mother? I showed her speakers. I said, [a]re these your son's? And she tried to hedge a little bit and said, [o]h, it could be. I don't know. No one testified that Mr. McCain was removing his own speakers, no one. So how did [defense counsel] get to stand up before you and tell you that when it's not supported by the evidence? Or another question is, [w]hy would someone tell you that when it's not supported by the evidence, when the court's instructions tell you that the evidence in this case are the exhibits that are admitted and the testimony? So if it's not supported by the testimony or the evidence, what do you have to do? You have to disregard it.2 RP at 254. The prosecutor concluded by stating that there was no evidence that the amplifier or the Explorer were McCain's and no legitimate reason for his possession of the screwdriver and wire cutters. Defense counsel did not object to this argument.
The jury found McCain guilty as charged. The trial court imposed a standard range sentence of 102 months for the firearm conviction and suspended one-year sentences for the vehicle prowling and theft convictions. The court also ordered McCain to forfeit all property in evidence including the firearm.
DISCUSSION
Prosecutorial Misconduct
McCain argues that the State committed misconduct during closing argument by commenting on his Fifth Amendment privilege against self-incrimination.
A defendant claiming prosecutorial misconduct "'bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998)). Comments are deemed prejudicial only where there is a substantial likelihood that they affected the verdict. McKenzie, 157 Wn.2d at 52. "A prosecuting attorney's allegedly improper remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Brown, 132 Wn.2d at 561. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A prosecutor can also make a fair response to the arguments of defense counsel. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). When the defense fails to object to an improper argument, the error is considered waived "unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Brown, 132 Wn.2d at 561.
A defendant has a constitutional right to refrain from testifying. U.S. Const. amend. V; Wash. Const. art. I, § 9. Comment on a defendant's refusal to testify has been characterized as "a remnant of the 'inquisitorial system of criminal justice.'" State v. Ramirez, 49 Wn.App. 332, 336, 742 P.2d 726 (1987) (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)). "Most jurors know that an accused has a right to remain silent and, absent any statement to the contrary by the prosecutor, would probably derive no implication of guilt from a defendant's silence." State v. Lewis, 130 Wn.2d 700, 706, 927 P.2d 235 (1996). A comment on an accused's silence occurs when it is used to the State's advantage as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt. Lewis, 130 Wn.2d at 707.
The prosecutor may state, however, that certain testimony is undenied, without reference to who could have denied it. Ramirez, 49 Wn.App. at 336. The prosecutor also may comment that evidence is undisputed when these comments do not emphasize the defendant's testimonial silence. Ramirez, 49 Wn.App. at 336. In short, a prosecutor may comment on a lack of defense evidence so long as the prosecutor does not directly refer to the defendant's decision not to testify. State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006) (citing State v. Pavelich, 150 Wash. 411, 420, 273 P. 182 (1928)). The fact that such comments lead to unfavorable inferences does not render them invalid:
"Surely the prosecutor may comment upon the fact that certain testimony is undenied, without reference to who may or may not be in a position to deny it, and, if that results in an inference unfavorable to the accused, he must accept the burden, because the choice to testify or not was wholly his."State v. Ashby, 77 Wn.2d 33, 38, 459 P.2d 403 (1969) (quoting State v. Litzenberger, 140 Wash. 308, 248 P. 799 (1926)).
We see no misconduct in the prosecutor's argument, let alone the flagrant misconduct required to overcome McCain's failure to object. When read in context, the rebuttal statements at issue are a fair response to defense counsel's argument about McCain's alleged attempt to recover his own property. The State urged the jury to reject this line of argument because the evidence did not support it. In doing so, the State did not refer directly to McCain's failure to testify or assert that this failure constituted an admission of guilt.
In Ashby, our Supreme Court held that any prejudicial effect caused by the prosecutor's reference to certain undisputed testimony was eliminated by the trial court's instruction to the jury that "'[e]very defendant in a criminal case has the absolute right not to testify. You must not draw any reference of guilt against the defendant because he did not testify.'" 77 Wn.2d at 38. The trial court so instructed the jury here, and McCain's claim of prosecutorial misconduct is wholly unfounded.
Forfeiture of Property
McCain argues that the trial court erred in requiring him to "[f]orfeit all property in evidence including firearms" as a result of his firearm conviction and to "[f]orfeit all property" as a result of his theft and vehicle prowling convictions. Clerk's Papers at 86, 97. McCain did not object to these sentencing conditions below, but he contends that an illegal sentence may be reviewed for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744-45, 193 P.3d 678 (2008). He seeks an order requiring the trial court to strike the forfeiture provisions from each judgment and sentence.
McCain argues that these provisions are unlawful because the trial court neither cited supporting authority nor provided any list of the property to be forfeited. McCain adds that the requirement that he "forfeit all property" is overbroad because it could include any property he owns even if that property had no relationship to the crimes for which he was sentenced.
The State responds that the only record of property in evidence is the list of exhibits received. The list includes several photographs of the Explorer and its contents taken by law enforcement and McCain's mother, a firearm and magazine, a wire stripper, a screwdriver, a sales contract, an invoice for towing, and two reports from the Pierce County Sheriff's Office.
McCain has no right to the firearm. The trial court had statutory authority to order its forfeiture under RCW 9.41.098, which allows forfeiture of a firearm proven to be in the possession of a person prohibited from such possession under RCW 9.41.040 or RCW 9.41.045. RCW 9.41.098(1)(c). McCain was prohibited from possessing firearms under RCW 9.41.040 because of his prior conviction for a serious offense. State v. Sakellis, 164 Wn.App. 170, 174 n.4, 269 P.2d 1029 (2011).
In addition, McCain has no right to any property in evidence of which he is not the rightful owner. State v. Alaway, 64 Wn.App. 796, 798, 828 P.2d 591, review denied, 119 Wn.2d 1016 (1992). Consequently, he has no claim to the photographs or the other documents seized. Nor does he have a right to Melgar-Acosta's speakers and amplifier. See Alaway, 64 Wn.App. at 798 (court may refuse to return seized property no longer needed for evidence if defendant is not the owner). It appears that the wire cutters and the screwdriver are the only property to which McCain may claim rightful ownership. The record is silent as to whether these tools belong to McCain.
If they do, McCain may move for a hearing before the superior court to request their return. CrR 2.3(e). This rule governs the disposition of unlawfully seized property as well as the disposition of lawfully seized property that is no longer needed for evidence. Alaway, 64 Wn.App. at 798; State v. Pelkey, 58 Wn.App. 610, 613, 794 P.2d 1286 (1990). If the trial court denies such a request, McCain may appeal that decision and challenge the forfeiture as either unlawful or overbroad. We agree with the State that until McCain seeks return of his property at the trial court, any issue arising from its forfeiture is entirely speculative and is not properly before this court on appeal. Accordingly, we affirm McCain's conviction and deny his appeal in all respects.
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: PENOYAR, J., WORSWICK, C.J.