Opinion
No. 24123-8-III.
November 9, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-04087-7, Michael P. Price, J., entered May 9, 2005.
Counsel for Appellant(s), Carol A Elewski, Attorney at Law, Tumwater, WA.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Affirmed by unpublished opinion per Kulik, J., concurred in by Brown and Kato, JJ.
Virgil Montgomery was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine. On appeal, Mr. Montgomery asserts the trial court made numerous errors requiring reversal of his conviction. Finding no error by the trial court, and finding sufficient evidence to support Mr. Montgomery's conviction, we affirm.
FACTS
On June 23, 2004, detectives David Knechtel and Daniel Blashill conducted surveillance at a Spokane Valley Target store. Their objective was to identify people who were buying large quantities of cold pills or the household items used to manufacture methamphetamine. The purpose of this investigation was to detect and prevent potential methamphetamine labs.
Detectives Knechtel and Blashill observed Virgil Montgomery and Joyce Biby in the aisle where cold pills were located. Mr. Montgomery appeared to be showing Ms. Biby which pills to purchase by pointing at certain packages. Mr. Montgomery selected two boxes of cold pills and left the aisle. Ms. Biby then picked up two boxes of the pills Mr. Montgomery had designated, and left the aisle a few moments later. The two purchased their items separately, but left the store together.
Although Detective Knechtel acknowledged that it was common for people to go to a store together but make their purchases separately, he became suspicious because of the specific items purchased and the couple's behavior. Based on this suspicion, the detectives decided to follow Mr. Montgomery and Ms. Biby after they left the store.
During their observation of Mr. Montgomery and Ms. Biby, the officers followed the couple to four other stores. The couple purchased cold medication at three different stores. They also purchased matches, paper towels, acetone, denatured alcohol, and hydrogen peroxide. All of these products can be used in the manufacture of methamphetamine. At each of the stores, the two split up and went to different checkout stands to make their purchases.
At this point, Detective Knechtel "felt very strongly" that the two were buying ingredients to manufacture methamphetamine. Report of Proceedings (RP) at 40. Detective Knechtel based this conclusion on his experience and training, including the fact that he had seen this pattern of behavior before.
Detective Blashill also testified that the couple's behavior comported with common patterns of behavior among those purchasing precursors for the manufacture of methamphetamine. Specifically, this pattern includes coming into the store as a group, going in different directions in the store with each individual picking out different precursor chemicals, and going to different checkout lines in order to make the purchases.
When Mr. Montgomery and Ms. Biby began to travel north from Spokane towards Newport, Detective Knechtel arranged for a marked patrol car to stop their vehicle. The detective arrived a short time after the couple was pulled over. He placed Mr. Montgomery under arrest and then searched his vehicle. Inside Mr. Montgomery's car, the detectives found receipts from nine stores where Mr. Montgomery and Ms. Biby had shopped that day, cold pills, denatured alcohol, acetone, paper towels, additional boxes of matchbooks, and a light bulb that had been fashioned into a "crack pipe" with what appeared to be drug residue in it. RP at 45.
Detective Knechtel testified that boxes of cold pills, matchbooks, hydrogen peroxide, lye, tincture of iodine, denatured alcohol, and acetone were all common ingredients in the manufacture of methamphetamine using the "red phosphorus" method. RP at 29-31. A forensic chemist testified that, while these items individually had innocuous uses, the quantity of the items found in Mr. Montgomery's vehicle was unusually high. The chemist also testified that the amount of cold medication found was "enough to manufacture a sizeable amount of methamphetamine," and indicated an intent to manufacture methamphetamine. RP at 158.
Detective Knechtel stated that the items found in Mr. Montgomery's vehicle alone were insufficient to manufacture methamphetamine. However, Detective Knechtel explained that only a few additional items were required and that the materials found in the vehicle were very close to all of the necessary ingredients to manufacture methamphetamine. Giving what he felt was a conservative estimate, Detective Knechtel stated that a person could manufacture at least an eighth of an ounce of methamphetamine from the amount of cold medication present in the vehicle.
Mr. Montgomery was charged with possession of pseudoephedrine with intent to manufacture methamphetamine. At trial, Mr. Montgomery testified that the matches that he had purchased were for the wood heater that was the primary source of heat for his mobile home. Mr. Montgomery denied that he and Ms. Biby had a joint shopping plan or that they pooled their money to make the purchases. Mr. Montgomery claimed to have no knowledge as to why Ms. Biby purchased the items that she did.
Mr. Montgomery testified that several of the materials he purchased in Spokane were for repairs on the mobile home that he rented. Mr. Montgomery stated that he had arranged with his landlord to make repairs. He claimed that he purchased the acetone so he could remove some linoleum and replace the flooring.
Mr. Montgomery told the jury that he lived with his son and grandson and that he was his son's primary care giver. Mr. Montgomery asserted that his son had a medical condition that required Mr. Montgomery to purchase a different type of cold medication for his son than the ones he had previously purchased for himself. Mr. Montgomery further asserted that he purchased the hydrogen peroxide to treat a cut on his dog's leg. Mr. Montgomery's daughter corroborated his assertions regarding the injury to his dog.
In response to Mr. Montgomery's testimony, the State recalled Detective Knechtel who testified that Mr. Montgomery never offered this explanation for the materials in his car to the officers. The trial court allowed this testimony over Mr. Montgomery's objections.
During closing arguments, the State pointed out that Mr. Montgomery did not present the testimony of either his son or grandson to corroborate Mr. Montgomery's account of the purpose for some of his purchases. Mr. Montgomery made no objection to the State's closing remarks. The trial court gave the jury a missing witness instruction over Mr. Montgomery's objection.
Mr. Montgomery was found guilty of possession of pseudoephedrine with intent to manufacture methamphetamine. He was sentenced to a standard range sentence of 51 months. The court was not asked to, and did not consider, the first time offender waiver. Mr. Montgomery timely appeals his conviction and sentence.
ANALYSIS 1. Was there sufficient evidence to establish that Mr. Montgomery had the intent to manufacture methamphetamine?
When a criminal defendant challenges the sufficiency of the evidence, this court views the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). All reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id.
This court gives equal weight to circumstantial and direct evidence. Goodman, 150 Wn.2d at 781. Where a defendant challenges the sufficiency of the evidence of intent, the "'specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability.'" Id. (quoting State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
Generally, the mere act of two people entering a store together and then splitting up to do their shopping is not sufficient evidence of any criminal intent. See State v. Carlson, 130 Wn. App. 589, 595, 123 P.3d 891 (2005), review denied, 2006 Wash. LEXIS 638. However, "[w]ith respect to shopping practices, the act of entering a store with a companion and then splitting up to purchase pseudoephedrine products is a suspicious activity often seen in methamphetamine manufacture litigation." Id. at 594 (internal emphasis omitted). When reviewing the sufficiency of the evidence of intent to manufacture methamphetamine, courts also look to other factors, such as the number and amount of products purchased. Id. at 595-97.
Here, Mr. Montgomery and Ms. Biby split up in the same store to purchase pseudoephedrine products. Mr. Montgomery appeared to direct Ms. Biby as to which products to buy. Mr. Montgomery and Ms. Biby purchased more pseudoephedrine products at two other stores as well. Likewise, they purchased additional items that are used in the manufacture of methamphetamine, including acetone, denatured alcohol, hydrogen peroxide, matches, and a potential filtering agent.
A state forensic chemist testified that the quantity of the items was unusually high. There was also expert testimony that these items, when purchased together in the manner that Mr. Montgomery and Ms. Biby acquired them, were strong evidence of the intent to manufacture methamphetamine.
Taken together in the light most favorable to the State, this evidence was sufficient for a rational juror to find beyond a reasonable doubt that Mr. Montgomery possessed the pseudoephedrine products with the intent to manufacture methamphetamine.
Mr. Montgomery asserts that there was insufficient evidence of the intent to manufacture methamphetamine because he was not in possession of all of the items required to manufacture methamphetamine. The fact that not all of the precursors for the manufacture of methamphetamine were present is of limited significance. See, e.g., State v. McPherson, 111 Wn. App. 747, 758-59, 46 P.3d 284 (2002). Therefore, Mr. Montgomery's argument is without merit.
2. Did the trial court err by allowing the State's witnesses to testify regarding Mr. Montgomery's intent?
Generally, this court will not consider an issue that is raised for the first time on appeal. State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). However, an issue may be raised for the first time on appeal if it is a "manifest error affecting a constitutional right." Id. (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3))).
Mr. Montgomery asserts for the first time on appeal that, because the State's witnesses testified directly as to the only disputed issue in his trial, this testimony constituted an indirect comment as to the defendant's guilt.
No witness may testify about "his opinion as to the guilt of the defendant, whether by direct statement or inference." State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Permitting a witness to express such an opinion invades upon the proper province of the jury. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967). But courts have "expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt." State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001) (quoting Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993)).
Assuming that Mr. Montgomery may raise this issue for the first time on appeal, his contention that the State's evidence regarding his intent was improper opinion testimony is without merit. Expert testimony "that is not a direct comment on the defendant's guilt or the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." Heatley, 70 Wn. App. at 578. In addition, ER 704 provides that "[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Here, the disputed testimony regarding intent was based on inferences from the evidence. This evidence included materials found in Mr. Montgomery's vehicle and his manner of acquiring these items. No one made any direct comment on Mr. Montgomery's guilt or innocence, nor were there direct comments on the veracity of any of the witnesses at trial. The mere fact that the testimony embraced an issue that was ultimately to be determined by the jury — the issue of Mr. Montgomery's intent — does not render that testimony improper under ER 704. The trial court did not err in admitting testimony regarding Mr. Montgomery's intent.
3. Did the State violate Mr. Montgomery's due process rights by commenting on his exercise of the right to remain silent?
The fifth amendment of the United States Constitution and Article I, section 9 of the Washington Constitution protect a criminal defendant from being compelled to testify against him-or herself. "The right against self-incrimination is liberally construed." State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). At trial, the right against self-incrimination prohibits the State from forcing the defendant to testify, but it also prevents the State from eliciting comments from other witnesses regarding a defendant's invocation of the right to remain silent. Id.
Mr. Montgomery asserts the State elicited an improper comment on his right to remain silent when the prosecution asked why Detective Knechtel did not question Mr. Montgomery and the detective responded that, "It was already made clear to me from him from the previous day he didn't want to talk to me." RP at 207.
Mr. Montgomery also appears to argue that the State makes another improper comment on the right to remain silent during its proffer of Detective Knechtel to the court. However, this proffer was made during a bench conference that was held out of the hearing of the jury. As such, these statements were never presented as substantive evidence to the jury and could not have been improper comments on Mr. Montgomery's silence. See, e.g., State v. Lewis, 130 Wn.2d 700, 705-07, 927 P.2d 235 (1996).
However, it was Mr. Montgomery who initially raised the issue of his invocation of the right to remain silent. In his cross examination of Detective Knechtel, defense counsel for Mr. Montgomery asked whether Mr. Montgomery was read his Miranda warnings upon being pulled over. The following exchange took place:
Q. Stated he understood his Miranda warnings?
A. Yes.
Q. And exercised them?
A. Yes.
Q. Chose not to talk to you anymore?
A. Correct.
RP at 91-92.
This exchange took place before the State's rebuttal testimony that Mr. Montgomery challenges. Therefore, it was Mr. Montgomery who placed the issue of his own invocation of his right to remain silent before the jury. Because Mr. Montgomery was the party who placed his invocation of the right to remain silent into evidence, the doctrine of invited error now precludes him from claiming a constitutional error based on the indirect comments made by the State. A party cannot set up an error at trial, even one of constitutional magnitude, and then complain of it on appeal. See, e.g., State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990).
4. Did the trial court err by allowing the State to present argument and by instructing the jury on a missing witness; and did this impermissibly shift the burden of proof onto Mr. Montgomery?Under the "missing witness" doctrine, if a party fails to produce evidence that is under his or her control and that would naturally be in his or her interest to produce, the jury may infer that the evidence would be unfavorable to that party. State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991). A prosecutor may question a defendant's failure to provide corroboration if the defendant testified about an exculpatory theory at trial. State v. Barrow, 60 Wn. App. 869, 872, 809 P.2d 209 (1991). However, comment on a missing witness is not proper where a defendant could not produce the witness, or where the missing witness's testimony would be unimportant or cumulative. Blair, 117 Wn.2d at 489. The inference is also not proper where the defendant provides an adequate explanation for the witness's absence. Id.
Mr. Montgomery testified that his son was not present at trial because he had suffered a stroke that rendered him generally incapable of providing testimony. Mr. Montgomery also testified that his grandson was unavailable to testify at trial because he was in school.
At trial, the State conceded that it would be inappropriate to argue any inference based on the absence of Mr. Montgomery's son, who was disabled and incapable of testifying. However, the State did assert that Mr. Montgomery failed to produce his grandson to corroborate the exculpatory version of events that Mr. Montgomery presented to the jury, including the innocent uses for the matches, the different brands of pseudoephedrine, the acetone, and the hydrogen peroxide, and the agreement with the landlord to make repairs on the mobile home. In short, the State challenged the asserted grounds of unavailability for the grandson.
The State also challenged Mr. Montgomery's failure to produce his landlord. Mr. Montgomery claimed that the acetone was purchased to remove tiles from his rented mobile home. He asserted twice that he was replacing the tiles on the floor pursuant to an agreement with his landlord. The landlord presumably could have corroborated this version of events.
It is not clear from the record that Mr. Montgomery's landlord and grandson were not available to testify at trial. Mr. Montgomery's testimony indicated that his grandson and landlord could corroborate his version of the facts in this case. As such, the trial court did not abuse its discretion when it provided the jury with a missing witness instruction and permitted the State to argue inferences from the missing witnesses.
Mr. Montgomery also claims that the State's missing witness argument, coupled with the trial court's instruction, impermissibly shifted the burden of proof to him. In support of this assertion, Mr. Montgomery relies on State v. Fleming, 83 Wn. App. 209, 213-14, 921 P.2d 1076 (1996). However, in Fleming the prosecutor instructed the jury that they were required to find specifically that another witness was lying in order to acquit the defendant, in addition to commenting on a missing witness. Id. at 213. It was the combined effect of these two statements that the court found to have impermissibly shifted the burden of proof to the defendant. Id. at 214.
Here, the prosecutor did not make any such misstatements about the burden of proof. Moreover, the jury was properly instructed by the trial court that the State had the burden of proving every element of the crime beyond a reasonable doubt and that the jury was to presume that Mr. Montgomery was innocent. This court presumes that the jury followed the trial court's instructions. See, e.g., State v. Brunson, 128 Wn.2d 98, 109, 905 P.2d 346 (1995). In the absence of any evidence that the prosecutor specifically gave the jury an incorrect statement of the burden of proof, Mr. Montgomery has failed to establish that the missing witness argument acted to shift the burden of proof to him.
5. Did the trial court err by failing to consider the first-time offender waiver as authorized by RCW 9.94A.650?
Mr. Montgomery received a standard range sentence. Under the Sentencing Reform Act of 1981 (SRA), a standard range sentence cannot be appealed. See RCW 9.94A.585(1). As a matter of law, there can be no abuse of the trial court's discretion if it imposes a sentence that falls within the standard range. State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). However, while a defendant cannot challenge a standard range sentence, "the defendant can challenge the procedure by which a sentence within the standard range was imposed." State v. Watkins, 86 Wn. App. 852, 854, 939 P.2d 1243 (1997).
In order for a procedural appeal to be allowed under the SRA, "it must be shown that the sentencing court had a duty to follow some specific procedure required by the SRA, and that the court failed to do so." Mail, 121 Wn.2d at 712. The first-time offender waiver provision permits, but does not require, the trial court to waive the imposition of a standard range sentence provided the defendant meets the criteria for a first-time offender. RCW 9.94A.650. Consequently, the trial court had no duty to impose a first-time offender waiver merely because Mr. Montgomery may have qualified for it. Moreover, the trial court cannot be said to have "refused" to exercise its discretion, since none of the parties asked the court to consider whether a first-time offender waiver was appropriate in this case.
6. Did Mr. Montgomery receive ineffective assistance of counsel?
Effective assistance of counsel is guaranteed by the sixth amendment of the United States Constitution and Article I, Section 22 of the Washington Constitution. A defendant claiming ineffective assistance of counsel is required to make two showings. First, the defendant must demonstrate that counsel's performance was defective. McFarland, 127 Wn.2d at 334. This essentially requires a showing that defense counsel's representation "fell below an objective standard of reasonableness based on consideration of all of the circumstances." Id. at 334-35. There also must be a showing that the deficient representation prejudiced the defendant, which requires the defendant to prove that, but for counsel's defective representation, the result of the proceeding would be different. Id. This court engages in a strong presumption that representation was effective. Id. at 335. If either portion of the test is unsatisfied, then the defendant cannot establish ineffective assistance of counsel. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Here, Mr. Montgomery asserts two grounds of ineffective assistance of counsel: the failure to object to the State's testimony regarding Mr. Montgomery's intent and the failure of defense counsel to request a first-time offender waiver. Mr. Montgomery cannot assert ineffective assistance of counsel for the failure to object to the State's evidence of intent because, as previously noted, this testimony was admissible under ER 704. As such, the failure to object to this admissible evidence was not deficient or unreasonable performance.
The failure of Mr. Montgomery's defense counsel to request a special first-time offender waiver falls closer to the purview of ineffective assistance. Had this waiver been imposed by the trial court, the court might have waived the imposition of Mr. Montgomery's standard range sentence. However, a reading of the entire sentencing hearing reveals that Mr. Montgomery's counsel was proactive in getting Mr. Montgomery a sentence that was at the low end of the sentencing range for his crime.
In addition, Mr. Montgomery has not demonstrated prejudice. He has not shown this court that, but for the failure of his counsel to request it, the trial court would have actually exercised its discretion and imposed the first-time offender waiver. The comments of the court at sentencing indicate that it was unlikely that the trial court would have imposed a first-time offender waiver, given the nature of Mr. Montgomery's offense. The court specifically noted that it considered Mr. Montgomery to be a "threat to the community," and emphasized the insidious effects that the manufacture of methamphetamine has on local communities. RP at 288. Accordingly, it is not likely that the court was inclined to impose a more lenient sentencing alternative under the first-time offender waiver. Because Mr. Montgomery cannot show that the outcome of the proceeding would likely have been different had his counsel requested the first-time offender sentencing alternative, he has not demonstrated prejudice and his claim of ineffective assistance fails.
7. Do the cumulative errors in this case merit reversal of Mr. Montgomery's conviction?
The cumulative error doctrine is applied in those cases where "there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Here, the doctrine of cumulative error is inapplicable because no trial errors have occurred in this case.
We affirm the conviction.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO and BROWN, JJ., concur.