Opinion
No. 34694-0-II.
April 3, 2007.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00901-7, Nelson E. Hunt, J., entered April 12, 2006.
Affirmed by unpublished opinion per Bridgewater, J, concurred in by Armstrong and Quinn-Brintnall, JJ.
A Lewis County Superior Court jury convicted Richard Lee Parish of residential burglary. He appeals. Finding no error, we affirm.
Facts
A homeowner and his son testified that Parish knocked on the door and then entered their home without permission. The son discovered Parish just after he had moved some jars of change. The homeowner's son told Parish to leave, and he did, without stealing anything. The homeowner knew Parish, but had not talked to him for at least two years.
Parish testified he knocked and received permission to enter. He also claimed the homeowner had asked him nine months earlier to install trim and that he was there to finally prepare to do so. Parish denied any intent to steal. The homeowner denied asking Parish to do any work on his home. The State also presented evidence that Parish was not equipped to estimate a trim job.
The State charged Parish with residential burglary. In closing argument, the State urged that Parish's testimony was less credible than that of the victims. The prosecutor then suggested that Parish's version could only be true if the victims had conspired to get Parish in trouble after inviting him into the house. In rebuttal, the prosecutor again argued credibility and further argued that if a defendant could avoid conviction by simply denying the elements, there would be no convictions. Parish did not object.
The jury convicted Parish as charged. As part of its judgment and sentence, the trial court ordered Parish to provide a DNA sample.
Analysis of Prosecutorial Misconduct Claim
Parish now claims the State's closing arguments, summarized above, constitute reversible prosecutorial misconduct. Specifically, Parish argues the prosecutor improperly compared the credibility of witnesses, told the jury it must decide that one side was lying, and interjected her own opinion. Parish did not object to any closing arguments during trial.
The full text is quoted in Parish's brief.
Parish bears the burden of proving misconduct. See State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). When a defendant fails to object to claimed misconduct, any error is waived "unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been" remedied by a curative instruction. Russell, 125 Wn.2d at 86.
Assuming without deciding that the challenged remarks were misconduct, Parish fails to prove they were so flagrant and ill intentioned that the court could not have cured any prejudice by instructing the jury. The trial court told the jury to disregard any lawyer's remarks not supported by the evidence or the law. The trial court also instructed the jurors that they (not the lawyers) were the sole judges of credibility and the facts. And the trial court told the jury how to apply the concept of reasonable doubt. Had Parish given the trial court the opportunity by objecting, the trial court could have cured any prejudice by referring to or repeating these instructions. Parish waived any error.
Analysis of DNA Collection Claim
Parish next contends the trial court ordered an unconstitutional search and seizure when it ordered him to provide a biological sample for DNA analysis. We disagree.
RCW 43.43.754 required the State to collect the sample after the jury convicted Parish of a felony. Division One rejected the argument that this statute violates the Fourth Amendment and article 1, section 7 in State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008 (2005). Although the Supreme Court has granted review in Surge, it upheld an earlier version of RCW 43.43.754 that was limited to those convicted of sexual or violent offenses. State v. Olivas, 122 Wn.2d 73, 83 n. 17, 95, 98, 856 P.2d 1076 (1993).
Surge was argued in the Washington Supreme Court on May 26, 2005.
Moreover, when the Ninth Circuit upheld the federal DNA collection statute, the United States Supreme Court denied certiorari. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), cert. denied, Kincade v. United States, 544 U.S. 924 (2005). In light of this precedent, Parish's constitutional challenge to RCW 43.43.754 fails.
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, J., QUINN-BRINTNALL, J., Concur.