Opinion
No. 60917-3-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-02565-7, Thomas J. Wynne, J., entered November 9, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Ellington, J.
Thomas Paulson appeals his convictions for drug possession and unlawful possession of payment instruments. He contends that prosecutorial misconduct entitles him to a new trial. Alternatively, he argues that the requirement that he undergo a mental health evaluation as a condition of his community custody is not statutorily authorized and must be stricken. Although the prosecutor improperly questioned Paulson about extrinsic evidence that was never introduced, the error does not require reversal because the questions were only remotely connected to the trial's central issue and any prejudice was minor in the context of the entire trial. In addition, we reject Paulson's argument that the sentencing court had no authority to impose a mental health evaluation because it did not comply with requirements specified in RCW 9.94A.505(9). The court sentenced Paulson under the first-time offender option, RCW 9.94A.650, a special sentencing alternative that gives a sentencing court broad discretion to impose rehabilitative conditions on an offender's community custody. We hold that RCW 9.94A.505(9)'s requirements do not apply to mental health conditions imposed under the first-time offender option. Accordingly, we affirm.
Both RCW 9.94A.505(9) and .650 were amended by Laws of 2008, chapter 231, effective August 1, 2009; however, the changes are not relevant to our resolution of this case.
FACTS
Around 2 a.m. on December 30, 2005, Mountlake Terrace Police Officer Scott King stopped a vehicle because its license tabs had expired. Paulson was driving the car, but was not the registered owner. After Paulson verbally identified himself, Officer King discovered that Paulson's driver's license was suspended and arrested him. Officer King searched Paulson and the car. He found items that led the State to charge Paulson with possession of a controlled substance, forgery, and unlawful possession of payment instruments.
At trial, Officer King testified that he found a scale on Paulson's person that he suspected was involved in drug use or sale. While searching the car, Officer King found a Marlboro cigarette package on top of several items on the front passenger seat. Inside the package, he saw what he suspected to be cocaine and black tar heroin. According to Officer King, Paulson told him that it was cocaine and black tar heroin. Forensic analysis confirmed the substances found in the vehicle contained cocaine and heroin.
Paulson testified that he borrowed the vehicle from his neighbors to go to Walgreens, but he was not sure who gave him permission to take the car. He asserted that the drugs found in the vehicle did not belong to him and he had no idea how they got there. He explained that he had told Officer King that the drugs looked like heroin because he was familiar with the drug's appearance but that he had not said anything about cocaine because he did not see the cocaine.
Officer King testified that he also found three $50 United States savings bonds in the name of Kathryn Keller on the front passenger seat. The savings bonds had been taken from Keller's home during a burglary in late December 2005. Officer King testified that Paulson "told me that he knew that the US savings bonds were stolen." 1 Verbatim Report of Proceedings (VRP) at 47. Paulson testified that he did not know anything about the bonds and did not put them in the car. He said he told Officer King the bonds were stolen because the name on the bonds did not match the person who owned the car. On cross-examination, Paulson said he thought the people who had stolen the savings bonds had also burglarized his apartment the same week.
In addition to the drugs and savings bonds, Officer King found a check made out to Paulson and signed by Gwendolyn Quelch. Officer Lara Tollefson, who interviewed Paulson at the police station, testified that he told her someone who owed him money had given him the check, and he filled in his own name on the payee line. Gwendolyn Quelch, a legally blind elderly woman, testified that she would sometimes sign checks for a specific amount and then give the checks to her granddaughter, gardener, or handyman to fill in their own names. Paulson testified that he thought Quelch's granddaughter was an acquaintance of one of the people who lived in his building and that she might have given him the check.
Officer Tollefson testified that when she began talking to Paulson at the police station, he was instantly interested in talking about narcotics deals. She said he told her, "I'm in deep," and she understood that he was trying to give her information about the local drug scene in an attempt to get out of trouble. She testified, "I told him I believed he was on heroin, and he denied that and said he only used cocaine earlier." 1 VRP) (Oct. 22, 2007) at 85-86. In contrast, Paulson testified that he had never acknowledged using cocaine and that he had only said he was "in deep" because of what was happening in his life — he claimed to have lost his vehicles, his home, and his money because of a scheme perpetrated on him by his siblings. He testified that he was not trying to get out of trouble by telling Officer Tollefson about criminal activity; rather, he wanted to find out who was behind the burglary of his apartment and needed to know how to deal with his neighbors, who "were stealing cars and parking them in my parking lot." 3 VRP (Oct. 24, 2007) at 206. He testified that the names he gave to Officer Tollefson "were people involved in burglaries, I believe, kidnapping, and a thing called Operation Black." Id. at 218.
On direct examination, Paulson's attorney asked him if he had any reason to believe that Officers Tollefson and King held a bias against him. Paulson responded that he had filed a $4 million lawsuit against the City of Mountlake Terrace because its police department had conspired with his brothers and sisters to put him in jail and steal his father's fortune. He testified that the Mountlake Terrace police had tried to catch him three times with a SWAT (special weapons and tactics) team and had helped his siblings tow vehicles from his property. Paulson also testified that he was having his prior defense attorneys disbarred.
On cross-examination, the prosecutor asked Paulson about his contention that the Mountlake Terrace Police Department was biased against him and whether he had made complaints against other government officials and attorneys. Paulson conceded that he had also filed complaints against his prior defense attorneys. The prosecutor and Paulson then had the following exchange:
Q. You made complaints against the Mountlake Terrace Police Department because you intend to intimidate them into dropping cases against you?
A. Not at all. Actually to be honest with you, I'm working with them in a couple of days.
Q. You have attempted to intimidate the State in this case by making statements to me in this courtroom that you want to have me disbarred, is that correct?
A. I didn't say I was going to have you disbarred. I just disapproved of how you handled that old lady, the blind lady the other day. That, to me, is uncalled for. That, to me, is not a called-for action to have that elderly woman up here in this trial. I believe it's not to code. I believe what you did is very non-gentlemanly, you could say.
Q. You stated you should have me disbarred for having called Ms. Quelch to testify in this trial, did you not?
A. I didn't say exactly those words. I told you I would think about it. I said it was totally embarrassing.
Q. You would think about having me disbarred?
A. I would think about having you in front of the Disciplinary Council, yes, I would.
Q. You attempted to intimidate the former prosecutor on this case in order to get out of trouble, also, didn't you?
A.
No.
Q. You followed her around to courtrooms?
A. When she came in the building, I said hello to her. That's all I did.
Q. You followed her in courtrooms throughout this courthouse?
A. No, I never did. No, that's incorrect.
Q. You met her out on the street while you were riding your bike?
A. I get off the bus where the prosecutor is going into the building, Counselor.
Q. So you weren't riding your bike on the day you approached her outside the courthouse?
A. I approached her and said hello.
Q. You went straight up to her, didn't you? You rode across the street.
A. I go over to smoke a cigarette when I get off the bus.
Q. You rode your bike directly across the street in order to confront her, did you not?
A. I didn't confront her. They wanted a delay in the trial because she was going on vacation, and I granted it.
Id. at 234-36.
In his closing argument, the prosecutor did not refer to his personal interactions with Paulson or Paulson's behavior towards the former prosecutor. The jury rejected Paulson's unwitting possession defense, convicting him of the drug possession charge and unlawful possession of payment instruments. The jury, however, acquitted Paulson of the forgery charge. Paulson was sentenced under the first-time offender option, a special discretionary sentencing alternative available to certain offenders never before convicted of a felony. He was sentenced to 45 days in jail followed by two years of community custody. One of the conditions of his community supervision was that he undergo a mental health evaluation and follow through with treatment recommendations. Paulson timely appeals.
ANALYSIS
Prosecutor Misconduct
Paulson contends his right to a fair trial was denied because of prosecutor misconduct. He argues that the prosecutor improperly questioned him about his statements to the prosecutor during a recess and about his interactions with the former prosecutor assigned to the case. He also argues that the prosecutor should not have elicited testimony that he had told a police officer he was "in deep" with the local drug scene and could provide her with information to get out of trouble. "A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Miles, 139 Wn. App. 879, 885, 162 P.3d 1169 (2007). Where, as here, the defendant failed to timely object to the alleged misconduct, any error is generally deemed waived. Id. But "[a]ppellate review is not precluded if the prosecutorial misconduct is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Where a prosecutor's misconduct falls into this more egregious category, reversal is warranted. Id. at 508.
Paulson claims his trial was marred by two instances of misconduct. First, he argues that the prosecutor should not have elicited testimony from Officer Tollefson to the effect that he was "in deep" with the local drug scene and that he offered to give her information to avoid getting in trouble. The only basis Paulson advances for why this was improper is that it "was not relevant in the current prosecution." Appellant's Brief at 13. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Officer Tollefson's testimony that Paulson attempted to get out of trouble by providing her with information about other crimes was relevant because it suggested consciousness of guilt, thus undermining his unwitting possession defense. See United States v. Levy, 578 F.2d 896, 900 (2d Cir. 1978) (defendant who was arrested on narcotics charges offered to cooperate with federal agents and offer was deemed relevant). Paulson does not establish that eliciting this testimony was misconduct.
Paulson's second claim of misconduct is based on the prosecutor's questions about his own conversations with Paulson, and Paulson's interactions with the former prosecutor. Under ER 404(b), "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But if a defendant takes the witness stand, he or she may be vigorously cross-examined. State v. Graham, 59 Wn. App. 418, 427, 798 P.2d 314 (1990). "The scope of cross examination is within the discretion of the trial court and may be conducted so as to explain, qualify and rebut the defendant's direct testimony, including examination on issues he or she introduced to the jury." Id. Consequently, it was not necessarily improper for the prosecutor to explore Paulson's assertion that the police were biased against him or a possible pattern of lodging complaints against lawyers and government officials.
But Paulson also contends that the prosecutor's questions were improper because the prosecutor was effectively acting as an unsworn witness and Paulson had no opportunity to confront him. "A prosecutor's impeachment of a witness by referring to extrinsic evidence that is never introduced may violate a defendant's right to confrontation." Miles, 139 Wn. App. at 886. "`[D]eciding if the questions are inappropriate requires examining whether the focus of the questioning is to impart evidence within the prosecutor's personal knowledge without the prosecutor formally testifying as a witness.'" Id. at 887 (quoting State v. Lopez, 95 Wn. App. 842, 855, 980 P.2d 224 (1999)). While the State is correct that an attorney's comments and questions do not constitute evidence, an attorney "is not permitted to impart to the jury his or her own personal knowledge about an issue in the case under the guise of either direct or cross examination when such information is not otherwise admitted as evidence." State v. Denton, 58 Wn. App. 251, 257, 792 P.2d 537 (1990). Here, the prosecutor improperly imparted his own knowledge about Paulson's conduct during the trial and towards the former prosecutor assigned to the case. This was misconduct.
Nevertheless, Paulson is not entitled to reversal unless he can demonstrate that the prosecutor's misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). In analyzing prejudice, we look to the context of the total argument, the issues, the evidence, and the instructions. State v. Warren, 165 Wn.2d 17, 195 P.3d 940, 944 (2008). Paulson fails to meet this test. The prosecutor's questions were a relatively minor part of a lengthy cross-examination, and he did not refer to the matter in his closing argument. Paulson had already volunteered his view that numerous governmental officials had persecuted or mistreated him and that he had filed complaints against them. The prosecutor's suggestion that Paulson had also sought to have him disbarred may have undermined whatever merit the jury believed these complaints possessed. But this issue was only remotely and indirectly connected to the central issue at trial — whether Paulson's possession of contraband was unwitting.
The State's case on this point was strong. Paulson was the driver and sole occupant of the car. The heroin and cocaine were found in a Marlboro cigarette package on top of a pile of items next to Paulson. He admitted he smoked Marlboro cigarettes and no other cigarettes were found in the car. Paulson also conceded he told Officer King there were drugs in the plastic bag and that he was familiar with the appearance of heroin. Officer King testified that he found a scale on Paulson's person and the cocaine was packed in small, individual packages. Paulson's explanation that he knew the savings bonds were stolen because they did not match the person who owned the vehicle appeared to contradict his assertion that he could not name the person who gave him permission to take the car. In light of all the evidence in the record, any prejudice from the prosecutor's suggestion that Paulson had sought to have him disbarred and had followed the former prosecutor around was de minimis. Although some of the prosecutor's questions were improper, they were not so flagrant and ill intentioned that they caused enduring prejudice that could not have been cured by an instruction from the court.
Community Custody Condition
Paulson next contends that the sentencing court erred in ordering him to undergo a mental health evaluation and treatment as a condition of his community custody because the court did not comply with the requirements in RCW 9.94A.505(9). The State concedes that the court did not follow the procedures outlined in RCW 9.94A.505(9), but argues that such compliance was unnecessary because a different statute — RCW 9.94A.650 — authorized the condition. Whether RCW 9.94A.505(9)'s requirements apply to sentences imposed under RCW 9.94A.650 is a question of law reviewed de novo.
See State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). If the condition is statutorily authorized, the sentencing court's decision to impose it is reviewed for an abuse of discretion. State v. Autrey, 136 Wn. App. 460, 466-67, 150 P.3d 580 (2006). The purpose of statutory interpretation is to carry out the legislature's intent. Armendariz, 160 Wn.2d at 110. Where the plain language is unambiguous, the court's role is to implement its plain meaning. Id.
A sentencing court can only impose a sentence authorized by the legislature. In re Postsentence Review of Leach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007). The Sentencing Reform Act of 1981 (SRA) generally restricts a court's sentencing authority by establishing specific sentencing ranges for most offenders, thereby favoring a policy of uniformity over individual rehabilitation. See State v. Welty, 44 Wn. App. 281, 283-84, 726 P.2d 472 (1986). But RCW 9.94A.650 gives a sentencing court the ability to waive the standard range sentence for some nonviolent offenders convicted of a felony for the first time. Under the first-time offender option, the focus remains on the policy goal of rehabilitation and the court retains broad discretion to tailor sentences to the individual defendant. Welty, 44 Wn. App. at 283-84. Specifically, RCW 9.94A.650(2) provides,
In sentencing a first-time offender the court may. . . . include a term of community supervision or community custody . . . which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:
(a) Devote time to a specific employment or occupation;
(b) Undergo available outpatient treatment for up to the period specified in subsection (3) of this section, or inpatient treatment not to exceed the standard range of confinement for that offense;
(c) Pursue a prescribed, secular course of study or vocational training;
(d) Remain within prescribed geographical boundaries and notify the community corrections officer prior to any change in the offender's address or employment;
(e) Report as directed to a community corrections officer; or
(f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community restitution work.
The State argues that by permitting a court to impose outpatient and inpatient treatment, RCW 9.94A.650(2)(b) authorized the sentencing court to require Paulson to undergo a mental health evaluation and any recommended treatment.
Paulson responds that the general language of RCW 9.94A.650 is effectively trumped in the area of mental health by the specific requirements found in RCW 9.94A.505(9), which provides,
The court may order an offender whose sentence includes community placement or community supervision to undergo a mental status evaluation and to participate in available outpatient mental health treatment, if the court finds that reasonable grounds exist to believe that the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense. An order requiring mental status evaluation or treatment must be based on a presentence report and, if applicable, mental status evaluations that have been filed with the court to determine the offender's competency or eligibility for a defense of insanity. The court may order additional evaluations at a later date if deemed appropriate.
Paulson argues that this provision is overarching and applies to all sentences that include community placement or community supervision, regardless of which SRA provision applies to a specific sentence.
Community placement includes community custody. RCW 9.94A.030(7).
This argument would effectively rewrite RCW 9.94A.650 to include a mental health exception to the court's ability to impose treatment on a first-time offender. While the plain language of RCW 9.94A.650(2) allows the court to order the offender to undergo treatment — regardless of whether the treatment is crime related — under Paulson's interpretation, the court could not order an offender to undergo mental health treatment unless it found the offender to be a mentally ill person under RCW 71.24.025 and the mental illness was crime related.
Paulson argues that reading this implicit exception into RCW 9.94A.650 is necessary because RCW 9.94A.505(9) applies to all sentencing under the SRA. Paulson, however, cites no case holding that this provision applies to first-time offender option cases. Paulson cites State v. Brooks, 142 Wn. App. 842, 851, 176 P.3d 549 (2008) and State v. Jones, 118 Wn. App. 199, 209, 76 P.3d 258 (2003) for the proposition that a sentencing court only has authority to order mental health treatment as a condition of community custody if it follows the procedures in RCW 9.94A.505(9). But in these cases, the community custody condition was authorized under a different provision of the SRA, RCW 9.94A.700(5)(c); they did not discuss the first-time offender option. See Brooks, 142 Wn. App. at 851 ("to order mental health evaluation and treatment under RCW 9.94A.505(9) and RCW 9.94A.700(5)(c), the trial court must find that reasonable grounds exist that the person is mentally ill and the condition most likely influenced the offense.") (emphasis added).
Paulson relies on Armendariz, but that case interpreted different language in a different section of the statute. Specifically, RCW 9.94A.505(8) provides, "As a part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in this chapter." Emphasizing the "any sentence" language, the Washington Supreme Court concluded that this section gave a sentencing court authority to impose crime-related prohibitions independent of other statutory provisions. Armendariz, 160 Wn.2d at 113. RCW 9.94A.505(9) does not use the word "any." Moreover, there was no contention in Armendariz that section 8 effectively overrode another provision of the SRA.
Here, the disputed condition was not authorized by RCW 9.94A.700(5)(c); it was authorized by the first-time offender option. The first-time offender option constitutes an entirely separate sentencing regime from the standard provisions of the SRA. This alternative sentencing provision "is based on fundamentally different assumptions than the balance of the Sentencing Reform Act" and allows judges "extremely wide discretion" in imposing conditions, so long as they are reasonable. David Boerner, Sentencing in Washington § 7.1, 7.7 (1985). "While in all other situations the Legislature has rejected the idea that rehabilitation of the defendant is an appropriate purpose of sentencing, it recognized that for these two classes of offenders [first-time offender and sex offender], the `rehabilitative ideal' maintained much of its potential efficacy." Boerner, supra, at 7.1. Nothing in RCW 9.94A.505(9) explicitly refers to the first-time offender option to indicate the legislature intended to limit the sentencing court's traditional discretion under this provision. The plain language of RCW 9.94A.650 authorized the sentencing court to impose the mental health condition on Paulson's community custody. We hold that RCW 9.94A.505(9)'s requirements do not apply to mental health conditions imposed under the first-time offender option.
Because the condition is statutorily authorized, the trial court did not err in imposing it unless it abused its discretion under the circumstances of this case. Here, the sentencing judge was also the trial judge and he personally observed Paulson's conduct during the trial. The record amply shows that Paulson's behavior was erratic and disruptive. His testimony indicated he believed he was being persecuted by the police, members of his family, and by his former attorneys. He testified about a Mountlake Terrace SWAT (special weapons and tactics) team attempting three times to capture him at a baseball game and that this was somehow involved with a conspiracy to deprive him of his inheritance. There was also mention of an "Operation Black," although Paulson did not elaborate on this. Under these facts, the sentencing court did not abuse its discretion in ordering Paulson to undergo a mental health evaluation and comply with any recommended treatment.
Statement of Additional Grounds
In a pro se statement of additional grounds, Paulson contends that he has found a new witness who can bolster his testimony that he did not know about the contraband found in his vehicle. But this evidence is not part of the trial record, so it must be raised through a personal restraint petition, not an appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Paulson also argues that "the whole ordeal has been one-sided" and makes several complaints about his experience in the criminal justice system. But there is nothing in the record to indicate Paulson received anything but a fair trial.
Affirmed.
WE CONCUR: