Opinion
No. 35585-0-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02305-0, Thomas Felnagle, J., entered November 2, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
Herman Satterwhite appeals his unlawful possession of cocaine, unlawful possession of marijuana, and bail jumping convictions. He claims that prosecutorial misconduct deprived him of a fair trial. Pro se he raises several issues, none of which has merit. We affirm.
Facts
On May 11, 2005, Tacoma Police Officers Darren Kelly and David Johnson arrested Satterwhite at an AM/PM mini-market on South Orchard Street in Tacoma. Twenty minutes earlier, about 12:36 a.m., the officers had warned Satterwhite that if he came back onto the property, they would arrest him for criminal trespass. During a search incident to arrest, the officers discovered crack cocaine and marijuana in Satterwhite's front coin pocket.
Satterwhite was arraigned on May 12, 2005. He failed to appear for an omnibus hearing on July 6, 2005, and again failed to appear for an omnibus hearing on August 31, 2005. By second amended information, the State charged Satterwhite with unlawful possession of cocaine, unlawful possession of forty grams or less of marijuana, and two counts of bail jumping.
A violation of RCW 69.50.4013(1).
A violation of RCW 69.50.101(q) and 69.50.4014.
Violations of RCW 9A.76.170(1) and RCW 9A.76.170(3)(c).
A jury found him guilty of all the charges and at a subsequent sentencing hearing, the court determined that Satterwhite had an offender score of eight and imposed concurrent sentences of 24 months for the cocaine charge and 50 months for the bail jumping charges. It imposed a 90-day suspended sentence for the marijuana charge.
Analysis
I. Prosecutorial Misconduct
Satterwhite claims that the prosecutor engaged in prejudicial misconduct during closing arguments by shifting the burden of proof with regard to the bail jumping charges.
As to the July 6 hearing, Satterwhite testified at first that he arrived late, contacted his attorney, Mary Martin, and she filed a motion to quash the bench warrant on his behalf. On cross-examination, though, Satterwhite testified that he arrived at the courthouse on July 7, one day late, and Martin filed the motion to quash the bench warrant that day.
As to the August 31 hearing, Satterwhite testified at trial that he did not intentionally miss the court date and was, in fact, in the courthouse between 10:45 and 11:15 a.m. He testified that he caught his bus in Federal Way at 7:30 a.m. but that traffic delays kept him from arriving on time. He explained that he then went to the court administration clerk, who told him that Martin was no longer his attorney because of a medical emergency and that Robert Depan was now representing him.
He explained that he then went to the Department of Assigned Counsel but Depan was not there. Instead, he talked with a staff person and attorney Helene Chabot, who told him that a hearing to quash the warrant could not be scheduled yet because a warrant had not yet been issued. Satterwhite said that he repeatedly called Depan but that Depan never returned his calls and, though Depan scheduled a quash hearing, he never told Satterwhite about it and thus he did not attend that hearing. Depan later withdrew as counsel because of a conflict of interest. Nicholas Franz represented Satterwhite at trial.
In this context, the prosecutor argued during rebuttal closing argument that the evidence did not support Satterwhite's assertion that he was at the courthouse on July 6 and August 31:
What is missing from the defendant's case? They chose to put on a case to you. He failed to call his attorney, Mary Martin, to back up his claims that he appeared here on July 6th or when he appeared on July 7th, whether he appeared in this courthouse at all those days or when it occurred. We know he signed a scheduling order dated July 7th quashing the warrant. We don't know whether it occurred in this building, whether he walked over to DAC that day and said, I have to take care of this.
But, wouldn't you expect to hear from Mary Martin, his own attorney, about the encounters that they had? He didn't call her. He also didn't call his attorney, Bob Depan. And you can say, well, according to him, he never met Bob Depan. That's his version. There's no other corroborating evidence on this. He has attorneys — he's had attorneys at Department of Assigned Counsel. There are certainly records about this. Mr. Depan, certainly, no reason to indicate he couldn't have come in and said, you know what, I never met Mr. Satterwhite. I do remember that I got maybe 12 or more messages from him wanting to quash the warrant. No, I never called him back. I asked my staff to do it or I was just negligent, but you know what, it's certainly not his fault. Or, you know, I told him to come in and do this, this is what we had to do, or I couldn't reach him because of this problem or this problem or this problem, but, yes, he tried, and he left messages.
You heard from Ms. Chabot that Ms. Martin and Mr. Depan work at the Department of Assigned Counsel. Why didn't he bring these individuals in here to corroborate his version of events to you? Why didn't he call them? What is his real defense? He doesn't take responsibilities for his own actions.
5 Report of Proceedings (RP) at 388-89.
We first note that the facts in this case clearly supported this "missing witness" argument. The prosecutor's closing argument was directed at Satterwhite's failure to present evidence to support his defense. The State correctly argues that both Martin and Depan, as Satterwhite's former attorneys with likely knowledge of facts important to his defense, were proper subjects for a "missing witness" argument. See State v. Gregory, 158 Wn.2d 759, 845-46, 147 P.3d 1201 (2006).
Satterwhite argues that these statements improperly suggested a shifting in the burden of proof and thus amounted to misconduct. See State v. Traweek, 43 Wn. App. 99, 106-07, 715 P.2d 1148 (1986) (prosecutorial misconduct to mention that the defense did not present witnesses or explanations). He relies primarily on State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996), which involved second degree rape charges against two defendants. At least one witness thought the sexual intercourse was consensual, the medical evidence was ambiguous, and the only true issue was whether there was forcible compulsion. The defendants did not testify and, in closing arguments, the prosecutor argued that the defendants failed to present any evidence that the complainant had fabricated her story or was confused. He concluded: "And because there is no evidence to reasonably support either of those theories, the defendants are guilty as charged of rape in the second degree." Fleming, 83 Wn. App. at 214. Division One reversed, noting that these statements shifted the burden of proof to the defendants and infringed on their right to remain silent. Fleming, 83 Wn. App. at 214.
Satterwhite claims that his situation is similar in that he testified, gave testimony contrary to that from the State's witnesses, and the prosecutor pointed out that his prior attorneys, Martin and Depan, had not testified on his behalf and speculated on why he had not called them as witnesses.
Satterwhite also argues that the prosecutor's remarks violated his right to counsel. He reasons that the prosecutor's remarks that he should have called Depan and Martin to testify was improper because they could not have testified because of statutory and evidentiary ethical rules. See RCW 5.60.060(2), ER 501, and RPC I.6. As support, he cites State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474 (1962), in which the Court reversed a murder conviction because defense counsel testified for the State that he had contacted the sheriff, given information leading to the discovery of the victim's body, and had been present during the exhumation. Sullivan, 60 Wn. 2d at 216-17. The Court noted:
RCW 5.60.060(2) provides:
An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
ER 501 lists statutory privileges, including RCW 5.60.060(2).
RPC 1.6 provides:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
If defense counsel is required to testify under compulsion, it might well be that defendant's right to complete and unhampered representation is invaded. Balanced against this, however, is the possibility that defense counsel's testimony is necessary to the state's case in the interest of justice and for the protection of the public. . . . There must always be a sensitive balance between the right of the state to prove its case, in the best manner possible, and the right of the accused to have unhampered and effective representation[.]
Sullivan, 60 Wn.2d at 220-21. Based on this, Satterwhite concludes that Depan's testimony may have been inadmissible even if offered. Compounding the prejudice, he asserts, was that the State made its remarks during rebuttal and thus he was unable to respond to the misstatements that his former attorney could testify. This scenario, he asserts, led the jury to wonder why Satterwhite did not call Depan and to assume that Depan had nothing helpful to offer.
We find no merit to these claims. The State proved with ample evidence the elements of the bail jumping counts. Satterwhite defended, arguing that he was not present in court due to uncontrollable circumstances. The court instructed that:
It is a defense to a charge of Bail Jumping that uncontrollable circumstances prevented the person from appearing and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender and that the person appeared or surrendered as soon as such circumstances ceased to exist.
The burden is on the defendant to prove by a preponderance of the evidence that uncontrollable circumstances prevented him from appearing and that he did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender and that he appeared or surrendered as soon as such circumstances ceased to exist.
Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
Instr. 17; Clerk's Papers (CP) at 80. It was uncontroverted that Satterwhite knew that he had a duty to appear and that he did not appear in court when he was required to be there. As to the July 6 appearance, he testified that he arrived that day late and spoke with Martin and was able to get the bench warrant quashed. Then, on cross-examination, he testified that he arrived one day late, which was consistent with the date on his motion to quash the warrant. As to the August 31 appearance, he testified that he arrived several hours late because of traffic delays and that he immediately tried to get the warrant quashed.
In Fleming, former defense counsel was compelled to testify for the State against the defendant. Here, the State simply argued that if Satterwhite truly had a defense of uncontrollable circumstances, it was suspicious that he not support it with testimony from his former attorneys as they could, if his story was true, corroborate his claim. We fail to see how the prosecutor's argument shifted the burden of proof on the elements of the offense or impinged on Satterwhite's right to counsel. Further, there were no ethical constraints preventing Satterwhite from calling his former attorneys to testify on his behalf. Both RCW 5.60.060(2) and RPC 1.6 allow an attorney to testify when the client consents.
Finally, we agree with the State that the argument here was similar to that in State v. Gregory, 158 Wn.2d at 859-61. There, during the penalty phase of a death penalty trial. The prosecutor commented on the lack of mitigating evidence the defendant had presented:
[Y]ou can be certain, you can be certain, they put on everything they had and the very best that they had because there is no incentive to do anything else. So what you heard from the witness stand presented by the defense is the best that can be said about Allen Gregory. It's the best they can do as far as mitigating his conduct.
They hired a mitigation specialist who testified yesterday and said he spent 200 hours working on this case. That's the equivalent of five 40-hour weeks without anything else interfering. They presented you with one police report [regarding an incident of child abuse Gregory suffered at the hands of his father].
. . . .
You know that they hired a mitigation expert to try to dig up anything they could [that was] positive to say about Allen Gregory, anything they could.
. . . .
And you can bet that they put on the very best and all the evidence they could scrape together that they thought could possibly mitigate his responsibility.
Gregory, 158 Wn.2d at 859-60. In finding these arguments appropriate, the Court noted that "[t]he State is entitled to comment upon quality and quantity of evidence presented by the defense. An argument about the amount or quality of evidence presented by the defense does not necessarily suggest that the burden of proof rests with the defense." Gregory, 158 Wn.2d at 860 (citing People v. Boyette, 29 Cal. 4th 381, 127 Cal. Rptr. 2d 544, 58 P.3d 391, 425 (2002) (holding in a capital case that argument commenting on the lack of corroboration for the defendant's story did not shift the burden of proof); and United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030, 107 S. Ct. 1958 (1987)). The Court also noted that the trial court, as it did here, instructed the jury on the State's burden of proof.
The prosecutor's arguments were not misconduct. See State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (defendant must show flagrant and ill-intentioned misconduct that a proper instruction could not have cured).
II. Statement of Additional Grounds (SAG)
In his SAG, Satterwhite argues that the sentencing court miscalculated his offender score and erred in not suppressing the evidence seized during the search incident to arrest.
A. Sentencing
Satterwhite argues that because he served his three pre-1986 convictions concurrently, they should have only counted as one conviction, not three, in calculating his current offender score.
RCW 9.94A.525 sets out how a sentencing court should treat prior convictions. It provides in relevant part:
(5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:
. . . .
(ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense. Use the conviction for the offense that yields the highest offender score.
(b) As used in this subsection (5), "served concurrently" means that: (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense.
Satterwhite argues that he served his convictions for a 1980 first degree escape, a 1983 second degree burglary, and a 1985 unlawful possession of a controlled substance concurrently. He attaches two documents to his SAG, both entitled, "Order Modifying Probation." The first, dated December 16, 1985, orders him to serve one year in confinement for a probation violation, to be served concurrently with his 1980 and 1985 convictions. The second, dated June 16, 1989, orders him to serve 45 days in the King County jail concurrent to his 1980 and 1985 convictions.
First, these documents are not part of the designated appellate record and as such we cannot consider them. RAP 16.4(c)(3); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (on direct appeal, court will not consider matters outside the trial record).
Second, to the extent we can consider this argument as Satterwhite argued it at sentencing, we find no error. RCW 9.94A.525(5)(b) specifically states that the offenses will only be counted as one offense if "the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense." It appears that this is exactly the situation presented. Satterwhite simply fails to show that the court erred in counting his offenses separately because he fails to show that the offenses were originally imposed concurrently, that is, with specific reference to each other.
B. Corpus Delicti
Satterwhite also makes a corpus delicti challenge, arguing that because the police relied on hearsay information from the store clerk identifying him as the trespasser, there was insufficient evidence to establish that he in fact was a trespasser and therefore his arrest for criminal trespass was illegal and the evidence seized as a result improperly used against him.
As the corpus delicti doctrine is used to determine whether the State can use a defendant's confession in proving an offense, it simply does not apply here. See Bremerton v. Corbett, 106 Wn.2d 569, 574-75, 723 P.2d 1135 (1986). Further, the record shows that the police responded to the store clerk's request for help, the clerk identified Satterwhite, the police then spoke with him and told him to stay off the AM/PM property and when he returned, they arrested him for criminal trespass. There was ample evidence showing that the police had probable cause to arrest Satterwhite.
C. Correction of Judgment and Sentence
Satterwhite also argues that because the stipulated criminal history portion of his judgment and sentence indicates that he pleaded guilty, the Department of Corrections refuses to allow him to earn early release time. Because this claim involves undeveloped matters outside the record, we decline to address it. See McFarland, 127 Wn.2d at 338 n. 5.
We affirm.
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.
BRIDGEWATER, PJ. and HUNT, J., concur.