Opinion
No. 64253-7-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-03736-8, Christopher A. Washington, J., entered September 28, 2009.
Affirmed by unpublished opinion per Spearman, J., concurred in by Grosse and Becker, JJ.
A jury found Glenn Simmons guilty of residential burglary, second degree malicious mischief and second degree theft. On appeal, Simmons asserts that the testimony of a police detective denied him a fair trial, that defense counsel was ineffective for failing to object, and that a definitional jury instruction was confusing. We conclude that improper opinion testimony was admitted, but do not find it constituted manifest constitutional error that can be raised for the first time on appeal, and in any event find it was harmless beyond a reasonable doubt. Simmons has not shown prejudice from his counsel's performance to establish ineffective assistance. And the broad but accurate jury instruction defining unlawful entry did not result in any manifest error. Because Simmons' additional pro se claims also fail, we affirm.
FACTS
Ryan Mason went to the home of Sara Rigel on the morning of March 11, 2009 to perform lawn maintenance. Just after arriving he heard a very loud burglar alarm sound and saw a broken window next to Rigel's front door. In response to a neighbor shouting and pointing, Mason went around the house and saw a man leaving Rigel's backyard with a laptop computer and bag of other property. The man wore a red top and red pants. Mason gave chase and the man dropped the computer and bag and escaped through a neighbor's yard.
At approximately 9:30 a.m., Rigel received calls at work from both her security company and the lawn service. She returned home and found that her laptop and a laundry bag containing jewelry and electronics taken from different locations in her house were outside in the yard.
At the same time, around 9:30, Rigel's neighbors Susan Derge and Richard Ehle saw a man wearing a red sweatshirt and red pants inside their locked back yard. Derge did not see the man's face. Ehle confronted him and the man jumped the fence into a neighbor's yard. Ehle saw him in the area again later. The man had removed the red sweatshirt and was now wearing a white t-shirt with the red pants, despite the 28 degree weather. Ehle asked what he was doing, and the man said he was moving through, and ran off.
Another neighbor of Rigel's, Valerie Bunn, also saw a man wearing red pants and a white T-shirt standing in her neighbor's yard. She told him he should not be there. He left, but minutes later Bunn found him hiding next to her home. She confronted him and he ran when she called 911. Bunn noticed the man had tattoos on the inside of his arms and wrists that included dots and the letter "P".
Police arrived and found a red Chevrolet Blazer parked illegally across the street from Rigel's home. The vehicle was unlocked and the keys were in the ignition. There was a red jacket on the seat. By checking, the vehicle information police learned it had been redeemed from a tow yard a few minutes away from Rigel's house shortly before 9:30 that morning. The man who redeemed the car had been by himself, was wearing a red top and pants, and identified himself with a passport that had the name and photograph of the defendant, Glenn Simmons. The tow company retained a photocopy of the passport. The employee who released the vehicle said the man matched the passport photograph.
Seattle Police Detective Dain Jones prepared photographic montages that included a photograph of Simmons. He also obtained a photograph showing Simmons' tattoos, which include dots and a capital letter P on the inside of his right forearm. Detective Jones showed montages to Mason, Ehle, and Bunn. Mason and Bunn identified Simmons' picture. Ehle picked another picture, but said he was less than 50 percent sure it was the man he had seen.
Simmons was arrested on April 6 at the University of Washington. He was seated next to the red Chevrolet Blazer that had been parked at Rigel's house. At trial Simmons stipulated that he also drove the Blazer on March 3, 2009.
Mason identified Simmons at trial, saying he was 99 percent certain it was the same man. Bunn also identified Simmons at trial. Ehle said it was difficult for him to say for sure whether Simmons was the man he had seen because he had only seen his face for a few seconds. Detective Jones testified without objection about his presentation of the montages to the witnesses. His testimony included his positive assessment of Bunn's abilities as a witness and a reference to Simmons' photograph as the picture of the person he thought was responsible.
Through cross-examination and closing argument, defense counsel suggested Detective Jones was biased and his investigation was therefore flawed. The jury found Simmons guilty as charged.
Simmons appeals.
DISCUSSION
On appeal, Simmons claims that the testimony of Detective Jones denied him a fair trial because he testified to his opinion of Simmons' guilt and vouched for Bunn as a witness. He also contends his defense counsel was ineffective for failing to object to that and other testimony and that the trial court's jury instruction defining unlawful entry was confusing. Although some of the testimony was improper, we find no reversible error and therefore affirm.
Testimony of Detective Jones
Simmons claims that certain testimony of Detective Jones about the preparation and presentation of the photographic montages amounted to improper opinion testimony on guilt that he may raise for the first time on appeal. Simmons similarly argues that Detective Jones improperly vouched for Bunn as a witness. He claims that Detective Jones's testimony denied him a fair trial.
During Detective Jones's testimony, the prosecutor asked about the language Ehle had used in reacting to the photographic montage. Jones testified:
. . Like I said, he — he was kind of bouncing back and forth between choices of different guys, and he wasn't sure at all even when he finally did choose one. He even told me that, you know, he's less than 50 percent sure, which means more likely than not he even knows he's choosing the wrong one, so.
Shortly thereafter, the prosecutor asked why the copy of the montage shown to Ehle presented in court was in black and white rather than in color. Jones responded:
Standard policy for me, and I believe most of the other detectives, actually I think it's been official now, is that for a montage identification where it's not, quote, 'successful' or it's not part of the person who's going to be — wind up being charged it's not considered really, quote, "evidence." I mean, everything is evidence but that's not specifically something that's considered evidence to be put into evidence. It's added to the case file. It's [sic] obviously has to be preserved because it's part of the investigation that can be used for both sides. So, it's just added into the case file.
The prosecutor then asked whether "not successful" referred to the witness being unsure or that the witness picked the "wrong person" and Jones responded:
Well, in this case both. If he'd have been unsure and I didn't otherwise have a suspect identified or at least enough to file a case, then the case would have been inactivated anyway. So, yeah, unsuccessful in kind of both regards.
Later in his testimony, Detective Jones was asked to explain the difference between the montage he showed Mason and those shown to others, and Jones said that the montage Mason saw had a photograph in which Simmons had a different haircut, and he wanted a picture with a haircut closer to what the witnesses would have seen:
It would be more accurate and probably easier for them to make the correct identification based — as opposed to the one that I brought which showed him with a slightly different hairstyle which might make it harder for them to — to choose the right person or, you know, right-
[Prosecutor]: The person you were looking for?
A: Yeah. The person I believed was responsible.
(Emphasis added.)
In describing Bunn's demeanor while she viewed the photographic montage, Detective Jones stated:
I thought she was remarkably detailed in her recollection, in things that she remembered. At first when I showed her the montage, you know, I presented it to her, she was silent. I mean, not a word, she didn't move, she just sat there and stared at it emotionless and quiet for I don't know how many seconds or whatever. At that point I started to think, l oh well, she's not going to recall anything. And then she just jabbed her finger at one of the photos and said ["]that's the; one ["] or something to that effect [. . .]
Without being asked another question, Jones further discussed his own reaction to Bunn, including his assessment of her quality as a witness:
[It] kind of surprised me how confident she was because I was all ready to think that maybe she was having trouble or something. But just — it seemed like she had just such a good recollection of who she was thinking of. Obviously the time she spent looking at it she was probably just evaluating everybody in the photos, and then she just jabbed out her particular selection. That and the recollection she had of these tattoos, which the presence of mind to even see those, let alone recall them to the — with that much detail where I could later see that this person does have tattoos on both arms and just like described was rather startling to me. I found her to be quite an incredibly good witness.
(Emphasis added.)
The prosecutor then asked if that assessment was based on a comparison with other witnesses. Jones responded:
Yeah. And, frankly, with myself. I have to admit I'm not that terribly great at remembering little details like that. But, yeah, with other witnesses. And it's not a fault, it's just other people focus on different things. Some people can stare at somebody, and again that might be me, can stare at somebody for a while and later on they might not be able to recall anything really distinctive about them.
So, she focused on this person or something because she really had a reall good recollection.
(Emphasis added.)
Allowing a witness to opine as to the defendant's guilt "'invad[es] the exclusive province of the [jury]'" and can be an error of constitutional magnitude. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)); State v. Jones, 71 Wn. App. 798, 813, 863 P.2d 85 (1993). In determining whether witness statements are impermissible opinion testimony, the court considers the type of witness, the specific nature of the testimony and charges, the type of defense, and the other evidence before the trier of fact. Demery 144 Wn.2d at 759. A police officer's testimony can carry a special aura of reliability and trustworthiness and may be particularly prejudicial. Id. at 760 n. 4.
While contending that none of Detective Jones's remarks were improper, the State alternatively argues that Simmons fails to demonstrate that they had "practical and identifiable" consequences given the nature of the evidence and the defense, and thus did not constitute manifest constitutional error that can be raised for the first time on appeal. The State further argues that any error was harmless beyond a reasonable doubt in any event.
Under RAP 2.5(a), a party may raise manifest error affecting a constitutional right for the first time on appeal. Constitutional error requires reversal unless it is harmless beyond a reasonable doubt. See State v. Banks, 149 Wn.2d 38, 44-45, 65 P.3d 1198 (2003).
In State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008), the Washington Supreme Court held that certain testimony by police officers was improper opinion testimony on guilt, but was not manifest error that the defendant could raise for the first time on appeal. "[The manifest error] exception is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences." Id. at 595.
We first conclude that most of Detective Jones's testimony regarding the montage process did not constitute impermissible opinion testimony. As the State argues, even Detective Jones's references to "successful" or "wrong" picks from the montages, in context, suggested only what the jury already knew from other properly introduced evidence, which was that Simmons was the suspect based on the evidence from the tow yard and Bunn's description of his tattoo. However, Detective Jones's statement that Simmons was the person he believed responsible for the offense went too far. We are satisfied that an objection to this testimony as an improper opinion would properly have been sustained. In addition, we conclude that Detective Jones's effusively favorable assessment of Bunn as a witness was likewise improper. While combined with admissible observations about Bunn's montage pick, the positive comparison of Bunn with witnesses generally was objectionable.
We nonetheless conclude, however, that the improper testimony does not rise to the level of manifest constitutional error that Simmons may raise for the first time on appeal because he does not demonstrate actual prejudice or point out any practical and identifiable consequences. While Simmons argues that the testimony undermined Ehle's testimony and montage selection indicating that Simmons was not the man he saw, this contention is unpersuasive because, first, Ehle never testified that Simmons was not the man he saw, and second, Ehle's montage selection, as discussed above, was equivocal. Considering Simmons' defense at trial, which was that Detective Jones was biased and therefore conducted a flawed investigation, it appears rather that there was no practical consequence to the challenged testimony because it would have been consistent with that defense for the jury to know Detective Jones's opinions. Moreover, we further conclude that even if any of the testimony at issue was manifest error, the error was harmless beyond a reasonable doubt. Banks, 149 Wn.2d 38 at 44-45. The evidence was uncontroverted that just minutes before the burglary, a man dressed all in red presented Simmons' passport, bearing his picture, to redeem the red Blazer found at Rigel's house. Mason saw the man he later identified as Simmons while the man was still in Rigel's yard, holding property that had just been taken from inside her house, and wearing the same distinctive clothing as at the towing yard. Regardless of Jones's comments about Bunn, it is clear that she also positively identified Simmons, and provided further compelling evidence with her accurate description of his distinctive tattoo. In addition, there was the additional evidence and stipulation further connecting Simmons with the Blazer. Thus, even if any of Detective Jones's testimony was manifest constitutional error, it was harmless beyond a reasonable doubt.
Simmons also argues that the testimony imparted an aura of reliability to Bunn's testimony and disclosed Jones's personal opinion, but these generalized claims do not address the "actual prejudice or practical and identifiable consequences" requirement of Montgomery. See Montgomery, 163 Wn.2d at 595.
Ineffective Assistance
To prevail on an ineffective assistance claim, a defendant must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). He must show both that trial counsel's representation fell below an objective standard of reasonableness and that the deficient performance was prejudicial. Id.
Simmons argues that even if Jones's testimony described above was not manifest error, defense counsel was ineffective for failing to object. The State argues that this claim fails because defense counsel's decision not to object was a tactical decision, and because Simmons cannot demonstrate prejudice. For the same reasons that we find the challenged evidence harmless, we conclude that Simmons does not demonstrate a reasonable likelihood that the jury verdict would have differed had Detective Jones's improper testimony been stricken. His claim therefore fails under Strickland's prejudice prong, and we do not further inquire into whether counsel's performance was deficient.
Simmons also contends that his counsel provided ineffective assistance by failing to object to what he characterizes as evidence of his criminal history. As the State argues, however, there was no such direct evidence. Simmons assumes, essentially, that the jury would have speculated from the photographic montage evidence and fleeting references to the circumstances of his arrest that he had a history of being arrested or being in jail. Given our review of the record, this is not a valid assumption. Simmons' claim in this regard fails both for want of deficient performance and for the lack of prejudice.
Definitional Instruction of "Premises"
Simmons next contends that the trial court erred by giving the standard pattern instruction, 11A Washington Pattern Jury Instructions: Criminal 65.01, at 35 (3d ed. 2008) (WPIC) defining "premises" as "any building, dwelling, or real property." He argues that although legally accurate, the instruction would have been confusing to the jury because the court also gave the pattern instruction, WPIC 65.02 at 36, which provides that "[a] person enters or remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." Citing State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980), he argues that the jury could have been misled into believing the State did not have to prove he actually entered Rigel's dwelling to establish liability for the charge of residential burglary.
In Stephens, defense trial counsel objected to the trial court's "to convict" elements instruction, which permitted the jury to find the defendant guilty if he assaulted either of two victims and did not require unanimity as to which. Stephens, 93 Wn.2d at 189-90. Unable to find the error harmless because the strength of the evidence regarding the assault of the two men differed, the Supreme Court reversed. Id. at 191.
This case is not like Stephens. Unlike in Stephens, the claimed error here did not occur in the elements instruction. Rather, it took place, if at all, in a definitional instruction to which there was no objection. Moreover, the "to convict" elements instruction correctly required the State to prove beyond a reasonable doubt that Simmons entered Rigel's "dwelling," not just her premises, as did the instruction defining residential burglary.
Under these circumstances, Simmons' failure to object waived the claim because the error was not manifest. See State v. Pittman, 134 Wn. App. 376, 382-83, 166 P.3d 720 (2006) (alleged error regarding definitional instruction not manifest when elements instruction contained the correct language and overall instructions would have accurately conveyed the state's burden to the jury); see also State v. O'Hara, 167 Wn.2d 91, 104-5, 217 P.3d 756 (2009).
Pro Se Claims
Simmons raises two challenges in a pro se statement of additional grounds for review. Neither provides him a basis for relief.
He first contends that his counsel provided ineffective assistance by failing to request a lesser included offense instruction for criminal trespass. But unlike in Pittman, on which Simmons relies, a lesser included offense strategy would have been inconsistent with the identity defense his counsel did present, and thus could be reasonably discarded as harmful to the overall defense strategy. Moreover, on the specific facts here, there was no likelihood that the jury would have concluded that Simmons entered only Rigel's yard and not her house, as he was seen holding property just removed from the house and there was no evidence suggesting any other person was involved.
We also note that the Supreme Court recently disapproved of the ineffective assistance analysis in Pittman in State v. Grier, No. 83452-1, 2011 WL 459466 (Feb. 10, 2011).
Simmons also contends that Detective Jones used an impermissibly suggestive procedure in presenting the photographic montages to the eyewitnesses, which tainted their in-court identifications. This issue, however, was never raised before the trial court in a motion to suppress. As a result, the record was not developed sufficiently to resolve the claim here on direct appeal. State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995).
We affirm.