Opinion
No. 60398-1-I.
December 8, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-03129-1, Michael Hayden, J., entered July 27, 2007.
Affirmed by unpublished per curiam opinion.
In State v. Blair, the Supreme Court enumerated a number of factors that must be present before the State may make an argument based on the missing witness doctrine. Thereunder, a prosecutor may urge the jury to draw an unfavorable inference from a defendant's failure to call a logical witness. Here, the court properly found the Blair factors satisfied. Moreover, the trial court did not allow a missing witness jury instruction but rather only permitted the State to make the argument during closing. Finding no error, the trial court is affirmed.
117 Wn.2d 479, 816 P.2d 718 (1991).
FACTS
On November 20, 2006, Sean Sims was released from jail in Aberdeen where he had been serving a sentence for residential robbery. He was picked up that afternoon by his brother, Quentin Mitchell, Rebecca Saunders (Mitchell's girlfriend), a female friend of Saunders, and a third man identified at trial only as J.C. The group stopped by the home of Sims' mother in Seattle and then went to the apartment of Sims' former girlfriend, Tina Dudley-Hernandez. Saunders and her friend waited out front while Sims, Mitchell, and J.C. went up to Dudley-Hernandez' front door.
Apparently, J.C. left Washington prior to trial and neither party had attempted to subpoena or otherwise contact him.
It is unclear whether J.C. went all the way up to Dudley-Hernandez' front door with Sims and Mitchell or stayed on the stairs.
Dudley-Hernandez testified that Sims demanded that she leave with them immediately and when she refused Sims became angry and volatile. After Dudley-Hernandez told him that she had turned her life around and was now happily married, he threatened to kill her and the other occupants of her home. He further threatened that he would make things "twenty times worse" if the police were called.
Dudley-Hernandez found Sims' threats especially terrifying and credible based on her past relationship with him and because he displayed his gun hidden under his shirt in a menacing way during their confrontation. Sims was not only Dudley-Hernandez' former boyfriend but had been her pimp as well. She testified at length how Sims had forced her into prostitution when she was only eighteen and homeless. Sims had a temper and would regularly beat her if she did not bring him enough money or if he thought that she might be considering leaving him.
As soon as the three men left, Dudley-Hernandez dialed 911 from her neighbor's residence to report that Sims had threatened to kill her. Officer Steven Kim responded to her call. She told the officer that Sims became very angry when she informed him she was now married and did not intend to leave with him that night, much less resume a romantic relationship. She told Officer Kim about the gun and the specific threats that Sims had made that night.
Sims was charged with one count of felony harassment-domestic violence and one count of witness tampering.
See RCW 9A.46.020.
See RCW 9A.72.120.
At trial, Dudley-Hernandez testified that three men came to her door that night, including Sims and Mitchell, and that she could see the two women in the driveway. But during her witness interview before trial, Dudley-Hernandez had told investigators that four men had come to her door that night and had even provided a physical description of this fourth man. Officer Kim testified that Dudley-Hernandez was distraught when he met with her and that she was crying and shaking during their interview.
Defense counsel tried to impeach Dudley-Hernandez' credibility through the admission of some of her prior convictions, including those of theft, false reporting, and identity theft.
Sims did not call his brother, Mitchell, to testify. Nor did Sims elect to take the stand himself. Saunders was the only witness called by the defense to testify. She told the jury that Sims did not have a gun that night. Saunders explained that she did not believe Sims would have had an opportunity to get one between the time they picked him from the jail and when they went to Dudley-Hernandez' apartment. She also noted that Sims did not seem particularly upset or angry after the meeting. Saunders, however, was not at the front door during the incident and could only see the parties talking animatedly from a distance. Further, while she could hear voices, she was unable to make out any of the words spoken by either Sims or Dudley-Hernandez.
The State sought a "missing witness" jury instruction, which the court denied. Nonetheless, over defense counsel's objections, the court explicitly authorized the State to make an argument during its closing statement to the jury based on the missing witness doctrine. The jury subsequently returned guilty verdicts as to both counts as charged. Sims appeals.
Blair, 117 Wn.2d 479.
ANALYSIS
Missing Witness Doctrine
Sims contends the trial court abused its discretion when it allowed the State to make a missing witness argument during closing. Sims argues that this line of argument was so clearly improper and prejudicial that it amounted to prosecutorial misconduct, depriving him of his constitutional right to a fair trial.
See State v. Stenson, 132 Wn.2d 668, 728-29, 940 P.2d 1239 (1997).
We disagree. The trial court did not abuse its discretion by permitting this line of argument by the State. Further, the State's comments during closing were not improper as they were authorized by the trial court. Only under limited circumstances may the State use the missing witness doctrine against a criminal defendant so as to prevent a shifting of the burden of proof onto the defendant. Thus, argument based on application of the doctrine is permissible against a criminal defendant only when certain conditions, as enumerated by the Supreme Court in State v. Blair, are satisfied. Such is the case here.
See State v. Montgomery, 163 Wn.2d 577, 599, 183 P.3d 267 (2008); Blair, 117 Wn.2d at 724-26.
Blair, 117 Wn.2d 479.
A criminal defendant has no burden to present evidence. But, a prosecutor may argue reasonable inferences from the evidence presented. In State v. Blair, the Washington Supreme Court held for the first time that State prosecutors may use the missing witness doctrine against criminal defendants. Under the missing witness doctrine, a prosecutor may make the argument that the jury may infer guilt from a defendant's failure to call a logical witness whose production is peculiarly within control of the defense, whose testimony would likely be favorable to the defendant, and whose testimony is not privileged, necessarily self-incriminating, unimportant, or cumulative. This is a permissive and not a mandatory inference. In the context of a defendant who fails to call certain witnesses, "the inference arises `only where, under all the circumstances of the case, such unexplained failure to call the witnesses creates a suspicion that there has been a willful attempt to withhold competent testimony.'" Willful misconduct such as the deliberate suppression of evidence need not be shown. Rather, such argument is permissible where one has established such circumstances which would indicate, as a matter of reasonable probability, that the party
See State v. Deal, 128 Wn.2d 693, 701, 911 P.2d 996 (1996).
Blair, 117 Wn.2d 479.
Blair, 117 Wn.2d at 487.
State v. Cheatam, 150 Wn.2d 626, 652-53, 81 P.3d 830 (2003); Blair, 117 Wn.2d at 486-87; State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990).
Blair, 117 Wn.2d at 488 (citing State v. Baker, 56 Wn.2d 846, 859-60, 355 P.2d 806 (1960)); see also State v. Nelson, 63 Wn.2d 188, 191-92, 386 P.2d 142 (1963).
"would not knowingly fail to call the witness in question unless the witness's testimony would be damaging. In other words, `the inference is based, not on the bare fact that a particular witness is not produced as a witness, but on his non-production when it would be natural for [the party] to produce the witness if the facts known by him had been favorable.'"
Blair, 117 Wn.2d at 488 (quoting State v. Davis, 73 Wn.2d 271, 280, 438 P.2d 185 (1968)) (emphasis in original).
Blair, 117 Wn.2d at 488 (quoting State v. Davis, 73 Wn.2d 271, 280, 438 P.2d 185 (1968)) (emphasis in original).
Here, under the circumstances of this case, it would have been natural for Sims to call Mitchell should his testimony been favorable. Mitchell would have been a key witness because he was the only person who was undisputedly present during the incident other than the defendant and Dudley-Hernandez.
The missing witness doctrine may only be applied against someone who had control over or a special relationship with the would-be witness. "The doctrine does not apply when the missing witness is equally available to both parties." The State's having subpoena power over a potential witness does not make that witness equally available to both parties. Here, not only was Mitchell Sims' brother, they also lived together. Thus, Mitchell was peculiarly available to the defendant in a way that he was not to the State. Further, Mitchell was unlikely to present evidence that was either cumulative or unimportant. While Saunders testified for the defense, Mitchell was in a far better position to offer compelling evidence in support of Sims' theory of the case due to his proximity to and participation in the confrontation.
Blair, 117 Wn.2d at 490.
Blair, 117 Wn.2d at 490.
See Cheatam, 150 Wn.2d at 653 (citing Blair, 117 Wn.2d at 490) (quoting State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968)).
"If a witness's absence can be satisfactorily explained, no inference is permitted." But here, defense counsel failed to satisfactorily explain Mitchell's absence to the court. Defense counsel's stated reason, that putting Mitchell on the stand might open the door for the admission of certain recordings of conversations between the brothers taken while Sims was incarcerated in Aberdeen, is not the type of reason that bars application of the doctrine. Rather, such a reason is but one tactical consideration that defense counsel must weigh when determining whether or not to put a witness on the stand.
Blair, 117 Wn.2d at 489.
See Cheatam, 150 Wn.2d at 654 (noting defense's argument that the potential witness had daycare issues and a tactical decision not to call her was not a sufficient reason to preclude application of the missing witness doctrine).
Further, so far as is known, Mitchell was competent to testify and no privilege was applicable. Mitchell, if called, might have refused, citing his Fifth Amendment rights. But Sims may not claim these rights on behalf of his brother.
Sims chose not to testify, as was his right. A prosecutor may properly attack the failure of the defense presented, but not a defendant's failure to counter or explain the evidence presented. Here, Sims presented a defense by calling Saunders to testify on his behalf.
Cheatam, 150 Wn.2d at 654.
The trial court did not abuse its discretion in permitting the State to make a missing witness argument during its closing statement to the jury.
Ineffective Assistance of Counsel
On appeal, Sims also contends he was denied effective assistance of counsel because of his attorney's failure to object to the admission of certain hearsay statements and failure to adequately inform the jury of the circumstances of Sims' incarceration prior to his release on November 30th.
To establish ineffective assistance of counsel, a defendant must prove (1) deficient performance by counsel, and (2) resulting prejudice. "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." Review may begin with either prong of the two-part test.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
State v. Acevedo, 137 Wn.2d 179, 199, 970 P.2d 299 (1999).
Trial strategy or tactics are not legitimate grounds for a claim of ineffective assistance of counsel. Undermining Dudley-Hernandez' credibility was central to defense counsel's trial strategy. Officer Kim's testimony included the alleged hearsay statements. Defense counsel's failure to object to these statements was part of a legitimate trial strategy, that of undermining Dudley-Hernandez' credibility.
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); McFarland, 127 Wn.2d at 336.
Sims next argues that his counsel's performance was deficient because his attorney did not adequately discuss the circumstances of Sims' incarceration for residential burglary. We fail to see how counsel's performance was deficient here as Dudley-Hernandez testified at trial that Sims had been in jail for a crime that "had nothing to do with her." Further, no prejudice has been shown. Sims' claim of ineffective assistance of counsel is without merit.
The trial court is affirmed.