Opinion
No. 36392-5-II.
January 21, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-00402-7, Linda CJ Lee, J., entered June 1, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
The State charged Stephen Paul Sullivan with aggravated residential burglary and making a false and misleading statement to a public servant. A jury found Sullivan guilty as charged. Sullivan now appeals, arguing that (1) the prosecutor improperly commented on his right to remain silent; (2) the trial court abused its discretion by denying his motion for mistrial; and (3) he did not receive effective assistance of counsel. Sullivan's arguments are unpersuasive, and we affirm.
FACTS
Around midnight on January 19, 2007, Sharon Schaefer, heard a noise while warming some food. As she approached the hallway, she heard her dogs barking and saw someone wearing a gray hood backing in through her unlocked door. The man was crouched down and moving very slowly as he closed the door behind himself and turned around. Schaefer saw his curly hair, realized that she did not know him, and asked, "What the hell are you doing here?" 3 Report of Proceedings (RP) at 167. The man said he was looking for a couch.
Schaefer ran into the kitchen and called 911. While on the phone, she saw the man walk down her driveway and look back at her. The man did not threaten Schaefer, but appeared disoriented. Schaefer described the man to the dispatcher as a white male, approximately six feet tall with curly hair. She also said that he was wearing a dark, hooded jacket with gray on the sleeves.
Pierce County Deputy Sheriff Robert LaTour and his partner, Deputy Sheriff Robert Carpenter, responded to Schaefer's report of a burglary in process. Within minutes, the deputies arrived at Schaefer's home and observed a mountain bike propped up against a fence at the end of the driveway. LaTour greeted Schaefer at her front door and did not see anyone else in the general vicinity of her home. While LaTour talked with Schaefer, Carpenter proceeded to perform an area check in his patrol vehicle.
Carpenter located a man matching Schaefer's description, later identified as Sullivan, approximately two blocks north of Schaefer's house. Carpenter confronted Sullivan at gunpoint, handcuffed him, and placed him in the back of the patrol vehicle. Carpenter recovered Sullivan's wallet during the arrest, but could not recall at trial whether he looked inside it for identification. Carpenter drove Sullivan to Schaefer's house. Schaefer identified Sullivan as the man who had entered her home.
LaTour advised Sullivan of his Miranda rights while he sat handcuffed in the back of the patrol vehicle. Sullivan seemed to understand his rights and did not appear to be under the influence of alcohol or drugs. LaTour asked Sullivan if he entered Schaefer's house, and Sullivan responded that he had not because there were a "million dogs" barking inside. 2 RP at 108. When LaTour then asked Sullivan how he knew there were a lot of dogs, Sullivan "stammered and stuttered as if searching for an answer, and he said that he could hear them." 2 RP at 109. Although it is unclear whether LaTour asked about this, Sullivan mentioned that he was at Schaefer's house because a buddy told him that he could get a couch there. Sullivan did not mention who his buddy was, and said that he had gone to the wrong house. Sullivan claimed ownership of the bicycle propped up against the fence in Schaefer's driveway and said that his name was Kevin Charles Sullivan, born on September 3, 1959. At some point after making statements to LaTour, Sullivan stated that he wanted to stop answering questions.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. E. 2d 694 (1966).
Pierce County Deputy Sheriff Franklin Clark arrived at the scene to transport Sullivan to the Pierce County Jail. During the jail booking process, Clark learned from Sullivan's Washington State identification card that his true name was Stephen Paul Sullivan. LaTour changed his report after realizing that Sullivan had previously given him a false name.
On January 22, 2007, the State charged Sullivan with one count of residential burglary, one count of obstructing a law enforcement officer, and one count of making or having burglary tools. The parties appeared before the trial court on May 3, 2007. The trial court allowed the state to file an amended information, which added an aggravating factor to the burglary charge that Schaefer was at home when Sullivan entered. The amended information also changed the charge of obstructing a law enforcement officer to making a false or misleading statement to a public servant.
On May 3, 2007, the trial court held a CrR 3.6 hearing. On May 7, the trial court ruled that the deputies' search of Sullivan's bicycle bag was improper and that the burglary tools found inside were inadmissible. The trial court also heard Sullivan's CrR 3.5 motion and ruled that the statements Sullivan made to LaTour after receiving his Miranda warnings were admissible.
At trial, the jury heard from four State witnesses: Clark, LaTour, Carpenter, and Schaefer. The deputies testified regarding their response to Schaefer's report of burglary, including their contact with Sullivan and the contents of his post- Miranda statements. The State asked LaTour what Sullivan did, and did not say post- Miranda. The prosecutor referenced Sullivan's comments and omissions in closing. Schaefer testified about the incident and identified Sullivan in court as the man who entered her home. Sullivan called one witness, a private investigator, to testify about photos he took of the scene. Sullivan did not testify.
On May 11, 2007, the jury found Sullivan guilty of aggravated residential burglary and guilty of making a false or misleading statement to a public servant. On June 1, 2007, the trial court sentenced Sullivan to 14 months on the felony burglary count and to 133 days on the making a false statement count. Sullivan now appeals.
ANALYSIS
I. Prosecutorial Misconduct
A. The Comments
Sullivan argues that the prosecutor violated his Fifth Amendment right to due process by improperly commenting on his post- Miranda right to remain silent while eliciting testimony from LaTour and referencing that testimony in closing. Sullivan also argues that the prosecutor improperly commented on his post- Miranda right to remain silent while making a rebuttal closing.
We disagree.
First, Sullivan argues that the prosecutor improperly commented on his right to remain silent during his direct examination of LaTour: the prosecutor asked LaTour if Sullivan mentioned the name of the person who told him about the couch, and LaTour responded, "No, he didn't." 2 RP at 109.
Second, Sullivan argues that by referencing this testimony during closing argument, the prosecutor improperly commented on his post-arrest silence. In closing, the prosecutor said, "[Sullivan] went on then to state that he had the wrong house, that a buddy gave him the wrong address, but in fact he wouldn't or couldn't name the buddy that gave the wrong address." 4 RP at 231 (emphasis added). Sullivan neither objected to the prosecutor's direct questioning of LaTour, nor objected to the prosecutor's closing argument.
Third, Sullivan argues that the prosecutor improperly commented on his right to silence when arguing that Sullivan made a false or misleading statement to the arresting officers during rebuttal closing. During rebuttal, the prosecutor said:
Now, the final point I'd like to make is that the defendant had ample time, although there's nothing in the instructions about timing when giving a false statement. He is transported by other deputies. There was no testimony at any time he did decide, 'You know what? I better give them my real name and real date of birth.'"
4 RP at 250-51 (emphasis added). Sullivan objected, moved for a mistrial, and now argues that the comment was an improper comment on silence. The State responds that the prosecutor's argument in rebuttal closing was a proper response to Sullivan's closing argument.
B. No Constitutional Violation
Although Sullivan objected to the prosecutor's argument during rebuttal, Sullivan neither objected to LaTour's testimony nor objected to the prosecutor's closing argument. The defendant's failure to object to an improper remark constitutes a waiver of that error unless the remark is "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. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). However, the defendant's failure to object to an improper remark on his constitutional right to silence does not waive the issue on appeal. See RAP 2.5(a)(3). Thus, we now consider whether any of the instances waived by Sullivan affected his constitutional right to silence.
If, as here, the defendant waives his right to remain silent and makes statements before invoking his Miranda rights, "the State may question a defendant's failure to incorporate the events related at trial into the statement given police or it may challenge inconsistent assertions." State v. Belgrade, 110 Wn.2d 504, 511, 755 P.2d 174 (1988). Impeaching the defendant's inconsistent post-arrest statements does not violate due process, as the defendant has waived the right to remain silent concerning the subject matter of his statement. Belgrade, 110 Wn.2d at 512. Thus, when a defendant waives his right to remain silent and talks to the police, the State may comment on what he did and did not say. State v. Young, 89 Wn.2d 613, 620-21, 574 P.2d 1171 (1978).
Here, the prosecutor properly commented on what Sullivan did and did not say to LaTour. Sullivan waived his right to remain silent regarding the statements he made before invoking his Miranda rights. Specifically, Sullivan told the deputies that he was at Schaefer's house to pick up a couch that a buddy said was there and told the deputies that his name was Kevin Charles Sullivan. Because Sullivan made these statements after receiving his Miranda rights but before invoking his right to remain silent, he waived his right to remain silent on the subject matter he discussed with LaTour before invoking his rights. The State was entitled to elicit testimony and make argument on what Sullivan said as well as what he did not say. In addition, the State's argument on rebuttal was a fair response to Sullivan's argument that the deputies did not materially rely on his false statements. See United States v. Robinson, 485 U.S. 25, 32, 108 S. Ct. 864, 869, 99 L. Ed. 2d 23 (1988) (even if the prosecutor comments on the defendant's right to remain silent, such comments are proper in rebuttal if the defense first raises the issue); see also State v. Bradfield, 29 Wn. App. 679, 630 P.2d 494 (1981) (holding defendant's non-statements admissible when he attempted to toy with the police by mentioning only the facts that he wanted them to hear); cf. State v. Clark 143 Wn.2d 731, 24 P.3d 1006 (2001) (holding that false information given to the police before arrest was considered admissible as evidence relevant to the defendant's consciousness of guilt)
II. Motion for a Mistrial
Sullivan next argues that the trial court erred in denying his motion for a mistrial because the trial court did not consider the "cumulative" nature of the prosecutor commenting on what Sullivan did and did not say after receiving his Miranda rights. Because we have found no error related to these comments, we disagree.
III. Ineffective Assistance of Counsel
Finally, Sullivan argues that he received ineffective assistance of counsel because defense counsel had no legitimate tactical reason to not object to the prosecutor's comments. We disagree.
The constitutional right to counsel promises an attorney who can provide "reasonably effective assistance, not the most astute counsel." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, i.e., it fell below an objective standard of reasonableness; and (2) the deficient performance was prejudicial, i.e., there is a reasonable probability that the outcome would have been different but for the deficient representation. Strickland, 466 U.S. at 687. We give deference to counsel's professional decisions and such decisions cannot serve as a basis for an ineffective assistance of counsel claim so long as it can be characterized as legitimate trial strategy or tactic. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
In this case, defense counsel's performance was not deficient. Although defense counsel did not object to the first two instances, her non-objection was likely a tactical decision to avoid drawing the jury's attention to what Sullivan said and did not say. To prove his claim, Sullivan must show deficiency and prejudice. Since he must show both to prevail, and he cannot, his claim 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.
Bridgewater, J., Quinn-Brintnall, J. Concur.