Opinion
Nos. 25297-3-III; 25298-1-III.
November 20, 2007.
Appeals from a judgment of the Superior Court for Spokane County, No. 05-1-03793-9, Harold D. Clarke III, J., entered June 9, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik and Stephens, JJ.
A jury convicted Cecil Tasby of two counts of robbery, and one count each of unlawful possession of a firearm, intimidating a witness, assault, and attempted kidnapping. He appeals the convictions, asserting that the majority of the evidence against him was improperly admitted as hearsay and in violation of his confrontation rights. Mr. Tasby also asserts that the prosecutor committed misconduct by personally vouching for a witness, commenting on his failure to bring a witness, and asking him inappropriate questions. While Mr. Tasby did not have a perfect trial, we conclude that he had a fair trial. We therefore affirm.
FACTS
Two masked men robbed Empire Foods on North Nevada in Spokane at 10 p.m. on September 28, 2005. One of the men displayed a gun and told the clerk to give them money. The clerk handed over the cash from the drawer as well as a quantity of lottery tickets. The men patted down customer Herman Carver who was standing at the counter and took his wallet. The clerk saw the two drive away in a Ford Explorer with an Idaho license. A surveillance camera recorded the robbery on videotape. The clerk and his wife later identified one of the men, Patrick Lezine, from a photomontage.
The following morning, Officer Ryan Snider arrested Mr. Lezine after responding to a report that someone driving a Ford Explorer with Idaho plates was trying to cash a $100 lottery ticket stolen in the robbery. Officer Snider searched the vehicle and found Mr. Carver's wallet.
Detective Mark Burbridge was assigned to investigate the robbery. He contacted Mr. Lezine's probation officer, and "learned who his best friends are, or a person he might be involved with enough to commit a robbery." Report of Proceedings (RP) at 60. From this conversation, Detective Burbridge focused on Mr. Tasby. Mr. Tasby's build suggested that he was the second man in the video with Mr. Lezine. Detective Burbridge testified that another lottery ticket from the robbery was found a week or so after the robbery in an alley five to six blocks from Mr. Tasby's residence.
Based on the information from Mr. Lezine's probation officer as well as a telephone conversation with a woman who identified herself as Theresa Ramey, Detective Burbridge obtained a warrant for Mr. Tasby's arrest. The probable cause affidavit identified Ms. Ramey only as a confidential informant. The State charged Mr. Tasby with unlawful possession of a firearm and two counts of robbery.
After Mr. Tasby was released pending trial, he went to a bar where Ms. Ramey was drinking with a friend on November 17, 2005. Mr. Tasby approached Ms. Ramey, but she refused to talk to him and tried to get away from him. Ms. Ramey testified that he followed her into the women's restroom, demanding to talk and pinned her against the wall, trying to kiss her. The confrontation moved into the lounge area where Mr. Tasby tried to choke her. Ms. Ramey agreed to leave with him, and Mr. Tasby shoved her into the car, hitting her head on the top of the car. The police were called by patrons of the lounge who witnessed the confrontation, and Mr. Tasby was arrested. He was charged with attempted first degree kidnapping, second degree assault, and intimidating a witness.
At trial, Ms. Ramey testified that on September 28, 2005, Mr. Tasby and Mr. Lezine borrowed sweatshirts from her and then left with two guns that belonged to Mr. Tasby. They returned carrying a box of lottery tickets, a wallet, and beer. She stated that when the two men saw a news clip on the night of the robbery, Mr. Tasby stated: "Cuz, look, we're on TV." RP at 96. Ms. Ramey testified that she recognized Mr. Tasby on a video clip of the robbery on the news. She stated that after the three of them scratched all of the lottery tickets, Mr. Tasby told Mr. Lezine to take the vehicle and "lay low" in Idaho for the next week. RP at 97.
Mr. Tasby testified that Ms. Ramey had him arrested when he was visiting his other girl friend, Cherity Phelps. Ms. Ramey explained to the jury that Ms. Phelps was the mother of Mr. Tasby's children, and she also acknowledged that she had some ongoing anger and jealousy issues with Ms. Phelps.
Mr. Tasby denied knowing the identity of the informant at the time of his arrest. He testified that there was no assault at the lounge and that Ms. Ramey went with him voluntarily, although he did admit to scratching her because he was mad. And they did struggle in the parking lot, but he did not knock her to the ground. On cross-examination, Mr. Tasby denied several particular allegations of the assault incident. The prosecutor repeatedly asked Mr. Tasby if the witnesses who contradicted him were mistaken. Mr. Tasby agreed, in most instances, that they were mistaken. The prosecutor also asked Mr. Tasby if Ms. Ramey was lying.
Detective Burbridge and Mr. Tasby testified concerning different versions of a conversation they had in the presence of Christian Phelps, the attorney Mr. Tasby employed at the time of his arrest. The dispute centered on whether Mr. Tasby knew at the time of his arrest that Ms. Ramey was the informant.
We presume that attorney Christian Phelps has no relation to witness Cherity Phelps.
Detective Burbridge testified, "Mr. Tasby told me that he was sure that Mrs. Ramey provided me with information because that was the only one who could." RP at 71. The detective stated that Mr. Tasby asked him not to use Ms. Ramey's name in the official paperwork, and instead refer to her obliquely as a "CI," or cooperative individual, to protect her identity. RP at 71. Detective Burbridge testified, over objection, that although Ms. Ramey did not qualify to be a CI, the detective agreed to identify her as such if Mr. Tasby did not challenge the legal sufficiency of probable cause for arrest, and that Mr. Tasby ultimately did not honor the agreement.
Mr. Tasby testified that although Ms. Ramey was named by police as the person who called police to identify him, he did not believe that the person who identified herself to police as Ms. Ramey was, in fact, Ms. Ramey. Mr. Tasby stated that he told Detective Burbridge that he did not believe that Ms. Ramey would say the things that were attributed to her in the report, and that he had asked the detective not to identify her by name because he was in jail and could not protect her from repercussions of her being cooperative with police. But, Mr. Tasby testified that he did not agree to waive any challenge to probable cause for his arrest.
The State subpoenaed Mr. Tasby's then-attorney, Christian Phelps, to support Detective Burbridge's version of the conversation with Mr. Tasby. Mr. Phelps retained counsel and moved to quash the subpoena. Although the court denied the motion to quash, Mr. Phelps continued to assert that he would not testify. The court continued the matter over the weekend to allow Mr. Phelps time to brief the issue and consider whether he would maintain his refusal to testify and be held in contempt.
By Monday, Mr. Phelps' counsel and the prosecutor had worked out a compromise by which Mr. Phelps would review Detective Burbridge's report of the incident and confirm that the report was accurate, and Detective Burbridge would then testify to that confirmation. An objection by Mr. Tasby's trial counsel, Ken Knox, on the basis of hearsay was overruled.
Detective Burbridge then testified that Mr. Phelps confirmed that the report was accurate, and the report reflected his conversation with Mr. Tasby. Mr. Tasby took the stand in surrebuttal to reinforce his position.
The jury convicted Mr. Tasby as charged on all six counts. This appeal follows.
DISCUSSION
Confrontation Clause
Mr. Tasby challenges the admission of evidence in violation of his confrontation rights. The confrontation clause of the Sixth Amendment guarantees a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Whether a trial court has violated a defendant's right to confrontation is an issue reviewed de novo on appeal. State v. Kronich, 160 Wn.2d 893, 901, 161 P.3d 982 (2007) (citing Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)).
The confrontation clause prohibits the admission of testimonial hearsay unless the witness testifies at trial, or is unavailable and the accused has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87, cert. denied, 127 S. Ct. 553 (2006). A statement is testimonial if a reasonable person in the declarant's position would anticipate that his or her statement would be used against the accused in investigating or prosecuting a crime. Shafer, 156 Wn.2d at 389.
Mr. Tasby claims that he should have had an opportunity to cross-examine Mr. Lezine's probation officer, who provided information to Detective Burbridge. Without this testimony, Mr. Tasby asserts, there is nothing to connect him with Mr. Lezine's robbery. He further asserts that he was wrongfully denied the opportunity to examine another witness whom Detective Burbridge told the jury was the owner of the Ford Explorer and a friend of Mr. Lezine's, and who told Detective Burbridge that Mr. Lezine had the lottery ticket with him the night before his arrest. Mr. Tasby states that this is the only other witness who could have linked him to Mr. Lezine. But these witnesses do not provide the only link between Mr. Tasby and Mr. Lezine. Ms. Phelps is the most obvious link.
Mr. Tasby also contends that Detective Burbridge's identification of the lottery tickets, which the detective stated were stolen from Empire Foods, was a violation of Mr. Tasby's confrontation right. Detective Burbridge identified a lotto card that "Mr. Carver had on him" at the time of the robbery, and that "was found in Mr. Lezine's custody." RP at 65. The detective did not disclose the identity of the declarants who provided him with this information. Again, even assuming without holding that these statements are testimonial, Mr. Tasby does not dispute Mr. Lezine's involvement in the robbery. The jury could have believed that the lottery tickets were stolen without Mr. Tasby's involvement.
Finally, Mr. Tasby complains that he did not have an opportunity to confront his former attorney, Mr. Phelps. Mr. Phelps made his statement to Detective Burbridge with the express intention of presenting the statement as evidence in the trial. The statement is therefore testimonial. The trial court condoned the procedure in order to avoid a finding of contempt for Mr. Phelps' refusal to testify. While the procedure was of great personal relief to Mr. Phelps, it created a confrontation problem.
Nevertheless, a violation of the confrontation clause will not require reversal if the error is harmless. State v. Saunders, 132 Wn. App. 592, 604, 132 P.3d 743 (2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff'd, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), review denied, 159 Wn.2d 1017 (2007). When reviewing a confrontation clause issue for the first time on appeal, we use the overwhelming untainted evidence test to determine whether error is harmless. State v. Hieb, 107 Wn.2d 97, 109-10, 727 P.2d 239 (1986). That test requires a finding of harmless error if the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt. Id. at 110 (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
During the motion to quash, Mr. Tasby argued that Mr. Phelps' statement would be cumulative. In an argument on appeal referring to this testimony as hearsay, Mr. Tasby also asserts that the use of Mr. Phelps' statement was inappropriate impeachment on a collateral matter. Mr. Tasby's right to confront witnesses does not extend to collateral or irrelevant matters. United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir. 1963), cited with approval in State v. Pickens, 27 Wn. App. 97, 101, 615 P.2d 537 (1980); State v. Gregory, 158 Wn.2d 759, 789-90, 147 P.3d 1201 (2006). We conclude that because the testimony was not relevant, the error was harmless.
Mr. Tasby's claims on evidentiary and ineffective assistance of counsel grounds are equally unavailing.
Prosecutorial Misconduct
Mr. Tasby also complains that the prosecutor asked inappropriate questions and made improper remarks in his closing argument.
When a defendant does not object to alleged misconduct at trial, the issue of prosecutorial misconduct is usually waived unless the 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. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)). Although Mr. Tasby did not object to most of the claimed misconduct, we address each claim for continuity.
Ms. Ramey testified that she did not know Mr. Tasby was going to be at the bar on the evening of the charged assault, kidnapping, and intimidation. Mr. Tasby testified that he spoke with his and Ms. Ramey's mutual friend, Marrissa McNairy, and told her to meet him at the bar and he would buy Ms. Ramey a drink. Ms. Ramey stated that she did not know if Mr. Tasby spoke with Ms. McNairy about going to the bar that night. Detective Marvin Hill testified that Ms. Ramey told him that Ms. McNairy warned Ms. Ramey that Mr. Tasby was looking for her on the night that they went to the bar. He also stated that he had information that Mr. Tasby called Ms. McNairy that evening.
Although there was no apparent conflict between Mr. Tasby's testimony as to what he told Ms. McNairy and what Ms. Ramey knew, the prosecutor asked, "And Ms. Ramey is flat out lying?" RP at 219. The State concedes that it was inappropriate to ask the question. State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991). But it correctly asserts that any error is harmless because Mr. Tasby's counsel objected, the prosecutor did not proceed with the question, and Mr. Tasby did not answer.
The prosecutor also asked Mr. Tasby if various witnesses were mistaken in their testimony. Although it is misconduct for a prosecutor to compel a defendant to say that another witness is lying, "questions about whether another witness was mistaken do not have the same potential to prejudice the defendant or show him or her in a bad light." State v. Wright, 76 Wn. App. 811, 822, 888 P.2d 1214 (1995). "Rather, such questions are merely objectionable to the extent that they are irrelevant and not helpful to the jury." Id. Mr. Tasby does not show that the prosecutor's imprudent examination prejudiced him.
In its closing argument in this case, the prosecutor, referring to Ms. Phelps' testimony, told the jury, "I thought she was very honest." RP at 310. Prosecutors are not permitted to state their personal beliefs about a defendant's guilt or innocence or about the credibility of the witnesses. State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003). Improper remarks are reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). "In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995). While the remark was inappropriate in this case, it did not materially affect the outcome of the trial. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Mr. Tasby's next claim, relating to the prosecutor's comment on a missing witness, is without merit. Mr. Tasby identified a potential witness during the cross-examination of Ms. Ramey in an effort to explain a remark attributed to Mr. Tasby. The State commented that Mr. Tasby did not present the witness associated with that remark, which Mr. Tasby stated was the punch line to a joke that Ms. Ramey took to be a threat against her as a witness.
It was not improper for the prosecutor to comment on the missing witness because it related to (1) evidence that would properly be part of Mr. Tasby's case, (2) it was in his interest to produce it, and (3) he failed to do so. State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991). And the witness was peculiarly within Mr. Tasby's power to produce. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
Finally, we disagree with Mr. Tasby's claim that the prosecutor impermissibly commented on his right to remain silent. The prosecutor stated in closing, "[Mr. Tasby] doesn't have to testify. But, an innocent man would certainly get up and tell you why he didn't do something." RP at 342. The prosecutor's statement was factually inaccurate — Mr. Tasby did testify. His constitutional right to remain silent was not implicated. Gregory, 158 Wn.2d at 836-37; see State v. Barboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006) (noting that a prosecuting attorney may not directly refer to the defendant's decision not to testify). And Mr. Tasby was not prejudiced. State v. Sweet, 138 Wn.2d 466, 481, 980 P.2d 1223 (1999).
Although there were some errors in Mr. Tasby's trial, none are reversible.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Kulik, J.
Stephens, J.