Opinion
No. 34328-2-II.
March 11, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02436-6, Serjio Armijo, J., entered January 3, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Van Deren, J.
Cory Lamont Thomas appeals his convictions of second degree burglary, making or having burglar tools, and obstructing a law enforcement officer. Thomas argues that the prosecutor committed misconduct by eliciting testimony about and commenting on his silence, misstating the evidence and arguing facts not in evidence, and misstating the law on accomplice liability and the State's burden of proof. He asserts that the trial court erred in failing to instruct the jury that it had to unanimously agree on which act constituted obstruction of a law enforcement officer. And he argues that his counsel was ineffective for failing to object to the prosecutor's misconduct and failing to propose a unanimity instruction. Finding no reversible error, we affirm.
FACTS
Early one morning in May 2005, police received a call about a suspected burglary in progress at a Lakewood smoke shop. Lakewood police officers Brian Wurts and Dave Butts responded and saw a mini van make a U-turn in front of the business. Suspecting that the vehicle was involved in the burglary, the officers followed it, activating their emergency lights to stop the van.
The van stopped and the officers got out of their car to approach it. As the officers reached the van's rear bumper, it drove away at a high rate of speed. The officers pursued. After about a mile, the van abruptly stopped and Officer Wurts pinned the driver's door shut with his car. Two men got out of the other side of the van and ran away. Officer Wurts stopped the third occupant, Jamelle Stevens, and took him into custody.
Officer Russell Martin and his canine partner Bo followed the track of one of the two men who had fled. Several blocks away, as Bo was still tracking, Thomas stood up from behind a car and said, "I give Report of Proceedings (RP) at 112. Officer Butts, who had accompanied Officer Martin and Bo, took Thomas into custody. Thomas refused to give his identity. Officer Butts searched Thomas incident to the arrest and recovered a pager and approximately $569 in cash.
Officer Martin attempted to track the third suspect, but Bo was unable to pick up a scent.
Officers at the scene of the burglary found that the business's front door had been pried open. They also found pry marks on the back door, a footprint on top of an air conditioner, and cut phone lines on the exterior of the building. Inside the store, there were cigarette cartons and matchbooks scattered on the floor, and several shelves were empty of cigarette cartons. Officers recovered the store's surveillance tape, which showed two men enter the store and gather cigarette cartons into two large bins while a third man waited outside.
Police later matched the footprint to the shoes Stevens was wearing when arrested.
At the police station, Sergeant Ryan Larson and Detective Les Bunton attempted to identify Thomas, but he repeatedly refused to give his name. The officers reviewed the surveillance video and identified Thomas as one of the men who entered the store by the white stitching on his dark sweatshirt. The sweatshirt in the video had a hood and a white patch on the sleeve; Thomas was wearing a sweatshirt that had a torn seam around the neck and a piece of Velcro where the video showed a patch. Eventually, when the officers took him to be fingerprinted, Thomas identified himself.
They identified Stevens as the other man in the store by the white tag on the back of his pants.
While the officers were reviewing the surveillance tape, they allowed Thomas to use the restroom in the holding cell. Detective Bunton noticed that Thomas was no longer wearing the dark sweatshirt when he came out of the restroom, but the detective thought another officer had collected it as evidence. When the detective realized that this was not the case, he looked for the sweatshirt in the holding cell restroom. There he found cloth in the toilet. Over the course of two days, maintenance workers recovered part of the sweatshirt from the toilet and part of it from inside the restroom's toilet paper dispenser.
When police executed a search warrant on the mini van, they discovered, along with numerous cartons of cigarettes in two large bins and matchbooks that matched those scattered on Page 4 the floor of the smoke shop, a crow bar, bolt cutters, wire cutters, a screwdriver, a flashlight, three pairs of gloves, ski masks with eyeholes, and walkie-talkies. They also found three sets of keys and rental paperwork showing that John Blasko had rented the van with Thomas listed as an additional driver.
The State charged Thomas with one count of second degree burglary, one count of making or having burglar tools, and one count of obstructing a law enforcement officer.
After Thomas was released on bail, he contacted the Lakewood police department to get his keys back. Detective Bunton identified one set of keys recovered from the mini van as the keys Thomas had described. The police held the keys as evidence.
At trial, Thomas testified that he had loaned the van to Stevens the day before the burglary. Thomas had planned to buy some cigarettes from Stevens, and Stevens called Thomas between 3:00 and 4:00 am to come pick them up. Thomas admitted that he knew the cigarettes were something that he "shouldn't maybe have been buying" and that it was illegal. RP at 379. Thomas drove Stevens's car to a store near the smoke shop. When Thomas arrived, someone got out of the van and drove away in Stevens's car and Thomas got in the van. As soon as the car pulled out of the parking lot, the police pulled it over.
Thomas testified that he ran from the police because he did not want to be caught up in whatever was going on. He denied being involved in the burglary. He also denied flushing anything down the toilet in the holding cell or stuffing anything up the toilet paper dispenser.
A jury convicted Thomas of all three counts.
ANALYSIS I. Prosecutorial Misconduct
A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct was both improper and prejudicial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). Prejudice exists if there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 2006). Where, as here, a defendant does not object or request a curative instruction, he has waived the error unless we find the remark "'so flagrant and ill-intentioned'" that no instruction could have cured the resulting prejudice. McKenzie, 157 Wn.2d at 52 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
A. Comment on Silence
Thomas argues that the prosecutor committed misconduct by eliciting testimony that Thomas exercised his right to remain silent and then relying on that testimony in closing argument.
Sergeant Larson testified that he went to the police station to find out more about what had happened and who the suspects were. He stated that Thomas "was in a holding cell and I was told that he did not want to comply and give up his name, who he was and so forth." RP at 139-40. Sergeant Larson tried to get Thomas to give his name so the officers could read him his Miranda rights and then interview him. He stated that Thomas "was just laying there on the bench, didn't really want to talk to me, told me I was the police, to figure out who he was." RP at 140.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Bunton testified that after he and Sergeant Larson interviewed Stevens, they returned to the holding cell and told Thomas that they wanted to talk to him; Thomas "said he didn't want to talk to [them] at all." RP at 176. Detective Bunton said that Thomas did not give his name or assist them in identifying him. The prosecutor asked Detective Bunton what he did after Thomas "refuses to talk to you," and "refuses to answer your questions." RP at 178, 180.
Officer Butts testified that when he arrested Thomas, he asked him for his name but Thomas would not answer and did not identify himself at all.
In cross-examining Thomas, the prosecutor asked:
Q. And you refused to give your name to the officers, correct?
A. Yes, I did.
Q. Even though you felt you, at that time, hadn't done anything wrong, correct?
A. I told the officers I hadn't done nothing [sic] wrong.
Q. Yes or no?
A. Yes.
Q. You did not give them your name?
A. No, I did not.
Q. You did not give them your date of birth?
A. I told them I did not want to talk to them at all if they were charging me with a crime.
RP at 385-86.
The prosecutor later began a question about Thomas's attempts to get his keys by reciting Thomas's actions: "So you run from the police, you don't give them your name, you don't give them your birth date, you fail to cooperate, you're then charged officially, you bail out, you have an attorney —" RP at 388. Thomas interrupted the question with an objection as to its length, but the trial court denied it and the prosecutor completed the question.
In closing, the prosecutor summarized the officers' testimony about Thomas's refusal to give his name. He later argued, "So he admits to you that he didn't give his name. . . . He runs and he fails to give his name and birthdate." RP at 429-30. In arguing that there was overwhelming evidence that Thomas was in the smoke shop, the prosecutor stated,
We have him wearing the same shirt that's on the videotape. We have him being chased immediately after the incident. We have him jumping up on a car saying, "I give up." We have him refusing to cooperate with the littlest of information, such as your name and date of birth. We have him later trying to flush his sweatshirt down the toilet. We have him ripping it up and shoving it in a toilet roll dispenser. We have him doing all these acts to conceal his identity, because he's on that videotape.
RP at 431.
And in arguing that Thomas was guilty of obstruction, the prosecutor stated,
There's no doubt that Mr. Thomas knew that he was being investigated for a crime. That's why he ran. He refused to give his name. He refused to give his date of birth. In not giving the simple information, he hindered the investigation. He then flushes things down the toilet. . . . From the get-go, he is hindering their investigation. He is willfully obstructing and trying to prevent things from occurring. RP at 434.
In his rebuttal closing argument, the prosecutor referred to Thomas's testimony that he met Stevens to buy cigarettes and stated,
Defense counsel says why would he even show up . . . if he knew he was facilitating this crime? Why run? Why not give your name? Why didn't he give his birthdate? Why did he try to flush his sweatshirt down the toilet? Why did he try to hide the other portion of it? . . . Because he was trying to hide his identity.
RP at 449.
In responding to Thomas's argument that the only thing that tied him to the crime was the stitching on his sweatshirt, the prosecutor listed other evidence tying Thomas to the burglary, including the fact that Thomas did not give his name or his birth date. And in responding to Thomas's argument that he did not hinder the investigation, the prosecutor stated, "But for Mr. Thomas not giving his name and birthday, they would have discovered who he was sooner." RP at 446.
Both the United States and Washington constitutions guarantee a criminal defendant the right to be free from self-incrimination, including the right to silence. U.S. Const. amend. V; Wash. Const. art. I, § 9. We give the same interpretation to the two provisions and liberally construe the right against self-incrimination. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996); State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). A defendant has the right to silence both before and after arrest. Easter, 130 Wn.2d at 238. The purpose of the right is to "spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government." Doe v. United States, 487 U.S. 201, 213, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).
The right against self-incrimination prohibits the State from using a defendant's constitutionally protected silence as substantive evidence of guilt. Easter, 130 Wn.2d at 236. Thus, the State cannot circumvent the right to silence by questioning arresting officers about a defendant's silence or commenting on that silence during closing argument to infer guilt. Easter, 130 Wn.2d at 236.
But even where a suspect invokes the right to remain silent, the police may ask routine questions during the arrest and booking process. See State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005 (1987) (citing United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974)). Such questions are permissible because they rarely elicit an incriminating response. Wheeler, 108 Wn.2d at 238. A defendant may assert the right to silence only to resist compelled disclosures of incriminating information. Doe, 487 U.S. at 212. Thomas makes no claim that his name or birth date were incriminating information in the context of this case. This information did not relate him to the burglary or reveal his thoughts or beliefs to the State. See Doe, 487 U.S. at 213.
Questions that are reasonably likely to elicit an incriminating response do not fall within this exception. See Wheeler, 108 Wn.2d at 238-39 (question about whether defendant knew a codefendant was not part of routine booking process and violated defendant's right to silence). In certain circumstances, a suspect's name or birth date could be incriminating. See, e.g., City of Fargo v. Wonder, 651 N.W.2d 665, 669-70 (N.D. 2002) (asking partygoers who had consumed alcohol whether they were under the age of 21 not routine booking question).
Moreover, evidence that a defendant refused to give his name to a police officer, when coupled with other evasive conduct, can support a conviction for obstructing a law enforcement officer. State v. Turner, 103 Wn. App. 515, 525-26, 13 P.3d 234 (2000). A suspect does not have the right to hinder or delay an investigation by refusing to identify himself, when the refusal is coupled with other evasive conduct. State v. Contreras, 92 Wn. App. 307, 316-17, 966 P.2d 915 (1998). Thomas's refusals to identify himself, both when initially detained and at the police station, coupled with running from the police and flushing his sweatshirt down the toilet, hindered and delayed the officers' ability to investigate the burglary.
A person obstructs a law enforcement officer when he willfully hinders, delays, or obstructs a law enforcement officer in the discharge of his or her official duties. RCW 9A.76.020.
Evidence that the officers asked Thomas for his name and birth date and Thomas refused to give this information supported the obstruction charge and was not a comment on constitutionally protected silence. The prosecutor did not commit misconduct in eliciting this testimony, nor was it misconduct to cross-examine Thomas about his refusal. And the prosecutor's summary of the officers' testimony and argument that Thomas's refusal to identify himself supported the obstruction charge was not misconduct.
A defendant's mere refusal to answer an officer's questions can support an obstruction charge only when coupled with some other action. Contreras, 92 Wn. App. at 316 (citing State v. White, 97 Wn.2d 92, 106, 640 P.2d 1061 (1982)). We need not determine here whether relying solely on a defendant's silence in support of an obstruction charge violates the defendant's right to silence.
More problematic, however, are the prosecutor's closing arguments linking Thomas's refusal to give identifying information with the burglary charge. The State may not make closing arguments about a defendant's silence to infer guilt from that silence. Easter, 130 Wn.2d at 236. Here, the prosecutor characterized Thomas's refusal to give his name and birth date as part of the "overwhelming" evidence that Thomas was inside the smoke shop. RP at 431. He asked why Thomas would have refused to give his name if he were not involved in the burglary. And in refuting Thomas's claim that the only evidence linking him to the smoke shop was the stitching on the sweatshirt, the prosecutor included Thomas's refusal to give his name and birth date as evidence tying Thomas to the burglary. In all of these statements, the prosecutor inferred from Thomas's silence that he was guilty of the burglary. Accordingly, these statements were impermissible comments on Thomas's right to silence.
Because the prosecutor's closing argument constituted an impermissible comment on Thomas's right to remain silent, the State bears the burden of showing the error was harmless. Easter, 130 Wn.2d at 242. A constitutional error is harmless if we are convinced that any reasonable jury would have reached the same result, absent the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). We examine only the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 426.
The untainted evidence consisted of Thomas's presence in the van immediately after the burglary and his flight when police officers stopped the van; the presence in the van of a pry bar, bolt cutters, gloves, and masks, along with cigarettes and matchbooks identical to those taken from the smoke shop; the rental receipt showing that Thomas was a registered driver of the van used in the burglary; the surveillance video showing a person inside the smoke shop wearing a hooded sweatshirt with distinctive white stitching and a white patch on the sleeve; photos showing Thomas wearing a sweatshirt with the same white stitching, a torn seam around the neck, and Velcro in the place where the video showed a patch; Thomas's attempts to alter and destroy the sweatshirt; and Thomas's attempts to retrieve the keys that police officers found in the van. This is overwhelming evidence supporting the jury's verdict. Accordingly, we are satisfied that the error was harmless beyond a reasonable doubt. Cf. State v. Evans, 96 Wn.2d 1, 2, 5, 633 P.2d 83 (1981) (evidence that police found defendant hiding inside a building with a broken safe and hammers and chisels nearby was overwhelming evidence in support of defendant's burglary conviction, making comment on defendant's silence harmless beyond a reasonable doubt).
B. Accomplice Liability
Thomas next asserts that the prosecutor committed misconduct by misstating the law on accomplice liability and misstating facts related to that issue.
In closing, the State argued that, even if the jury did not believe that Thomas entered the smoke shop, they could find him guilty as an accomplice. The prosecutor reviewed Thomas's testimony that he did nothing wrong, and stated,
Mr. Thomas gets in the van and says the police immediately pull him over. He hasn't done anything wrong, except for the fact he's going behind the B I to purchase $600 worth [of] cigarettes. Cigarettes he says he shouldn't have been buying. I would submit to you he knew they were stolen. That's why he shouldn't have been buying them. He testified that he provided the van to get the cigarettes. . . . The cigarettes that were stolen from the convenience store. If you buy his story, then he has admitted to you, that by way of an accomplice, he helped them commit this burglary in providing that van, knowing they were going to use it to get stolen cigarettes. He also provided the van that was used as a getaway.
RP at 428-29.
In reviewing the accomplice liability instruction, the prosecutor argued that Thomas provided the van to Stevens knowing Stevens would use it to commit a crime in order to get the cigarettes, and therefore Thomas was guilty as an accomplice. The prosecutor concluded, "His own admission makes him guilty of that crime. Also his presence by the evidence makes him guilty of that crime. Either way, Mr. Thomas is guilty of burglary in the second degree." RP at 433. The prosecutor also argued that Thomas encouraged Stevens to commit the burglary by agreeing to purchase the stolen cigarettes.
Thomas contends that the prosecutor misstated the evidence when he said that Thomas admitted that he lent the van to Stevens so Stevens could use it to obtain stolen cigarettes. Thomas testified that he did not know why Stevens wanted to borrow the van. He also testified that he expected Stevens to return the van when Stevens came back with the cigarettes Thomas was planning to buy from him. And Thomas admitted that he buying the cigarettes was illegal. The prosecutor's statement that Thomas lent Stevens the van so Stevens could obtain stolen cigarettes was a permissible inference from the evidence.
Thomas also claims that the prosecutor misstated the law on accomplice liability when he asserted that Thomas was an accomplice to the burglary because he lent Stevens the van to obtain stolen cigarettes and when he stated that Thomas could be guilty as an accomplice because of his presence by the evidence. A person is liable as an accomplice if, with knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests another person to commit the crime, or aids or agrees to aid another person in planning or committing the crime. RCW 9A.08.020(1), (2)(c), (3). Although Thomas's testimony supports an inference that he lent Stevens the van so that Stevens could obtain stolen cigarettes, it does not necessarily support an inference that he knew Stevens would use the van to commit a burglary. Also, mere presence at the scene of a crime alone is insufficient to establish accomplice liability. State v. Roberts, 80 Wn. App. 342, 355-56, 908 P.2d 892 (1996). Thomas's presence by the stolen cigarettes alone did not establish that he was an accomplice to the burglary.
But because he did not object at trial, Thomas must show that the prosecutor's misstatements were so flagrant and ill-intentioned that an instruction could not have neutralized any resulting prejudice. McKenzie, 157 Wn.2d at 52. The prosecutor's misstatements occurred as part of the State's alternative argument on accomplice liability. And, as discussed above, the State presented overwhelming evidence that Thomas committed the burglary himself, not as an accomplice. Moreover, the trial court instructed the jury to "disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions." Clerk's Papers at 82. This statement is not so flagrant that an instruction could not have neutralized any prejudice.
C. Reasonable Doubt
Thomas also argues that the prosecutor misstated the reasonable doubt standard.
In his rebuttal argument, after reading the reasonable doubt instruction, the prosecutor stated,
If you say we know he did it, we feel that he did it, the State has proved to you beyond a reasonable doubt that he did it. Why? Because if you know he did it, you have an abiding belief. If you feel he did it, you have an abiding belief. Follow the instructions. Listen to your head. Listen to your heart. Find the defendant guilty of all three charges.
RP at 450-51.
Thomas contends that this statement trivialized and reduced the State's burden of proof because people can "know" or "feel" something in their ordinary lives without having the degree of certainty required to meet the beyond a reasonable doubt standard. Br. of Appellant at 35.
But the trial court correctly instructed the jury on the reasonable doubt standard. And the prosecutor read this instruction before making this statement and concluded by directing the jury to follow the instructions. He did not tell the jurors to rely on the decision-making process they use in their daily lives, nor did he attempt to lower the State's burden of proof. While it may be true, as Thomas asserts, that attempts to explain the term "reasonable doubt" "do not usually result in making it any clearer to the minds of the jury," Miles v. United States, 103 U.S. 304, 312, 26 L. Ed. 481 (1880), the prosecutor's attempts here do not rise to the level of flagrant and ill-intentioned misconduct.
II. Jury Unanimity
Thomas asserts that the trial court should have instructed the jury that it had to unanimously agree on which act constituted obstructing a law enforcement officer. He maintains the State argued that he could have committed the offense by either running from the police, refusing to identify himself when apprehended, refusing to identify himself at the police station, or flushing his sweatshirt down the toilet at the police station. And because his refusal to identify himself alone cannot support an obstruction conviction, he reasons, the error cannot be harmless because we cannot determine whether the jury based its verdict on a legally sufficient ground.
Although Thomas did not propose a unanimity instruction below, this is a manifest error affecting a constitutional right that he may raise for the first time on appeal. RAP 2.5(a)(3); State v. Fiallo-Lopez, 78 Wn. App. 717, 725, 899 P.2d 1294 (1995).
A criminal defendant has the right to a unanimous jury verdict. State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980). Where the State presents evidence of several acts that could form the basis of one charge, it must tell the jury which act to rely on in its deliberations, or the court must instruct the jury to agree on a single criminal act. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991) (citing State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988)). But where the State presents evidence of a single continuing offense rather than multiple acts, the trial court need not instruct the jury as to unanimity. See State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984 ), rev'd on other grounds by Kitchen, 110 Wn.2d at 405; see also Crane, 116 Wn.2d at 326.
The State maintains that it presented evidence of Thomas's refusals to identify himself and his attempts to destroy evidence as a continuous course of conduct.
To determine if Thomas's conduct forms one continuing offense, we consider whether the acts occurred at separate times or in separate places. State v. Marko, 107 Wn. App. 215, 220-21, 27 P.3d 228 (2001) (citing Petrich, 101 Wn.2d at 571). In Marko, where the defendant's acts of intimidating a witness took place in one continuous 90-minute period in the same location, we found a continuous course of conduct. Marko, 107 Wn. App. at 221; see also State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (holding that because the defendant's conduct occurred in one place, during a short time frame, and between the same aggressor and victim, a continuous course of conduct existed). But in Petrich, the court found multiple separate acts of indecent liberties because the acts occurred at separate times and in separate places; the only connection was the sole victim. Petrich, 101 Wn.2d at 571; see also State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911) (finding separate acts existed where evidence showed three distinct sexual acts occurring at different times and places).
The evidence against Thomas shows two separate and distinct commissions of the crime of obstructing. First, the State presented evidence that Thomas ran from the officers and refused to identify himself after the police caught him. This evidence is sufficient to show Thomas obstructed law enforcement. See State v. Little, 116 Wn.2d 488, 498, 806 P.2d 749 (1991) (flight from the police constitutes obstruction); see also Turner, 103 Wn. App. at 525-26, (defendant's refusal to identify himself supports obstruction conviction where defendant took other action that hindered or delayed a law enforcement officer). Second, the State presented evidence that Thomas refused to identify himself and attempted to destroy evidence by flushing part of his sweatshirt down the toilet at the police station. This evidence is also sufficient to show Thomas obstructed law enforcement. Cf. Turner, 103 Wn. App. at 525-26. These acts took place at different times and in different locations and affected different law enforcement officers. Thomas's acts before and after his arrest were not a continuing course of conduct but were instead separate and distinct acts of obstructing.
In multiple acts cases, when the State fails to elect which incident it relies on for the conviction and the trial court fails to give a unanimity instruction, we will find the error harmless only if the State proved each incident beyond a reasonable doubt. Kitchen, 110 Wn.2d at 405-06.
With respect to the first incident, the evidence showed that Thomas was in a van that sped away from officers, he ran from the officers after the van stopped, the officers had to call a K-9 unit to track him, and he would not identify himself after the officers found him. This evidence would lead any rational juror to conclude beyond a reasonable doubt that Thomas willfully hindered or delayed the officers' attempts to investigate the burglary.
With respect to the second incident, the evidence showed that Thomas again refused to identify himself. He attempted to destroy his sweatshirt by flushing part of it down the toilet and hiding the rest in the toilet paper dispenser; it took maintenance workers two days to remove Thomas's sweatshirt from the toilet. Again, no rational juror could have a reasonable doubt that these actions obstructed the officers in their investigation of the burglary. Because both Thomas's pre-and post-arrest behavior would lead any rational juror to conclude beyond a reasonable doubt that Thomas is guilty of obstructing a law enforcement officer, the error here was harmless.
III. Ineffective Assistance of Counsel
Thomas argues that his counsel was ineffective for not objecting to the prosecutor's comments on his silence or the prosecutor's misstatements of fact and law and for not proposing a unanimity instruction.
A defendant claiming ineffective assistance must show that (1) his trial counsel's representation was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Representation is deficient if it falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. Prejudice occurs when, but for the deficient performance, there is a reasonable probability the outcome would have been different. In re Pers. Restraint of Pirtle, 135 Wn.2d 467, 487, 965 P.2d 593 (1998).
As discussed above, the testimony about Thomas's refusal to identify himself supported his obstruction conviction and was not error. And although the prosecutor impermissibly used Thomas's refusal to identify himself to imply Thomas was guilty of the burglary, there was overwhelming evidence to support the jury's verdict. Thomas cannot establish that his counsel's failure to object to these statements prejudiced him. And where there was overwhelming evidence that Thomas committed the burglary himself, not as an accomplice, Thomas cannot show that counsel's failure to object to the prosecutor's misstatement of the law on accomplice liability prejudiced him. Finally, any error in the failure to propose a unanimity instruction was harmless because there was sufficient independent evidence to support each incident of obstruction. Accordingly, Thomas cannot show that his counsel's failure to propose a unanimity instruction prejudiced him.
IV. Statement of Additional Grounds
A. Failure To Address Conflict Of Interest
Thomas argues that the trial court erred in failing to properly address his alleged conflicts of interest with his first attorney. Thomas asked the trial court to find a conflict of interest with the Department of Assigned Counsel (DAC) and requested to represent himself.
The trial court did not rule on the alleged conflict, but granted Thomas's request to represent himself. The court later reappointed Thomas's first attorney from DAC with Thomas's consent, but eventually it disqualified the attorney because of an irreconcilable breakdown of communication. The trial court appointed a new attorney who did not work for DAC. The trial court's failure to rule on the alleged conflict with DAC is moot.
B. Denial Of Counsel
Thomas asserts that the trial court erred in allowing him to be unrepresented at a pretrial hearing. Thomas's second attorney was not present when the trial court appointed him after disqualifying Thomas's first attorney. But the only matters discussed after the appointment were Thomas's own objections and attempts to file motions. Thomas's new counsel was present for his next hearing. The trial court did not deny Thomas's right to counsel.
C. Denial Of Self-Representation
Thomas argues that the trial court erred in denying his later requests to represent himself. At the hearing where the trial court appointed Thomas's second attorney, Thomas requested to represent himself in one of his two other criminal cases only. The trial court denied the request, finding that it was not unequivocal. Thomas later renewed the request and the trial court again denied it. Thomas did not again request to represent himself in this case after agreeing to the reappointment of his first attorney. Any error here does not relate to this case.
D. Violation Of RAP 5.3(j)
Thomas argues that the trial court violated RAP 5.3(j) by refusing to give him a notice for discretionary review form. RAP 5.3(j) provides that "[t]he trial court clerk shall, if requested by a defendant in a criminal case in open court or in writing, supply . . . a notice for discretionary review form, . . . and file the forms upon completion by the defendant." When Thomas requested this form, the trial court stated that it was not a form the court provides and the court clerk did not give Thomas the form. However, Thomas later stated that he did file a notice of discretionary review. He has not shown that the trial court's failure to give him the form prejudiced him.
Thomas incorrectly refers to RAP 5.2(j).
E. Speedy Trial
Thomas argues that the trial court violated his speedy trial rights.
The record does not show when Thomas was arraigned. On September 27, 2005, the trial court stated that speedy trial expired on October 27, 2005. When the court disqualified Thomas's first attorney on October 19, that date became the new commencement date under CrR 3.3(c)(2)(vii), making the new deadline December 19, 2005. CrR 3.3(b)(1)(i). On November 21, the trial court granted a continuance until January 3, 2006, under State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984). Under CrR 3.3(b)(5), Thomas's time for trial expired 30 days after the new trial date, on February 2, 2006. On January 3, the trial court granted another Campbell continuance, setting the trial date for January 25 and thereby resetting the time for trial to February 24, 2005. CrR 3.3(b)(5). After another continuance, Thomas's trial began on February 6, 2006, well within the time for trial. The trial court did not violate Thomas's speedy trial rights.
Thomas also asserts that the trial court delayed his trial from January 3 to January 25 solely because no courtroom was available. There is nothing in the record to support this claim. It appears to relate only to his other cases.
F. Rights To Compulsory Process and Stand-By Counsel
Thomas asserts that the trial court denied him the right to obtain compulsory process in his preparation for trial and denied him stand-by counsel. But Thomas represented himself in this case only between September 27 and October 4; he was represented by an attorney at all other times. These claims are without merit.
G. Failure to Give Miranda Warnings
Thomas argues that the trial court erred in admitting his statements to police about returning his keys because there is no evidence that they read him his Miranda rights. Thomas was not in custody when he asked the police to return his keys. And police must read a suspect the Miranda warnings only before engaging in custodial interrogation. State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995). The trial court did not err in admitting the statements.
H. Instruction Commenting On the Evidence
Thomas contends that jury instruction 17, which instructed the jury that Butts, Larson, and Bunton are law enforcement officers, was a comment on the evidence. Analogizing to cases where the trial court instructed the jury on the victim's age where it was an element of the crime, Thomas asserts that whether the officers were in fact law enforcement officers was an element of the crime of obstructing a law enforcement officer and to so instruct the jury was per se prejudicial error.
Thomas incorrectly states that this was instruction 12.
An instructional error requires reversal only when it relieves the State of its burden of proving every essential element of the crime. State v. DeRyke, 149 Wn.2d 906, 912, 73 P.3d 1000 (2003). Here, the essential elements of obstructing a law enforcement officer are (1) that the action or inaction in fact hinders, delays, or obstructs; (2) that the hindrance, delay, or obstruction be of a public servant in the midst of discharging his official powers or duties; (3) that the defendant knows that the public servant is discharging his duties; and (4) that the defendant knowingly does the action or inaction. RCW 9A.76.020(1); Contreras, 92 Wn. App. at 315-16 (quoting State v. CLR, 40 Wn. App. 839, 841-42, 700 P.2d 1195 (1985)).
An instruction that removes a disputed issue of fact from the jury's consideration impermissibly relieves the State of its burden to prove all elements of the crime. See State v. Becker, 132 Wn.2d 54, 65, 935 P.2d 1321 (1997). It was undisputed that Butts, Larson, and Bunton were law enforcement officers. Instruction 17 did not relieve the State of its burden of proving that they were law enforcement officers who were in the midst of discharging their official duties.
I. Incomplete Poll On Jury's Verdict
Thomas points out that the report of proceedings shows no response from juror 3 when the trial court polled the jury. All the other jurors stated that the guilty verdict was their verdict and the entire panel's verdict.
CrR 6.16(a)(3) provides that the trial court may direct the jury to continue deliberations if all jurors do not concur in the poll. Here, the trial court excused the jury without further comment after completing the poll. Nothing in the record shows that juror 3 responded in any way that caused concern to the trial court or Thomas's counsel. Thomas has not shown that the incomplete jury poll prejudiced him.
J. Prosecutorial Misconduct
Thomas contends that the prosecutor made additional misstatements of the evidence other than those his appellate counsel argued above.
In closing, the prosecutor argued that Thomas tried to hide his sweatshirt and, referring to Thomas's testimony, stated, "He tells you, I don't know what happened to it. It just was there." RP at 426. Thomas points out that his testimony was that he did not flush anything down the toilet, and he did not say that it was just there. If anything, this is a slight mischaracterization of Thomas's testimony and does not rise to the level of flagrant and ill-intentioned argument.
The prosecutor noted that the rental agreement stated that the van was due back five days before the burglary took place, and he argued that Thomas kept it to use in the burglary. Thomas maintains that he had extended the rental agreement so that it was not overdue at the time of his arrest and the prosecutor was arguing facts not in evidence. But the record contains no evidence of this extension. The prosecutor did not commit misconduct by making inferences from the information in the rental agreement.
The prosecutor stated that Thomas "was to meet them" to buy the cigarettes and that everyone involved in the burglary had their own vehicles but still "they" rented a van, and the police pulled Thomas over as soon as he got in the van. RP at 428. Thomas asserts that he testified that Stevens called him to come buy the cigarettes, not that it was a prearranged meeting, that he went to meet Stevens, not "them," that there is no evidence he and Stevens rented the van together, and Stevens was driving so police pulled Stevens, not Thomas over. These subtle distinctions between Thomas's testimony and the State's closing argument do not constitute prosecutorial misconduct.
Thomas asserts that Detective Bunton testified only that the keys Thomas wanted returned had an Albertson's card and chrome hook on the key chain, but the prosecutor stated that the key chain had an Albertson's card, some chrome, and eight keys. Bunton did, however, testify that the key chain had eight keys. This was not a misstatement of the evidence.
K. Motion For Mistrial
On the second day of trial, Thomas moved for a mistrial based on ineffective assistance of counsel, claiming that his counsel was sleeping during the trial. The trial court denied the motion, stating that it found the motion "completely unsubstantiated" and that it had not seen counsel sleeping. RP at 214. Thomas argues that the trial court erred in refusing to grant him a mistrial.
The grant or denial of a motion for a new trial is within the trial court's discretion and we will reverse it only for an abuse of that discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 301 (1994). The trial court is in the best position to observe what goes on in the courtroom. It was not an abuse of discretion for the trial court to deny the motion based on its observations that Thomas's counsel was not sleeping.
L. Ineffective Assistance
Thomas argues that his counsel was ineffective for conceding in closing that Thomas's attempt to hide the sweatshirt was attempted obstruction but that it was unsuccessful, and was ineffective for conceding that Thomas aided Stevens by lending him the van but arguing that Thomas did not know Stevens would use it to commit a burglary. These arguments were legitimate trial tactics and do not constitute ineffective assistance.
Thomas also asserts that he had a conflict of interest with his counsel. But he appears to base this argument on events in his two other criminal cases and does not point the court to anything in the record in this case that shows that he had a conflict with counsel.
Thomas also maintains that his counsel disregarded Thomas's interests by stating at sentencing that Thomas "spent some time in [Juvenile Rehabilitation Administration] and he didn't get the help there." RP 462-63. He cites to a death penalty case in which the defense attorney, among other deficiencies, made public statements that his client was not amenable to rehabilitation. Osborn v. Shillinger, 861 F.2d 612, 628 (10th Cir. 1988). But Thomas's counsel also argued that Thomas could benefit from counseling and that the failure of prior efforts to rehabilitate him did not justify an exceptional sentence. Counsel's performance at sentencing was not deficient.
M. Judicial Misconduct
Thomas argues that the trial court committed judicial misconduct when it denied his request for permission to attend his grandmother's funeral. Although reluctant to let Thomas leave after he was sentenced to prison, the trial court initially granted this request. But when Thomas refused to sign the judgment and sentence or to put his fingerprints on it, the trial court cancelled the order. Given Thomas's uncooperative actions at sentencing, the trial court did not commit misconduct when it cancelled the order.
N. Grounds Related Only To Other Case
Many of Thomas's arguments duplicate those he presented in his statement of additional grounds in his linked case, No. 34335-5. Of these, several relate only to that case.
Thomas argues that the judgment and sentence in this case violates Blakely because, in the event he violates his community custody conditions, he may serve more time than the standard range. The trial court imposed a 22-month standard-range sentence on the burglary charge, to run concurrent with the sentences in Thomas's other case. But the judgment and sentence for this case does not impose community custody.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Thomas also asserts that the trial court erred in denying his motion to change venue. But the record does not show that Thomas asked for a change of venue in this case.
Finally, Thomas faults the trial court for engaging in ex parte communications with the prosecutor. The trial court signed a material witness warrant for a witness in Thomas's other case outside of Thomas's presence. But Thomas points to no alleged ex parte communications relating to this case.
Because these issues relate only to Thomas's other convictions, we will not discuss them here.
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.
HOUGHTON, C.J. and VAN DEREN, J., concur.