Opinion
No. 22711-1-III
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 02-1-01222-2. Judgment or order under review. Date filed: 01/12/2004. Judge signing: Hon. Linda G Tompkins.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Office, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Donald Ray Thomas was convicted of manufacturing methamphetamine. He challenges the sufficiency of the evidence. Mr. Thomas also contends that he was prejudiced by ineffective assistance of counsel and prosecutorial misconduct. We disagree with all of his contentions and affirm.
FACTS
Officers with the Spokane Police Department went to 1307 East Longfellow Street in Spokane on December 16, 2001. The officers intended to arrest Kimberly Fawver on a nationwide warrant out of Texas. The woman who answered the door resembled a recent booking photo of Ms. Fawver. She started backing up into the interior of the residence. Police entered the house to place her under arrest. Mr. Thomas was on the couch in the living room. Both the woman and Mr. Thomas denied that the woman was Ms. Fawver. The officers searched the house looking for other female occupants who could be Ms. Fawver. In so doing, the officers found what appeared to be a methamphetamine laboratory. Mr. Thomas told police he had been living in the house for approximately one week. He denied any knowledge of a methamphetamine laboratory on the premises.
Mr. Thomas's fingerprints were ultimately identified on three pieces of glassware seized from the methamphetamine lab area in the basement. First, there was a jar with a bilayer solution consisting of `toluene over a strong base that contained amphetamine, methamphetamine, P2P [Phenyl-2-Propanone], and 232 compound.' Report of Proceedings (RP) at 62. This material is consistent with the middle stages of methamphetamine manufacture. From this solution, methamphetamine could be `salted out.' RP at 62. A second jar contained toluene over a strong base. Toluene could be used in the manufacture of methamphetamine. Apparently the contents of the third item, a pitcher with a red substance, were not analyzed.
Mr. Thomas was arrested and charged with one count of manufacturing a controlled substance — methamphetamine.
After the State presented the evidence at trial as outlined above, Mr. Thomas presented his case. He testified that he lived at 304 East Hartson and not at the Longfellow address. This assertion was supported by another witness. He explained his presence at the Longfellow residence by stating he was helping the residents at that address do some electrical and painting work. He said he had been in the basement of the Longfellow residence to work on electrical problems, but he had not seen anything out of the ordinary.
Mr. Thomas testified that he suffers from sleep apnea; that when asleep, his airway closes up and he periodically stops breathing. He claims that on the evening of his arrest, he had earlier set out for the hospital, but he got tired and pulled over into a convenience store parking lot. He attributed his tiredness to sleep apnea. He claimed that somebody in the store saw him in his car and thought he was having some sort of medical emergency and called paramedics. The paramedics responded and checked on him. He ultimately decided to walk the six blocks to the Longfellow residence instead of going to the hospital. Mr. Thomas said he was sleeping on the couch when police arrived. He denied being involved in manufacturing methamphetamine.
After the defense rested, Mr. Thomas moved to dismiss. The motion was denied.
In closing argument, the deputy prosecutor argued:
The whole story about how Mr. Thomas happened to be there that night, I do submit to you, is not credible or believable. We don't have any evidence that he had sleep apnea in 2001 from a doctor. We don't have any of his medical history from a doctor which is a witness that is peculiarly within his control, because as men and women of common experience, which the instruction tells you to [sic] can use, you know your medical records are private and they're yours. But we don't have a doctor, we don't have anybody from the VA.
RP at 171-72.
Mr. Thomas was convicted as charged.
ANALYSIS Sufficiency of Evidence
A defendant may challenge the sufficiency of the evidence at several stages of the prosecution: before trial, at the end of the State's case in chief, at the end of the evidence, after the verdict, and on appeal. State v. Jackson, 82 Wn. App. 594, 607-08, 918 P.2d 945 (1996). At each stage, the court examines the sufficiency of the evidence based on the most complete record available at the time of the challenge. Id. at 608-09.
A review of the sufficiency of the evidence involves viewing the evidence in the light most favorable to the State to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The State need not disprove all conceivable hypotheses consistent with innocence, so long as the record contains sufficient probative facts from which the jury could reasonably find guilt beyond a reasonable doubt. State v. Bridge, 91 Wn. App. 98, 100, 955 P.2d 418 (1998). We accord circumstantial and direct evidence the same value. See State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). A challenge to the sufficiency of evidence admits the truth of the State's evidence and all reasonable inferences. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
In order to convict on the charge of manufacture of methamphetamine, the State had to prove that Mr. Thomas participated in the (1) unlawful, felonious, and (2) knowing (3) manufacture of (4) methamphetamine. See former RCW 69.50.401(a)(1)(ii) (1998); State v. Hundley, 126 Wn.2d 418, 421, 895 P.2d 403 (1995). `Manufacture' is shown by involvement in the `production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.' RCW 69.50.101(p). A jury may infer from sufficient circumstantial evidence that methamphetamine had been manufactured and that the defendant was guilty of that offense. State v. McPherson, 111 Wn. App. 747, 757-58, 46 P.3d 284 (2002). Fingerprints alone are sufficient to support a conviction when the facts allow a reasonable inference that the fingerprints could only have been impressed at the time the crime was committed. State v. Todd, 101 Wn. App. 945, 952, 6 P.3d 86 (2000), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003); State v. Lucca, 56 Wn. App. 597, 599, 784 P.2d 572 (1990).
Here, Mr. Thomas's fingerprints were found on three pieces of glassware. One of the pieces of glassware was a half-full jar containing bilayer liquid. The evidence shows that the bilayer liquid was toluene over a strong base containing methamphetamine, amphetamine, P2P, and 232 compound. P2P and 232 are byproducts of methamphetamine manufacture. The state of the materials was consistent with a middle stage in the manufacturing process. This jar contained a solution from which methamphetamine could be salted out.
A second glass jar contained a bilayer liquid. In it was toluene over a strong base. Though it did not contain any controlled substances or precursors, the toluene could be used in the manufacture of methamphetamine. The third piece of glassware was a pitcher with a reddish liquid. The substance in the pitcher was not analyzed, but the presence of Mr. Thomas's fingerprints tends to strengthen the inference that he was in the area of the methamphetamine lab.
The fact that Mr. Thomas's fingerprints were on all three pieces of glassware found in the methamphetamine lab area supports a reasonable inference that the fingerprints could only have been impressed at the time methamphetamine was being manufactured. The fact that the methamphetamine manufacture was not complete does not affect the analysis. State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004); State v. Davis, 117 Wn. App. 702, 708, 72 P.3d 1134 (2003). Also, the State was not required to show that Mr. Thomas was involved in every step of the manufacturing process. Keena, 121 Wn. App. at 147.
Mr. Thomas also criticizes what he perceives to be a lack of evidence that he lived in the residence in which the methamphetamine lab was found. However, he gave a statement to police in which he admitted he had been living there for a week.
Prosecutorial Misconduct
We normally review trial court rulings based on allegations of prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). However, when a defendant fails to object to an allegedly improper remark, the argument `is considered waived 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." Id. (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)). We review a prosecutor's allegedly improper remarks in "the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Souther, 100 Wn. App. 701, 714-15, 998 P.2d 350 (2000) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
It is improper for a prosecutor to suggest that a defendant has a duty to present exculpatory evidence. See State v. Barrow, 60 Wn. App. 869, 872, 809 P.2d 209 (1991). A prosecutor may argue reasonable inferences from the evidence presented and may attack a defendant's exculpatory theory. See State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991); Barrow, 60 Wn. App. at 872-73. Under the `missing witness' doctrine, the prosecutor may comment on the defendant's failure to call a logical witness whose production is peculiarly within the control of the defense, whose testimony would corroborate the defendant's testimony, and whose testimony is not privileged, necessarily self-incriminating, unimportant, or cumulative. Blair, 117 Wn.2d at 486-87; State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990).
Here, the State argued that Mr. Thomas's uncorroborated exculpatory testimony as to why he was in the residence when police arrived was unconvincing. Even if the prosecutor's argument was improper, it was not so flagrant and ill-intentioned that it could not be cured by a jury instruction. In fact, here, the jury was instructed that counsel's remarks were not evidence, that the State had the burden of proof and Mr. Thomas does not, and that the defendant was presumed innocent. We presume juries follow instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Any prosecutorial misconduct was not prejudicial.
Effective Assistance of Counsel
Review of a challenge to effective assistance of counsel is de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). We start with the strong presumption that counsel's representation was effective. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (citing State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)). There is also a strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). A claim of ineffective assistance of counsel will not stand if counsel's actions relate to the theory of the case or can be seen as trial tactics. State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001). Accordingly, the appellant must demonstrate from the record the absence of legitimate strategic or tactical reasons to support counsel's challenged conduct. McFarland, 127 Wn.2d at 336.
To establish ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A showing of deficiency "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Cienfuegos, 144 Wn.2d at 226-27 (quoting Strickland, 466 U.S. at 687). This requires evidence that defense counsel's representation "fell below an objective standard of reasonableness based on consideration of all the circumstances." In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 P.3d 17 (2002) (quoting McFarland, 127 Wn.2d at 334-35). To meet the standard of prejudice under the test "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Cienfuegos, 144 Wn.2d at 227 (quoting Strickland, 466 U.S. at 687). Mr. Thomas `bears the burden of showing there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' State v. Allen, 57 Wn. App. 134, 140, 788 P.2d 1084 (1990).
Mr. Thomas contends that his counsel was ineffective for failing to object to the prosecutor's closing argument, failing to object to the State's failure to propose a missing witness instruction, and failing to file and argue a posttrial motion for dismissal for insufficient evidence. Aside from complaining that `[r]easonably effective counsel would have handled all three of those matters differently than current trial counsel, with the possible result that this case would not (and should not) be here on appeal,' Mr. Thomas does not even attempt to examine the proper legal standards or support each claim with authority or argument. Appellant's Br. at 10. Given his inadequate briefing on this issue, we may decline to address it. State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993). Nonetheless, there is nothing in the record to show that counsel's performance was deficient or that deficient performance prejudiced Mr. Thomas.
Prosecutor's Closing Remarks. A decision on whether to object is a classic example of a trial tactic. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal. Id.; State v. Ermert, 94 Wn.2d 839, 849-50, 621 P.2d 121 (1980). To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). As previously noted, the prosecutor's remarks in closing argument were not so flagrant or ill intentioned that a curative instruction could not have remedied any prejudice the defendant or his counsel may have perceived. Further, an objection concerning Mr. Thomas's medical status would not have come on testimony central to the State's case. Once Mr. Thomas raised the issue, his credibility was at issue. The prosecutor's statements are reasonable inferences from the evidence presented and address Mr. Thomas's credibility as a witness. State v. Neidigh, 78 Wn. App. 71, 74, 895 P.2d 423 (1995); State v. Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990).
Missing Witness. `[U]nder proper circumstances the prosecutor may comment on [the defense's] failure to call a witness under the missing witness doctrine.' State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). If `a party fails to call a witness to provide testimony that would properly be a part of the case and is within the control of the party in whose interest it would be natural to produce that testimony, . . . the jury may draw an inference that the testimony would be unfavorable to that party.' Id. A missing witness instruction would not benefit Mr. Thomas.
Judgment Notwithstanding the Verdict. Mr. Thomas argues that defense counsel should have moved for a judgment notwithstanding the verdict because in light of the judge's remarks, she would have granted it. A trial court may only grant the motion if there is no justifiable evidence upon which the jury's verdict may be sustained. Or. Mut. Ins. Co. v. Barton, 109 Wn. App. 405, 413, 36 P.3d 1065 (2001); see also Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 98, 882 P.2d 703, 891 P.2d 718 (1994). The fact that the judge thought that there was little evidence upon which the State could convict does not mean that she would have found no justifiable evidence upon which the jury's verdict may be sustained. An appellate court applies the same standard as the trial court when reviewing a motion for judgment notwithstanding the verdict. Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001). The fact that we found sufficient evidence to support the verdict negates this claim.
CONCLUSION
Viewed in the light most favorable to the State, there was sufficient evidence to support the charge at the close of evidence at the trial and to otherwise support the conviction. Any prosecutorial misconduct was not prejudicial to Mr. Thomas. While Mr. Thomas's ineffective assistance of counsel claim is inadequately briefed and argued, there is nothing in the record to show that counsel's performance was deficient or that the deficient performance prejudiced Mr. Thomas.
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.
KATO, C.J. and BROWN, J., concur.