Opinion
Nos. 26348-3-II, 26366-1-II, 26381-5-II.
Filed: August 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clallam County, No. 001000931, Hon. George L. Wood Jr, August 16, 2000, Judgment or order under review.
Counsel for Appellant(s), John F. Hayden, Attorney At Law, 516 E. Front St., Port Angeles, WA 98362.
Manek R. Mistry, Backlund Mistry, 331 N.W. Park St, Chehalis, WA 98532.
Jodi R. Backlund, Backlund Mistry, 331 N.W. Park St, Chehalis, WA 98532.
Counsel for Respondent(s), Rick L. Porter, Deputy Pros Attorney, Clallam Co Pros Aty's Ofc, 223 E 4th St, Port Angeles, WA 98362.
Thanh Cong Tran and Sarumuth Heang appeal their convictions of possession of marijuana with intent to deliver. We affirm.
FACTS
On June 7, 2000, a motor home carrying four people arrived in Port Angeles via the Coho Ferry from Victoria, British Columbia. Aboard the motor home were Heang, the driver; Mara Lam, the owner; and two other passengers, Thanh Tran and Sokha Man. All four were either Canadian residents or citizens.
Lam had owned the motor home for three to four weeks. During the evening of June 6, Lam drove the motor home from Victoria to Nanaimo, British Columbia, an approximately one hour journey. On the way, she picked up Tran. Tran then drove the vehicle to Nanaimo. Lam and Tran met Man and Heang in Nanaimo. The four spent the night in Nanaimo. Tran slept in the motor home.
On the return trip, Tran drove the motor home. The four arrived at Heang's house in Victoria around 2 a.m. on June 7. Tran again spent the night in the motor home. The four left at 7 a.m. in the motor home to catch the ferry to Port Angeles. Heang drove the motor home from his house to the ferry terminal in Victoria and off the ferry when it docked at Port Angeles. After the ferry docked in Port Angeles, Heang drove the motor home off and waited in line for United States Customs Inspector Mark Johnson to process the motor home for entry into the United States. Part of the process involved talking to the driver to ascertain legitimate reasons for entering the United States. Inspector Johnson approached the driver to ask him some standard questions. Heang said he was going to Elma. Inspector Johnson noticed that the driver of the motor home was 'very relaxed.' II Report of Proceedings (RP) at 75. In contrast, he noticed that the other passengers appeared to be talking in hushed tones with wide eyes and 'frightened look[s]' on their faces. II RP at 76.
The differences in the driver's and passengers' demeanor raised Inspector Johnson's suspicions, and he approached the driver side window to get a better view inside the motor home. As he moved toward the driver, he immediately detected a strong perfume-like odor coming from inside the motor home. Inspector Johnson knew from experience that drug smugglers often mask the smell of their contraband with air fresheners and fabric dryer sheets. Inspector Johnson became more suspicious that the motor home carried contraband.
Inspector Johnson asked the four occupants to exit the vehicle and stand about 15 feet away while he inspected the motor home. On entering the vehicle, Inspector Johnson detected an intense odor of a strong air freshener. But he also noticed an underlying aroma of marijuana.
Dan Clem, another United States Customs Inspector who assisted Inspector Johnson in the arrest and search of the motor home, testified that he also detected an 'extremely strong' odor of marijuana from inside the motor home. III RP at 178. Detective David Fontenot from the Clallam County Sheriff's Office also testified that he detected the odor of marijuana and the air freshener scent when he entered the motor home.
Inspector Johnson opened the cabinets, refrigerator, and closet. Other than soda pop in the refrigerator and clothes in the closet, the motor home appeared empty. The motor home was clean. There was no trace of mold or mildew, requiring air freshening. In addition to two bottles of spray air fresheners behind the driver's seat, Inspector Johnson found an open box of fabric dryer sheets in a cabinet. On closer inspection, Inspector Johnson found bags of marijuana hidden under the mattress of the bed.
After finding the hidden marijuana, Inspector Johnson left the motor home and arrested Tran, while other inspectors arrested Heang and the two remaining passengers. None of the arrestees offered any resistance. Rather, they turned around, without being asked, and extended their hands and wrists behind their backs.
After arresting the four occupants, Inspector Johnson continued with his search. He discovered more marijuana hidden underneath the bathtub and behind a speaker above the refrigerator. The marijuana was packaged in individual clear vacuum-sealed or zip-lock plastic bags. Lam's fingerprint was found on one of the bags. In all, Inspector Johnson found more than 117 pounds of marijuana hidden in the motor home.
The State charged Tran, Heang, Lam, and Man with one count each of possession with intent to deliver marijuana. The trial court dismissed the charge against Man after opening statements. The remaining three defendants were tried together.
The defense moved in limine to exclude evidence. The trial court granted the motion and excluded testimony about the actions of typical tourists, drug dealers, and drug couriers. Lam and Heang testified at trial. They denied ever smoking marijuana or even knowing its smell or odor. They also denied knowing that there was marijuana in the motor home. During trial, Tran's counsel made repeated motions to dismiss the charge against him on grounds of insufficient evidence. The trial court denied the motions.
At the close of trial, Heang's counsel proposed, and the trial court gave, an unwitting possession instruction. The jury convicted Tran, Lam, and Heang as charged.
Tran, Lam, and Heang appealed their convictions, which we consolidated. But Lam's appeal was later dismissed due to abandonment.
While serving her sentence and pending her appeal, Lam petitioned the trial court to amend her sentence to allow her to return to Canada to have eye surgery. The trial court granted her petition, indicating that she must return to Clallam County by January 8, 2001, to serve the remainder of her sentence. She was released on September 12, 2000. To date, she has not returned to the United States. On June 14, 2001, we dismissed her appeal as abandoned.
ANALYSIS
Issues Pertaining to Tran and Heang Prosecutorial Misconduct
For the first time on appeal, Tran and Heang contend that the State committed prosecutorial misconduct by violating the trial court's order in limine. They argue that this misconduct denied them a fair trial.
The trial court ruled that the State could offer testimony regarding what the inspectors and police observed, including the defendants' demeanor. But the trial court also ruled that the State's witnesses could not interpret their observations as reflecting on the defendants' guilt. The trial court further ruled that the State's witnesses could not testify about the actions or habits of a typical tourist or typical drug dealer or drug courier. Finally, the witnesses could describe actions, but not interpret behavior. During the State's examination, Inspector Johnson said that in his experience, indicators of suspicious behavior are unusual actions, such as someone acting overly nervous or overly relaxed. More specifically, Inspector Johnson testified:
Q What was the demeanor of the other passengers in the motor home?
A Sharp contrast.
Q How so?
[Tran's Counsel]: Assumes facts not in evidence. We haven't heard evidence about any other passengers or where they were.
Q Any other passengers?
A There were; there were three other passengers.
Q And their demeanor?
A: Eyes seemed wide. They seemed to be talking in a hushed tone together. Sitting there with a frightened look on their face.
Q Did the contrast between the driver's relaxed demeanor and the passengers' demeanor surprise you in any way?
[Tran's Counsel]: I object; calls for a conclusion and speculation and it is a leading question.
The Court: Probably doesn't have any relevance; sustained.
Q The contrast in their demeanor, did that give you any reason for suspicion?
[Tran's Counsel]: It is a leading question.
The Court: It is leading.
Q What conclusions did that bring you to?
[Tran's Counsel]: Same question.
[Prosecutor]: I am just asking.
. . . .
Q Did you draw any conclusion with the distinction between the demeanor of the driver and the other three passengers?
A Yes.
Q What were they?
A Okay. It made me suspicious. With two groups of individuals acting completely different like that, it raises my inspector alarm, thinking something is going on and I have to get to the bottom, have to figure out why these people are acting this way and why the driver is acting this way.
Q With your training and experience, you were talking about earlier
A Yes, definitely.
II RP at 75-77.
Inspector Johnson also testified that when he talked with Heang, he was '[v]ery relaxed. His arm hanging out the window, right arm up on the steering wheel. Kind of leaning over,' as opposed to the other three passengers, whose '[e]yes seemed wide. They seemed to be talking in a hushed tone together. Sitting there with a frightened look on their face.' II RP at 75, 76. Tran and Heang did not object to this testimony.
Inspector Johnson then described the perfume odor and that this increased his level of suspicion. Tran and Heang neither objected to this part of Inspector Johnson's testimony nor requested that it be stricken.
The trial court sustained Tran's objection and struck Inspector Johnson's testimony that the emptiness of the motor home was inconsistent with other motor homes coming across the border full of blankets and clothes. The trial court also sustained Tran's objection and struck Inspector Johnson's testimony that Tran turned around and offered his wrists instead of asking, 'what's going on here?' II RP at 92. Although Tran objected to portions of Inspector Johnson's testimony, neither he nor Heang argued at trial that the prosecutor violated the court's order in limine. Tran's objections were based on the improper form of the question and the inspector's answers going beyond the scope of the question. Neither defendant requested a curative instruction nor moved for a mistrial based on Inspector Johnson's testimony. Typically, a defendant's failure to object to the prosecutor's improper comments, request a curative instruction, or request a mistrial is a waiver, unless the comment was so flagrant and ill-intentioned that it was incurably prejudicial. State v. Riley, 69 Wn. App. 349, 354, 848 P.2d 1288 (1993) (citing State v. Barrow, 60 Wn. App. 869, 876, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991)).
An appellant must make his own objection and cannot rely on a co-defendant's objection to preserve the error for appeal. State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000). See also RAP 2.5(a) (appellate court may refuse to review errors raised for the first time on appeal).
The record here indicates that only Tran's attorney objected during Inspector Johnson's testimony. Heang's attorney did not join in the objections. Nevertheless, we review the argument in the interest of justice. RAP 1.2(c).
Here, Tran's and Heang's argument is based on a violation of the trial court's order in limine. In Sullivan, we held that the prosecutor's violation of an order in limine does not automatically warrant reversal, absent an objection. State v. Sullivan, 69 Wn. App. 167, 847 P.2d 953, review denied, 122 Wn.2d 1002 (1993). In Sullivan, we further determined that reversal is not warranted if the defendant did not demonstrate that the State's questioning was in deliberate disregard of the trial court's ruling or that an objection would be so damaging that a curative instruction could not remedy it. Sullivan, 69 Wn. App. at 172. We then held that, in the absence of unusual circumstances that make it impossible to avoid the prejudicial impact of evidence previously ruled inadmissible, the complaining party must make a proper objection to preserve the issue for appeal. Sullivan, 69 Wn. App. at 173.
Tran and Heang did not object to the inadmissible evidence nor do they argue that any error could not have been remedied by a curative instruction. Thus, their arguments fail. Tran and Heang, however, further argue that the prosecutor's violation of an exclusionary ruling results in reversible misconduct even when the defendant fails to object at trial. They claim that the misconduct amounts to a manifest constitutional error, or alternatively, the misconduct was so flagrant and ill-intentioned that a curative instruction would have had no effect on the jury.
Even assuming the challenged comments suggest a constitutional issue, Washington courts employ a four-step test to determine whether the alleged error fits under RAP 2.5(a)(3): First, we evaluate whether the alleged error in fact suggests a constitutional issue. Second, we determine whether the alleged error is manifest. The defendant must show that the asserted error plausibly has practical and identifiable consequences in the trial of the case. Third, we address the merits of the constitutional issue if we find that the alleged error is manifest.
Finally, if we determine that an error of constitutional magnitude was committed, then, and only then, will we undertake a harmless error analysis. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Tran and Heang fail to demonstrate that the comments had practical and identifiable consequences in the outcome of the case. The alleged errors were not unmistakable, evident, or indisputable, as distinct from obscure, hidden, or concealed. Lynn, 67 Wn. App. at 345. The testimony did not encompass manifest errors affecting a constitutional right. The comments did not rise to the level of a personal opinion as to the defendants' guilt. Inspector Johnson never offered an opinion as to the guilt of the defendants due to their demeanor. He merely described what he observed and what indications made him suspicious and compelled a closer inspection of the motor home. This cannot be characterized as an impermissible comment on the defendants' guilt. Comment on Right to Remain Silent Next, Tran and Heang argue that Inspector Johnson improperly commented on their right to remain silent when he testified that they did not resist being arrested. Inspector Johnson testified that they only turned around and offered their wrists to the arresting officers.
Moreover, even if the error had been properly preserved, barring Tran's and Heang's ability to prove that the prosecutor asked questions or elicited answers is a pattern of misconduct, reversal would be warranted only where the alleged misconduct, or violation of the order in limine, is so flagrant or ill-intentioned that no curative instruction could have obviated any resulting prejudice. State v. Neidigh, 78 Wn. App. 71, 77-78, 895 P.2d 423 (1995). As in Sullivan, there is no showing that the State deliberately disregarded the court's ruling or that an objection would be so damaging that an instruction could not have cured it. The trial court sustained two defense objections and struck Inspector Johnson's testimony regarding the empty motor home being inconsistent with those he typically sees and Tran's lack of resistance during his arrest. No defense counsel requested a curative instruction. These two instances do not suggest that Inspector Johnson's testimony was so prejudicial that a curative instruction would not have cured its prejudice.
The State may not use a defendant's pre-arrest silence in response to law enforcement inquiries as substantive evidence of his guilt. State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
Similarly, the police may not comment on the defendant's silence to infer guilt from the refusal to answer questions. Lewis, 130 Wn.2d at 705. Our review of the record discloses that, contrary to Tran's and Heang's argument, Inspector Johnson's testimony did not suggest that their pre-arrest silence implied their guilt. The State elicited the following testimony:
Q What was Mr. Tran's demeanor at the time that you cuffed him going back to this point where I stopped you; what exactly happened? A Well, I come out and as I am coming out, I am giving instructions to everybody else. I pull out my handcuffs or I am reaching for them rather and he just turns around instead of saying, What's going on here as is —
[Tran's Counsel]: Objection; will move to strike.
The Court: It will be stricken; sustained.
Q What did you see?
A Okay.
Q What did he do?
A He just turned around, gave me his wrists; offered no resistance.
Q How did he give you his wrists; in front of him? A Behind him; he just put them behind him and he turned around and he was cuffed and I took him inside and the other inspectors cuffed the others with similar, with like manner but without a struggle.
II RP at 91-92.
Inspector Johnson merely related what happened when the four were arrested. His description of their demeanor was not a comment on their right to remain silent nor was it in response to inquiries. We agree that Inspector Johnson should not have attempted to refer to Tran's lack of inquiries when he was arrested, but the court sustained the objection and struck this testimony. In addition, the State never used the defendants' silence to argue or imply their guilt. Inspector Johnson's testimony did not suggest Tran's or Heang's guilt. Instead, it was a statement that the defendants did not resist arrest. Tran's and Heang's argument fails.
Issues Pertaining Only to Tran Motion to Dismiss for Insufficient Evidence
Tran contends that the trial court erred in denying his repeated motions to dismiss for insufficient evidence. Specifically, he argues that the State cannot prove beyond a reasonable doubt anything more than his presence inside the motor home. He asserts that the evidence is insufficient to convict him, even as an accomplice.
Although designated as a motion to dismiss, Tran's arguments are instead a challenge to sufficiency of the evidence. Accordingly, we analyze it as such.
When reviewing a conviction for sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). A defendant's claim of insufficiency of the evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence must be drawn in favor of the State and most strongly against the defendant. Salinas, 119 Wn.2d at 201. Both circumstantial evidence and direct evidence are equally reliable. Bencivenga, 137 Wn.2d at 711; State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
To be an accomplice, a person must either '(1) solicit, command, encourage, or request another person to commit the crime; or (2) aid or agree to aid another person in planning or committing a crime.' Clerk's Papers (CP) (Heang) at 35 (jury instruction 7); RCW 9A.08.020(3)(a). Mere presence and knowledge of the criminal activity are insufficient to convict a person as an accomplice.
Here, the evidence shows that Tran drove the motor home to and from Nanaimo. He spent two nights in it. It is reasonable to infer that during at least some of that time, there were 117 pounds of marijuana in the motor home. It is also reasonable to infer that Tran spent two nights in the motor home to guard this large quantity of drugs. Moreover, the sheer volume of drugs and the undeniably strong odor indicate that Tran knew there was contraband in the vehicle. Contrary to his assertions, Tran was not merely present as a passenger in the motor home. His actions indicate that he aided in the commission of the crime. This evidence is sufficient to support the conviction.
Issues Pertaining Only to Heang Ineffective Assistance of Counsel
Heang contends that he was denied effective assistance of counsel at trial because his attorney asked the trial court to give an unwitting possession instruction. He asserts that this shifted the burden to him to prove this defense.
A party bringing an ineffective assistance of counsel challenge must meet a two-part test: (1) demonstrate that the attorney's performance was deficient, considering all the circumstances and gauged on an objective reasonableness standard; and (2) demonstrate that the deficient performance prejudiced the client, i.e., the outcome, with reasonable probability, would have differed if not for the attorney's deficient performance. State v. Studd, 137 Wn.2d 533, 551, 973 P.3d 1049 (1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In analyzing an ineffective assistance claim, we engage in a strong presumption that a defendant received effective representation. Studd, 137 Wn.2d at 551; State v. Summers, 107 Wn. App. 373, 382, 28 P.3d 780, 43 P.3d 526 (2001). Furthermore, defense counsel's trial conduct cannot serve as a basis for a claim of ineffective assistance of counsel if it can be characterized as legitimate trial strategy or tactics. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991) (citing State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978)), cert. denied, 506 U.S. 856 (1992). Heang's contention that his trial attorney denied him effective assistance of counsel fails. Unwitting possession is not generally an affirmative defense that the defendant has to prove in a charge of possession with intent to deliver, because the State must prove the intent element to convict on the charge. See State v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992) (no separate guilty knowledge element in the crime of possession with intent to deliver, as this mental state is subsumed in the mental state of intent to deliver, because a person intending to deliver a controlled substance, by necessity, knows that he or she possesses a controlled substance). But the choice to pursue the affirmative defense based on a defense theory of unwitting possession does not automatically convert legitimate, although possible flawed trial strategy, into ineffective assistance of counsel.
The unwitting possession instruction states:
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in her possession or did not know the nature of the substance.
The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence of the case, that it is more probably true than not true.
CP at 42; 11 Washington Pattern Jury Instructions: Criminal 52.01, at 679 (2d ed. 1994).
It is clear that the defense theory is one involving unwitting possession. To that end, both Heang and Lam elected to testify at trial, claiming that they did not know of the marijuana hidden aboard the motor home. It is conceivable that Heang's counsel felt that his client's level of credibility was so high that proving unwitting possession by a preponderance was not burdensome. Furthermore, this was not a decision Heang's attorney made alone, as his two co-defendants' attorneys concurred as well. This clearly suggests a deliberate and strategic decision on the part of all three defense counsels. In addition, the court instructed the jury that the State had the burden of proving the crime beyond a reasonable doubt. The jury was satisfied that Heang intended to deliver the marijuana. To reach this conclusion, it had to believe that Heang knew he possessed the marijuana, a belief that is inconsistent with the conclusion that Heang's possession was unwitting. This was a legitimate trial strategy and Heang's ineffective assistance claim fails.
Tran did not testify at trial.
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.
WE CONCUR: SEINFELD, J., QUINN-BRINTNALL, A.C.J.