Opinion
No. 54202-8-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-05618-5, Carol A. Schapira, J., entered March 26, 2004.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Michael Paul Mohandeson, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Damon Baker was convicted of residential burglary. He appeals, arguing insufficient evidence, violation of self-incrimination protections, and ineffective assistance of counsel. We reject Baker's arguments, and affirm.
I.
The State's evidence at trial was mostly circumstantial, but certainly substantial. Witness Pamela Dunn saw a man exiting the home of her next door neighbors, John and Valerie Beedle. It was dark, and at first Dunn could not tell if the man was John Beedle. When she realized he was not, she became suspicious and watched him. She noted he was 6 feet 2 inches tall, dark-skinned, approximately 20 to 30 years old, and wearing a blue jacket and dark pants. He told her to get back in the house and threatened, `I know where you live.' The man drove away in an older blue Chevrolet parked up the street. Dunn noted the license number and called 911. Police investigated and discovered that the Beedles had been the victims of a burglary. Cash and DVDs were stolen, including $100 bills. Officers ran the license plate number supplied by Dunn and obtained the address of the car's registered owner. They arrived at the apartment building and found the car in the garage; the engine was still warm and the car had rain on it. The car fit the description given by Dunn. The officers went to the unit listed on the vehicle registration and knocked several times. Finally, Patricia Brown opened the door and invited them in. Damon Baker, Brown's friend, was sitting on the couch. A stack of DVDs matching the titles stolen from the Beedles was in the middle of the floor four feet in front of Baker. Next to his wallet on the table was over $200 in cash, including at least one $100 bill. Baker fit the general physical description given to the police by Dunn. Baker was arrested. The officers seized a blue jacket and dark pants from Brown's apartment. They returned to the parking garage to impound the car and Brown followed them. She told one of the officers, Officer Boyd, that Baker had taken the car at 6 or 7 p.m. and had returned while she was in the shower, between 10:10 and 10:30 p.m. She said Baker and the DVDs were not there before she got in the shower, but were there when she emerged. She did not mention that any other person had borrowed the car or had been in her house that evening.
At trial, on cross-examination by defense counsel, Officer Boyd stated that Baker repeatedly told Brown to be quiet, and that Baker was `not talkative.' Baker did not object or ask for either comment to be stricken from the record. After the latter comment, defense counsel immediately clarified that Baker was not obligated to talk:
Q [Defense counsel] And finally, when you first encountered Mr. Baker, what was his deportment — his demeanor?
A. [Officer Boyd] Not talkative. Very much —
Q: Kind of nonchalant?
A. Not nonchalant, he just didn't seem to want to talk to us, or address where he had been.
Q: And a final question, is a person that's placed in custody required to talk to you?
A. No.
Brown testified in Baker's defense. Contrary to what she told Officer Boyd at the scene of Baker's arrest, she testified that Baker was in her apartment all evening. She said that Baker's nephew, Isaiah Jackson, was the person who borrowed the car, and that Jackson, not Baker, brought the DVDs into her house while she was in the shower, and then left her apartment. Brown claimed that Jackson had disappeared and she did not know where he was. The prosecutor's attempts to locate Jackson failed. Dunn could not make a positive identification of Baker in court, but could not rule him out as the man she saw based on his physical characteristics. The same was true of the clothing seized by the police at Brown's apartment. During closing arguments, the State maintained that Isaiah Jackson was a fiction, a `specter' conjured to create reasonable doubt. The State also argued, without objection, that the reason Baker told Brown not to say anything is because he did not `have a story worked out.'
The jury convicted Baker. He appeals.
II.
The State must prove beyond a reasonable doubt the identity of a criminal defendant and his presence at the scene of the crime. A guilty verdict is supported by the evidence if, `viewing the record in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' A party challenging the sufficiency of the evidence admits the truth of the evidence and all reasonable inferences it creates.
State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d 1104 (1993), aff'd, 123 Wn.2d 877, 872 P.2d 1097 (1994).
Thomson, 70 Wn. App. at 211-12.
Thomson, 70 Wn. App. at 212.
The State's evidence was sufficient to convict Baker. Based thereon, the jury could believe that Baker was found with the stolen items, he brought those items into Brown's apartment within 1-hours after the burglary, he had borrowed the car used in the burglary that evening, he was gone with the car during the relevant time frame, he fit the general physical description given by Dunn, and he had clothing at Brown's apartment that fit Dunn's description. A positive identification by the witness was not required for there to be sufficient evidence to convict. Circumstantial evidence is given equal weight to direct evidence. A reasonable jury could have convicted Baker.
State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
If the State or a witness directly comments that a defendant's prearrest silence implies guilt, it is an error of constitutional magnitude. The error is harmless under the constitutional standard only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. However, an isolated indirect reference to the defendant's silence, absent further comment inferring guilt from that silence, is not error, let alone constitutional error. It may not be reviewed absent objections below. There are two comments at issue: Officer Boyd's characterization of Baker as `not talkative,' and the State's argument in closing that Baker told Brown to be quiet because he did not `have a story worked out.' The two comments are unconnected and we will address them separately.
State v. Easter, 130 Wn.2d 228, 242-43, 922 P.2d 1285 (1996).
State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
State v. Romero, 113 Wn. App. 779, 787, 54 P.3d 1255 (2002).
State v. Dent, 123 Wn.2d 467, 478, 869 P.2d 392 (1994) (failure to object below waives issue unless error is of constitutional magnitude).
Baker tries to connect these two comments. There is no connection. The `not talkative' comment elicited on cross-examination was never referred to by the State, nor was Baker's silence a `theme' of the State's case.
Officer Boyd's description of Baker as `not talkative' was an isolated comment that was not repeated, emphasized, or utilized by the State. Immediately after the officer made the statement, defense counsel clarified that Baker was under no obligation to talk. The statement was never referred to again, and was not used in the State's closing argument. There was no error. In any event, Baker did not timely object to the statement, and cannot raise the issue on appeal.
Officer Boyd's testimony that Baker told Brown to be quiet, and the State's closing argument characterizing Baker's statement, also incurred no objection. Baker cites no authority for the proposition that protection from self-incrimination includes silencing potential witnesses. The prosecutor's implication that Baker did not want Brown to speak because he had not yet worked out a story was reasonable, and the State is given wide latitude in asking a jury to draw such inferences during closing argument. Again, there was no error, constitutional or otherwise, and Baker cannot raise this issue on appeal.
State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995).
Because Baker's ineffective assistance of counsel argument is based solely on the claimed infringement of his right against self-incrimination, it fails.
AFFIRMED.
BAKER, DWYER and APPELWICK, JJ.