Opinion
No. 39580-1-II.
January 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Thurston County, No. 09-1-00197-2, Richard D. Hicks, J., entered July 16, 2009.
Affirmed by unpublished opinion per Penoyar, C.J., concurred in by Grosse and Hunt, JJ.
Jeremiah Bell appeals his convictions of theft of a motor vehicle and hit and run — injury. He argues that the prosecutor improperly commented on his right to remain silent. Additionally, he contends that he received ineffective assistance of counsel. Finally, he argues that certain 2008 amendments to the Sentencing Reform Act (SRA) violated his due process rights and his privilege against self-incrimination under the Fifth and Fourteenth Amendments. We affirm.
FACTS
On, January 30, 2009, around 11:44 a.m., Lenn Valdez and his coworker Heath Strauss heard Valdez's white Saturn start and then saw someone drive away in the vehicle. Minutes later, the white Saturn collided with Leah Thomas's Kia Optima at 87th Avenue and Rich Road in Olympia. Thomas's daughter sustained a cut below one of her eyes. Cynthia Barton saw the Saturn's driver get out of the car and run southbound from the scene. She provided the driver's description to an officer who arrived at the scene. She described the driver as a young, white male, wearing a "brown Carhartt kind of a jacket" and blue jeans. Report of Proceedings (RP) at 36. Barton did not see the driver's face.
Thurston County deputy sheriffs Mitchell King and Michael Young responded to the incident. About a mile from the incident, at 89th Street and Marie Street, King noticed a man, later identified as Bell, wearing a blue hat, brown "Carhartt-style" jacket, and blue jeans, attempting to climb over a fence. RP at 46. Young arrived at the scene within minutes. The deputies detained, and, eventually, handcuffed Bell, who "was breathing heavily and sweating profusely and covered in dirt." RP at 47.
The deputies noticed that Bell had a "large, wet stain from about the middle of his thighs up to his waist." RP at 47. King and Young escorted Bell to the scene of the collision; there, Barton identified him, based on his clothing, as the man she saw exit the Saturn. When King inspected the vehicle, he observed that the driver's seat was wet except in the area where the driver would have sat. King located an empty beverage container on the driver's floorboard. No other suspects matching the description given were found in the area of the incident.
The State charged Bell, by amended information, with theft of a motor vehicle and hit and run — injury.
RCW 9A.56.020(1)(a), .065(1).
RCW 46.52.020(1), (4)(b).
At trial, Bell testified that, on the date of the incident, he did yard work for his sister at her Olympia home. When he finished, he decided to walk to his home in Rainier. According to Bell, a black car sped past him when he reached 89th Street. He stopped during his walk to drink from a stranger's garden hose. He was taking a shortcut to the road when the deputies stopped him.
During direct examination, the State asked Young, "Did [Bell] say anything?" RP at 65. Young responded, "He didn't say anything. He just complied with all our commands." RP at 65.
At trial, defense counsel questioned Bell about the events:
[DEFENSE COUNSEL:] And what happened?
[BELL:] And then they came and put me in handcuffs and took me to the patrol car.
[DEFENSE COUNSEL:] Okay. What happened when you were in the patrol car?
[BELL:] I just lay down in the back of the seat.
[DEFENSE COUNSEL:] Did they ask you any questions?
[BELL:] Yeah.
[DEFENSE COUNSEL:] What did they ask you?
[BELL:] How my pants got wet and if I — where I was — what I was doing there.
[DEFENSE COUNSEL:] Okay. What was your response?
[BELL:] Well, I told them I was walking from my sister's house.
RP at 77-78.
On cross-examination, the State asked Bell what he told the deputies, and he again responded, "I was walking from my sister's house." RP at 78. The State then conducted redirect examination of Young:
[THE STATE:] And do you recall advising [Bell of] his rights and asking him a question?
[YOUNG:] I do.
[THE STATE:] Now, at any time did he tell you that he had been walking from his sister's house?
[YOUNG:] No, he did not.
[THE STATE:] Did he say anything at all about a black car?
[YOUNG:] No, he did not.
[THE STATE:] Did he say anything at all about doing yard work up in wilderness on Boulevard?
[YOUNG:] No, he did not.
RP at 81. On recross examination, defense counsel asked Young if he read Bell his Miranda rights; he also asked Young, "And then in response to that he didn't say anything to you after you read those rights." RP at 83. Young answered "[y]es" to both questions. RP at 83.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During closing, defense counsel argued:
[Y]ou've heard some testimony back and forth about what was said or what wasn't said. But I can imagine — or I would submit to you that when you're coming off someone else's property and the officers advise you to, you know, or give you Miranda rights, that it shouldn't be held against you when you say okay, you read me Miranda rights; I'm not going to say anything.
RP at 118-19.
At trial, the State also asked Bell about his prior convictions from 2004:
[THE STATE:] Now, you were convicted of forgery back in 2004, weren't you?
[BELL:] Yes, sir.
[THE STATE:] And you were convicted of two other felonies back in 2004 as well, weren't you?
[BELL:] Yes, sir.
[THE STATE:] Nothing further.
RP at 79-80. Defense counsel did not object to the State's questions.
The jury found Bell guilty on all counts. Bell appeals.
ANALYSIS
I. Right to Remain Silent
First, Bell argues that the prosecutor violated his constitutional right to remain silent. We disagree.
A defendant has a right to remain silent under the Fifth Amendment and article I, section 9 of the Washington Constitution. State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285 (1996). The Fifth Amendment of the United States Constitution states, in part, that no person "shall be compelled in any criminal case to be a witness against himself." This provision applies to states through the Fourteenth Amendment. Easter, 130 Wn.2d at 235. Article 1, section 9 of the Washington Constitution reads, "[n]o person shall be compelled in any criminal case to give evidence against himself." We interpret the two provisions equivalently. Easter, 130 Wn.2d at 235. The right against self-incrimination is liberally construed. Easter, 130 Wn.2d at 236.
A. Direct Examination
First, Bell challenges the following exchange:
[THE STATE:] . . . What was his physical condition at the time that you saw him?
[YOUNG:] Appeared to be tired. Looked like he'd been running, sweaty, very sweaty, and he had what looked like I thought was urine on the front of him, so immediately before we went any further, tried to put on gloves for the contaminate aspect of it.
[THE STATE:] Did he say anything?
[YOUNG:] He didn't say anything. He just complied with all our commands.
[THE STATE:] Did you notice — you just said you noticed something about his pants?
[YOUNG:] Yes, I thought it was urine.
[THE STATE:] What did you do next?
[YOUNG:] After he was placed in handcuffs, we asked him, you know, what is — what's all over your pants, just for our protection because when you're handling this individual, now we're going to have to help him up over the fence to get to our patrol vehicle, make sure it wasn't urine. And after I read him his Miranda warnings, he said he understood — didn't say anything basically, and told us, no it's not pee when we told him it was pee.
[THE STATE:] What did you do with him next?
[YOUNG:] Placed him in the rear of my patrol vehicle.
RP at 65-66.
The State may not elicit comments from witnesses or make closing arguments relating to a defendant's silence for the jury to infer guilt from such silence. Easter, 130 Wn.2d at 236. A comment on the right to remain silent occurs when evidence of the defendant's silence is used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt. State v. Lewis, 130 Wn.2d 700, 707, P.2d 235 (1996).
The record reflects that defense counsel did not object to this testimony, the State did not inquire further about Bell's silence during Young's direct examination, and the State did not mention this testimony during closing argument. The record as a whole does not indicate that the State was attempting to use Bell's silence as substantive evidence of his guilt or to suggest to the jury that the silence was an admission of guilt. Rather, the State sought to elicit Bell's comment that the wet stain was not urine. The State sought this testimony to link Bell to the white Saturn, which had an empty beverage container on the floorboard and was wet on the seat except where the driver would have sat. The State did not comment on Bell's right to remain silent in eliciting this testimony.
B. Impeachment
Bell also argues that the prosecutor committed misconduct by asking Young the following questions:
[THE STATE:] And do you recall advising [Bell of] his rights and asking him a question?
[YOUNG:] I do.
[THE STATE:] Now, at any time did he tell you that he had been walking from his sister's house?
[YOUNG:] No, he did not.
[THE STATE:] Did he say anything at all about a black car?
[YOUNG:] No. he did not.
[THE STATE:] Did he say anything at all about doing yard work up in wilderness on Boulevard?
[YOUNG:] No, he did not.
RP at 81.
Once a defendant waives the right to remain silent and makes a statement to the police, the State may use such a statement to impeach the defendant's inconsistent trial testimony. State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174 (1988). "In particular, the State may question a defendant's failure to incorporate the events related at trial into the statement given police or it may challenge inconsistent assertions." Belgarde, 110 Wn.2d at 511.
Here, the State used Young's testimony to impeach Bell's credibility. During direct examination, Bell testified that, after he was handcuffed and placed in the patrol car, he told the deputies that he was walking from his sister's house. The State then introduced contradictory evidence to impeach Bell's credibility.
C. Harmless Error
Even if there was error, such error was harmless beyond a reasonable doubt. A constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Easter, 130 Wn.2d at 242. The State presented evidence at trial that, at the time of his arrest, Bell's clothing matched the description Barton gave to the police. Bell "was breathing heavily and sweating profusely." RP at 47. The officers located Bell near the location of the incident and approximately twenty minutes after Valdez saw someone drive away in his Saturn. Bell also had a wet stain on his waist and thighs. When King inspected the white Saturn, he found an empty beverage container on the driver's floorboard and observed that the driver's seat was wet except in the area where the driver would have sat. No other suspects matching the description of the person that had been driving the white Saturn were found in the area of the incident. Because the untainted evidence is so overwhelming it necessarily leads to a finding of guilt, any error was harmless beyond a reasonable doubt.
II. Ineffective Assistance of Counsel
Next, Bell argues that he received ineffective assistance of counsel. We disagree.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption that trial counsel was effective. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). To prevail on a claim of ineffective counsel, Bell must show both ineffective representation and resulting prejudice. See McNeal, 145 Wn.2d at 362. To establish ineffective representation, the defendant must show that counsel's performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362. In order to prove prejudice, the defendant must show that there is a reasonable probability that the result would have been different but for counsel's performance. Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome after considering the totality of evidence before the jury. Strickland, 466 U.S. at 694-95. If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. McNeal, 145 Wn.2d at 362.
A. Right to Remain Silent
Bell contends that his counsel was ineffective by failing to object to the prosecutor's alleged misconduct in commenting on Bell's silence. Because we find no improper comment or prosecutorial misconduct, this claim fails. Counsel's failure to make an objection that the trial court should have denied did not amount to deficient performance.
Next, Bell asserts that he received ineffective assistance when his defense counsel asked Young if Bell said anything after he was read his Miranda rights and argued, during closing, "[I]t shouldn't be held against you when you say okay, you read me Miranda rights; I'm not going to say anything." RP at 118-19. Defense counsel's conduct can be characterized as legitimate trial tactics. Bell testified that he told the deputies he was walking from his sister's house. Young then contradicted Bell's testimony and testified that Bell never said he was walking from his sister's house. Defense counsel's questions and closing argument served to explain that, if Bell had, in fact, not said anything, his silence was a legitimate exercise of his right to refuse to incriminate himself.
Finally, Bell argues that defense counsel was ineffective, because he "did not ask for a limiting or curative instruction restricting the jury's consideration of the improperly admitted evidence." Appellant's Br. at 11. Defense counsel's choice to not request a jury instruction can be considered a legitimate tactical decision to avoid emphasizing the unfavorable testimony and the issue of Bell's credibility. Bell did not receive ineffective assistance of counsel.
B. Failure to Object to Admission of Evidence of Prior Convictions
Bell also argues that his counsel was ineffective by failing to object to the admission of Bell's 2004 felony convictions. We disagree.
After the State properly impeached Bell with a forgery conviction, the prosecutor asked Bell, "And you were convicted of two other felonies back in 2004 as well, weren't you?" RP at 79. Bell answered, "Yes, sir." RP at 79. The prosecutor did not ask any further questions. According to the prosecutor's statement of criminal history, Bell's convictions were for first degree unlawful possession of a firearm and unlawful possession of a controlled substance with intent to deliver (methamphetamine). He is correct that these convictions were likely inadmissible under ER 609. However, Bell fails to show that he was prejudiced by defense counsel's failure to object or seek a curative instruction. There was overwhelming evidence that led to a finding of Bell's guilt. The convictions were mentioned in passing, and the felonies were unnamed. There is no reasonable probability that, but for counsel's failure to object, the verdict against Bell would have been different. Accordingly, we hold that Bell did not receive ineffective assistance of counsel.
III. 2008 Amendments to the Sentencing Reform Act
Finally, Bell asserts that certain 2008 amendments to the SRA violate the Fifth and Fourteenth Amendment rights to due process and the privilege against self incrimination. We disagree.
A statute is presumed to be constitutional, and the party challenging its constitutionality bears the burden of proving beyond a reasonable doubt that the statute is unconstitutional. Madison v. State, 161 Wn.2d 85, 92, 163 P.3d 757 (2007) (quoting State v. Hughes, 154 Wn.2d 118, 132, 110 P.3d 192 (2005) abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). In 2008, the legislature amended the SRA:
The Washington State Supreme Court recently discussed the standard of review in challenges to a statute's constitutionality. Sch. Dists.' Alliance for Adequate Funding of Special Educ. v. State, No. 82961-6 (Wash. Dec. 9, 2010). A majority of the court agreed that the "beyond a reasonable doubt" standard, insofar as this standard means that an appellate court is "fully convinced, after a searching legal analysis, that the statute violates the constitution," is the appropriate standard of review. Sch Dists.' Alliance, No. 82961-6, slip op. at 1 (Stephens, J., concurring).
Given the decisions in In re Cadwallader, 155 Wn.2d 867 [, 123 P.3d 456] (2005); State v. Lopez, 147 Wn.2d 515 [, 55 P.3d 609] (2002); State v. Ford, 137 Wn.2d 472 [, 973 P.2d 452] (1999); and State v. McCorkle, 137 Wn.2d 490 [, 973 P.2d 461] (1999), the legislature finds it is necessary to amend the provisions in RCW 9.94A.500, 9.94A.525, and 9.94A.530 in order to ensure that sentences imposed accurately reflect the offender's actual, complete criminal history, whether imposed at sentencing or upon resentencing.
Laws of 2008, ch. 231, § 1. The legislature amended RCW 9.94A.500(1) to read, "A criminal history summary relating to the defendant from the prosecuting authority or from a state, federal, or foreign governmental agency shall be prima facie evidence of the existence and validity of the convictions listed therein." Laws of 2008, ch. 231, § 2. The legislature also amended RCW 9.94A.530(2):
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgment includes not objecting to information stated in the presentence reports and not objecting to criminal history presented at the time of sentencing.
Laws of 2008, ch. 231, § 4 (new language emphasized).
As the State points out, Bell fails to "offer any reason why it is an unconstitutional shifting of the burden of proof to the defendant to require him to object to the prosecutor's summary but not unconstitutional to require him to object to a criminal history included in a presentence investigation, as set forth in [RCW] 9.94A.530(2)." Resp't's Br. at 35-36; see also State v. Wakefield, 130 Wn.2d 464, 476, 925 P.2d 183 (1996) ("In determining the appropriate sentence, the trial court can consider the presentencing reports unless the defendant objects."); State v. Atkinson, 113 Wn. App. 661, 669, 54 P.3d 702 (2002) ("[T]he court may consider the presentencing report unless the defendant objects.").
In State v. Ammons, 105 Wn.2d 175, 184, 713 P.2d 719, 718 P.2d 796 (1986), the court considered whether former RCW 9.94A.370 (1984), recodified as RCW 9.94A.530, which allowed the trial court to use information contained in the presentence report that the defendant did not object to when determining the sentence, violated the constitutional rights of a defendant against self-incrimination and against having to produce evidence. There, the court held, "[former] RCW 9.94A.370 does not compel a defendant to provide any information. The defendant has the right to know of and object to adverse facts in the presentence reports. If he contests any facts, an evidentiary hearing must be held before they are used." Ammons, 105 Wn.2d at 185. Similarly, here, the defendant has the right to know of, and object to, adverse facts in the criminal history summary, and "[w]here the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point." RCW 9.94A.530(2).
We note that a defendant's right to due process is violated when he is sentenced on the basis of information that is false, lacks a minimum indicia of reliability, or is unsupported in the record. See Ford, 137 Wn.2d at 481. However, under the legislature's 2008 amendments to the SRA, a criminal history summary from the prosecuting authority constitutes prima facie evidence of Bell's prior convictions. See RCW 9.94A.500(1). By amending the SRA so that a prosecutor's criminal history summary may constitute prima facie evidence, the legislature has signified that a criminal history summary is not a bare assertion lacking a minimum indicia of reliability. Accordingly, we hold that the 2008 amendments to the SRA do not violate the defendant's due process rights.
Bell also argues that the 2008 amendments violate his Fifth Amendment privilege against self incrimination. The State responds that "Bell apparently equates some presumed duty to notify the court of a missing or erroneous conviction as self incrimination. . . . [T]here is no authority that being required to either tell the court that the State's summary is incorrect or being stuck with it is in any way requiring him to incriminate himself." Resp't's Br. at 30. "Use of information regarding a defendant's conduct, including statements about crimes already punished, does not violate the Fifth Amendment. . . . Statements about past offenses already punished cannot incriminate [the defendant] as to those offenses, nor increase his punishment for those offenses." State v. Strauss, 93 Wn. App. 691, 700, 969 P.2d 529 (1999). The 2008 amendments to the SRA did not require Bell to produce evidence that would incriminate himself or subject him to additional penalties. We hold that Bell has failed to meet his burden of proving beyond a reasonable doubt that the 2008 amendments to the SRA are unconstitutional.
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.
HUNT, J. and GROSSE, J., concur.