Opinion
Nos. 34648-6-II; 35670-8-II; 35671-6-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00012-7, Theodore F. Spearman, J., entered March 24, 2006, together with petitions for relief from personal restraint.
Judgment affirmed and petitions denied by unpublished opinion per Hunt, J., concurred in by Armstrong and Penoyar, JJ.
In a direct appeal and a personal restraint petition, Sean Crocker challenges his residential burglary conviction. He argues that: (1) the evidence was insufficient to support the jury's verdict, (2) he deserves a new trial based on evidence not presented at trial, (3) the prosecutor committed misconduct during closing argument, and (4) his trial counsel was constitutionally ineffective. Crocker also filed a second personal restraint petition, in which he challenges an unrelated drug conviction for conspiracy to deliver.
We affirm Crocker's conviction and deny his personal restraint petitions.
FACTS I. Burglary
Early New Year's Eve morning, Sean Crocker and Axel Johnson were driving in a blue station wagon along a rural Bainbridge Island road. Crocker, who was wearing a black hooded sweatshirt and carrying a flashlight, got out of the car somewhere near Ted Enderle's house and entered Enderle's garage through an unlocked back door. The noise woke Enderle's wife, who then woke Enderle.
Enderle turned on the floodlights in front of his garage, saw the blue station wagon driving by slowly, used a flashlight to check the back door of the garage, and found the door open. Enderle's wife called 9-1-1. Hoping to cause the intruder to leave, Enderle opened the garage vehicle door with a remote control, but no one left. Shortly after that, the blue station wagon again drove by slowly.
The police arrived 10 to 15 minutes after Mrs. Enderle's 9-1-1 call, stopped the blue station wagon, entered the garage, and found Crocker in the garage's loft, lying on the floor, with his hands laid out in front of him. The officers found the flashlight in Crocker's pocket, but found nothing else on his person. After the officers arrested Crocker, Crocker yelled at his friend driving the blue station wagon to leave. Other officers stopped the blue station wagon a few miles from the Enderles' home.
Enderle noticed three anomalies in the garage. He always kept the restored car covered, but its cover had been moved and was caught in the trunk, as if someone had opened the trunk and closed it again. A tool chest, which he never left open, had been opened, several items that he kept on top of the chest had been knocked off, and several items were stacked on top. He also noticed a cigarette butt on the floor by the toolbox, which was unusual. This was noteworthy, he testified, because no one in his household smoked and the floor had been newly poured a few weeks earlier.
II. Procedure
The State charged Crocker with residential burglary.
At trial, Enderle testified that (1) the garage Crocker entered was attached to his house, with which it shared a common wall; (2) he (Enderle) had been in the garage the night before and kept the back door unlocked because a contractor was still completing the garage; (3) he (Enderle) always kept his car covered and tool chests closed; and (4) he (Enderle) had never seen Crocker before that night.
Crocker testified that he had unlawfully entered the Enderles' garage through an unlocked door, because he had been cruising around smoking marijuana and needed to find a bathroom. When he did not find a bathroom inside the garage, he passed out and did not remember anything until the police took him into custody.
On cross examination, Crocker conceded that, despite his claimed need to use the bathroom, he had managed to refrain from urinating until he arrived at the county jail at least an hour after his arrest. Crocker also admitted to several crimes of dishonesty: three convictions for making false statements to police, two convictions for third degree theft, one for trafficking in stolen property, and one for second degree burglary.
The trial court instructed the jury that (1) a person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime, (2) this inference was not binding, and (3) the jury could determine what weight, if any, to give it.
In closing, based on Enderle's testimony, the State argued that Enderle knew someone had rifled through the restored car and the tool chest sometime between when he had gone to bed and when he walked through the garage after the police arrived. Crocker did not object.
The jury found Crocker guilty.
Crocker filed a direct appeal. He also filed two personal restraint petitions (PRP): one, challenging his conviction in this case PRP No. 35670-8; and the other, challenging a drug conviction in an unrelated case, PRP No. 35671-6. We have consolidated Crocker's two PRP's with his direct appeal.
ANALYSIS I. Evidence
Crocker argues that the State failed to produce sufficient evidence to support the jury's residential burglary conviction. The State responds that a reasonable jury could have inferred that Crocker entered and remained unlawfully in the Enderles' garage, which constituted a dwelling, and that he intended to commit a crime when he entered. We agree with the State.
In his direct appeal, Crocker disputes only whether there was enough evidence to show his intent to commit a crime. In his personal restraint petition, however, he also argues that there is insufficient evidence to show he entered and remained in the garage unlawfully or that the garage was a dwelling. PRP (No. 35670-8) at 10-11.
A. Sufficiency 1. Standard of review
We will reverse a conviction for insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence.
State v. Thomas, 150 Wn.2d 821, 875, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
2. Residential burglary
In order to convict Crocker of residential burglary, the State had to prove beyond a reasonable doubt that Crocker (1) unlawfully entered or remained (2) in a dwelling (3) with the intent to commit a crime against a person or property therein. RCW 9A.52.025(1). We examine the evidence to determine whether it supports a reasonable jury's inference of each element.
a. "entering or remaining unlawfully"
In his PRP, Crocker argues that, in entering the garage, he did not break anything and, therefore, he cannot be convicted of "breaking and entering." PRP (No. 35670-8) at 11. Crocker misapprehends the applicable statute, which prohibits "entering or remaining unlawfully," not "breaking and entering." RCW 9A.52.025(1). The statute further clarifies that "entering or remaining unlawfully" means to be in or a on a premises when not licensed, privileged, or invited to do so.
Crocker appears to be relying on a common law definition of "burglary" for this argument.
Crocker testified that he entered the garage without permission. This statement alone is sufficient for a jury to infer that Crocker entered and remained unlawfully within the meaning of the statute. And when combined with the other evidence, the evidence is overwhelming that Crocker unlawfully entered the building without permission of the owners.
b. "dwelling"
Crocker next argues in his PRP that the garage was not a "dwelling" within the meaning of the residential burglary statute. RCW 9A.52.025(1)
He asserts that (1) the only evidence indicating where the crime took place was a picture of the garage, and (2) buildings not occupied by a family member are not "dwellings." PRP (No. 35670-8) at 10. These arguments also fail.
An attached garage falls within the definition of a "dwelling" in the residential burglary statute. State v. Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993). Here, Enderle testified that the garage Crocker entered was attached to his house and shared a common wall. Enderle's testimony sufficiently established that the garage was a "dwelling" within the meaning of the statute. And the trial court properly instructed the jury that the definition of "dwelling" includes attached garages. From Enderle's unrebutted testimony a reasonable jury could have inferred that the garage Crocker entered was part of the Enderle dwelling.
Crocker did not object to this instruction.
c. "intent"
In his direct appeal, Crocker argues that the evidence is insufficient to support the jury's conclusion that he intended to commit a crime when he entered or remained unlawfully in Enderle's garage because (1) he (Crocker) denied having a criminal intent, and (2) there were no items missing from the garage. The other evidence, however, is more than sufficient to support an inference that Crocker did intend to commit a crime inside the Enderles' garage, namely theft.
First, a jury may infer from an unlawful entry into a building that the person intended to commit a crime. RCW 9A.52.040. This inference comports with due process where the State "shows that the inference more likely than not flows from the proven facts." State v. Deal, 128 Wn.2d 693, 700, 911 P.2d 996 (1996). Such is the case here.
Crocker entered a garage attached to a house in a rural area at 2 a.m. New Year's Eve morning. He carried a flashlight and wore dark clothes. A reasonable jury could have inferred from this evidence that Crocker intended his entry to be surreptitious and that he planned to use the flashlight to search for something to steal. Crocker's friend drove a car by slowly twice while Crocker was inside. A jury could have inferred that this car was the "get-away-car."
In addition, someone other than Enderle had apparently looked in the trunk of Enderle's restored car and rifled through Enderle's tool chest, both of which Enderle kept closed. This evidence, coupled with Crocker's wait of more than an hour after his arrest to urinate, provided a sufficient basis for the jury to discredit Crocker's testimony that he entered the house only because he needed to use the bathroom. A reasonable jury could have concluded that Crocker entered the garage and was looking for something to steal, from the car or the tool chest, when the Enderles' lights interrupted him. Taken as a whole in the light most favorable to the State, this evidence, combined with the permissive inference from his unlawful entry, is sufficient to prove beyond a reasonable doubt that Crocker intended to commit a crime in the garage.
Furthermore, given Crocker's extensive history of crimes of dishonesty, the jury was entitled to disbelieve his story.
That Enderle found nothing missing and that the police arrested Crocker before he took anything neither diminishes this evidence nor shows that he was not guilty of burglary.
We hold that the evidence was sufficient to support Crocker's conviction.
B. Other Evidentiary Arguments
Crocker next argues in his PRP that we should reverse his conviction because (1) Johnson did not testify, (2) the State did not call as witnesses all of the police officers who responded to the 9-1-1 call, and (3) the police tampered with evidence. Because Crocker offers no evidence to support these allegations, we do not consider these arguments.
1. Standard of review
A personal restraint petitioner must provide "[a] statement of . . . the facts upon which the claim . . . is based and the evidence available to support the factual allegations." RAP 16.7(a)(2)(i). Accordingly, a petitioner must state "with particularity facts which, if proven, would entitle him to relief"; "[b]ald assertions" and "conclusory allegations" are not enough. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 509 U.S. 958 (1992); In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990); In re Pers. Restraint of Williams, 111 Wn.2d 353, 364-65, 759 P.2d 436 (1988).
Further, a "petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief." Claims as to what other persons would say must be supported by "their affidavits or other corroborative evidence" consisting of competent and admissible evidence. Rice, 118 Wn.2d at 886; see Cook, 114 Wn.2d at 813-14; Williams, 111 Wn.2d at 364-65. The petitioner cannot satisfy this evidentiary requirement with inadmissible hearsay or the petitioner's own speculation and conjecture. Rice, 118 Wn.2d at 886.
Moreover, we will not consider the merits of claimed constitutional error unless the petitioner demonstrates actual prejudice. Rice, 118 Wn.2d at 884. We will not consider the merits of claimed non-constitutional error unless the petitioner establishes "that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice."
Cook, 114 Wn.2d at 812.
2. Deficient PRP
In his PRP, Crocker fails to produce any evidence to support his asserted errors. He provides no factual basis for his bald assertion that the police tampered with evidence. He supplies not even a summary of the testimony Johnson might have presented if called as a witness or how such testimony would have helped his (Crocker's) case. Nor does Crocker indicate which police officers failed to testify, why their testimonies were relevant, or how their testimonies might have overcome the overwhelming evidence of his guilt included in the record before us.
On the contrary, the record suggests that Johnson's testimony would have been adverse to Crocker. Johnson apparently told police that he had dropped off Crocker at Crocker's request and that he suspected Crocker was "getting into some kind of trouble."
Crocker having failed both to support his arguments with evidence and to demonstrate prejudice, we deny his petition.
II. Prosecutorial Misconduct
Crocker next argues that the State committed prosecutorial misconduct in its closing arguments by referring to evidence not in the record and by commenting on his credibility. The State responds that the prosecutor's comments fell within the State's discretion to argue reasonable inferences from the evidence. We agree with the State.
A. Standard of Review
To establish prosecutorial misconduct, the defendant bears the burden of establishing that the conduct complained of was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). If the defendant proves the conduct was improper, the misconduct still does not constitute prejudicial error unless we determine there is a substantial likelihood that the misconduct affected the jury's verdict. Id. If the defendant fails to object at trial, the misconduct is reversible only if the conduct was 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. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995).
A prosecutor may not refer to evidence not presented at trial. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). But the prosecutor has wide latitude in drawing reasonable inferences from the evidence. In re Pers. Restraint of Davis, 152 Wn.2d 647, 716, 101 P.3d 1 (2004). In determining whether the prosecutor's inferences were reasonable, we examine his statements in light of the whole argument, the issues in the case, the evidence discussed during argument, and the trial court's instructions. State v. Bryant, 89 Wn. App. 857, 873-74, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
B. No Misconduct 1. "Enderle knows"
Crocker first argues that the State committed misconduct by asserting the following, which he claims the record did not support: "[Enderle] knows that [his trunk was opened] in between the time he went to bed and the time that he did the walk-through with the police." Report of Proceedings (RP) Vol. 2 at 122. Crocker asserts that, although Enderle testified he had been in the garage the night before and had closed the back door, Enderle never said that he knew the burglary happened between when he went to bed that night and the police walk-through early the following morning. Although technically accurate in his recounting of some facts, Crocker's argument lacks merit.
The prosecutor's argument was a reasonable inference from the evidence. Enderle testified that he never left the back garage door open, that he always kept his car covered, and that he always kept his tools in the tool chest with the top closed, and that he had been in the garage the night before the incident. Crocker himself testified that he entered the garage early the following morning. A reasonable inference from these facts is that Crocker entered the garage and opened the trunk of Enderle's car sometime after Enderle went to bed that night.
The prosecutor accurately argued that there was no evidence that anyone other than Crocker had been in the garage after Enderle shut the door and went to bed the night before. That the prosecutor chose to emphasize the certainty of this conclusion with the words, "[Enderle] knows" someone opened his trunk between the time he went to bed and the walk through early the next morning, does not make the argument inappropriate. On the contrary, we hold that this statement fell within the prosecutor's latitude in drawing reasonable inferences from the evidence and that such inferences were not misconduct.
Crocker points out that a contractor had been working in the garage. But no one testified that the contractor had been in the garage on New Year's Eve.
We further note that even if the prosecutor's argument were misconduct, the error was harmless. Given the strength of the State's evidence, had the prosecutor simply said that the trunk had been opened between the night before and the early morning walk through, the outcome of the trial would have been the same.
Moreover, the trial court properly instructed the jury that the attorney's remarks are not evidence. That instruction was adequate to cure any potential prejudice.
2. "Red herring"
Crocker next argues in his PRP that the State committed misconduct by describing portions of his defense as a "red herring," which he asserts was an appeal to the jury's prejudice. PRP (No. 35670-8) at 12. Again, we disagree.
In describing Crocker's defense as a "red herring," the prosecutor was responding to Crocker's argument that he was not guilty of burglary because he did not run away when Enderle turned on the lights and opened the garage door. The prosecutor explained that Crocker's decision to stay in the garage at this point was consistent with a burglar who hoped the homeowner was just investigating and would eventually turn off the lights.
Although the term "red herring" is colloquial, it was not an improper appeal to the jury's prejudice. On the contrary, the prosecutor was appealing to the jury's reason, arguing that Crocker's conduct was consistent with that of a burglar and that Crocker's emphasis on his decision not to flee was an attempt to distract the jury from his intent when he entered the building. Arguing reasonable inferences from the evidence, i.e., that Crocker was hoping Enderle would go back to sleep and leave Crocker alone, was not prosecutorial misconduct.
We hold that the State did not commit prosecutorial misconduct.
III. Ineffective Assistance of Counsel
Crocker next argues that his trial counsel provided ineffective assistance in violation of his Sixth Amendment rights. Specifically, he argues that (1) his counsel failed to request an instruction on the lesser offense of first degree criminal trespass, (2) his counsel failed to object to the prosecutor's closing argument, and (3) his counsel should not have advised him to testify. This argument fails.
In his PRP and in his statement of additional grounds, Crocker characterizes his counsel's advice to testify at trial as a violation of his Fifth Amendment right not to be compelled to testify against himself. This argument fails because the Fifth Amendment prohibits State compulsion rather than "compulsion" by one's own attorney. See State v. Robinson, 138 Wn.2d 753, 766, 982 P.2d 590 (1999) (we address claims that defense counsel compelled a defendant not to testify as an ineffective assistance of counsel claim).
A. Standard of Review
In order to show ineffective assistance of counsel, Crocker must show (1) that his attorney's performance was deficient and (2) that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness.
State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). We recognize a strong presumption that a counsel's conduct fell within the wide range of reasonable professional assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). If the defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
To show prejudice, Crocker must prove that, but for the deficient performance of his counsel, there is a reasonable probability that the outcome would have differed. Pirtle, 136 Wn.2d at 487. If either part of the test is not satisfied, the inquiry need go no further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
B. No Showing of Ineffective Assistance 1. Lesser included instruction
Crocker first argues that his trial attorney's performance was deficient because he failed to request a lesser included offense jury instruction. Here, the first part of the ineffective assistance test is dispositive.
Crocker's attorney's closing argument exemplifies his trial strategy — that (1) Crocker's conduct "does not constitute residential burglary. It may be something else, but you are not being asked to decide that"; and (2) the State failed to prove Crocker intended to commit a crime when he unlawfully entered the garage. RP Vol. 2 at 132. Because Crocker admitted to having unlawfully entered the garage, he would have faced certain conviction on the lesser charge of first degree criminal trespass, which required proof only that Crocker entered or remained unlawfully in a building. RCW 9A.52.070(1). Accordingly, Crocker's attorney made a tactical decision not to seek an instruction on a lesser trespass in hopes of an acquittal on the more serious burglary charge, based on arguable lack of proof of intent. Such an all or nothing approach can be a legitimate trial strategy. See State v. Hoffman, 116 Wn.2d 51, 112-13, 804 P.2d 577 (1991) (holding that murder defendants did not receive ineffective assistance for failure to request lesser included offense instructions).
We hold, therefore, that Crocker has failed to show deficient performance by his trial counsel.
Even were we to assume that Crocker's counsel should have proposed the lesser instruction, Crocker does not show prejudice, the second prong of the ineffective assistance of counsel test. Taken as a whole, the evidence in the record overwhelmingly points to some illicit intent on Crocker's part. Thus, even had the instruction been given, the verdict would have been the same and Crocker has shown no prejudice.
2. Prosecutor's closing
Crocker also argues that his attorney was ineffective for failing to object to the prosecutor's closing remarks that Enderle knew someone had looked in his car's trunk that night. As discussed above, that remark was not improper and, therefore, his counsel was not ineffective in failing to object to it.
Moreover, even had Crocker's counsel objected and procured a curative instruction, Crocker cannot demonstrate a reasonable probability that the trial's result would have been different. As indicated above, the evidence was more that sufficient to convict him of burglary.
3. Taking the stand
Last, Crocker argues that his attorney was ineffective for persuading him to testify at trial. This argument also fails.
The ultimate decision about whether to testify rests with the defendant. State v. Robinson, 138 Wn.2d 753, 763, 982 P.2d 590 (1999). Defense counsel has an ethical obligation to advise the defendant about the tactical decision of whether to testify at trial; if the attorney advises the client, without coercion, there is no violation of this ethical obligation. Id. at 763-64. But an attorney who takes steps to thwart the defendant's decision to testify provides deficient counsel. Id. at 767. We are aware of no case, however, holding that an attorney's advising a defendant to testify constitutes ineffective assistance. And here, the record does not demonstrate that Crocker's counsel "coerced" him to testify at trial.
he record before us is not sufficient to address Crocker's claim. We have only Crocker's bare assertion that his attorney overcame his will. But the defendant bears the burden of showing substantial factual evidence, beyond a bare assertion, in order to warrant a post trial evidentiary hearing. Robinson, 138 Wn.2d at 760. Because Crocker fails to support his assertions in either his PRP or his direct appeal, he does not warrant a reference hearing on remand, and we reject his argument.
Nonetheless, assuming without deciding, that Crocker's attorney did compel him to testify, any error is harmless. In order to warrant reversal, Crocker must also show that had he not testified, there was a reasonable probability of a different verdict. Id. at 769-70 (ineffective assistance of counsel claim based on violation of the right to testify must satisfy both the performance and prejudice prongs). But Crocker cannot do so on this record. Even had he not testified, the other evidence clearly showed he was unlawfully in the garage rifling through Enderle's belongings. Thus, Crocker cannot show the reasonable probability of a result other than conviction. We hold, therefore, that Crocker fails to establish ineffective assistance of counsel.
IV. Drug Conviction PRP
With respect to Crocker's second, unrelated PRP in which he pled guilty to conspiracy to deliver in lieu of a controlled substance, PRP (No. 35671-6) at 6, he notes only that he pleaded guilty after his trial on a greater charge resulted in a hung jury. PRP (No. 35671-6) at 8. He now seeks to withdraw that guilty plea. This PRP is also insufficient to merit relief.
In its brief responding to Crocker's PRP, the State argued that we should deny his PRP because Crocker failed to state grounds for relief. RAP 10.3(c) limits a reply brief to issues raised in the respondent's brief. The State's correct assertion of the PRP's defect does not function as an invitation for Crocker to use his reply brief to attempt to remedy the deficiencies in his PRP. In his reply brief, Crocker asserts for the first time that his drug-delivery conspiracy conviction is invalid because (1) he was first charged with delivering drugs to a single person, and (2) having only two people involved in a delivery is insufficient to support a conspiracy. We do not address this untimely and improperly raised argument. Moreover, even if we were to consider Crocker's new reply brief argument, we would still deny his PRP for at least two reasons. First, his reply brief fails to provide any evidentiary support, such as appropriate affidavits, to establish that there was only one other person involved in the drug delivery. Second, although, as Crocker asserts, the State initially charged him with a delivery, he pled guilty to only the conspiracy charge, in accordance with a plea bargain agreement with the State to drop the delivery charge.
Due process requires that plea agreements be knowing, intelligent, and voluntary. In re Pers. Restraint of Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). But a guilty plea is presumptively voluntary when the defendant reads, completes, and signs a plea statement. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998).
As we have indicated above, in order to obtain relief, Crocker must state, with particularity, the facts that entitle him to relief, and he must produce evidentiary support. Rice, 118 Wn.2d at 886. But Crocker fails to state any facts or to provide evidence suggesting that his guilty plea was involuntary. He does not even provide us with a copy of his statement on plea of guilty. And even if he had provided his statement, that he pleaded guilty to a lesser charge after a mistrial on a greater offense does not rebut the presumption that his plea was voluntary. It is entirely reasonable for a defendant to plead guilty to a lesser charge rather than to face possible conviction on a greater charge. Crocker has, therefore, failed to meet his burden under RAP 16.7(a)(2)(i).
We affirm Crocker's conviction and deny his PRP's.
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.
ARMSTRONG, P.J. and PENOYAR, J., concur.