Opinion
No. 28801-3-III.
Filed: June 9, 2011.
Appeal from a judgment of the Superior Court for Grant County, No. 08-1-00299-6, John M. Antosz, J., entered January 25, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Kulik, C.J., and Brown, J.
UNPUBLISHED OPINION
Longino Martinez Espindola appeals his conviction for felony attempt to elude a police vehicle, contending first, that he was deprived of effective assistance of counsel where his lawyer made no motion to suppress a search of the car he was driving, and second, that the prosecutor engaged in misconduct by vouching for the State's witness, a patrol officer, in closing argument. Because defense counsel could reasonably have expected a motion to suppress to fail on either of two grounds, Mr. Martinez Espindola has not demonstrated ineffective assistance of counsel. To the very limited extent that the prosecutor's response to defense counsel's argument of a faulty identification by the patrol officer was not direct argument from the evidence, it was not a clear statement of personal opinion, was not flagrant or ill-intentioned, and presented no substantial likelihood of affecting the jury's verdict. We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
On the evening of February 12, 2008, Grant County Sheriff's Deputy Joe Harris was on patrol, working a graveyard shift for the town of Mattawa. At approximately 10 p.m. he noticed a white Volkswagen Jetta coming toward his marked police cruiser. His radar equipment indicated the car was traveling at 42 miles per hour in a 25-mile-per-hour zone. The deputy responded by turning around and following the car, activating his emergency lights.
Rather than pull over, the driver increased his speed to well above 42 miles per hour. The deputy activated his siren but the driver of the Jetta only sped up again, eventually turning off the car's headlights during the course of the pursuit. The deputy pursued the Jetta for several blocks until it pulled into a residential driveway, at which point the driver fled on foot. As the car pulled into the driveway, the deputy pulled to within 8 to 10 feet of the car, on the driver's side. With the spotlight, headlights, and overhead lights of his patrol car all shining on the Jetta, he was able to see the driver's face and build briefly as he stepped from the car and ran off.
The deputy chased the driver on foot for several blocks before losing him. Upon returning to the Jetta, he called in the license plate number and obtained the name of the registered owner, Roberto Andrade Maciel. Deputy Harris then performed an inventory search of the car prior to impounding it.
During the search, Deputy Harris found pay stubs in the car bearing the name of Longino Espindola. Believing that the pay stubs most likely belonged to the driver, he contacted the county's dispatch center for information on Longino Espindola, confirmed that dispatch personnel had a record of that name with a second last name of Martinez, and learned that the age and physical descriptors were close to what he had observed. He followed up on several addresses provided by dispatch personnel for Mr. Martinez Espindola, without success. Upon returning to the station, he pulled up a picture of Mr. Martinez Espindola on his computer and "immediately recognized that as the person that had gotten out of the vehicle." Report of Proceedings (RP) at 116. Mr. Martinez Espindola was charged with attempting to elude a police vehicle and driving with a suspended license. The State dropped the latter charge prior to trial.
The sole witness at trial was Deputy Harris. During closing, defense counsel argued that the deputy saw the driver of the Jetta only for an instant before he fled, and that the deputy failed to investigate what the registered owner of the car looked like. Defense counsel also pointed out that it is not uncommon for young Hispanic males to share similar physical features. During the State's reply argument, the prosecutor told the jury that Deputy Harris was a "professional officer of integrity" and "knows what he's doing" when it comes to identifying someone of a different ethnicity. RP at 185-86. Defense counsel never objected to these remarks.
The jury convicted Mr. Martinez Espindola and he was sentenced to 10 days of partial confinement and 240 hours of community service. He appeals.
ANALYSIS I
Mr. Martinez Espindola argues that his trial counsel's failure to bring a suppression motion challenging Deputy Harris's search of the Jetta constituted ineffective assistance of counsel. A claim of ineffective assistance is a mixed question of fact and law, reviewed de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
To establish ineffective assistance, a defendant must show that (1) the performance of counsel was so deficient that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A failure to make either showing terminates review of the claim. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Appellate review of counsel's performance starts from a strong presumption that it was effective. McFarland, 127 Wn.2d at 335. Where, as here, the deficient representation alleged is a failure to move to suppress evidence, Mr. Martinez Espindola may overcome the strong presumption of reasonable performance by showing that there was no plausible strategic or tactical reason for counsel not to bring such a motion. State v. Rainey, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001), review denied, 145 Wn.2d 1028 (2002). There can be no deficient performance if the forgone motion to suppress was reasonably likely to fail. State v. Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007).
Mr. Martinez Espindola claims that the record establishes that he would have prevailed on a motion to suppress the warrantless search of the Jetta because Deputy Harris's search was not a legitimate inventory search based on a lawful impoundment. A motor vehicle may be impounded and an inventory search conducted (1) when an officer has probable cause to believe the vehicle was stolen or used in the commission of a felony; (2) as part of the police community caretaking function and neither the defendant nor his spouse or friends are available to remove it; or (3) as part of the police function of enforcing traffic regulations, if the driver has committed one of the traffic offenses for which the legislature has specifically authorized impoundment. State v. Barajas, 57 Wn. App. 556, 560-61, 789 P.2d 321 (citing State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980)), review denied, 115 Wn.2d 1006 (1990). Mr. Martinez Espindola addresses only the second, community caretaking circumstance justifying impoundment and an inventory search, arguing that the car was not impeding traffic and that the deputy failed to consider reasonable alternatives to impoundment.
The State responds that Mr. Martinez Espindola ignores the more likely reasons defense counsel would have expected a suppression motion to fail: Deputy Harris had probable cause to believe that the Jetta was used in the commission of a felony and Mr. Martinez Espindola could have no reasonable privacy interest in a car that he abandoned in the process of fleeing police.
"A motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony." State v. Clark, 143 Wn.2d 731, 755, 24 P.3d 1006 (citing Simpson, 95 Wn.2d at 189), cert. denied, 534 U.S. 1000 (2001). Attempting to elude a police vehicle is the crime with which Mr. Martinez Espindola was charged and of which he was convicted, and it is a class C felony. RCW 46.61.024(1). The offense requires a showing that the driver of a vehicle willfully failed to immediately stop upon the signaling of a uniformed police officer in a marked vehicle, and that the driver drove in a reckless manner while attempting to elude. Id.
Here, the record is clear that Deputy Harris had probable cause to believe that the driver of the Jetta had committed the offense of attempting to elude a police vehicle. We note, first, that Mr. Martinez Espindola has not challenged the sufficiency of the evidence to convict him. That evidence established that the deputy pursued the car for several blocks at high speeds with his lights and siren on. The driver of the Jetta turned off the car's headlights during the pursuit in an attempt to elude. Since the deputy had probable cause to believe the car was used in the commission of a felony, he was entitled to impound it and conduct an inventory search.
Mr. Martinez Espindola nonetheless argues that Deputy Harris's failure to contact the registered owner of the car as an alternative to impoundment would support suppression. But none of the authorities cited by Mr. Martinez Espindola require an officer to consider alternatives to impoundment when a car is involved in the commission of a felony. See Br. of Appellant at 10 (citing State v. Bales, 15 Wn. App. 834, 835, 552 P.2d 688 (1976) (arrest on a traffic warrant for speeding), review denied, 89 Wn.2d 1003 (1977); State v. Houser, 95 Wn.2d 143, 146, 622 P.2d 1218 (1980) (arrest for obstructing an officer and driving with a suspended license); State v. Hardman, 17 Wn. App. 910, 911, 567 P.2d 238 (1977) (arrest for driving while under the influence), review denied, 89 Wn.2d 1020 (1978); State v. Reynoso, 41 Wn. App. 113, 115, 702 P.2d 1222 (1985) (driving without a license)).
Defense counsel could also reasonably have concluded that Mr. Martinez Espindola would not succeed in asserting a privacy interest in a car that he abandoned in the course of fleeing from Deputy Harris. Where property is voluntarily abandoned, law enforcement officers may retrieve and search it without implicating an individual's rights under the Fourth Amendment or under article I, section 7 of our state constitution. State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001). Voluntary abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. State v. Evans, 159 Wn.2d 402, 408, 150 P.3d 105 (2007). "Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered." State v. Dugas, 109 Wn. App. 592, 595, 36 P.3d 577 (2001). The issue is not abandonment in the strict property right sense but, rather, "'whether the defendant in leaving the property has relinquished her reasonable expectation of privacy so that the search and seizure is valid.'" Id. (quoting United States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993)).
Mr. Martinez Espindola cannot demonstrate deficient representation where defense counsel had these two plausible reasons for forgoing a suppression motion. Because his ineffective assistance argument fails on the deficiency prong, we need not address whether Mr. Martinez Espindola was prejudiced.
II
Mr. Martinez Espindola next argues that he is entitled to a new trial as a result of alleged prosecutorial misconduct. He claims the prosecutor committed misconduct by vouching for Deputy Harris's credibility during closing when he called the deputy a "professional officer of integrity" who "knows what he's doing" when it comes to identifying someone of a different ethnicity. RP at 185-86. Defense counsel did not object to these remarks at trial. A defendant claiming prosecutorial misconduct must establish both the impropriety of the prosecution's comments and their prejudicial effect. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008), cert. denied, 129 S. Ct. 2007 (2009).
It is improper for a prosecutor to personally vouch for the credibility of a witness. State v. Sargent, 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985) (finding impropriety meriting a new trial where the prosecutor repeatedly stated during closing that he believed a witness). Prosecutors do, however, have wide latitude to argue inferences from the evidence. State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995), review denied, 129 Wn.2d 1012 (1996).
Comments are prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). The fact that defense counsel did not object to a prosecutor's statement "suggests that it was of little moment in the trial." State v. Rogers, 70 Wn. App. 626, 631, 855 P.2d 294 (1993), review denied, 123 Wn.2d 1004 (1994). A defendant who fails to object to an improper comment waives the error unless he or she demonstrates that the comment is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice" that no curative instruction could have neutralized. Brown, 132 Wn.2d at 561. Where vouching is alleged, prejudicial error will not be found unless it is "clear and unmistakable" that counsel is expressing a personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (finding no improper comment where the prosecutor argued from the evidence as to why the jury should believe one witness over another) (citing Sargent, 40 Wn. App. at 344), cert. denied, 516 U.S. 1121 (1996).
Where a prosecutor's argument to the jury is challenged, we review the comments in the context of the prosecutor's entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999). Mr. Martinez Espindola does not allege any improper vouching in the prosecutor's initial closing argument, only in his rebuttal. The comments complained of followed and responded to defense counsel's argument that the State had failed to prove beyond a reasonable doubt that Mr. Martinez Espindola was the driver. He argued that Deputy Harris had only a limited opportunity to observe the driver, that it was night, that the flashing lights of the patrol car would have interfered with his ability to see, and that the officer "could have made a mistake"; concluding his challenge to Deputy Harris's identification as follows:
Now, I'm not going to — I don't want to sound like one of the jurors that was released for cause by saying, well, he's Mexican, they all look alike. But I will say this: It's not uncommon for a lot of young Hispanic males to have similar features, have dark hair, brown eyes, similar build. You heard Deputy Harris testify, 98 percent of the population in Mattawa is Hispanic. I'm sure my client is not the only Hispanic male in Mattawa. So I ask you to think about that. Think about the opportunity he had to see this person and how many Hispanic males there are living in Mattawa. And consider that a lot of them do look similar.
RP at 177, 178-79.
The prosecutor was entitled to respond, arguing inferences from the evidence that would support the reliability of Deputy Harris's identification. He made the following statements in rebuttal:
[Defense counsel] was very careful to not accuse Deputy Harris of dishonesty, but say, but he made a mistake. He could have made a mistake, but he didn't. How do we know he did not make a mistake? Because as a cop that's skilled, professional officer of integrity, he confirmed what he could confirm. He went, pulled up the information available to him in the computer, [and] found the picture [of Mr. Martinez Espindola] . . . .
Remember, Deputy Harris works in that part of the county all the time. He testified that he's worked there most of the time that he's been with the sheriff's department. He is heavily immersed in that community as a professional officer. . . . He's not only had experience to develop that cultural relationship and personal relationship, he's had a chance to overcome that potential problem that [defense counsel] carefully addressed of identifying someone of a different ethnic background from ourselves
. . . .
Most, if not all of you, could probably tell that just from listening to [Deputy Harris]. You can tell the difference between how different people, yourself, for example, versus Deputy Harris, pronounced those words. If you consider that as part of the information in front of you, it's part of considering how a person testifies, your job is to consider how they testify, you can conclude based on that testimony in the light of all the facts in front of you that Deputy Harris knows what he's doing and can draw that distinction.
RP at 184-86.
This argument, when viewed in context, is legitimate argument of inferences from the evidence that would justify the jury's confidence in the deputy's identification. Even the last statement, that "Deputy Harris knows what he's doing and can draw that distinction" is something the prosecutor is suggesting to the jury that "you can conclude based on that testimony in the light of all the facts in front of you."
While the statement that Deputy Harris is a "skilled, professional officer of integrity" is not so clearly tethered to the evidence outlined by the prosecutor, it is not clearly and unmistakably a statement of personal opinion. It certainly cannot be described as flagrant and ill-intentioned. We find no misconduct.
Nor has Mr. Martinez Espindola established any prejudicial effect resulting from the prosecutor's remarks. The gist of the prosecutor's rebuttal — that the jury was entitled to conclude from the deputy's considerable experience working in an overwhelmingly Hispanic community that he was not likely to have trouble making a cross-racial identification — was not altered by the particular statements Mr. Martinez Espindola has highlighted for objection.
We affirm.
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.
KULIK, C.J. BROWN, J., concur.