Opinion
No. 24969-7-III.
January 8, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-02437-0, C. James Lust, J., entered February 21, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.
This appeal follows a conviction for attempted first degree murder. One issue before us is whether a new trial should be granted based on prosecutorial misconduct. We also address whether Bobby Joe Gatlin was improperly sentenced under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, and whether the POAA violates the single subject rule of article II, section 19 of the Washington Constitution. Finally, we address Mr. Gatlin's pro se claim in his statement of additional grounds that the trial court erred in allowing the admission of prior bad act evidence. We affirm.
FACTS
The attempted first degree murder charge arose out of Mr. Gatlin's attempt to kill Joseph Metsker. At trial, Mr. Metsker testified that on October 22, 2004, Mr. Gatlin and two others kidnapped him at gunpoint, tied his arms behind his back, and forced him into a car. After driving for about 20 minutes, Mr. Gatlin stopped the car and ordered Mr. Metsker to exit. Mr. Gatlin accused Mr. Metsker of revealing his identity to police regarding a home robbery. When Mr. Metsker denied the accusation, Mr. Gatlin hit him in the head with a walking stick and slid a knife across his throat. When a car approached, Mr. Gatlin dragged Mr. Metsker to the side of the road, slashed his throat again, and stabbed him in his back.
After Mr. Gatlin and the others left the scene, Mr. Metsker, who was bleeding profusely, was able to reach a nearby house. An emergency medical technician testified that the laceration on Mr. Metsker's neck was 10 to 12 centimeters long, and that arteries and bones were visible.
The defense attempted to impeach Mr. Metsker during cross-examination by focusing on his involvement in the home robbery and his inconsistent testimony in the trials of co-defendants in that matter. During closing argument, the defense again emphasized the home robbery. In response, the State noted Mr. Gatlin's failure to call witnesses who could support his defense theory.
Mr. Gatlin objected that these comments mischaracterized the evidence. The trial court advised the jury that the remarks of counsel are not evidence.
The prosecutor then claimed that the defense was trying to distract the jury from the real issue at trial — the attempted murder. He remarked, "That's the classic, look over here when the real action is right here. And what's the real action of this case? This is the real action of the case. This is it. Did the defense ask many questions about this? Why not?" VII Report of Proceedings at 539. Defense counsel objected that these remarks violated Mr. Gatlin's right to remain silent. The court overruled the objection.
The jury found Mr. Gatlin guilty of attempted first degree murder with a deadly weapon. The court imposed a life sentence without the possibility of parole.
ANALYSIS
We first address Mr. Gatlin's contention that he is entitled to a new trial based on prosecutorial misconduct. Specifically, Mr. Gatlin asserts that the prosecutor's remarks about his failure to call certain witnesses improperly shifted the burden of proof and infringed upon his Fifth Amendment right to remain silent.
Prosecutorial misconduct allegations are reviewed for abuse of discretion. State v. Ray, 116 Wn.2d 531, 549, 806 P.2d 1220 (1991). This court reviews a prosecutor's allegedly improper remark in the "context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Generally, improper prosecution argument is tested by whether the argument is so flagrant and ill intentioned as to create incurable prejudice. State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1998). However, if the alleged misconduct directly violates a constitutional right, as Mr. Gatlin contends, then it is subject to the constitutional harmless error test. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). Under this test, the error is harmless only if the State proves beyond a reasonable doubt the error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Right to Remain Silent
A prosecutor's comment violates a defendant's right to remain silent if a jury would "`naturally and necessarily accept it as a comment on the defendant's failure to testify.'" State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987) (quoting State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). In response to Mr. Gatlin's contention that the prosecutor's remarks violated his constitutional right not to testify, the State counters that viewing the argument as a whole, the prosecutor was simply pointing out that the defense was focusing on facts secondary to the issue of who attempted to murder Mr. Metsker.
We agree with the State's position. The prosecutor was inviting the jury to focus on the crime before it, instead of the home robbery. In the context of the defense emphasis on the robbery, the prosecutor's comments did not reflect on Mr. Gatlin's failure to testify. We find no reasonable inference from the prosecutor's remarks that would lead a jury to believe that Mr. Gatlin remained silent because he was guilty.
Burden of Proof
We also reject Mr. Gatlin's contention that by calling attention to his failure to call certain witnesses, the State effectively shifted the burden of proof to him. A defendant has no duty to present evidence; rather, the State must prove each element of its case beyond a reasonable doubt. State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996). But viewing the remarks in the context of the case, we find no misconduct or improper shifting of the burden of proof. As the State points out, "The deputy prosecutor was not arguing that the defense failed to call this witness, but that the State did not call those witnesses because they add nothing to the charged crime, and would merely be a distraction." Resp't's Br. at 10. By re-directing the jury's attention to the central facts of the case, the State did not shift the burden of proof to Mr. Gatlin.
Sentencing Issues
Next, Mr. Gatlin contends that the trial court violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) by imposing a life sentence without the possibility of parole under the POAA. Specifically, he asserts that the trial court violated the rule in Blakely, which requires the court to submit the question of persistent offender status to the jury. We reject his argument.
It is well settled that Blakely does not apply to sentencing under the POAA. See State v. Ball, 127 Wn. App. 956, 959-60, 113 P.3d 520 (2005) (ruling that Blakely does not apply to the POAA). In reaching this conclusion, the Ball court noted that Blakely specifically addresses exceptional sentences, whereas the POAA is directed at recidivism. Id. Our Supreme Court is in accord. See State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001) (holding Apprendi does not require that prior convictions used to establish persistent offender status be submitted to a jury and proved beyond a reasonable doubt); State v. Smith, 150 Wn.2d 135, 141, 75 P.3d 934 (2003) ("the United States Supreme Court has never held that recidivism must be pleaded and proved to a jury beyond a reasonable doubt").
Blakely followed Apprendi v. New Jersey, where the Supreme Court held that: " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis added).
Next, Mr. Gatlin contends that the POAA, as enacted as part of Initiative 593, violates the single subject rule of article II, section 19 of the Washington Constitution and therefore must be discarded in its entirety. However, our Supreme Court rejected this argument in State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996). In that case, the appellant argued that because the POAA contains two distinct subjects (provisions for life imprisonment of "persistent offenders" and provisions for making other offenders ineligible for early release), it violated article II, section 19. The court held that even though the POAA encompassed both provisions, "[t]he ballot title to Initiative 593 contains only one subject, persistent offenders; hence, any provisions in the law which relate to that subject are valid under article II, section 19." Thorne, 129 Wn.2d at 758. Here, as in Thorne, the challenge is directed solely to the part of the POAA that falls within the scope of the title. Accordingly, Mr. Gatlin's argument must fail.
Article II, section 19 of the Washington Constitution provides that "[n]o bill shall embrace more than one subject, and that shall be expressed in the title."
Statement of Additional Grounds for Review
In his pro se statement of additional grounds, Mr. Gatlin argues that the trial court erred in admitting evidence of his involvement in the home robbery. He asserts that the trial court should have evaluated the evidence under ER 403 and ER 404. But Mr. Gatlin failed to object to this evidence below, effectively waiving this argument for appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). The issue has not been properly preserved for our review. State v. Henthorn, 85 Wn. App. 235, 239, 932 P.2d 662 (1997) (appellate courts do not review alleged evidentiary issues not objected to below). Finally, Mr. Gatlin contends that the trial court erred by allowing the prosecutor to comment on his failure to produce witnesses. We have already discussed and rejected this argument.
Affirmed.
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.
BROWN, J. and KULIK, J., concur.