Opinion
No. 26827-6-III.
December 23, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-03792-2, Kathleen M. O'Connor and Linda G. Tompkins, JJ., entered January 10 and 25, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
This is an appeal from a conviction for possession of methamphetamine. The appellant assigns error to the court's refusal to suppress drug evidence. The police searched a car following a traffic stop and found drugs. The record supports the trial court's finding that the officer stopped the car, in which the appellant was a passenger, for a traffic violation. And that finding supports the court's conclusion that the stop was not a constitutionally prohibited "pretextual stop." In addition, the prosecutor's comments during final argument did not violate the appellant's constitutional right to a fair trial. We therefore affirm the conviction.
FACTS
Sergeant Brad Thoma patrolled the streets of Spokane, Washington, on May 18, 2004. He drove up alongside a car. The driver gave him a "startled" look. Report of Proceedings (Nov. 19, 2007) (RP) at 8. Sergeant Thoma slowed to get behind the car and check its tabs. He saw the driver turn right without using his turn signal. Sergeant Thoma pulled the car over for the traffic infraction.
Sergeant Thoma saw David Meckelson, the person in the passenger seat, reach toward the floor as Sergeant Thoma pulled the car over. He could not see Mr. Meckelson's hands when he approached the driver's door. He ordered Mr. Meckelson out of the car for safety purposes. Mr. Meckelson opened the door. Sergeant Thoma then saw two baggies of methamphetamine on the floor between the passenger seat and door. Sergeant Thoma arrested Mr. Meckelson for possession of a controlled substance.
Mr. Meckelson moved to suppress the drug evidence. The court held a hearing that included testimony from Sergeant Thoma. Mr. Meckelson argued that Sergeant Thoma's stop for the traffic violation was a pretext. The court disagreed and found that Sergeant Thoma stopped the car because the driver committed a traffic infraction. It concluded that the facts of this case were analogous to State v. Nichols and that the traffic infraction was both the subjective reason and an objective reason for the stop. The court entered appropriate findings and conclusions and denied Mr. Meckelson's motion.
State v. Nichols, 161 Wn.2d 1, 4-5, 162 P.3d 1122 (2007).
Mr. Meckelson's case proceeded to a jury trial. Mr. Meckelson represented himself and testified. The prosecutor asked him whether his fingerprint had been found on a meth lab jar found in the car's trunk. Mr. Meckelson objected. The trial court overruled the objection, and Mr. Meckelson answered, "No." RP at 42.
The prosecutor argued during closing that Mr. Meckelson was not taking responsibility for his actions. He argued that Mr. Meckelson was blaming others, including the public defenders, and that is why he was representing himself. The jury found Mr. Meckelson guilty of possession of methamphetamine.
DISCUSSION
Suppression — Pretextual Stop
Mr. Meckelson first assigns error to the court's finding that the traffic violation was the reason the officer stopped him and the court's ultimate conclusion that the stop was not a pretext as that term is defined in State v. Ladson, 138 Wn.2d 343, 359 n. 11, 979 P.2d 833 (1999).
"`Pretext is . . . a false reason used to disguise a real motive.'" Ladson, 138 Wn.2d at 359 n. 11 (quoting Patricia Leary Stephanie Rae Willaims, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 Temp. L. Rev. 1007, 1038 (1996)).
We must decide whether substantial evidence supports the challenged findings and whether the findings support the conclusions of law. State v. Griffith, 129 Wn. App. 482, 487, 120 P.3d 610 (2005). We review the trial court's conclusions de novo. State v. Neeley, 113 Wn. App. 100, 106, 52 P.3d 539 (2002).
Mr. Meckelson challenges only finding of fact 2:
While Sgt. Thoma was . . . suspicious because of the driver's alarmed look, he testified that he would not have and did not pull the car over because of the driver's suspicious look. Having heard his testimony . . . Sgt. Thoma is credible and the stop was because of an abrupt turn without having signaled within 100 feet of the turn and not because of the suspicious look.
Clerk's Papers (CP) at 133.
The car's driver turned without signaling 100 feet before making the turn. Sergeant Thoma testified that he would not have followed the car if the driver had signaled his turn. The sergeant testified that he followed the car and stopped it because the driver committed a traffic infraction. The court believed that testimony and that was the trial court's prerogative. State v. Meckelson, 133 Wn. App. 431, 438, 135 P.3d 991 (2006), review denied, 159 Wn.2d 1013 (2007). This testimony, then, supports the court's finding that Sergeant Thoma stopped the car for a traffic infraction. See State v. Dorey, 145 Wn. App. 423, 427, 186 P.3d 363 (2008) (defining substantial evidence test).
Mr. Meckelson also complains that there is a disputed issue of fact as to whether the driver failed to signal before he turned. The court resolved that dispute against Mr. Meckelson. CP at 133 (finding of fact 2). The trial judge here was the trier of fact at the suppression hearing. See CrR 3.6(b) (court shall enter findings after an evidentiary hearing); Meckelson, 133 Wn. App. at 438 (trial judge must believe or disbelieve testimony about whether a stop is pretextual). And we defer to the judge's finding. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000).
Mr. Meckelson next argues that the following conclusion of law supports his position that the traffic stop here was pretextual:
The totality of the circumstances considered, even though the initial subjective intent of Sgt. Thoma was to drop back to check the license plates, the vehicle abruptly turned without the proper signal, thereby forming the basis for the officer's proper subjective intent and objectively reasonable behavior in stopping the vehicle. The infraction was the real reason for the stop.
CP at 135.
Mr. Meckelson focuses specifically on the phrase addressing Sergeant Thoma's "initial subjective intent," suggesting that an officer's intent cannot change. But "patrol officers whose suspicions have been aroused may still enforce the traffic code, so long as enforcement of the traffic code is the actual reason for the stop." State v. Hoang, 101 Wn. App. 732, 742, 6 P.3d 602 (2000). A stop is a pretext only "when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code." Nichols, 161 Wn.2d at 8. We remanded after Mr. Meckelson's first appeal for a hearing on whether the stop here was pretextual. Meckelson, 133 Wn. App. at 438. The State had to show that there was a traffic violation and that the violation was the real reason for the stop. Id. at 437. And it did so.
First, the State showed that Sergeant Thoma's stop was objectively reasonable.
The driver committed a traffic infraction by turning abruptly without signaling. It is reasonable for a patrol officer to stop a driver for committing a traffic infraction. Second, the findings support the conclusion that the sergeant's subjective intent was to enforce the traffic code. The court found that Sergeant Thoma "would not have and did not pull the car over because of the driver's suspicious look. . . . [T]he stop was because of an abrupt turn without having signaled within 100 feet of the turn." CP at 133. The officer's "real reason" for the stop was, then, proper. Meckelson, 133 Wn. App. at 437. And the court here appropriately concluded, pursuant to these findings, that the stop was not a pretext. See Ladson, 138 Wn.2d at 359 n. 11.
Prosecutorial Misconduct
Mr. Meckelson next argues that the prosecutor's conduct during the trial amounted to egregious misconduct that violated his right to a fair trial.
Mr. Meckelson claims the prosecutor committed misconduct during cross-examination by asking him about fingerprints on a meth lab jar without providing factual support that the fingerprints were his. A defendant who alleges prosecutorial misconduct must show that the prosecutor's conduct was improper and prejudicial in the context of the entire record and circumstances at trial. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
Here, the prosecutor asked:
Q. Wasn't your fingerprint found on one of the jars in the meth lab?
MR. MECKELSON: Objection.
THE COURT: Objection overruled. You may answer the question.
THE WITNESS: Okay. No, there was none of my prints found on anything in the vehicle. Nothing at all. Not on the meth lab, not on the meth. Nothing.
RP at 42.
The State concedes that the prosecutor's question was improper. The only question, then, is whether the misconduct was prejudicial. Conduct is prejudicial only if it is substantially likely that the conduct affected the jury's verdict. McKenzie, 157 Wn.2d at 52.
Mr. Meckelson complains that the question put his credibility at issue without proof and thereby violated his right to confrontation. The prosecutor asked Mr. Meckelson one question about fingerprints. Mr. Meckelson answered the question, "No," in front of the jury. We are not prepared to conclude on the strength of this one improper question that the jury drew an improper inference that ultimately influenced this trial's outcome. See id.
The record contains overwhelming evidence of Mr. Meckelson's guilt. The State established the two elements necessary to prove unlawful possession of a controlled substance: the nature of the substance and possession by the defendant. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Possession may be either actual or constructive. State v. Sanders, 7 Wn. App. 891, 892, 503 P.2d 467 (1972). An individual is in constructive possession if he has dominion and control over the drugs, regardless of whether he is in actual possession. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). And the State can prove constructive possession through circumstantial evidence. Sanders, 7 Wn. App. at 893.
The drugs seized were methamphetamine. And Mr. Meckelson had possession of them when the sergeant stopped the car in which he was riding:
A. . . . [W]hen the stuff landed in my lap and on the seat next to me, I was sure, you know, it was drugs in the bags.
Q. And what did you do?
A. I panicked. I grabbed the bags. They landed on the seat. And the ones in my lap, I threw them down along the side of the passenger seat next to me.
RP at 38. Given this substantial evidence, we will not conclude that the improper inquiry here necessarily affected the jury's verdict.
Mr. Meckelson next argues that the prosecutor improperly commented on his rights to a fair trial and self-representation during his final argument. Mr. Meckelson did not object at trial, so the test on appeal is whether the misconduct was so flagrant and ill intentioned that it caused insurmountable prejudice. State v. O'Donnell, 142 Wn. App. 314, 328, 174 P.3d 1205 (2007). "The `flagrant and ill-intentioned' standard for misconduct requires the same `strong showing of prejudice' as the test for manifest constitutional error under RAP 2.5(a)." Id. (quotoing State v. Neidigh, 78 Wn. App. 71, 78, 895 P.2d 423 (1995)). A constitutional error is "manifest" only upon a showing of actual prejudice. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001). Mr. Meckelson claims that the State's comments meet this constitutional standard. But he does not "show how, in the context of the trial, the alleged error[s] actually affected [his] rights." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). He merely states that the comments were "highly prejudicial." Appellant's Br. at 14. He does not support this statement with context. A bald statement that the comments were prejudicial does not "show" actual prejudice. See McFarland, 127 Wn.2d at 333.
The comments could certainly be described as inept or untoward, but we conclude that, without more, they do not meet the constitutional threshold of flagrant or ill-intentioned misconduct.
We reject Mr. Meckelson's claim of cumulative error for the same reason. And we affirm his conviction.
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, A.C.J. and BROWN, J., concur.