State Of Wash. v. Edvalds

• Decision Date: 16 August 2010
• Docket Number: No. 64953-1-I.,64953-1-I.
• Parties: STATE of Washington, Respondent, v. Richard Dewey EDVALDS, Appellant.
• Court: Washington Court of Appeals

157 Wash.App. 517

237 P.3d 368

STATE of Washington, Respondent,

v.Richard Dewey EDVALDS, Appellant.

No. 64953-1-I.

Court of Appeals of Washington,Division 1.

Aug. 16, 2010.

Jesse Williams, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

Lise Ellner, Attorney at Law, Vashon, WA, for Appellant.

APPELWICK, J.

¶ 1 Edvalds appeals his convictions for two counts of second degree burglary, one count of second degree theft, and one count of unlawful possession of a controlled substance. Edvalds alleges numerous instances of prosecutorial misconduct. He contends that he received ineffective assistance of counsel when counsel failed to request a mistrial after the prosecutorial misconduct occurred. He also argues that he was denied due process by lack of notice that the State intended to recommend an exceptional sentence when his high offender score would have resulted in unpunished crimes. We affirm.

FACTS

¶ 2 On August 29, 2007, members of the Tacoma Presbyterian Church discovered several missing items. Security video of the parking lot and the church interior showed a person cutting the lock off the fence surrounding the parking lot and driving a two-tone Ford Ranger with a camper shell into the parking lot. ¹ The person wore camouflage pants, white tennis shoes with dark-colored tongues, gloves, and black wraparound sunglasses. Law enforcement circulated still frame photos from the security footage. Lakewood Police Officer Adam Leonard identified the person as defendant Richard Edvalds. Officer Leonard had seen Edvalds driving a similar truck during previous surveillance.

¶ 3 After his arrest, officers searched Edvalds's place of employment, R & R Recycling, as well as his two vehicles that were located there, a Ford Ranger and a station wagon. Inside the Ford Ranger were bolt cutters, black wraparound sunglasses, a baggie of methamphetamine, and a scale. Inside the station wagon were camouflage pants, white tennis shoes with blue tongues, three sets of gloves, and a set of shaved keys of the type used to break into and steal vehicles.

¶ 4 The State charged Edvalds with two counts of second degree burglary, one count of second degree theft, and one count of unlawful possession of a controlled substance (methamphetamine). The jury found him guilty.

¶ 5 Edvalds appeals.

DISCUSSION

I. Prosecutorial Misconduct

¶ 6 Edvalds first contends the prosecutor committed misconduct by failing to adhere to the trial court's pretrial ruling on the admissibility of evidence, by improperly commenting on the credibility of the witness, and by making other allegedly inappropriate comments.

¶ 7 A defendant claiming prosecutorial misconduct who has preserved the issue by objection bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006). A defendant establishes prejudice if there is a substantial likelihood the misconduct affected the jury's verdict. State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003). Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be 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. Belgarde, 110 Wash.2d 504, 507, 755 P.2d 174 (1988).

¶ 8 We review trial court rulings on alleged prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wash.2d 792, 839, 975 P.2d 967 (1999). A court must consider the comments 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 Wash.2d 529, 561, 940 P.2d 546 (1997).

A. Comments Regarding Credibility

¶ 9 Edvalds alleges that the prosecutor improperly commented on Edvalds's credibility.

Edvalds raises several instances that occurred at trial as alleged misconduct.

¶ 10 First, on cross-examination, the State began by asking the defendant, “You would agree, sir, that the jury here has to decide whether you're credible?” The court sustained the defense objection. The State then asked, “Sir, you would agree that the jury has to decide whether your testimony here today is truthful?” After a sidebar, the court explained that the objection was sustained and the question withdrawn. The State then initiated the following conversation: ²

Q Sir, yesterday you were asked ... “Have you ever been to a court of law before?” Do you remember that question?

A Yes.

Q Again, please answer yes or no. You responded that you had been in a court of law in 1998 for a forgery case and also, I believe, you said seven or eight years ago for a false statement case. Is that what you testified to yesterday?

A Yes.

Q Mr. Edvalds, that wasn't accurate, was it; yes or no?

A No.

Q Truth, Mr. Edvalds, you have been in a court of law a number of times in the last ten years; isn't that correct?

A Yes.

Q In truth, you were in a court of law in 1998 when you were convicted for a felony charge of unlawful possession of a controlled substance?

A Yes.

Q In truth, you were in a court of law in 2001 when you were convicted for a felony charge of unlawful possession of a controlled substance?

A True.

The State continued questioning Edvalds in a similar manner regarding his remaining convictions, often prefacing the question with the phrase, “In truth, Mr. Edvalds.” The defense did not object.

¶ 11 Edvalds testified that the camouflage pants, alleged by police to have been located in his car, were actually found in a building at his work and that he had never worn them. The prosecutor responded, “And, again, Mr. Edvalds, you expect the jury to believe that....” The court overruled the defense's objection. The prosecutor then restated, “You expect the jury to believe that just like you expect the jury to believe that you were trying to be up front with the investigator?” The court sustained the defense's objection on the basis that it was a compound question. The prosecutor rephrased, asking “You expect the jury to believe that you're being up front with them with that testimony; is that right?” After Edvalds answered, the prosecutor followed up with, “Just like you were being up front with Investigator [Richard] B [a]rnard?” Defense did not object.

¶ 12 The prosecutor also asked if Edvalds had been driving a car when he had previously been arrested. The court sustained the defense's objection.

¶ 13 The prosecutor additionally asked Edvalds during cross-examination, “[Y]ou would agree that if someone had relevant and helpful testimony, you would do your best to get that information to law enforcement?” The court sustained the defense's objection to the argumentative nature of the question and the prosecutor withdrew the question.

¶ 14 Finally, the prosecutor asked Edvalds to agree that the property stolen exceeded $250 in value. The trial court sustained the defense objection on the grounds that the question was beyond the base of the defendant's knowledge.

¶ 15 Edvalds here argues that the above statements by the prosecutor constitute prosecutorial misconduct. He supports this assertion only by analogizing to State v. Stith, 71 Wash.App. 14, 856 P.2d 415 (1993). In Stith, the appellant was convicted of being a drug dealer. Id. at 15, 856 P.2d 415. On appeal, Stith alleged three instances of prosecutorial misconduct.

Id. at 16-18, 856 P.2d 415. First, the prosecutor suggested that the jury would have to conclude that the police were lying if they wanted to believe the defendant. Id. at 16-17, 856 P.2d 415. Second, the prosecutor said the defendant “was just coming back and he was dealing again.” Id. at 16, 856 P.2d 415. Third, the prosecutor implied that the defendant's guilt had already been determined when a judge entered a finding of probable cause and that incredible safeguards existed to prevent police officer perjury. Id. at 17, 856 P.2d 415. The court determined that although the argument about lying was not incurably prejudicial, the other remarks were egregiously prejudicial. Id. at 21, 23, 856 P.2d 415.

¶ 16 Edvalds fails to meet his burden to prove that the comments here were improper or that prejudice resulted. A prosecutor does not commit misconduct anytime he mentions credibility. Id. at 21, 856 P.2d 415. It is improper for a prosecutor to make comments which express a personal opinion of witness veracity. Id. at 19, 856 P.2d 415. But, a prosecutor may comment on a witness's veracity as long as a personal opinion is not expressed and as long as the comments are not intended to incite the passion of the jury. Id. at 21, 856 P.2d 415. Because the prosecutor did not offer a personal opinion or incite the passion of the jury, the comments here do not rise to the level of the reversible comments made by the prosecutor in Stith.

¶ 17 The trial court sustained objections to several of the comments. Defense counsel never requested a limiting instruction after an objection was sustained. The court instructed the jury to disregard any questioning or evidence that the court ruled inadmissible. Juries are presumed to follow the court's instructions. State v. Warren, 165 Wash.2d 17, 28, 195 P.3d 940 (2008), cert. denied, --- U.S. ----, 129 S.Ct. 2007, 173 L.Ed.2d 1102 (2009). Edvalds has not established that any prejudice resulted.

¶ 18 Edvalds did not object to several of the instances of alleged misconduct, specifically the comments “[i]n truth, Mr. Edvalds” and “[y]ou expect the jury to believe that you're being up front with them.” The absence of an objection by defense counsel strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial. State v. Swan, 114 Wash.2d 613, 661, 790 P.2d 610 (1990). Edvalds fails to allege that these comments were flagrant and ill intentioned as required by B...