State v. Martin

• Decision Date: 06 July 2009
• Docket Number: No. 61127-5-I.,61127-5-I.
• Citation: 151 Wn. App. 98,210 P.3d 345
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Timothy Sean MARTIN, Appellant.

210 P.3d 345

151 Wn. App. 98

STATE of Washington, Respondent, v. Timothy Sean MARTIN, Appellant.

No. 61127-5-I.

Court of Appeals of Washington, Division 1.

July 6, 2009.

Mary K. Webber, Snohomish County Prosecutor's Office, Everett, WA, for Appellant.

Washington Appellate Project, Vanessa Mi-Jo Lee, Seattle, WA, for Respondent.

DWYER, A.C.J.

¶ 1 Today we decide whether, in the context of a prosecutor's cross examination of a defendant concerning the defendant's opportunity to tailor his testimony to evidence previously introduced at trial, a defendant's rights to be present at trial, to testify, and to confront witnesses pursuant to article I, section 22 of the Washington Constitution should be interpreted differently from parallel rights protected under the Sixth Amendment to the United States Constitution. We hold that, in this context, no differing interpretation is compelled. Thus, because the federal constitution permits a jury to consider a defendant's opportunity to tailor testimony, the questions posed herein were allowable. Accordingly, we affirm.

I

¶ 2 Timothy Martin was charged with three counts of kidnapping in the first degree and one count of robbery in the second degree. At trial, Jessica Sobania identified Martin as the individual who forced his way into her minivan in a Marysville drugstore parking lot one night as she was seating her two young children in the backseat and who, after Sobania later escaped from the vehicle to seek help, drove off with Sobania's children still in the van. Other witnesses testified that, the following morning, police officers found Sobania's van parked at an industrial complex a few miles from where Sobania had escaped and recovered her children physically unharmed. A police detective testified that he found Sobania's purse next to Martin's photo identification and clothing in the vicinity of the industrial complex. The State's forensic DNA expert testified that DNA samples collected from the van's steering wheel and keys found in the van matched Martin's DNA profile. He further testified that an individual must handle an item for a prolonged period of time in order to deposit a sufficient amount of DNA to allow for DNA testing, thus supporting Sobania's testimony that Martin had driven away in her van. In addition, a friend of Martin's, Gerrie Summers, testified that Martin had essentially confessed to her that he had kidnapped Sobania and her children.

¶ 3 After the State presented its case in chief, Martin testified in his defense. He admitted that he had entered Sobania's van near the industrial complex. He further admitted that he had touched the steering wheel when attempting to start the vehicle and that he took Sobania's purse from the van but later discarded it along with his photo identification and clothing. However, he denied kidnapping Sobania or her children. Instead, Martin testified, he entered Sobania's van as part of an elaborate, drug-induced vehicle-prowling scheme that took him on foot throughout Marysville as he attempted to scrounge money following his release from prison a few days earlier. Martin testified that he was nowhere near the drugstore parking lot when Sobania was abducted. To support this testimony, Martin pointed to a library time log showing that, roughly an hour before Sobania was kidnapped, he was at a library approximately eight miles from the drugstore, thus inviting the jury to infer that he could not have traveled from the library to the drugstore on foot in the space of an hour. Martin also attempted to explain away Summers' damaging testimony.

¶ 4 Whether Martin tailored his testimony to fit the evidence introduced at trial became an issue during his testimony. On direct examination, Martin explicitly testified that he had relied on other witnesses' prior testimony to pinpoint the time when he entered Sobania's van.¹ He also confirmed on direct examination that he had been "present and heard" Summers' testimony. On cross-examination, Martin again explicitly testified that he was relying on other witnesses' testimony as to when he had entered Sobania's van.² The prosecutor then asked more questions drawing attention to Martin's opportunity to tailor his testimony to the evidence introduced at trial.³ The jury subsequently convicted Martin on all counts.

II

¶ 5 Martin contends that the prosecutor's questions concerning his opportunity to tailor his testimony to the evidence introduced at trial constituted prosecutorial misconduct. Specifically, Martin asserts that the prosecutor's questions infringed his rights under article I, section 22 of the Washington Constitution to be present at trial, to meet witnesses face to face, and to testify in his behalf.⁴ We disagree.

¶ 6 To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wash.2d 471, 533, 14 P.3d 713 (2000). "`The State can take no action which will unnecessarily chill or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right.'" State v. Gregory, 158 Wash.2d 759, 806, 147 P.3d 1201 (2006) (internal quotation marks omitted) (quoting State v. Rupe, 101 Wash.2d 664, 705, 683 P.2d 571 (1984)). A prosecutor may, however, touch upon a defendant's exercise of a constitutional right, provided the prosecutor does not "`manifestly intend[] the remarks to be a comment on that right.'" Gregory, 158 Wash.2d at 806-07, 147 P.3d 1201 (quoting State v. Crane, 116 Wash.2d 315, 331, 804 P.2d 10 (1991)).

¶ 7 Martin recognizes that the United States Supreme Court's decision in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000), precludes him from arguing that the prosecutor's questions violated his rights under the Sixth Amendment to the United States Constitution to be present at trial, to confront witnesses, and to testify in his own defense. Instead, he offers a Gunwall⁵ analysis in support of his claim that article I, section 22 should be independently interpreted more favorably to him than is the Sixth Amendment. Before we consider Martin's argument, however, we must analyze the Portuondo decision to discern the nature of a defendant's Sixth Amendment rights in this context, thus illuminating the issues arising in a Gunwall analysis of article I, section 22. See State v. Foster, 135 Wash.2d 441, 456, 957 P.2d 712 (1998) (plurality opinion) (discussing scope of federal right of confrontation before embarking on Gunwall analysis).

¶ 8 In Portuondo, the Court held that a prosecutor does not violate a defendant's Sixth Amendment rights to be present at trial, to confront adverse witnesses, and to testify by commenting on the defendant's opportunity to tailor his or her testimony to the evidence previously introduced at trial. The prosecutor in Portuondo remarked during closing argument that the defendant, Agard, had an advantage over other witnesses because he had the opportunity to observe the other witnesses' testimony before he testified and, thus, could tailor his testimony to the evidence previously introduced. 529 U.S. at 64, 120 S.Ct. 1119. The Court explained that "[t]he prosecutor's comments ... concerned [Agard's] credibility as a witness, and were therefore in accord with our longstanding rule that when a defendant takes the stand, `his credibility may be impeached and his testimony assailed like that of any other witness.'" Portuondo, 529 U.S. at 69, 120 S.Ct. 1119 (quoting Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)). The Court further observed that "`the rules that generally apply to other witnesses—rules that serve the truth-seeking function of the trial—are generally applicable to [a testifying defendant] as well.'" Portuondo, 529 U.S. at 69, 120 S.Ct. 1119 (quoting Perry v. Leeke, 488 U.S. 272, 282, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), and citing Reagan v. United States, 157 U.S. 301, 305, 15 S.Ct. 610, 39 L.Ed. 709 (1895)).

¶ 9 In holding that the prosecutor's comments did not violate Agard's Sixth Amendment rights, the Court in Portuondo contrasted a prosecutor's comment on a defendant's credibility, based on the opportunity to tailor testimony, with a prosecutor's comment urging the jury to draw a negative inference of guilt from the defendant's refusal to testify. The latter type of comment, "by `solemniz[ing] the silence of the accused into evidence against him,' unconstitutionally `cuts down on the privilege [against self-incrimination] by making its assertion costly.'" Portuondo, 529 U.S. at 65, 120 S.Ct. 1119 (first alteration in original) (quoting Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). In essence, a comment that the jury should find a defendant guilty because he remained silent amounts to "urging the jury to do ... something the jury is not permitted to do." Portuondo, 529 U.S. at 67, 120 S.Ct. 1119. Thus, a prosecutor is "prohibited [from making] comments that suggest a defendant's silence is `evidence of guilt.'" Portuondo, 529 U.S. at 69, 120 S.Ct. 1119 (quoting Griffin, 380 U.S. at 615, 85 S.Ct. 1229). In addition, "the inference of guilt from silence is not always `natural or irresistible,'" thus making effective a jury instruction that a defendant's guilt may not be inferred from his silence. Portuondo, 529 U.S. at 67, 120 S.Ct. 1119 (quoting Griffin, 380 U.S. at 615, 85 S.Ct. 1229). On the other hand, the Court explained, "it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him." Portuondo, 529 U.S. at 67-68, 120 S.Ct. 1119.

¶ 10 Further, the Court rejected the argument that it is impermissible for a prosecutor to generally comment that a defendant had the opportunity to tailor testimony. Portuondo, ...