State v. Wrzesien, No. 33530-1-II (Wash. App. 11/7/2006)
| Decision Date | 07 November 2006 |
| Docket Number | No. 33530-1-II,33530-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. PATRICIA JOANN WRZESIEN, Appellant. |
Appeal from Thurston Superior Court. Docket No: 01-1-01290-1. Judgment or order under review. Date filed: 06/10/2005. Judge signing: Honorable Chris Wickham.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, Po Box 7269, Tacoma, WA, 98406-0269.
Thomas Edward Doyle, Attorney at Law, Po Box 510, Hansville, WA, 98340-0510.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr Sw, Olympia, WA, 98502-6001.
Patricia Joann Wrzesien appeals her conviction of unlawful manufacture of methamphetamine, arguing that the trial court should have granted her motion for mistrial after the prosecutor, unknown to defense counsel, projected the word "guilty" on the wall during the beginning of defense counsel's closing argument. She also argues that the State presented insufficient evidence to support her conviction, that the trial court erred in sentencing her under former RCW 69.50.401(a)(1)(ii) (2000) when the jury never identified the particular substance underlying the conviction, and that her counsel was ineffective in failing to object to the trial court sentencing her under former RCW 69.50.401(a)(1)(ii). Finding no reversible error, we affirm.
Law enforcement officers discovered a suspected methamphetamine manufacturing site on a property containing a mobile home, a garage, a camper, a tent, and a cabin. Patricia Wrzesien, who rented the property from George Damitio, lived in the cabin; her sister, Sandra Gundy, lived on the property without Damitio's permission. Wrzesien was not on the property when the officers initially entered the property. The officers obtained a search warrant for the buildings and vehicles on the property, but decided to wait until the next day when it was day light to serve it. Officer Dan Saboe, who secured the property overnight, had orders to arrest Wrzesien if she returned.
That evening, Officer Saboe saw a vehicle pull into the driveway to the adjacent property. The driver stopped the car and turned the car's lights off. Because two people were in the car, Officer Saboe called for backup. When Deputy DuPrey arrived, he and Officer Saboe approached the car. Officer Saboe found Wrzesien in the driver's seat and Frank Anderson in the front passenger seat. As Officer Saboe ordered Wrzesien out of the car and placed her under arrest, he noticed a strong chemical smell coming from the vehicle. The officers released Anderson.
While searching the car incident to Wrzesien's arrest, Officer Saboe discovered a backpack behind the driver's seat and noticed a "strong chemical smell coming from that area." Report of Proceedings (May 3, 2005) at 39. Believing that he had discovered a mobile methamphetamine lab, Officer Saboe stopped the search and obtained a telephonic search warrant for the car.
Officer Aaron Jelcick searched the car's rear hatchback and found some tubing, plastic bags, and a two-and-a-half-gallon bucket that contained three glass jars. The three glass jars contained methamphetamine in various stages of production. Although Anderson said nothing when the officers arrested Wrzesien, at trial he claimed that he had placed the bucket and jars in the car without Wrzesien's knowledge.
Officer Jelcick also found a metal valve connected to some plastic tubing and a bottle of muriatic acid, which is commonly used in methamphetamine manufacturing operations. Inside the backpack, Officer Jelcick found several valves, two bottles of Heet,1 and several boxes of pseudoephedrine tablets, many of which had been removed from the blister packets and ground into powder. Officer Jelcick testified that each of these items is associated with manufacturing methamphetamine. Anderson denied knowing about these additional items. Officer Jelcick also found mail addressed to Wrzesien inside the car.2
The officers also searched the buildings and vehicles on the property. The cabin, the garage, and the mobile home were roughly equidistant from each other and surrounded an open central driveway. The tent was near the mobile home. Inside the tent, officers found filter papers with white crystalline residue. In the cabin, they found hypodermic needles and several documents belonging to Wrzesien. In the mobile home, officers found a methamphetamine smoking device, syringes, a piece of mail with Wrzesien's name on it, a triple-beam scale, denatured alcohol, and plastic baggies, one of which contained methamphetamine.
In the garage, police found a funnel and mason jars. Thurston County Sheriff's Deputy Ben Elkins testified that those objects are useful in manufacturing methamphetamine. The officers also found sodium silicate, plastic tubing, a propane tank containing anhydrous ammonia, Red Devil lye, and a gas mask, all commonly associated with methamphetamine labs. The officers found traces of methamphetamine on a food dehydrator and two containers of ammonia. State patrol forensic scientist Jane Boysen testified that someone could use a food dehydrator as a heat source in the final stage of manufacturing methamphetamine.
The State charged Wrzesien with one count of unlawful manufacture of a controlled substance as a principle or an accomplice (count I), and one count of unlawful possession of a controlled substance (count II). Count I carried a sentence enhancement due to the manufacture site's alleged proximity to a school bus route.
The trial court denied Wrzesien's motions to suppress the evidence.
At the beginning of defense counsel's closing argument, the prosecutor began preparing new Power Point slides for his rebuttal closing argument. The prosecutor had not turned off the projector and projected the word "guilty" on the courtroom screen. Defense counsel was not aware of the projection and although the court saw the projection, it did not advise defense counsel because the word appeared on the wall for less than 15 seconds.
The jury convicted Wrzesien of the unlawful manufacture charge but did not return a special verdict finding that she manufactured a controlled substance within 1,000 feet of a school bus stop. The court did not submit the possession charge to the jury.
Wrzesien moved to arrest judgment due to the prosecutor's alleged misconduct in projecting the word "guilty" on the wall during defense counsel's closing argument.3 In his declaration, the prosecutor admitted that he displayed the word "guilty" on the courtroom screen for "a portion of the 30 seconds during which the monitor display was up." Clerk's Papers (CP) at 174. He maintained that he inadvertently displayed "guilty" for less than a minute, not the several minutes claimed in several defense declarations. The State also moved for a protective order preventing Wrzesien's trial counsel from contacting the jurors. The court granted that motion.
The trial court recalled that it "looked over as soon as it flashed on the screen . . . [and] as soon as [he] looked at the screen, [the prosecutor] observed [the judge] looking at him and immediately dealt with it." RP (June 10, 2005) at 15. According to the court, the word was on the screen "less than 15 seconds total . . . and 15 seconds is probably very generous." RP (June 10, 2005) at 15. The court denied Wrzesien's motion for arrest of judgment, ruling that the prosecutor inadvertently projected the image and that the incident did not unfairly prejudice Wrzesien.
The principal issues on appeal center on the prosecutor's projection of "guilty" on the courtroom screen during defense counsel's closing argument; whether the trial court erred in preventing the defense from questioning the jurors about the effect of the incident on their decisions; whether the court commented on its view of the evidence when it remained silent when the incident occurred; whether the court's rulings on these issues showed bias; and whether this misconduct warranted a new trial. In addition to these issues, Wrzesien challenges the sufficiency of the evidence supporting her conviction.
We will reverse a trial court's ruling on a motion for mistrial only if the court abuses its discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (citing State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable reasons or grounds. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006) (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)). A trial court should grant a mistrial only when the defendant has suffered prejudice such that nothing short of a new trial will ensure the defendant a fair trial. State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, (1986), abrogated by State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994)).
Wrzesien argues that the trial court's order preventing her from interviewing the jurors kept her from substantiating the prosecutor's misconduct and insulated the trial court from evidence regarding its failure to halt the proceedings and inform her counsel of what the State had done.
Courts generally disfavor post-verdict interviewing of jurors. State v. Finch, 137 Wn.2d 792, 866, 975 P.2d 967 (1999) (citations omitted). Wrzesien cites Finch for the proposition that "the denial of leave to interview jurors is grounds for reversal" where the defendant presents specific "evidence of misconduct as shown by testimony or affidavit." Br. of Appellant at 11 (citing Finch, 137 Wn.2d at 867). But the Finch case dealt with juror misconduct, not prosecutorial misconduct. Finch, 137 Wn.2d at 867-68. And Wrzesien...
To continue reading
Request your trial