No. 52619-7-IThe Court of Appeals of Washington, Division One.
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-04901-6. Judgment or order under review. Date filed: 06/16/2003. Judge signing: Hon. Paris K Kallas.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Bruce Castilla Doc #857405 (Appearing Pro Se).
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Sara Lynn McCulloch, King Co Pros Office, 516 3rd Ave, Seattle, WA 98104-2390.
PER CURIAM.
Bruce Castilla contends that the prosecutor improperly encouraged the jury to convict him of first degree robbery and second degree unlawful possession of a firearm based on passion and prejudice by arguing that `[t]he guilty always run. The innocent stay strong and face what they have coming to them’. But flight from the police is circumstantial evidence of guilt and the prosecutor’s argument was not a flagrant or ill intentioned appeal to passion or prejudice. We affirm.
Castilla and Luis Rodriguez drove to a parking lot in downtown Seattle where they stole a car at gunpoint from two women. The two women followed in another car and called 911. When police stopped the stolen car, both Castilla and Rodriguez ran. The police caught them and found a gun abandoned near the stolen car.
Castilla testified that he participated in the robbery but did so under duress: Rodriguez insisted that he remove a handgun from the trunk of his car and give it to Rodriguez to use in the robbery; Rodriguez refused his attempts to talk him out of the robbery; Rodriguez directed him to get in the stolen car, wipe down the gun, throw the gun out the window and run from the car; and he feared that because they are members of the same gang, Rodriguez would harm him if he did not go along with the robbery. Castilla admitted on cross-examination that Rodriguez never threatened to kill him and never threatened him with the gun.
In closing argument, the prosecutor reviewed the evidence supporting the theory that Castilla was guilty as an accomplice. With no objection, the prosecutor argued:
The defendant attempted to run from the stolen car. The guilty always run. The innocent stay strong and face what they have coming to them. The defendant ran from the car after cleaning the gun and trying to throw it away.
Comments calculated to appeal to the jurors’ passion and prejudice are improper.[1] But flight from the police is circumstantial evidence of guilt,[2] and the prosecutor is allowed latitude in closing argument to draw and express reasonable inferences from the evidence.[3] The prosecutor properly argued the reasonable inference that Castilla’s flight from the stolen car was consistent with his guilt.
Further unless the defense objects to the improper comments at trial, requests a curative instruction, or moves for a mistrial, reversal is not required unless the misconduct was so flagrant or ill intentioned that any prejudice could not have been obviated by a curative instruction.[4] There was no objection, request for a curative instruction or a motion for mistrial, and Castilla fails to establish that the prosecutor’s argument was a flagrant or ill intentioned appeal to passion and prejudice.
Mr. Castilla also contends RCW 43.43.754 and the portion of his sentence requiring him to provide a biological sample for DNA identification violates his Fourth Amendment right against unreasonable searches and article I, section 7 right against searches without well founded suspicion. These arguments were rejected in, and are controlled by, our decisions in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004) (holding that State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993), is controlling on the Fourth Amendment issue). The Ninth Circuit has also recently rejected a Fourth Amendment challenge to a requirement to provide a biological sample for DNA identification. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004).
Finally, Castilla’s Statement of Additional Grounds contains several references to portions of the record, but there is ample evidence to support the jury verdict and the limited excerpts do not establish duress or support any relief on appeal.
We affirm.
COLEMAN, J., GROSSE, J. and BAKER, J.
(1988).
(1983).
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