No. 31483-5-IIThe Court of Appeals of Washington, Division Two.
Filed: February 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No: 03-1-00224-0. Judgment or order under review. Date filed: 02/24/2004. Judge signing: Hon. Kenneth Day Williams.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), Lauren Michele Erickson, Attorney at Law, Clallam Co Prosc Atty Ofc, 223 E 4th St, Port Angeles, WA 98362-3015.
ARMSTRONG, J.
Niccole Marie Charles appeals her conviction of unlawful possession of a controlled substance (methamphetamine). She argues that: (1) the trial court erred by failing to rule on her oral suppression motion; (2) the trial court erred when it failed to enter findings of fact and conclusions of law on the suppression motion; (3) the trial court erred when it failed to suppress evidence found in a purse she put on the ground immediately prior to her arrest; (4) her trial counsel was ineffective for failing to follow through on the oral suppression motion; and (5) the prosecutor committed prosecutorial misconduct during closing argument by arguing that in order to acquit, the jury would have to find that the State’s witnesses were either lying or mistaken. We affirm.
FACTS
On June 5, 2003, Detective Jesse Winfield of the Port Angeles Police Department was investigating the use of a credit card that had been stolen in a residential burglary in Spokane. The credit card had been used at the Marine Drive Chevron in Port Angeles, and the station clerk recognized the person that had used the card as Charles. The clerk also provided a description of the car Charles had been driving, a red Pontiac Fiero. Winfield also knew that there was an unrelated outstanding arrest warrant for Charles.
Winfield eventually located Charles and the red Fiero in a backyard. Charles appeared to be moving belongings from the car to a recreational vehicle (RV) or a residence located approximately 45 to 50 feet from the car.
When Charles was near the RV, about half-way between the car and the residence, Winfield approached, called to Charles, and identified himself as a police officer.[1] Charles stopped and put the items she was carrying on the ground. Winfield asked her to pick up the items and come to him. Charles left the items on the ground and walked over to Winfield.
Winfield arrested Charles and advised her of her rights. Another officer placed Charles in the back of his patrol car located approximately 25 feet from the Fiero. Winfield then retrieved the items Charles had put down. At the suppression hearing, Winfield testified that as he approached the items, Charles called out “That’s not my purse.” Report of Proceedings (Sept. 8, 2003) at 36. Winfield searched the purse and found the stolen credit card and a set of pocket scales coated with what later proved to be methamphetamine residue.
The State charged Charles with second degree possession of stolen property (count 1), and unlawful possession of methamphetamine (count 2). During a CrR 3.5 hearing, Winfield testified as described above. On cross-examination, defense counsel began to question Winfield about whether he obtained a search warrant before searching the purse and the prosecutor objected, asserting that she was not on notice that the defense had intended to raise any issues related to the search. Defense counsel responded that he was raising the CrR 3.6 issue for the first time based on apparent discrepancies between the police reports and Winfield’s hearing testimony.
The prosecutor reiterated that she was not on notice, and the trial court expressed concern that defense counsel had raised this issue for the first time on the day of trial. The court then stated: `I will allow a little more and allow argument at some point but not before we bring the jury in.’ RP (Sept. 8, 2003) at 52.
Defense counsel then questioned Winfield about what he found in the purse and whether he had noted in his reports that Charles said it was not her purse. Defense counsel then briefly argued that the search was not a lawful search incident to arrest because the purse was approximately 25 feet away from Charles when Winfield searched it.
After ruling on the CrR 3.5 issues, the trial court deferred its ruling on the CrR 3.6 issue, stating:
On the 3.6 issue, again I’m going to let the parties and the Court frankly have a chance to research that a little further and take that up a little later time because with the jury here I think we need to proceed. If it’s dispositive I think it will be at a later time as well, but since it came up rather suddenly we will take a look at that a little later.
RP (Sept. 8, 2003) at 72. Neither party raised the CrR 3.6 issue again or asked the court for a final ruling. Nor did defense counsel object when the State offered and the trial court admitted the purse or the scales into evidence.
At trial, Judith Edmonds, the Spokane burglary victim, testified that her home was burglarized while she was in Europe and that one of the items taken during the burglary was her Chevron credit card. She denied knowing Charles or giving her permission to use the Chevron card, but identified the credit card found in Charles’s purse as her stolen card. When asked to describe herself, Edmonds stated she was 5 foot 1 inch tall, 135 pounds, and 51 years old.
Winfield’s testimony about contacting and arresting Charles was substantially the same as described above. He and another officer who had questioned Charles, Robert Ensor, testified that Charles had told them that Edmonds, who she described as 5 foot 7 inches tall, skinny, and about 40 to 45 years old, had loaned her the credit card and given her permission to use it providing that Charles paid her back.
Ensor also testified that Charles told him that another woman, Katelynn, had witnessed Edmonds give her the card and their oral agreement allowing Charles to use the card. Charles further stated that Katelynn, Edmonds’s boyfriend `Craig,’ and Edmonds all lived together in Spokane and that she had been introduced to Edmonds by Craig.
Additionally, Charles told the officers that she had driven to Port Angeles with Edmonds and that she had planned to meet Edmonds later that day. On rebuttal, Detective Mike Hall testified that he had attempted to find Katelynn where Charles had said they had planned to meet, but no one showed up.
Ensor further testified that Charles initially told him that she had used the credit card at the Marine Drive Chevron to purchased gas and nothing else. But when Ensor asked her if she had signed Edmonds’s name on the charge slip, Charles paused and then responded that `she didn’t actually go inside the store that Judy Edmonds went inside the store and used the credit card’ while she pumped the gas. RP (Sept. 9, 2003) at 27. When Ensor confronted Charles with the clerk’s identification, Charles asserted that the clerk must have been wrong and encouraged Ensor to review the store’s security tapes. Ensor later discovered that the store’s cameras had not been working.
Alisa McGowan, the clerk who had identified Charles as the person who used the credit card, also testified. McGowan testified that although she had not seen Charles in a couple of years, she and Charles had been friends in high school. She further testified that the two had once gone to a concert together in Charles’s car, a red Pontiac Fiero, the same car she had seen at the store on June 3. Additionally, she described Charles purchasing several items from her on June 3, and paying for those items using Edmonds’s credit card.
Charles testified in her defense, acknowledging that the purse Winfield searched was hers, but denying any knowledge of the scales. Her testimony about how she obtained the credit card differed significantly from the statements Winfield and Ensor testified to. She denied making several statements the officers attributed to her and attempted to explain the discrepancies between her trial testimony and the officers’ representations of her statements by asserting that they must have misunderstood her. Her trial testimony also contradicted much of McGowan’s testimony.
During closing argument, the prosecutor argued as follows:
The theme of this trial has really turned out to be everybodys [sic] mistaken but the defendant, Niccole Charles; or, oh, what a tangled web we weave when first we practice to deceive.
. . .
Circumstantial evidence is fact from which you can infer from reasonable experience. The reasonableness of someone’s testimony. Think about it, it [sic] what’s reasonable? Everybody’s mistaken but Ms. Charles?
Now, again, witnesses can be mistaken, that does happen, but to believe Ms. Charles, you have to believe they’re mistaken just not on a few things, they’re mistaken on just about everything and on pretty much major things.
For instance, you have to believe that Alisa McGowan, who’s just been subpoenaed brought to the courtroom, you have to believe that gee, she was wrong when she saw Niccole Charles at the Marine Drive Chevron on 2 occasions on June 3rd. She apparently was mistaken, but even though she went to high school and apparently she’s mistaken that they were pretty good friends back in high school, she’s mistaken that they went to a concert together. Ms. Charles wants you to believe that oh, well, no, she just got it wrong.
Now, your job is to evaluate evidence. And what the evidence is is not only those physical pieces of evidence, but it’s again, what people say on the stand. And what the instructions tell you is that in evaluating witnesses testimony, when you — you are to in considering the testimony of any witness you may take into account the opportunity and the availability of the witness, the reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear on believability and weight. Any other factors.
Now, who in this courtroom or who among the witnesses has the most to lose? It’s not Alisa McGowan. It’s not Detective Winfield. It’s not Detective Ensor. It’s the defendant, Niccole Charles.
And, when you evaluate her testimony, it is contrary testimony of that given by those witnesses, you should take that into consideration.
RP (Sept. 9, 2003) at 103-07.
The prosecutor also contrasted Charles’s testimony to the other witnesses’ testimony and pointed out other weaknesses in Charles’s case, including the fact that no one could locate any of the people who could verify Charles’s testimony. The prosecutor argued that these factors suggested that Charles’s version of the events was not credible. Defense counsel did not object to these aspects of the prosecutor’s closing argument.
The jury convicted Charles on the possession of methamphetamine charge.[2] She appeals.
ANALYSIS I. CrR 3.6 Motion A. Lack of Ruling or Written Findings of Fact and Conclusions of Law
Charles argues that the trial court erred by failing to rule on her oral suppression motion or enter written findings of fact and conclusions of law under CrR 3.6. We disagree.
Although the court heard argument on Charles’s oral suppression motion, the court deferred ruling on the motion to allow the parties time to further research the suppression issue. But neither party raised the issue again. Accordingly, the trial court did not err in failing to rule on the motion or issue written findings of fact or conclusions of law.
B. Search Incident to Arrest
Relying on State v. Johnston, 107 Wn. App. 280, 28 P.3d 775
(2001), review denied, 145 Wn.2d 1021 (2002); State v. Bradley, 105 Wn. App. 30, 27 P.3d 613 (2001); and State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000), Charles argues that the search of the purse was not a lawful search incident to arrest because she was 20 to 25 feet from the purse when Winfield arrested her and, therefore, it was not in her control at the time of her arrest. She also argues that if her counsel’s failure to raise this argument after the trial court deferred its ruling waived this issue, she received ineffective assistance of counsel. Regardless of whether this issue was properly preserved, Charles’s suppression argument has no merit.
`A warrantless search is presumed unreasonable except in a few established and well-delineated exceptions.’ State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967)). A search incident to a lawful arrest is such an exception. Smith, 119 Wn.2d at 678 (citing United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471, 38 L. Ed. 2d 427
(1973)). `[A] search incident to arrest is valid under the Fourth Amendment: (1) if the object searched was within the arrestee’s control when he or she was arrested; and (2) if the events occurring after the arrest but before the search did not render the search unreasonable.’ Smith, 119 Wn.2d at 681 (citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768
(1981)); see also United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1991); United States v. Fleming, 677 F.2d 602, 607 (7th Cir. 1982).[3]
`An arrestee does not have to be in actual physical possession of an object for that object to be within his control for search incident to arrest purposes.’ Smith, 119 Wn.2d at 681. `An object is . . . within the control of an arrestee for the purposes of a search incident to an arrest as long as the object was within the arrestee’s reach immediately prior to, or at the moment of, the arrest.’ Smith, 119 Wn.2d at 681-82. Here, the record shows that the purse was within Charles’s actual control immediately prior to her arrest. Thus, the search was a lawful search incident to arrest.
Additionally, the cases Charles relies on can be distinguished. In Johnston, the court found that the defendant did not have access or `immediate control’ of vehicle’s passenger compartment when, prior to arrest, the defendant had exited the vehicle, closed its doors, entered and then exited a store, and then walked past the vehicle while the officers stood between him and the vehicle. Johnston, 107 Wn. App. at 288. In other words, the court found that the defendant did not have access to the vehicle immediately preceding the arrest. Here, Charles clearly had actual possession of the purse immediately prior to her arrest.
Likewise, in Porter, this court found that the defendant did not have immediate access to a vehicle that was later searched, when the police did not initiate the arrest until the defendant had walked approximately 300 feet from the vehicle. Porter, 102 Wn.2d at 333-34. Here, Charles had actual possession of the purse immediately prior to the arrest and she moved, at most, 25 feet from the purse prior to her actual arrest.
And Bradley supports the State’s case. In Bradley, the court found that a search of a vehicle was a lawful search incident to arrest where officers had probable cause to arrest the defendant and then observed petitioner run into a parking lot, make furtive movements inside his car, and then walk away from his car. Bradley, 105 Wn. App. at 38-39. Here, because Winfield knew of the existing arrest warrant, he clearly had probable cause to arrest Charles at the time she set down the purse and, under Bradley, the search was proper.
Further, because Charles cannot show that her suppression motion would have been successful, she fails to establish that her counsel was deficient for failing to raise this issue again after the trial court deferred its ruling. See State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (to establish ineffective assistance of counsel, an appellant must show that counsel’s performance was deficient and resulting prejudice); see also In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have differed).[4]
II. Prosecutorial Misconduct
Charles next argues that the prosecutor committed misconduct by arguing in closing that to acquit, the jury had to find that the State’s witnesses were `mistaken.’ Appellant Br. at 13. She further asserts that this error was so flagrant and ill-intentioned that it could not have been cured by instruction. The State argues that the prosecutor did not argue that in order to acquit, the jury had to find that the State’s witnesses were lying or mistaken, but instead was arguing the relative credibility of the testimony. We agree with the State.
To establish prosecutorial misconduct, Charles must show that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)), review denied, 151 Wn.2d 1039 (2004). We view the allegedly improper statements within the context of the prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). And a defendant’s failure to object to a prosecutor’s improper remark waives the error, unless the remark is deemed 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. Stenson, 132 Wn.2d at 719.
A prosecutor may not argue that to acquit a defendant, the jury must find that the State’s witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076
(1996). In Fleming, a second degree rape trial, the prosecution stated in closing argument: `for you to find the defendants . . . not guilty of the crime of rape . . . you would have to find either that [the victim] has lied about what occurred . . . or that she was confused; essentially that she fantasized what occurred.’ Fleming, 83 Wn. App. at 213 (emphasis omitted). The Fleming court held that the prosecution’s argument constituted misconduct, finding it both flagrant and ill-intentioned because two years earlier the court had held such arguments improper in State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74 (1991). Fleming, 83 Wn. App. at 213-14.
Although a prosecutor commits flagrant misconduct by arguing that in order to acquit a defendant, the jury must find that the State’s witnesses are either lying or mistaken, Fleming, 83 Wn. App. at 213, a prosecutor may properly draw inferences `from the evidence as to why the jury would want to believe one witness over another.’ State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29
(1995); see also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Furthermore, `where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State’s witnesses are mistaken.’ State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (1995) (emphasis omitted).
Here, the prosecutor’s argument was intended to assist the jury in determining the credibility of the witnesses and evaluating the conflicting testimony. In doing so, the prosecutor did no more than emphasize the substantial conflicting testimony, point out the aspects of the testimony that were inconsistent or irreconcilable, discuss the possible motives the witnesses might have had to present false testimony, and argue that the jury would have to examine the testimony to determine which testimony was most credible. In this case, although the prosecutor did suggest that Charles’s version of the events could only be reasonably credible if the State’s witnesses were mistaken, the focus of her closing argument was on witness credibility, and it was not inappropriate or unduly prejudicial.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.