STATE v. TUIOLEMOTU, 57898-7-I (Wash.App. 8-6-2007)

THE STATE OF WASHINGTON, Respondent, v. LOTU TUIOLEMOTU ET AL., Defendants, JUNIOR MEFI, Appellant.

No. 57898-7-I.The Court of Appeals of Washington, Division One.
August 6, 2007.

Appeal from a judgment of the Superior Court for King County, No. 05-1-01588-4, Bruce W. Hilyer, J., entered March 10, 2006.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

The missing witness doctrine permits an inference that a witness would give unfavorable testimony for the party who fails to call that witness, where it would be natural for the party to present that witness. Under the facts of this case, it was not prosecutorial misconduct to comment in rebuttal that Junior Mefi could have chosen to produce his father to authenticate his alibi. We affirm the judgment and sentence.

FACTS
Moses Mufanaiai, May and Joann Fola, and the family and friends of theFolas’ were in Mario’s bar in Burien. The group left the bar around 1:00a.m. but continued the festivities in the parking lot of the Fola sisters’ apartment complex in Tukwila. The police asked the group to leave because of noise complaints.

The Folas, their aunt Laloaina Smith, and Mufanaiai moved to the apartment complex next door where they joined a group of people who were drinking by the dumpster. This group included Junior Mefi, Lotu Tuiolemotu, and Muelu Salanoa. When the party started to break up, Tuiolemotu and Mufanaiai started arguing. May and Joann Fola tried to calm the situation, pushing the men apart from each other. Mufanaiai ran and hid underneath a car. Mefi, Tuiolemotu, Salanoa, and two other men followed Mufanaiai and began beating him. Joann Fola tried to protect Mufanaiai by covering him with her body, but she was pulled away and the beating continued. Salanoa picked up a large rock and threw it at Mufanaiai’s head. The men removed Mufanaiai’s pants and took his wallet and money. When the police arrived, they found Mufanaiai disoriented, bleeding, and naked from the waist down with his head in Joann Fola’s lap. Mufanaiai suffered a fractured pelvis, multiple facial fractures, and a brain hemorrhage as the result of the attack.[1]

Mefi was identified as one of the people involved in the melee by both May and Joann Fola. May and Joann’s aunt also identified Mefi as one of the people present that evening. Mefi was arrested approximately three weeks later.

The state charged Mefi with one count of first degree robbery and one count of second degree assault.[2] Both charges carried deadly weapon enhancements. The jury convicted Mefi of second degree assault, but acquitted him of the robbery charge. Mefi appeals.

ANALYSIS
Mefi first contends the trial court erred by refusing to give an instruction on the defense of alibi. Washington law is settled that trial courts should not give alibi instructions.[3] We decline Mefi’s invitation to rely on the federal cases which hold that the failure to give alibi instructions where the evidence supports such an instruction constitutes reversible error.[4] The trial court’s refusal to give the alibi instruction was correct.

Mefi next contends the prosecutor committed misconduct during rebuttal argument when he commented on Mefi’s failure to call his father as a witness. Mefi argues that those comments effectively shifted the burden of proof from the State to him, thereby depriving him of a fair trial.

In a claim for prosecutorial misconduct, the defendant must show that the prosecutor’s conduct was both improper and prejudicial.[5] A prosecutor has wide latitude to draw and express reasonable inferences from the evidence.[6] Moreover, a prosecutor’s remarks in rebuttal, even if they would otherwise be improper, are not misconduct if they are “invited, provoked, or occasioned” by guilty of second degree assault.defense counsel’s closing argument, so long as the remarks do not go beyond a fair reply and are not unfairly prejudicial.[7]

Generally a prosecutor cannot comment on the lack of defense evidence because the defendant has no duty to present evidence.[8] Mefi argues that the prosecutor’s comments in rebuttal shifted the burden of proof to him. However, a comment referring to a defendant’s failure to produce witnesses is not necessarily an impermissible shifting of the burden of proof.[9] The missing witness doctrine allows an inference that a witness would give unfavorable testimony to a party who fails to call that witness, where it would be natural for the witness to be presented by that party.[10] Where the missing witness doctrine applies, a prosecutor can comment on a defendant’s failure to call a witness.[11]

Here, Mefi did not testify at the trial. However, he did make a statement to the police at the time he was arrested. In that statement, Mefi offered an alibi that he was with his father at the time of the assault and therefore was not present at the time of the crime. Mefi’s stated:

I have no idea what you’re talking about. I was in the house with my father at 15016 McAdam Road South, Number 1. My father’s Mefi Mefi Fetui.

The statement was admitted at trial without objection. At trial, defense cross-examined the detective who had taken Mefi’s statement and askedwhy he had not contacted the father.

And in closing argument, defense counsel argued that Mefi’s alibi which the police failed to investigate presented reasonable doubt:

Junior Mefi was arrested several weeks later. He’s handcuffed. “Subject handcuffed.” He says to the detective, “I have no idea what you’re talking about. I was in the house with my father at 15016 McAdam Road South, Number 1. My father’s Mefi Mefi Fetui.”

Now, Detective [Harold] Stock is a detective with the Tukwila City Police Department. He’s a public servant. My client is a member of the public. Where is Detective Stock serving the public when asked, “Well, didn’t you go talk to his father?” “No.”

I submit to you that my client was home when this happened is a reasonable doubt, and it has to be overcome by evidence introduced by the State. And even if he were not at home, and the detective had the duty to go over to his father and say, “Was your son home at that time?”

The father may have lied, sure; but his father may have told the truth. The truth could be, “Yes, he was home. He was home.” Or the father could have said, “No, I don’t know where my son was.” The statement, recording? There it is, out you come. Alibi. Reasonable doubt. The detective didn’t do that. And that’s why he’s having this problem in prosecuting my client.

Defense counsel’s argument was continued to the following day. The next day, before defense counsel resumed his argument, the State requested permission to argue in rebuttal that the jury could draw an adverse inference from Mefi’s failure to call his father to corroborate his alibi. After hearing argument, the court upheld the State’s right under the missing witness doctrine stating:

I think that this flowed from the circumstances of the case, and that the prosecutor could have asked and made this argument even before he heard your argument.

The court refused to issue a missing witness instruction at this point but allowed Mefi’s counsel additional time for his closing argument before the prosecutor’s rebuttal.

In his continuation of his closing argument, defense counsel argued again that the police had a duty to “ferret out evidence” to refute Mefi’s alibi.

In rebuttal argument, the prosecutor argued that the police had reasons not to question Mefi’s father. The prosecutor also noted that Mefi could easily have called his father as a witness to corroborate his claim of alibi, arguing:

Mr. Mefi says: I have no idea what you’re talking about. But, just in case I do, I was asleep that night. He knows exactly what the officers are talking about. Or he claims to be in his father’s house, and that really raises an interesting issue.

[Defense counsel for Mefi and Tuiolemotu] are correct, the State bears the burden of proof in this case. At the same time, though, the defense has the right to put on a case. They’re not required to, under the law, but they have that right. They have the right to subpoena witnesses. They have the right to explain to you what happened. Nothing under the law bars them from doing that.

Defense counsel objected at this point. The court overruled the objection, and the prosecutor continued:

[Defense counsel] suggested that there’s a dilemma for him, that if he puts on a witness, there’s an inference that that witness is lying.]

I don’t think he’s giving you folks enough credit. I think you folks can look at a witness and decide for yourself if that person is telling the truth. I don’t think it’s proper to just assume that you’re going to believe any witness the defense puts on is lying.

So why isn’t Mefi’s father here to explain what happenedthat night?. . . .

[Defense counsel] suggests that Detective Stock should have gone and talked to Mefi’s father that night. Certainly, Detective Stock could have gone and talked to Mefi’s father, but Mefi’s father had exactly the same power and more motivation to talk to Detective Stock, to say, “Hey, my son wasn’t involved.”

What would you do if your son was accused of a crime? What would you do? Would you go to the police and say, “No, my son was with me that night. I don’t know what you guys are talking about. You have got the wrong person.”

He has every right to do that, every ability. He has every right and ability to come into court and tell you folks, “My son was with me that night. This didn’t happen. They’re making a mistake.” But you didn’t hear testimony like that.

And Detective Stock had every reason not to go and talk with Mefi’s father, because he already had three people completely contradicting Mefi’s version of events. Aunt Suey, May, and Joann all told him. Mefi wasn’t there [at his father’s house]. That’s why [the detective] didn’t go talk to the father.

Mefi contends this argument was a comment on his failure to testify. But the prosecutor’s remarks addressed Mefi’s failure to call his father as a witness, not Mefi’s failure to testify.[12] Such argument is permitted under the missing witness doctrine because a party who would benefit from a witness’s testimony would not knowingly fail to call the witness unless there was reasonable probability that the testimony would be unfavorable.[13] There was no prosecutorial misconduct.

Finally, Mefi objects to the trial court’s order that he provide a biological sample for DNA identification analysis and inclusion in the State’s DNA database because of his felony conviction.[14] Mefi contends that this requirement violates the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington State Constitution. Mefi’s arguments were recently rejected by the Washington Supreme Court in State v. Surge.[15]

Affirmed.