No. 50262-0-I.The Court of Appeals of Washington, Division One.
Filed: September 15, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-00921-7. Judgment or order under review. Date filed: 02/06/2002.
Counsel for Appellant(s), Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jodi Ann Warren (Appearing Pro Se), 814 Lakewood Drive, Pmb 367, Bellingham, WA 98226.
Counsel for Respondent(s), Laura D. Hayes, Attorney at Law, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Jeffrey B Teichert, Teichert Law Office PC, 217 Prospect St, Bellingham, WA 98225-4403.
Kimberly Anne Thulin, Whatcom Cty Pros Atty’s Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
AGID, J.
Jodi Ann Warren appeals her conviction of one count of possession of a controlled substance. She asserts the trial court erred by admitting her post-arrest statements when the State did not prove that the police fully and accurately advised her of her Miranda rights or that they assisted her with obtaining an attorney. She also claims the prosecutor’s comments about sentencing during closing argument require reversal. We affirm, concluding the trial court properly admitted Warren’s post-arrest statements because she was adequately informed of her Miranda rights, and although she invoked her right to have an attorney present during questioning, she later knowingly and voluntarily waived that right. The prosecutor’s comments, though improper, do not require reversal because Warren has not shown that the jury was prejudiced by the remark.
FACTS
On May 29, 2001, Trooper Jason Armstrong stopped Jodi Ann Warren because she was driving erratically on I-5 in Bellingham. After administering a sobriety test, Trooper Armstrong arrested Warren for driving under the influence (DUI). He handcuffed her and put her in his patrol car. In a search incident to arrest, Trooper Armstrong discovered an aluminum pipe used to smoke marijuana, a bindle with what appeared to be cocaine residue,[1] and a cocaine snorting device in Warren’s purse. He then advised Warren of her `constitutional rights.’ Warren acknowledged her rights, and the trooper noted her acknowledgment in his DUI packet.
Because she was in handcuffs, the trooper signed the DUI packet for her.[2] After telling Warren what he found in her purse, she denied using marijuana or cocaine and stated that it had been a long time since she used those things. Then she asked Trooper Armstrong `if she should say anything without talking to a lawyer,’ and the trooper told her it was up to her. Warren stated that `she better call {her attorney}.’ When they arrived at the police station, he asked her if she wanted to call her attorney. Warren replied that she did not have her lawyer’s home phone number and did not know how she was going to reach him at such a late hour. Trooper Armstrong told her she could call and leave a message with his answering service. Warren then asked what would be taking place, and the trooper told her he would be processing her for the DUI and citing her for the criminal offenses. Warren then said she would call her attorney later when he got into the office. Trooper Armstrong then completed the DUI processing, which included a questionnaire about existing medical problems, drug use, and her drinking pattern that evening.
The State charged Warren with one count of unlawful possession of cocaine.[3] After a CrR 3.5 hearing, the court denied Warren’s motion to suppress her statements to Trooper Armstrong. A jury found her guilty of possession of cocaine, and she appeals.
ANALYSIS I. Suppression motion.
`Before an individual who has been taken into custody can be questioned, he must be . . . warned that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to an attorney, and that if he cannot afford one, an attorney will be appointed for him prior to any questioning.’[4]
Adequate warnings need not include the precise language contained in Miranda.[5] `The question is whether the warnings reasonably and effectively conveyed to a suspect his rights as required by Miranda.’[6]
Unless a defendant is given Miranda warnings, her statements made during interrogation are presumed involuntary and must be suppressed.[7]
Warren contends the trial court erred by admitting her post-arrest statements because the State did not prove in the suppression hearing that Trooper Armstrong administered the Miranda warnings properly. The State responds that the trial court correctly found the trooper’s testimony that he gave Warren her `constitutional rights’ was sufficient to prove he gave Miranda warnings. Even if it did err, the State claims Warren invited the error by failing to cross-examine the trooper about the adequacy of the warnings and objecting to reopening the suppression hearing based on defense strategy. The State is partially correct.
The record supports the trial court’s finding that Warren was advised of her Miranda rights and understood them. At the suppression hearing, Trooper Armstrong testified that he `advised {Warren} of her Constitutional rights.’ He stated, `{Warren} understood both the rights and the waiver of rights. I made a notation of that on the DUI packet and I signed the DUI packet that {Warren} was obviously unable to sign due to being handcuffed.’ Trooper Armstrong said that there was only minimal conversation after he read Warren her `rights,’ including her denying that she ever used cocaine or marijuana and saying that `she probably shouldn’t say anything until she talks to her lawyer.’ There is nothing in record suggesting the warnings were insufficient or that Warren misunderstood her rights,[8] and Warren did not challenge the adequacy of the warnings by cross-examining the state trooper during the suppression hearing.
Finally, Warren’s response at the scene when Trooper Armstrong read her `constitutional rights’ whether she should say anything without talking to a lawyer suggests that the `constitutional rights’ were indeed Miranda rights and she understood them to mean she did not have to speak with the trooper without an attorney. Accordingly, the trial court did not err by concluding the trooper properly informed Warren of her Miranda rights.
We reject the State’s argument that Warren invited the error by objecting to reopening the suppression hearing to clarify the exact language of the warnings because reopening was not consistent with the defense strategy. A potential error is deemed waived if the party asserting such error materially contributed to it.[9] The invited error doctrine is particularly applicable when a defense counsel employs `a tactical maneuver in what then appeared to be in the best interest of his client.’[10] In this case, Trooper Armstrong did not explicitly use the term `Miranda rights’ nor was he asked about the precise language he used to administer the rights. During cross — examination, Warren’s attorney did not suggest the warnings were inadequate, inquire about the precise wording of the rights or ask whether Trooper Armstrong read them from the DUI packet or recited them from memory.
However, immediately after both parties rested, he argued the court must suppress all of Warren’s statements because `none of the rights were articulated . . . so that the court cannot determine whether . . . the rights were accurately given or {if} it’s just an opinion by the witness. . . .’ Although the trial court concluded that the State met its burden, it invited discussion about the issue of the Miranda warnings and then rendered its decision:
THE COURT: I might say {about} one of the points Mr. Nelson made, maybe we {had} better talk about this Mr. Richie and that is a technical matter the State didn’t prove what the rights were. They simply said the rights were read.
MR. RICHIE: Did we have to?
THE COURT: In essence, you have rested. I guess unless we reopen to have you do it.
MR. RICHIE: I submit to the court if the court is more comfortable, I ask to reopen.
MR. NELSON: I object, Your Honor. We have rested and decided our strategy in this case. We haven’t called our client {Warren} to testify.
MR. RICHIE: Your Honor, once again, then I believe that the testimony is clear that Trooper Armstrong said that he read the Miranda rights and that was not questioned by the defense. . . .
THE COURT: I agree. I think without the issue being raised that — — I don’t know of any case law which requires in a 3.5 hearing that {the exact verbiage} be absolutely testified to in every case unless waived. I think that the generic reference to the Miranda rights and how they are read is sufficiently aboard in the lexicon to not . . . be fatal in this case.
MR. RICHIE: Thank you.
Warren’s attorney’s approach to the Miranda issue was not invited error. Warren had nothing to do with the State’s failure to prove the exact language of the trooper’s warnings. She did not compel the trial court to conclude the evidence was sufficient so that reopening the suppression hearing was unnecessary. Instead, she simply rested on the trooper’s direct testimony at the suppression hearing and then argued it was insufficient. The burden was on the State, not Warren. To hold this is invited error would expand the doctrine beyond its intended application.
We conclude it does not apply here.
When a person unequivocally requests an attorney, all custodial interrogation must cease until an attorney is present or the person voluntarily waives the right to an attorney on his or her own initiative.[11] An equivocal request is a statement that makes it impossible to determine whether a request has been made without further clarification.[12] Whether a defendant’s statement requesting an attorney is sufficient to invoke his Fifth Amendment rights is a question of law.[13] A defendant may waive Miranda rights if the waiver is made voluntarily, knowingly and intelligently.[14] Warren claims the trial court erred by admitting statements she made after receiving Miranda warnings because the trooper questioned her after she requested an attorney. We disagree, but for different reasons from the trial court’s.
Warren asked Trooper Armstrong `if she should say anything without talking to a lawyer.’ When he told her it was `up to her,’ she stated `I better call {my attorney}.’ The trial court erred in finding Warren’s statement was equivocal because her statement was unequivocal and no further clarification was necessary.[15] Trooper Armstrong also recognized that she had invoked her right to an attorney when he properly ceased all questioning until they arrived at the police station and he asked Warren `if she wanted to call her attorney.’ When Warren responded that she did not have his home number, Trooper Armstrong suggested she phone his answering service. He also provided her access to a telephone. Rather than calling her attorney or unequivocally invoking her right to counsel, Warren next asked what would be taking place. When Trooper Armstrong told her he would process her DUI charge, she responded by saying she would call her attorney later in the day when he arrived at his office. By deciding to `call {her lawyer} later’ and to freely respond to the trooper’s questions about existing medical ailments, drug use, and her drinking pattern that evening, Warren voluntarily and knowingly waived her right to counsel during questioning. Accordingly, the trial court did not err by admitting the statements because Warren later waived her right to have a counsel present for questioning. Trooper Armstrong did not violate Warren’s rights by moving forward with the DUI processing.[16]
II. Prosecutorial misconduct.
A prosecutor has a duty to act impartially and in the interest of justice.[17] We examine a prosecutor’s misconduct during closing argument to determine whether the argument prejudiced the defense.[18]
The burden of proving prejudice rests with the defense.[19] We reverse only where it is substantially likely that the argument affected the jury’s verdict.[20]
Warren argues that the prosecutor’s statement about sentencing during closing argument was prejudicial misconduct that requires reversal. Warren objected to the following language during closing argument:
One of your {the jury} instructions . . . talks about how you have nothing whatever to do with any punishment that may be imposed in case of a violation of law; the fact that punishment is irrelevant to you.
So the fact that if the defendant is convicted and if she is ordered to perform community service or something like that, that’s not to enter into {your decision}.
The trial court sustained the objection. We conclude that the comment was highly improper, but it does not require reversal because Warren fails to show how it prejudiced the jury.
We agree with Warren that this was flagrant misconduct. The prosecutor suggested during her closing argument that Warren could receive a very light sentence, community service `or something like that,’ if convicted of the crime. This kind of comment `distract{s} the jury from its function of determining whether the defendant was guilty or innocent beyond a reasonable doubt by informing {it} . . . that it does not matter if their verdict is wrong because the judge may correct its effect.’[21]
We find troubling that a prosecutor, who is an experienced litigator and aware of the compelling policy reasons to avoid such remarks, continues to engage in this conduct. That having been said, we turn to the question whether Warren has shown sufficient prejudice to require reversal. We conclude she has not.
This case differs from State v. Torres,[22] a case in which we concluded prosecutorial misconduct required reversal. In that case, the prosecutor’s misconduct permeated the entire trial from opening statements through direct and cross-examination to closing arguments. The number of improper statements and the severity of many of them standing alone prompted us to conclude the errors amounted to a mistrial. That is not the case here. In this case, the prosecutor made the statement at issue only once, and it was in context of explaining to the jury that it was not to `consider any potential punishment of the defendant in this case.’ The trial court sustained Warren’s objection to the comment and ordered the prosecutor to `{m}ove on.’ Warren has not shown the jury ignored the court’s ruling or that it was prejudiced by the comment.
Although the jury expressed concern about punishing Warren for the small amount of cocaine found in her purse, we presume it followed the court’s instructions,[23] which instructed the jury, in part:
You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.
Accordingly, in this case, the prosecutor’s improper comment does not require reversal.[24]
ELLINGTON and BAKER, JJ., concur.
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