State v. Wichman

8 Wn.App.2d 1068

STATE OF WASHINGTON, Respondent, v. NOEL WICHMAN, Appellant.

No. 50964-4-II

Court of Appeals of Washington, Division 2

May 14, 2019

UNPUBLISHED OPINION

WORSWICK, J.

A jury found Noel Wichman guilty of possession of methamphetamine with intent to deliver^[1] and first degree criminal trespass.^[2] Wichman appeals her convictions, arguing that the prosecutor committed misconduct by asking improper questions that bolstered the State's theory of the case and by making improper statements during closing arguments. Wichman further argues that she received ineffective assistance from her trial counsel when he failed to move to suppress evidence found during a consensual search and failed to object to the prosecutor's purported misconduct.

We hold that the prosecutor neither bolstered nor committed flagrant and ill-intentioned prosecutorial misconduct, and that Wichman's trial counsel did not provide ineffective assistance. Accordingly, we affirm Wichman's convictions.

FACTS

A woman called 911 to report two individuals inside her neighbor's vacant house whom she believed were there without permission. Law enforcement responded, and found Noel Wichman and Shane Vandervort hiding in a closet in the house. Jefferson County Sheriff's Deputy Brandon Przygocki placed Wichman in handcuffs and patted her down for weapons. Jefferson County Sheriff's Deputy Adam Newman contacted Wichman who stated she had not taken anything from the house.

Wichman's vehicle was parked in the carport of the house. Deputy Przygocki obtained Wichman's consent to search her vehicle. He used a card that explained Ferrier^[3] rights to advise Wichman that she could refuse, restrict, limit, or stop the search at any time. Deputy Przygocki and Detective Brett Anglin searched Wichman's vehicle, including a backpack, a zippered pouch, and a purse inside the vehicle. The search uncovered suspected methamphetamine, a digital scale, one zip lock bag with white residue, another zip lock bag containing a large chunk of a crystalline substance, cash, a check made by Bettina McMaster, ^[4] winning scratch-off lottery tickets, and five cell phones.

At trial, witnesses testified to the above facts. Additionally the prosecutor asked Deputy Przygocki, Deputy Newman, and Detective Anglin, if they knew of or met Wichman prior to the facts in this case, and how long they had known her. All three testified to knowing Wichman prior to this case. Deputy Newman also testified that he was unfamiliar with Vandervort.

Wichman testified that she went inside a house that was not hers, and law enforcement found her hiding in a closet. Wichman admitted to understanding her rights to refuse and to stop the search of her vehicle. She stated that the drugs belonged to Vandervort. She testified that Vandervort needed to make some money, and that he needed to "sell some methamphetamines." 2 Verbatim Report of Proceedings (VRP) at 321. The following exchange took place:

[Prosecutor]: All right. So you're prompted to go to [McMaster's] for what reason? You need money? Or you just want to make friends? Have a drink? What are you doing going over there?

[Wichman]: Well, [Vandervort] had mentioned that he needed to make some money. He did not tell me prior to any of this that he had drugs with him. He said he needed to sell some methamphetamines. Well, everybody knows-it's known [McMaster] likes to party, okay? So I was like, all right, we can go over to this person's house.

[Prosecutor]: All right. So you essentially made the connection for Mr. Vandervort, who was the seller, with the potential-

[Wichman]: I told him-no.

[Prosecutor]: With the purchase? Or Ms. McMaster?

[Wichman]: I'm not-no, no. He said-what he said to me-and I said I might know somebody. So I took him over there and he talked to her. I had nothing to do with it after that.

[Prosecutor]: Okay. Okay. But before this he would have had no way to know to go there, without you telling him, correct?

[Wichman]: Yes.

[Prosecutor]: Okay. And so did you just walk over there on a hunch that she'd want to buy some drugs?

[Wichman]: No. We drove over there.

[Prosecutor]: Okay. And did you-did you make any arrangements beforehand? Or just show up and thought maybe this will work out?

[Wichman]: I don't know what I was thinking. I was hoping it might have worked out. . . .

. . . .

[Prosecutor]: Okay. So in the-so all you did was connect him with Ms. McMaster so he could sell her drugs?

[Wichman]: I guess if it's-that's how y-ou're going to put it.

2VRP at 321-323.

After both sides rested, the trial court instructed the jury on reasonable doubt and accomplice liability based on the 11 Washington Pattern Jury Instructions Criminal, 4.01 at 93 (4th ed. 2016) (WPIC) and WPIC 10.51, at 234. During rebuttal closing argument, the prosecutor made several remarks Wichman now challenges. The prosecutor stated:

And you know, it's not any one piece of evidence. This case is like a big puzzle. You hear bits and pieces from different people. Some are-you may decide are important and some are not important to your decision. That's going to be up to you.

. . . .

. . . We talked about the entire comparison and consideration of the evidence. The idea that this is a puzzle. Some things might be important to you, or not. The idea is a conceivable picture of the puzzle with a few missing pieces (inaudible). We do that all [the] time. Three missing pieces, it's still a butterfly, right? You don't need to hear from the owner from the house. There's other things you may decide are important, or not important. It doesn't mean that you can't make a decision.

3VRP at 407, 411. The prosecutor also stated:

You'll have the reasonable doubt instruction and that tells you that a reasonable doubt is one for which a reason exists and may arise from evidence or lack of evidence. A reason. Something reasonable. Not maybe, possibly, could have been.

. . . .

So there must be a reason for the doubt. Not just a wonder or a possibility. Maybe a piece of evidence you can point to and say, you know what? I think that points to innocence. Or, we didn't hear about this and that's an absolute must for me in this case. Something that you can point to that's reasonable and for which there is a reason.

3 VRP at 412-13. The prosecutor finished by stating, "The puzzle in its form as it goes to you is that the defendant is guilty of both trespassing in the house . . . and . . . she was in possession of the methamphetamine that was in her car, and had the intent that it be distributed." 3 VRP at 413.

The jury found Wichman guilty of possession of methamphetamine with intent to manufacture or deliver and first degree criminal trespass. Wichman appeals.

ANALYSIS

Wichman argues that the prosecutor committed misconduct by "bolstering [the State's] theory" of the case and by making improper statements during closing arguments. Br. of Appellant at 34. Wichman further argues that she received ineffective assistance from her trial counsel when he failed to move to suppress evidence found during a consensual search and failed to object to the prosecutor's alleged misconduct. We hold that the prosecutor did not bolster and did not commit flagrant and ill-intentioned prosecutorial misconduct, and that Wichman's trial counsel did not provide ineffective assistance.

I. Prosecutorial Misconduct

Wichman argues that the prosecutor committed misconduct by bolstering, telling the jury it needed to have a specific reason for reasonable doubt, and using a jigsaw puzzle analogy. We hold that the prosecutor did not improperly bolster. Further, we hold that some of the remarks during closing argument were improper, but that a curative instruction would have cured any prejudice, and that the other comments were proper. As a result, Wichman's prosecutorial misconduct arguments fail.

To establish prosecutorial misconduct, a defendant bears the burden of proving that the prosecutor's conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). If a defendant establishes that the prosecutor's conduct was improper, we will then determine whether such conduct prejudiced the defendant. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). Where, as here, a defendant fails to object to alleged prosecutorial misconduct at trial, she is deemed to have waived any error unless she shows the misconduct "was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760-61. To meet this heightened standard, the defendant must show that "(1) 'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'" Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).

A. Prosecutor Did Not Improperly Bolster

Wichman argues that the prosecutor impermissibly "bolstered" its theory of the case when questioning law enforcement witnesses about their familiarity with Wichman. Specifically, Wichman argues that asking law enforcement how long they had known her "bolstered" the theory of the State's case that the items in her car belonged to her as opposed to Vandervort. Wichman seems to argue that officer testimony stating that they knew Wichman violated her right to a fair trial because the testimony constituted bolstering. We disagree.

"Bolstering" refers, not to a party's theory of a case, but to a witness's credibility or testimony. See State v Bourgeois, 133 Wn.2d 389, 400-01, 945 P.2d 1120 (1997). The general rule is that a party cannot bolster a witness's testimony unless an opposing party has attacked that witness's credibility. Bourgeois, 133 Wn.2d at...