State Of Washington v. Andrew Knowles ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 78003-4-1
V.
UNPUBLISHED OPINION
ANDREW JOSEPH KNOWLES,
Appellant. FILED: March 4, 2019
DWYER, J. — Following a jury trial, Andrew Knowles was convicted of
possession of a stolen vehicle, a class B felony. On appeal, he avers that
prosecutorial misconduct in the State's summation deprived him of a fair trial. As
to the various comments he now challenges, Knowles either fails to establish
their impropriety or fails to establish their prejudicial effect. Accordingly, we
affirm.
1
Andrew Knowles and his girlfriend, Sara Moreland, were found occupying
a moving truck parked on land owned by Marilyn and Harry Upton in Arlington.
Neither Mr. nor Ms. Upton had given Knowles or Moreland permission to be on
the property. When Ms. Upton first encountered Knowles and asked him what he
was doing, Knowles stated that he was camping out. Upton informed him that he
was not allowed to do so on the site and was required to leave.
No. 78003-4/2
When, after more than a half hour had passed, Ms. Upton returned to the
property to find Knowles still present, she telephoned Mr. Upton, who instructed
her to call the police. Ms. Upton did so. Before the police arrived, Mr. Upton
himself came to the scene. Ms. Upton was not present at this time. Mr. Upton
encountered Knowles and told him to move the truck. Mr. Upton and Knowles
were both still present when the police arrived.
Arlington police arrived at the scene and communicated the truck's license
plate number to dispatch. From dispatch, Sgt. Michael Gilbert learned that the
truck had been reported stolen from a moving company's lot in Seattle. Sgt.
Gilbert found Knowles seated in the driver's seat of the parked truck. When
Knowles exited, Sgt. Gilbert drew his firearm and ordered Knowles to the ground.
Knowles complied and was placed under arrest. Near where Knowles had last
been standing, Sgt. Gilbert found a key that started the truck's engine.
After obtaining a search warrant, the police inspected the cargo area of
the truck, where they found various personal belongings and a bed. They also
found a five-gallon bucket containing a tar-like substance. The moving
company's logo on the exterior of the truck had been covered by such a
substance. Knowles, after being taken into custody, stated that he and Moreland
had been picked up in Seattle by another man who was then driving the truck.
Knowles also expressed concern about his ability to retrieve his and Moreland's
possessions from the truck.
At trial, Knowles argued that, because there was no proof that he had ever
driven the truck, he could not be said to have possessed it. Knowles's attorney's
2
No. 78003-4/3
statement—that "[s]imply being in a truck is not possessing a truck. You have to
show that he was driving the truck"—drew an objection from the prosecutor as a
misstatement of the law. This objection was sustained. Nevertheless, in
Knowles's summation his counsel continued to make arguments to the effect that
Knowles was only a passenger in the truck and that, because of this, he had not
possessed it, in spite of evidence that Knowles and his girlfriend were "camping
out" in the truck.
The prosecutor referred to Knowles as a "vagrant" in the State's closing
argument, drawing no objection from defense counsel. In the State's rebuttal
closing argument, the prosecutor took exception to Knowles's argument as to
whether he truly possessed the truck, leading to the following exchange:
[PROSECUTOR]: If you don't believe the defendant is
possessing this truck simply by sleeping in the back while storing
his girlfriend and his dog, go ahead and let the next stranger in your
neighborhood into your house.
[DEFENSE]: I'm going to object to that argument.
COURT: Overruled.
[PROSECUTOR]: Go ahead, let Mr. Knowles move into your
house. Tell me he's not possessing your room. It's just his dog
and his bed.
[DEFENSE]: Again, I'm going to object. That is not
possession. That is—being in the truck is not possessing the truck.
COURT: This is argument. I'll overrule the objection.
[PROSECUTOR]: Go ahead, give him the keys to your car,
let him sit in the cab, let him ride it all the way from Seattle up to
Arlington. You tell me he's not possessing the truck. Have him put
up a basketball hoop in the back, make a king size bed out of
moving mats, and tell me he's not possessing your truck. That's
3
No. 78003-4/4
not credible, it's not believable, and it's not realistic. And if it is, let
Mr. Knowles move into your house.
[DEFENSE]: Your honor, I'm going to object to this line of
argument. This is prejudicial. He's playing to the sympathy of the
jurors.
COURT: The last statement I will sustain, the other is fair
argument.
The jury found Knowles guilty of possession of a stolen vehicle; Knowles
was subsequently sentenced to four months' confinement. He now appeals.
II
Knowles contends that the prosecutor's remarks in both closing and
rebuttal arguments constituted misconduct that denied him a fair trial. He avers
that the use of the word "vagrant" in the initial closing argument tainted the jury's
perception of Knowles. He further argues that the prosecutor's repeated
challenge to the jurors that they let Knowles into their homes or vehicles,
advanced in rebuttal argument, was designed to cause the jurors to imagine
themselves as Knowles's victims, thus encouraging the jury's passions and
prejudices to affect the trial's outcome. Knowles's latter contention is not
frivolous.
A
Prosecutorial misconduct arises when the State refers to evidence outside
of the record or makes bald appeals to passion or prejudice. State v. Fisher, 165
Wash. 2d 727, 747, 202 P.3d 937(2009). However, in closing argument, the
prosecutor has wide latitude to draw reasonable inferences from the evidence
admitted and to express such inferences to the jury. State v. Hoffman, 116
4
No. 78003-4/5
Wn.2d 51, 94-95, 804 P.2d 577(1991). We review allegedly improper comments
in the context of the entire argument, the issues in the case, the evidence
addressed in the argument, and the instructions given. State v. Russell, 125
Wash. 2d 24, 85-86, 882 P.2d 747(1994).
"Where improper argument is charged, the defense bears
the burden of establishing the impropriety of the prosecuting
attorney's comments as well as their prejudicial effect. Reversal is
not required if the error could have been obviated by a curative
instruction which the defense did not request. The failure to object
to a prosecuting attorney's improper remark constitutes a waiver of
such error unless the remark is deemed to be 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."
State v. Gentry, 125 Wash. 2d 570, 640, 888 P.2d 1105(1995)(quoting Hoffman,
116 Wash. 2d at 93).
If an allegedly improper statement was objected to at trial, in order to
obtain appellate relief the defendant must show that the statement resulted in
prejudice that had a substantial likelihood of affecting the jury's verdict. State v.
Emery, 174 Wash. 2d 741, 760, 278 P.3d 653(2012). The challenged comments
are reviewed "in the context of the total argument, the issues in the case, the
evidence addressed in the argument, and the instructions given to the jury."
State v. McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221 (2006)(quoting State v.
Brown, 132 Wash. 2d 529, 561, 940 P.2d 546 (1997)).
If an objection was sustained, however, and no further remedy was
requested, any claim that the trial judge should have imposed a further remedy is
forfeited. See State v. Giles, 196 Wash. App. 745, 769, 385 P.3d 204(2016)(when
5
No. 78003-4/6
a party receives the remedies he requests, "[t]he law presumes that these
remedies are effective").1
(i)
First, we address the prosecutor's remark,"Met Mr. Knowles move into
your house." This remark that was objected to, the objection was sustained, and
no further relief was requested. The law presumes this remedy to be effective.
Giles, 196 Wash. App. at 769 (citing State v. Warren, 165 Wash. 2d 17, 28, 195 P.3d
940 (2008); State v. Swan, 114 Wash. 2d 613, 661-64, 790 P.2d 610 (1990)).
Knowles cites to no authority requiring the trial judge to have declared a mistrial
in the absence of a request therefor. The judge did not err by granting Knowles
the relief he sought. See Giles, 196 Wash. App. at 765. There was no trial court
error.
(ii)
Defense counsel did not interpose an objection to the prosecutor's use of
the term "vagrant." This is likely because counsel did not perceive the reference
as being improper. Indeed, there is no indication that the description was
inaccurate. An oft-cited dictionary defines "vagrant" as "a person who has no
established residence and wanders idly from place to place without lawful or
visible means of support." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
2528(2002). Knowles and Moreland had been camping on private property in a
I "It is a principle of long standing that a trial attorney who does not request a remedy
forfeits the claim that the trial judge should have imposed that remedy." Giles, 196 Wash. App. at
769-70.
-6 -
No. 78003-4/7
stolen moving truck without the landowner's permission. They had arrived there
after leaving Seattle. It is a fair inference from this evidence that Knowles and
Moreland were without a permanent residence or employment, had been
traveling about in a happenstance manner, and intended to stay in Arlington
temporarily. They were found in a temporary shelter that was not designed for
use as a living space. The prosecutor thus expressed a reasonable inference
from the evidence that Knowles was a vagrant. No entitlement to appellate relief
is warranted on this claim.
C
Knowles next challenges certain statements made during the State's
rebuttal argument to which his attorney's objections were overruled.
The language of the challenged statements, and the responses of
opposing counsel and of the court, are set forth in Section I. Analyzing the
language used by the prosecutor, it is apparent that his statements—repeatedly
inviting the jury to let Knowles possess their homes or vehicles—constituted
misconduct. There was no evidence in the case of any contact between Knowles
and jurors prior to trial, let alone any indication that Knowles possessed stolen
property or vehicles belonging to jurors. There being no evidentiary basis for the
prosecutor's remarks, it must be that the purpose of the statements was to
appeal to the jury's passions and prejudices.
The statements invited the jurors to place themselves in the shoes of a
victim of Knowles's criminality, a line of argument that our courts have held time
and again to be improper. See, e.g., State v. Pierce, 169 Wash. App. 533, 554,
-7
No. 78003-4/8
280 P.3d 1158 (2012); State v. Binh Thach, 126 Wash. App. 297, 317, 106 P.3d
782(2005). Such arguments encourage jurors to depart from neutrality and
decide the case on the basis of personal interest rather than on the evidence.
Binh Thach, 126 Wash. App. at 317 (citing Adkins v. Alum. Co. of Am., 110 Wash. 2d
128, 139, 750 P.2d 1257 (1988)). The seriousness of this misconduct is
augmented by its occurrence during the State's rebuttal, when defense counsel
had already delivered Knowles's closing argument and no longer had the
opportunity to respond. See State v. Lindsay, 180 Wash. 2d 423, 443, 326 P.3d
125 (2014). Defense counsel's objections to these improper statements should
have been sustained.2
We cannot conclude, however, that there is a substantial likelihood that
the prosecutor's improper remarks affected the jury's verdict. Thus, Knowles has
not established the prejudicial impact of the argument. The overwhelming
evidence adduced by the State convinces us that there is no likelihood that the
comments affected the jury's verdict. Thus, the error was harmless. Emery, 174
Wash. 2d at 760.
Abundant evidence showed that Knowles possessed the stolen truck.
Direct evidence, including Knowles's own statements, showed that he was
storing his and his girlfriend's possessions (including a live animal) in the truck.
He was seen both inside and outside the truck and circumstantial evidence—the
key being found near him on the ground—showed that he had access to and
2 We are aware that Knowles's attorney, in Knowles's summation, repeatedly misstated
the law regarding the possession element of possession of a stolen vehicle. This invited a proper
response from the State's representative—not an improper response.
-8-
No. 78003-4/9
control over the truck. The jury thus had ample evidence on which to base its
finding that Knowles was guilty. We conclude that the improper arguments of the
prosecutor, and the failure of the trial court to sustain objections thereto,
amounted to harmless error.
Affirmed.
We concur:
Gh., 1 - e cti.$4.1 frc,"
9