State Of Washington, V Cory A. Sundberg ( 2015 )

FILED
COURT OF APPEALS
DIVISION 1
21} 15 FEB 10 AM 8: 56
STA TON
IN THE COURT OF APPEALS OF THE STATE OF WASHY
DIVISION II
STATE OF WASHINGTON, No. 45081 -0 -II
Respondent,
v.
CORY SUNDBERG, UNPUBLISHED OPINION
Appellant.
WoRSwIcK, J. — Cory Sundberg appeals his conviction for unlawful possession of a
controlled substance. He argues that the prosecutor committed misconduct by shifting the burden
of proof in closing argument, and by arguing that Sundberg should have called a witness.
Holding that the prosecutor committed misconduct, we reverse Sundberg' s conviction and
remand. 1
FACTS
A. Arrest
Sundberg lived with his elderly foster father, Wes Rider, and worked on maintenance
projects around their mobile home. Sundberg said he employed a neighbor named Paul Wood to
help with maintenance projects. To protect his clothing, Wood borrowed a pair of Sundberg' s
1
Sundberg also argues that the trial court erred in denying his motion for a new trial. Because
do not address this issue.
we reverse Sundberg' s conviction on other grounds, we
No. 45081 -0 -II
bib overalls to perform work under a shed. The day before Sundberg' s arrest, Wood left the
jobsite and did not return the following day or any day thereafter.
A law enforcement officer came to the mobile home and arrested Sundberg on an
outstanding warrant. On the day of his arrest, Sundberg was pressure washing the mobile home
and was wearing the overalls he had previously lent to Wood.
During the arrest, Sundberg requested permission to change clothing. Sundberg said the
reason for the request was that his overalls were wet up to the knee from power washing, and
that the officers had disconnected the shoulder straps of the overalls, leaving them hanging
below his waist. The arresting officer declined Sundberg' s request to change clothing.
Officers performed an inventory search of Sundberg' s clothing at the jail, which revealed
a small " baggie" of methamphetamine in the bib pocket of his overalls. The State charged
Sundberg in an amended information with one count of unlawful possession of a controlled
substance, methamphetamine.2
B. Trial
Sundberg argued an unwitting possession defense, claiming he did not know there was
methamphetamine in the overalls.3 The methamphetamine was in a narrow pocket on the bib of
2 RCW 69. 50. 4013( 1).
3
The jury instructions included an instruction on unwitting possession, which read: " A person is
not guilty of possession of a controlled substance if the possession is unwitting. Possession of a
controlled substance is unwitting if a person did not know that the substance was in his
possession, or did not know the nature of the substance. The burden is on the defendant to prove
by a preponderance of the evidence that the substance was possessed unwittingly.
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the overalls, which Sundberg testified that he did not use. He argued that it was impossible to
know whether Sundberg' s employee Paul Wood, who had borrowed the overalls, was the true
source of the methamphetamine, but that in any event Sundberg did not know it was there.
In closing argument, Sundberg argued that it was reasonable to believe that Sundberg did
not know about the methamphetamine in his bib pocket, because of the narrow width of the
pocket and the small size of the " baggie" of methamphetamine. He also reminded the jury that
Wood had been helping Sundberg, and, " We know very little about Paul Wood." Verbatim
Report of Proceedings ( VRP) at 184. However, he did not explicitly argue that Wood had put
the methamphetamine in the overalls.
In rebuttal closing, the State argued that Sundberg' s story about Wood borrowing the
overalls did not make sense: it was summer, so Wood would not have needed the extra layer of
clothing for warmth. Nor should someone doing manual labor need to borrow his employer' s
work clothes. The State also argued that it did not make sense that a methamphetamine addict
would leave methamphetamine in someone else' s clothing. The State reminded the jury of the
State' s burden to prove each element beyond a reasonable doubt. Then it argued that Sundberg
had not carried his burden of proving the affirmative defense of unwitting possession by a
preponderance of the evidence:
Now it' s the defendant' s burden — and this is the reason I asked the defendant
these questions. I asked him okay, tell us about Paul Wood; describe him for us,
do you know him, how do you know him. He says he sees him about twice a
Preponderance of the evidence means that you must be persuaded, considering all of the
evidence in the case, that it is more probably true than not true." CP at 93.
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week. He says he can get a hold of him. Why isn' t he here testifying? It' s their
burden. He' s not here. There' s no evidence ... that he ... even exists.
VRP at 195. Sundberg objected. The court overruled the objection without comment. The State
continued, arguing:
Sundberg is also inherently biased. He has a stake in the outcome. That gives
him bias to lie. His testimony was obviously self -serving. It was obviously
designed to tell a story to corroborate his defense. And again, it was his burden.
He didn' t bring in Paul Wood.
VRP at 195 -96 ( emphasis added).
Outside the presence of the jury, Sundberg requested an instruction telling the jury to
disregard the State' s argument that Sundberg should have called Paul Wood to testify. The court
denied the request for a curative instruction, finding that there was neither prosecutorial
misconduct nor basis in the case law for a curative instruction.
C. Motion for New Trial
The jury found Sundberg guilty of unlawful possession of a controlled substance.
Sundberg moved for a new trial based on prosecutorial misconduct. The trial court denied
Sundberg' s motion for a new trial, finding that there had been no prosecutorial misconduct.
ANALYSIS
Sundberg argues that the prosecutor' s closing argument constituted misconduct because it
shifted the burden of proof by misapplying the missing witness doctrine. We disagree that the
prosecutor' s argument shifted the burden of proof, because Sundberg had the burden of proving
his affirmative defense of unwitting possession. However, we agree that the prosecutor' s
argument improperly invoking the missing witness doctrine constituted misconduct.
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I. STANDARD OF REVIEW
To prevail on a claim of prosecutorial misconduct the defendant must establish that the
prosecutor' s conduct was both improper and prejudicial. State v. Finch, 137 Wash. 2d 792, 839,
975 P.2d 967 ( 1999) ( plurality opinion). The defendant must demonstrate a substantial
likelihood that the misconduct affected the verdict in order to receive a new trial. 137 Wash. 2d at
839.
We review a prosecutor' s allegedly improper conduct in the context of the total
argument, the issues in the case, the evidence addressed in the argument, and the jury
instructions. State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 ( 2003). A prosecutor has wide
latitude in making arguments to the jury and may draw reasonable inferences from the evidence.
State v. Thorgerson, 172 Wash. 2d 438, 448, 258 P.3d 43 ( 2011).
II. No BURDEN SHIFTING
The State generally may not comment on the defendant' s lack of evidence, because the
defendant has no duty to present evidence. State v. Cheatam, 150 Wash. 2d 626, 652, 81 P.3d 830
2003); State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 ( 1996). It is misconduct to
imply that the defendant is required to provide evidence, or that the jury should convict the
defendant because he has presented little evidence. State v. Jackson, 150 Wash. App. 877, 885 -86,
209 P.3d 553 ( 2009). But the State is entitled to show that an exculpatory theory the defendant
raises lacks evidentiary support. A "prosecutor can question a defendant' s failure to provide
corroborative evidence if the defendant testified about an exculpatory theory that could have
No. 45081 -0 -II
been corroborated by an available witness." State v. Barrow, 60 Wash. App. 869, 872, 809 P.2d
209 ( 1991).
Defendants are required to prove affirmative defenses by a preponderance of the
evidence. State v. Lively, 130 Wash. 2d 1, 13, 921 P.2d 1035 ( 1996). It does not shift the burden of
proof to require a defendant who raises the unwitting possession defense to prove that defense by
a preponderance of the evidence. State v. Bradshaw, 152 Wash. 2d 528, 538, 98 P.3d 1190 ( 2004).
Here, Sundberg claims that the State' s rebuttal argument shifted the burden of proof. But
Sundberg had the burden of proving his affirmative defense of unwitting possession by a
preponderance of the evidence. Bradshaw, 152 Wash. 2d at 538. Thus, his argument fails.
III. PROSECUTOR VIOLATED MISSING WITNESS DOCTRINE
A. Missing Witness Doctrine Inapplicable
In general, the State may not comment on the defendant' s lack of evidence, because the
defendant has no duty to present evidence. Cheatam, 150 Wash. 2d at 652. The missing witness
doctrine is an exception: it applies where a party has failed to produce evidence within its
control, including the testimony of a potential witness. State v. Blair, 117 Wash. 2d 479, 485 -86,
816 P.2d 718 ( 1991). Where it applies, the doctrine permits the jury to infer that the missing
evidence or testimony would have been unfavorable to the party who failed to produce it. 117
Wash. 2d at 485 -86. Therefore, it permits a prosecutor to comment on the defense' s failure to
produce exculpatory evidence in limited circumstances. " There are, however, limitations on the
doctrine which are particularly important when a criminal defendant' s failure to call particular
witnesses is the subject of prosecutorial comment." 117 Wash. 2d at 488.
No. 45081 -0 -II
The missing witness doctrine allows the State to comment on a criminal defendant' s
failure to produce a witness only where: ( 1) the absent witness is particularly within the
defense' s ability to produce, ( 2) the missing testimony is not merely cumulative, ( 3) the
witness' s absence is not otherwise explained, ( 4) the witness is not incompetent or his testimony
privileged, and ( 5) the testimony does not infringe on the defendant' s constitutional rights.
Cheatam, 150 Wash. 2d at 652 -53. The doctrine does not apply where the missing witness' s
testimony, if favorable to the party who would naturally have called the witness, would
necessarily be self -incriminatory. Blair, 117 Wash. 2d at 490 -91. Finally, the State may comment
on the defendant' s failure to call a witness only where the defendant has unequivocally implied
that the missing witness would have corroborated his theory of the case. State v. Contreras, 57
Wash. App. 471, 476, 788 P.2d 1114 ( 1990).
Here, the missing witness doctrine did not apply for two reasons. First, Wood' s
testimony could only have been favorable to Sundberg if Wood testified that he was the source
of the methamphetamine. Said another way, Wood' s testimony would have been favorable to
Sundberg only if Wood testified that he committed the crime of unlawful possession of a
controlled substance by possessing the methamphetamine and placing it in Sundberg' s pocket.
Thus, his testimony would have been necessarily self incriminatory
- and privileged. Blair, 117
Wash. 2d at 490 -91; State v. Dixon, 150 Wn. App. 46, 55, 207 P.3d 459 ( 2009). Second, Sundberg
had not unequivocally implied that Wood would have corroborated his testimony. Contreras, 57
Wn. App. at 476. Sundberg explicitly said it was impossible to know whether Wood was the
No. 45081 -0 -II
source of the methamphetamine. For these reasons, the missing witness doctrine did not apply
and the prosecutor was not entitled to invoke it.
The prosecutor' s argument called for the jury to infer that Wood would have contradicted
Sundberg' s defense if Sundberg had called him. The prosecutor said that Sundberg " says he sees
Wood] about twice a week. He says he can get a hold of him. Why isn' t [Wood] here
testifying? It' s their burden. He' s not here." VRP at 195. This argument implied that Sundberg
would have called Wood had his testimony favored Sundberg. The prosecutor continued,
arguing that Sundberg " is also inherently biased. He has a stake in the outcome. That gives him
bias to lie. His testimony was obviously self -serving. It was obviously designed to tell a story to
corroborate his defense. And again, it was his burden. He didn' t bring in Paul Wood." VRP at
195 -96. With this argument, the prosecutor implied that Sundberg' s biased testimony would not
have been corroborated by Wood' s testimony.
Taken as a whole, this argument improperly invoked the missing witness doctrine. It
asked the jury to infer that the missing testimony would have been unfavorable to Sundberg.
Blair, 117 Wash. 2d at 485 -86. The prosecutor was not entitled to argue this inference. Blair, 117
Wash. 2d at 489 -91; Dixon, 150 Wash. App. at 55; Contreras, 57 Wash. App. at 476.
B. Violation ofMissing Witness Doctrine Constituted Misconduct
A prosecutor commits misconduct by violating the missing witness doctrine. State v.
Carter, 74 Wn. App. 320, 332, 875 P.2d 1 ( 1994). To prevail on a claim of prosecutorial
misconduct where, as here, the appellant objected to the conduct, an appellant must show that the
conduct was both improper and prejudicial. State v. Emery, 174 Wash. 2d 741, 760, 278 P.3d 653
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2012). Prejudice in this context is a substantial likelihood that the misconduct affected the
verdict. Finch, 137 Wash. 2d at 839. Even improper prosecutorial remarks in direct response to
defense counsel' s arguments are not grounds for reversal where they do not go beyond what is
necessary to respond to the defense, and neither bring before the jury matters not in the record,
nor create incurable prejudice. State v. Francisco, 148 Wash. App. 168, 178 -79, 199 P.3d 478
2009). Here, the prosecutor' s invocation of the missing witness doctrine was improper. See
Carter, 74 Wash. App. at 332. The prosecutor' s argument was not in direct response to
Sundberg' s argument. Francisco, 148 Wash. App. at 178 -79.
In addition, there is a substantial likelihood that the improper invocation of the missing
witness doctrine affected the verdict. The State presented strong evidence that Sundberg
possessed methamphetamine: an inventory search of the overalls he wore revealed
methamphetamine. But Sundberg' s possession of the methamphetamine was not the issue in
dispute, because Sundberg argued the affirmative defense of unwitting possession. This defense
relied heavily on Sundberg' s testimony that Paul Wood had worn the overalls in the days prior to
Sundberg' s arrest, suggesting that the overalls had been out of his control and he did not know
they contained methamphetamine. Despite the fact that Wood was not an available witness
under the missing witness doctrine, the prosecutor improperly urged the jury to infer that Wood
would contradict Sundberg' s defense. This suggestion so fundamentally compromised
Sundberg' s unwitting possession defense that there is a substantial likelihood the prosecutor' s
misconduct affected the verdict. There is a substantial likelihood the jury rejected Sundberg' s
unwitting possession defense based on the improper inference the prosecutor invoked.
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No. 45081 -0 -I1
Because the prosecutor committed misconduct by improperly invoking the missing
witness doctrine, and because there is a substantial likelihood that this improper argument
affected the verdict, we reverse Sundberg' s conviction and remand for a new trial.
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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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