VERELLEN, C.J.
To show that a prosecutor's comments during rebuttal closing argument were prejudicial, a defendant must show a substantial likelihood that the comments affected the jury's verdict. In view of the strong evidence connecting Nicole Sand and Candy Mattila with the burglary of another's home, they fail to establish a substantial likelihood that the prosecutor's comments about Mattila's written statement affected the jury verdict.
Substantial evidence supports the trial court's finding that Sand and Mattila used a motor vehicle in committing the felony.
We find no abuse of discretion in the trial court's denial of Mattila's motion for a mistrial with regard to the typographical error in Amanda Rockwell's plea agreement.
As the State concedes, the trial court erred in sentencing Mattila, a first-time offender, and remand for resentencing is required.
Accordingly, we affirm Sand's and Mattila's convictions, vacate Mattila's sentence, and remand for Mattila's resentencing. We do not award costs on appeal.
At about 12:40 a.m. on December 29, 2013, Howard Gorlick drove up the driveway of his home in Monroe and saw a truck he did not recognize parked in the driveway. Gorlick lived alone and had not given anybody permission to be at his house.
Gorlick's driveway is accessed through the back of a church parking lot and is several hundred feet long. The driveway is narrow and not lit and, for about the first 100 feet, the land on both sides of the driveway drops off about six feet. The driveway goes uphill to Gorlick's house and has some sharp curves. The truck had been backed up the driveway. According to Gorlick, backing a truck up the long, narrow driveway at night would not be easy to do.
Gorlick had left a light on inside the house, and when he pulled up to the house and got out of the car, he saw people moving around inside the house. Gorlick grabbed his cell phone, called the police, and walked to the bottom of the driveway to wait in the church parking lot for the police to arrive.
Within a few minutes, two officers from the Monroe Police Department arrived and met Gorlick in the church parking lot. After speaking with Gorlick, the officers drove up the driveway and parked behind Gorlick's car. When the officers got out of their car, they heard crashing noises and voices coming from inside the house. Through the large glass front window of the house, the officers saw three figures inside, each holding a flashlight. The officers saw at least two piles of items inside the house and determined that the crashing noises were the sounds of items being tossed onto the piles. The officers were unable to identify any of the individuals they saw inside the house.
The officers called for additional units and stayed where they were in front of the house. Before the additional units arrived, the officers heard voices and saw flashlights coming from behind the house. The officers heard individuals running behind the house and chased after them.
The officers found Candy Mattila on her knees in bushes and Amanda Rockwell lying face down in blackberry bushes. The officers found Nicole Sand lying in the bushes nearby. Mattila, Rockwell, and Sand were handcuffed and taken into custody.
One of the officers searched Sand incident to arrest and found in his pocket titles and registrations to vehicles owned by Gorlick. Gorlick testified that he kept those documents in a cupboard in his kitchen.
In the area near where Mattila, Rockwell, and Sand were arrested, the officers found a backpack containing items belonging to Gorlick. A few days after the burglary, Gorlick found another one of his backpacks lying on his property filled with items that had been on a shelf inside his house.
The truck parked in Gorlick's driveway belonged to Sand and Mattila. In the back of the truck, the officers found boxes containing items belonging to Gorlick, such as Coca-Cola bottles, nails, tacks, a hummingbird feeder, an extension cord, jugs of ice melt, and other items. Some of the numbers on the license plate of the truck had been altered with duct tape to make them look like different numbers.
The officers discovered that the door jamb on the front door of Gorlick's house had been broken. A pile of material that Gorlick had stacked against the inside of the front door to deter persons from entering his house when he was not there had been pushed aside.
Sand and Mattila were each charged with one count of residential burglary and tried jointly. The jury found Sand and Mattila guilty of residential burglary. Both Sand and Mattila moved for a new trial. The court denied the motion. Sand and Mattila appeal. Their appeals have been consolidated.
Sand and Mattila argue that the prosecutor committed misconduct during rebuttal closing argument. The prosecutor's comments relate to a statement Mattila gave to the police.
The police interviewed Mattila at the Monroe police station. Mattila agreed to write a statement and asked Officer Block to write the statement for her. Mattila signed the statement in the incorrect place so that her signature did not indicate that, under penalty of perjury, the statement was hers. Officer Block handed the statement back to Mattila and showed her where to sign it. Mattila took the statement and marked through two lines, saying that she did not want "to get in trouble."
At a CrR 3.5 hearing, the court ruled that Mattila's written statement to Officer Block was inadmissible, reasoning that "you cannot put that written statement in as her adopted statement when you ripped it out of her hand while she was changing it."
At trial, Mattila testified that she crossed statements out of her written statement because they were not true. On cross-examination, Mattila testified:
During rebuttal closing argument, the prosecutor stated:
Sand's counsel did not object to the prosecutor's comments. But immediately after the jury retired, Sand's counsel put on the record an objection to the prosecutor's comments as being in violation of the court's previous order excluding the written statement from evidence. Counsel explained that he did not object at the time the prosecutor made the statements because he "felt like the bell had been rung" and that an objection would only highlight the testimony.
The court assumed, for purposes of the motion for a mistrial that the prosecutor referred to facts that were not in evidence.
On appeal, Sand and Mattila argue that the prosecutor's comment constituted misconduct requiring reversal. We review allegations of prosecutorial misconduct for abuse of discretion.
We assume, as did the trial court, that the prosecutor referred to facts not in evidence. The next inquiry is whether the prosecutor's comments were prejudicial. To show prejudice, Sand and Mattila must show a substantial likelihood that the prosecutor's comments affected the jury's verdict.
We conclude that Sand and Mattila failed to show prejudice from the prosecutor's comments. Sand argues that the comment was prejudicial because it suggested that he entered Gorlick's house. But the State presented ample evidence from which the jury could reasonably conclude that Sand entered Gorlick's house. The police officers who responded to Gorlick's 911 call testified that they saw three people inside the house with flashlights and then saw three people fleeing out the back of the house. The officers found Sand lying in bushes outside Gorlick's house. In Sand's possession when the officers found him were titles and registrations to vehicles belonging to Gorlick. Gorlick testified that he kept these documents inside his house. Given this evidence, it is not substantially likely that the prosecutor's comments affected the jury's verdict as to Sand.
Mattila argues that the prosecutor's comments prejudiced her because, given that she and Sand were dating, Sand's presence in Gorlick's house made it more likely that Mattila was acting as an accomplice to the burglary. She also argues that the prosecutor's comments invited the jury to speculate about the contents of the statement she gave to the police. But Mattila does not establish a substantial probability that the prosecutor's comments affected the jury's verdict. The responding officers' testified that Mattila admitted she stepped inside Gorlick's house during the burglary. There was compelling evidence that she acted as an accomplice.
Rockwell was charged with one count of residential burglary. She pleaded guilty to the charge and testified at Sand's and Mattila's trial on behalf of the State. In the plea agreement, the State agreed not to file additional charges of theft arising out of the incident at Gorlick's house in return for an agreement to pay restitution. The plea agreement identifies this incident as having occurred on December 20, 2013.
During cross-examination of Rockwell, Mattila's counsel questioned Rockwell about the provision in the plea agreement referring to an incident at Gorlick's house on December 20, 2013. Shortly after these questions, court adjourned for the day. Cross-examination of Rockwell resumed the following day. Sand's counsel asked Rockwell whether she was aware that one of the charges the State agreed not to file against her arose out of a theft on December 20, 2013 of which Gorlick was the victim. Rockwell said she was not aware of this. Sand's counsel then stated, "But here we are in the plea paperwork you just read yesterday that you're owing restitution for the crimes that you committed against Mr. Gorlick just nine days before this incident."
Out of the presence of the jury, Mattila's counsel argued that the prosecutor's failure to clear up the error at the beginning of Rockwell's cross-examination made defense counsel "look like a liar" who did not know the evidence and caused her to lose credibility with the jury.
Both Sand and Mattila moved for a mistrial. The prosecutor told the court that he realized the plea agreement contained an error during defense counsel's cross-examination of Rockwell the previous afternoon, but chose to wait until redirect examination to clarify things, rather than say something immediately:
The trial court denied the motion for a mistrial. The court rejected the argument that the State violated CrR 4.7 by failing to turn over information. The court stated that the problem arose because the State interpreted the information in the plea agreement one way (December 20, 2013 was the incorrect date) and defense counsel interpreted it another way (December 20, 2013 was the correct date). The court noted that the State turned over 136 pages of discovery, many of which identified the burglary as having occurred on December 29, 2013. The court decided that, rather than resulting in a loss of defense counsel's credibility, the typographical error more likely made the State appear sloppy in the eyes of the jury and cast doubt on the State's case.
In its ruling denying the motion for a mistrial, the court also ruled that the prosecutor was permitted to present evidence that the plea agreement related only to the incident involving Gorlick that occurred on December 29, 2013 and not to anything that might have occurred on December 20, 2013. The State elicited testimony from a Monroe police officer who responded to Gorlick's 911 call that the investigation under the case number listed in the plea agreement related only to the events of December 29, 2013 and no other dates.
Mattila argues that the trial court abused its discretion by denying her motion for a mistrial in connection Rockwell's plea agreement. She argues that the State violated its discovery obligations under CrR 4.7(a) by not timely turning over the plea agreement and by not disclosing that Rockwell's plea agreement contained a typographical error immediately after defense counsel questioned Rockwell about it on cross-examination.
A defendant is not entitled to a mistrial in every instance where the State has violated a discovery rule. Rather, where the State violates a discovery rule, a mistrial is appropriate "only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly."
We review a trial court's decision to deny a motion for a mistrial for abuse of discretion.
"[T]he trial judge is in the best position to judge the prejudice of a statement.'"
The trial court found that Mattila and Sand used a motor vehicle in the commission of the residential burglary. A court may instruct the Department of Licensing to revoke a defendant's license for one year upon conviction of a "felony in the commission of which a motor vehicle is used."
Sand and Mattila argue that the court erred in finding that they used a motor vehicle because the truck was used only to transport them to the scene of the crime and was not used to store or conceal items stolen from Gorlick's house. We review the application of a statute to a specific set of facts de novo.
The statute does not define the term "use." "In order for RCW 46.20.285(4) to apply, the vehicle must contribute in some way to the accomplishment of the crime."
In
In reaching its holding, the court in
Here, the truck parked in Gorlick's driveway was loaded with boxes of items taken from his house. The items included Coca-Cola bottles, nails, tacks, a hummingbird feeder, an extension cord, and jugs of ice melt. Use of the truck was necessary in order to haul away the items taken from Gorlick's house. We find a sufficient nexus between the truck and the commission of the crime such that the truck was "used" in the commission of the crime. The trial court did not err in finding that Sand and Mattila used a vehicle in the commission of the crimes of which they were convicted.
The court sentenced Mattila as a first-time offender. The court sentenced her to 45 days of confinement with the possibility of work release, imposed 12 months of community custody, and ordered her to participate in a chemical dependency evaluation and to comply with all recommended treatment.
Mattila argues that the trial court erred by imposing a community custody term that exceeded the statutory maximum for first-time offenders. In sentencing a first-time offender, "[t]he court may impose up to six months of community custody unless treatment is ordered, in which case the period of community custody may include up to the period of treatment, but shall not exceed one year."
Both Mattila and Sand argue that if the State is the substantially prevailing party on appeal, we should not impose costs against them because they are indigent.
Appellate courts may require an adult offender convicted of an offense to pay appellate costs.
A determination of a criminal defendant's indigency is entrusted to the trial judge whose finding of indigency we respect unless we are shown good cause not to do so.
The trial court issued an order finding Sand indigent and authorizing him to appeal in forma pauperis. The trial court has not found that Sand's financial condition has improved or is likely to improve. We therefore presume that Sand remains indigent.
Because of its concession of error regarding Mattila's sentence, the State does not seek costs in Mattila's appeal.
We affirm Sand's judgment and sentence. We affirm Mattila's conviction, vacate her sentence, and remand for resentencing in accordance with this opinion. We do not award costs on appeal.
LEACH, J. and SPEARMAN, J., concurs.
