IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No 75037-2-I ~ ~f’ -4~
Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION u
BLAINEW.WHITEHEAD, ) C., Appellant. ) FILED: June 20, 2016 c~ ~
_________________________________________________________________________________ ) LEAcH, J. — A jury convicted Blame Whitehead of burglary in the second
degree. Whitehead challenges the sufficiency of the evidence supporting his
conviction. He also contends that trial counsel provided ineffective assistance by
failing to object to testimony and closing remarks that impermissibly commented
on his right to silence. Sufficient evidence supports Whitehead’s conviction.
Because the State did not impermissibly comment on Whitehead’s silence, he
fails to establish deficient performance or prejudice. We affirm.
FACTS
The State charged Blame Whitehead with burglary in the second degree,
alleging that he committed a burglary at the Christ Lutheran Church in Belfair,
Washington.
At trial, the pastor of the Belfair church testified that when she arrived at
church for Sunday services on September 29, 2013, she saw an unlocked door
and signs of a forced entry. She also discovered that several items, including NO. 75037-2-I I 2
laptop computers, were missing. The pastor viewed video surveillance footage
from the previous day and called the Mason County Sheriff’s Office. During the
pastor’s testimony, the jury viewed still images from the church’s video
surveillance system. These photos showed a man, who was not a member of
the congregation, walking around inside the church the previous afternoon, when
the church had been locked and closed to the public. The footage also showed
the man carrying a black bag.
Deputy Sheriff Larry Ellis responded to the reported robbery. He met the
pastor at the church and viewed the video footage from the previous day.
Without describing what steps he took, Deputy Ellis testified that his
“investigation” led him to a residence on NE Cherokee Lane. When he knocked
at the residence, a man partially opened the door. Deputy Ellis testified that he
was “95%” certain the man who opened the door was the same person he had
just seen on the church’s video footage. The person identified himself as Mark
Dillinger. Deputy Ellis told the man he wanted to speak with him, but the man
said he was not the homeowner and shut the door. The deputy continued to
knock but received no response.
When the deputy returned to the residence the following day, a different
man, Courtney Burrell, opened the door. Burrell told the deputy that his friend
Marlin Schauer lived at the house with his uncle, Billy Whitehead. Burrell said
-2- NO. 75037-2-I / 3
that no one named Mark lived at the residence. Deputy Ellis retrieved a
photograph of Blame Whitehead from a database and showed it to Burrell, who
confirmed that the person in the photograph was his friend’s Uncle Billy. When
he viewed the still photographs from the church’s video surveillance system,
Burrell said the person in the church resembled Whitehead, but he could not
definitively identify him. The police did not recover any of the church’s stolen
property.
The jury convicted Whitehead as charged. He appeals.
SUFFICIENCY OF THE EVIDENCE
Due process requires the State to prove, beyond a reasonable doubt,
every element of the crime charged.1 Sufficient evidence supports a conviction
if, after viewing it in the light most favorable to the State, a rational trier of fact
could find each element of the crime beyond a reasonable doubt.2 We defer to
the jury on questions of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence.3
For the jury to convict Whitehead of the charged burglary, it had to find
beyond a reasonable doubt that he (1) entered or remained unlawfully in a
building, (2) with intent to commit a crime therein.4
1 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). 2 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). ~ State v. Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012). ~ RCW 9A.52.030(1). -3- NO. 75037-2-I /4
According to Whitehead, there was no direct evidence that he was the
person who entered the church and stole property. He claims that the strongest
conclusion the jury could reach from the evidence is that he resembled the
person who committed the crime. Whitehead compares this case to State v.
Mace,5 where the only evidence connecting the defendant to the residential
burglary was a bag and receipt bearing the defendant’s fingerprints found near
an ATM6 where stolen bank cards were used.
We disagree. The surveillance photographs provided direct evidence of
the burglary. And, unlike Mace, Whitehead’s conviction was not based solely on
proof of possession of recently stolen property. Viewed in the light most
favorable to the State, the photographic evidence was sufficient to allow the jury
to determine that Whitehead, who appeared in court, was the same person
depicted in the still photographs and video footage. The persuasiveness of that
evidence is a question for the trier of fact—here, the jury.7
Other evidence corroborated the photographic evidence. Deputy Ellis
encountered the man at the Cherokee Lane residence the day after the burglary
and testified that the person he spoke to was unquestionably the same person in
the video footage. And Burrell testified that only Whitehead and Schauer lived at
597 Wn.2d 840, 842-43, 650 P.2d 217 (1982). 6 Automated teller machine. See State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992), abrogated on other grounds by In re Pers. Restraint of Cross, 180 Wn.2d 664, 681 n.8, 327 P.3d 660 (2014). -4- NO. 75037-2-lI 5
the residence and that Schauer was working out of town at the time of the
burglary. A rational trier of fact could find, based on this evidence, that
Whitehead was the person who committed the crime.
INEFFECTIVE ASSISTANCE OF COUNSEL
Whitehead contends that trial counsel rendered ineffective assistance by
failing to object when the State (1) elicited testimony that Whitehead refused to
speak to Deputy Ellis and (2) urged the jury to infer guilt from his exercise of the
right to silence.
The Fifth Amendment of the United States Constitution and article I,
section 9 of the Washington Constitution “guarantee a criminal defendant the
right to be free from self-incrimination, including the right to silence.”8 The right to
silence applies in both prearrest and postarrest situations.9 The State
impermissibly comments on silence when it uses the defendant’s silence “as
substantive evidence of guilt or to suggest to the jury that the silence was an
admission of guilt.”1° An impermissible comment on silence requires more than
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No 75037-2-I ~ ~f’ -4~
Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION u
BLAINEW.WHITEHEAD, ) C., Appellant. ) FILED: June 20, 2016 c~ ~
_________________________________________________________________________________ ) LEAcH, J. — A jury convicted Blame Whitehead of burglary in the second
degree. Whitehead challenges the sufficiency of the evidence supporting his
conviction. He also contends that trial counsel provided ineffective assistance by
failing to object to testimony and closing remarks that impermissibly commented
on his right to silence. Sufficient evidence supports Whitehead’s conviction.
Because the State did not impermissibly comment on Whitehead’s silence, he
fails to establish deficient performance or prejudice. We affirm.
FACTS
The State charged Blame Whitehead with burglary in the second degree,
alleging that he committed a burglary at the Christ Lutheran Church in Belfair,
Washington.
At trial, the pastor of the Belfair church testified that when she arrived at
church for Sunday services on September 29, 2013, she saw an unlocked door
and signs of a forced entry. She also discovered that several items, including NO. 75037-2-I I 2
laptop computers, were missing. The pastor viewed video surveillance footage
from the previous day and called the Mason County Sheriff’s Office. During the
pastor’s testimony, the jury viewed still images from the church’s video
surveillance system. These photos showed a man, who was not a member of
the congregation, walking around inside the church the previous afternoon, when
the church had been locked and closed to the public. The footage also showed
the man carrying a black bag.
Deputy Sheriff Larry Ellis responded to the reported robbery. He met the
pastor at the church and viewed the video footage from the previous day.
Without describing what steps he took, Deputy Ellis testified that his
“investigation” led him to a residence on NE Cherokee Lane. When he knocked
at the residence, a man partially opened the door. Deputy Ellis testified that he
was “95%” certain the man who opened the door was the same person he had
just seen on the church’s video footage. The person identified himself as Mark
Dillinger. Deputy Ellis told the man he wanted to speak with him, but the man
said he was not the homeowner and shut the door. The deputy continued to
knock but received no response.
When the deputy returned to the residence the following day, a different
man, Courtney Burrell, opened the door. Burrell told the deputy that his friend
Marlin Schauer lived at the house with his uncle, Billy Whitehead. Burrell said
-2- NO. 75037-2-I / 3
that no one named Mark lived at the residence. Deputy Ellis retrieved a
photograph of Blame Whitehead from a database and showed it to Burrell, who
confirmed that the person in the photograph was his friend’s Uncle Billy. When
he viewed the still photographs from the church’s video surveillance system,
Burrell said the person in the church resembled Whitehead, but he could not
definitively identify him. The police did not recover any of the church’s stolen
property.
The jury convicted Whitehead as charged. He appeals.
SUFFICIENCY OF THE EVIDENCE
Due process requires the State to prove, beyond a reasonable doubt,
every element of the crime charged.1 Sufficient evidence supports a conviction
if, after viewing it in the light most favorable to the State, a rational trier of fact
could find each element of the crime beyond a reasonable doubt.2 We defer to
the jury on questions of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence.3
For the jury to convict Whitehead of the charged burglary, it had to find
beyond a reasonable doubt that he (1) entered or remained unlawfully in a
building, (2) with intent to commit a crime therein.4
1 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). 2 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). ~ State v. Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012). ~ RCW 9A.52.030(1). -3- NO. 75037-2-I /4
According to Whitehead, there was no direct evidence that he was the
person who entered the church and stole property. He claims that the strongest
conclusion the jury could reach from the evidence is that he resembled the
person who committed the crime. Whitehead compares this case to State v.
Mace,5 where the only evidence connecting the defendant to the residential
burglary was a bag and receipt bearing the defendant’s fingerprints found near
an ATM6 where stolen bank cards were used.
We disagree. The surveillance photographs provided direct evidence of
the burglary. And, unlike Mace, Whitehead’s conviction was not based solely on
proof of possession of recently stolen property. Viewed in the light most
favorable to the State, the photographic evidence was sufficient to allow the jury
to determine that Whitehead, who appeared in court, was the same person
depicted in the still photographs and video footage. The persuasiveness of that
evidence is a question for the trier of fact—here, the jury.7
Other evidence corroborated the photographic evidence. Deputy Ellis
encountered the man at the Cherokee Lane residence the day after the burglary
and testified that the person he spoke to was unquestionably the same person in
the video footage. And Burrell testified that only Whitehead and Schauer lived at
597 Wn.2d 840, 842-43, 650 P.2d 217 (1982). 6 Automated teller machine. See State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992), abrogated on other grounds by In re Pers. Restraint of Cross, 180 Wn.2d 664, 681 n.8, 327 P.3d 660 (2014). -4- NO. 75037-2-lI 5
the residence and that Schauer was working out of town at the time of the
burglary. A rational trier of fact could find, based on this evidence, that
Whitehead was the person who committed the crime.
INEFFECTIVE ASSISTANCE OF COUNSEL
Whitehead contends that trial counsel rendered ineffective assistance by
failing to object when the State (1) elicited testimony that Whitehead refused to
speak to Deputy Ellis and (2) urged the jury to infer guilt from his exercise of the
right to silence.
The Fifth Amendment of the United States Constitution and article I,
section 9 of the Washington Constitution “guarantee a criminal defendant the
right to be free from self-incrimination, including the right to silence.”8 The right to
silence applies in both prearrest and postarrest situations.9 The State
impermissibly comments on silence when it uses the defendant’s silence “as
substantive evidence of guilt or to suggest to the jury that the silence was an
admission of guilt.”1° An impermissible comment on silence requires more than
merely referencing the silence.11 We must consider “whether the [State]
manifestly intended the remarks to be a comment on that right.”12
8State v. Knapp, 148 Wn. App. 414, 420, 199 P.3d 505 (2009). ~ State v. Easter, 130 Wn.2d 228, 243, 922 P.2d 1285 (1996). 10 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). 11 State v. Slone, 133 Wn. App. 120, 127, 134 P.3d 1217 (2006). 12 State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10(1991)). -5- NO. 75037-2-I I 6
To prove ineffective assistance of counsel, an appellant must show that
(1) counsel provided representation so deficient that it fell below an objective
standard of reasonableness and (2) the deficient performance prejudiced him.13
A defendant shows prejudice when there is a reasonable probability that but for
counsel’s errors, the result of the trial would have been different.14 An ineffective
assistance of counsel claim fails if a defendant does not establish either prong.
Deputy Ellis testified that in response to his request to speak to the person
who answered the door, the person “closed the door and went back inside the
residence.” The prosecutor referred to this encounter in closing argument,
saying that “when Deputy Ellis basically says we have something to discuss, the
person backs off into the house. . . and doesn’t—doesn’t talk anymore.”
Neither Deputy Ellis’s testimony nor the prosecutor’s remark amounted to
an impermissible comment on Whitehead’s silence. Deputy Ellis did not directly
refer to Whitehead’s silence when he described the man’s retreat into the
residence. Deputy Ellis did not say that he told the man that he wanted to
discuss a burglary. Neither did he testify that Whitehead refused to answer any
questions. The record does not show that the State intentionally elicited
testimony about Whitehead’s silence.
13Strickland v. Washington, 466 U.S. 668, 687, 104 5. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). 14 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
-6- NO. 75037-2-I I 7
The prosecutor’s reference to silence in closing argument was isolated
and brief. He focused his argument on Deputy Ellis’s certainty that the person
who answered the door was the same person he had just viewed in surveillance
footage. He also emphasized the fact that only Whitehead and Schauler lived at
the residence at that time and that the person who answered the door provided a
false name. The prosecutor did not ask the jury to use the evidence of silence as
substantive evidence of guilt or to infer an admission of guilt. Under these
circumstances, Whitehead fails to demonstrate that counsel’s performance was
deficient or that he was prejudiced. His ineffective assistance of counsel claim
fails.
Affirmed.
WE CONCUR:
-7-