State Of Washington, Respondent V. Demeko Brazille Holland, Appellant - includes an Order
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
OPINION
DEMEKO BRAZILLE HOLLAND,
a/k/a DEMEKO BRAZILE HOLLAND,
Appellant.
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NO. 62118-1-I
DIVISION ONE
ORDER CORRECTING
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The appellant, Demeko Brazille Holland, a/k/a Demeko Brazile Holland,
having brought a motion to correct opinion, and the panel having determined
that the opinion should be corrected, it is hereby
ORDERED that the opinion of this court in the above-entitled case filed
April 26, 2010, be changed as follows:
On page 1, the first sentence of the opinion shall be corrected to read as
follows:
Demeko Holland appeals his conviction for second degree murder
claiming that the trial court erred in admitting into evidence his
custodial statements and that prosecutorial misconduct during
closing argument deprived him of a fair trial.
The remainder of the opinion shall remain the same.
DATED this _____ day of _________________, 2010.
NO. 62118-1-I / 2
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DEMEKO BRAZILLE HOLLAND,
a/k/a DEMEKO BRAZILE HOLLAND,
Appellant.
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NO. 62118-1-I
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 26, 2010
Leach, A.C.J. — Demeko Holland appeals his conviction for first degree
murder claiming that the trial court erred in admitting into evidence his custodial
statements and that prosecutorial misconduct during closing argument deprived
him of a fair trial. Because Holland fails to demonstrate any error, we affirm.
FACTS
On August 18, 2003, at approximately 11:20 a.m., 14-year-old David
Chhin was shot to death on a street in West Seattle where he had been riding
his bicycle. Witnesses reported to police that the shooter was running through
the residential area west of the shooting. At 11:46 a.m., Seattle Police Officer
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Richard Heideman stopped Demeko Holland about 10 blocks northwest of the
shooting. Holland said, “Why did you stop me? I’m just out jogging.” Holland
then told Officer Heideman that he had been doing lawn work in the area and
was just taking a break and jogging.
When additional officers arrived, they
arrested Holland. Officer Caryn Lee read Miranda1 warnings to Holland from a
card. In response to the officers’ questions, Holland gave a false name and date
of birth and offered differing explanations for his actions.
At the police station, Holland made additional statements to two
detectives.
Holland was disheveled, moody, and sometimes crying. Holland
told the detectives that he had smoked “sherm” earlier and had had very little
sleep.
(Officer Rob Blanco identified “sherm” as “marijuana dipped in a
substance, dried and smoked.”)
After giving various accounts of his
whereabouts, Holland eventually stated that he had no memory of the shooting
because of the sherm but that “it could have happened” if the police thought he
was involved. According to Detective Donna O’Neal, when she suggested that
he write a letter to the victim’s family to express his remorse, Holland said that
“was a good idea, he liked the idea, but he would do it later” because he had
given statements on prior occasions and had “been burned by it.”
The State charged Holland with murder in the first degree and unlawful
possession of a firearm in the first degree. At a CrR 3.5 hearing, Officer Lee
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
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NO. 62118-1-I / 4
testified that she read the Miranda warnings to Holland, that Holland
affirmatively indicated that he understood his rights, and that she did not ask
Holland the final question printed on the card: “Having these rights in mind, do
you wish to talk to us now?” During cross-examination, Officer Lee admitted that
Holland’s acknowledgment could have been “a simple nod up and down.” The
trial court ruled that all Holland’s statements to police were admissible. The trial
court found that although Holland had not been explicitly asked to waive his
Miranda rights, he was fully aware of his rights and continued to “speak freely
with officers and detectives in the absence of any threats, promises or coercion.”
At trial, the State presented testimony from several witnesses who
believed they had seen the shooter shortly after the crime, police testimony
about Holland’s arrest and statements, and physical evidence from the scene
and the surrounding neighborhood.
In closing argument, defense counsel
argued that Holland had a drug addiction and had no memory of the time of the
shooting because of his drug use; that the witnesses changed their testimony to
make Holland appear guilty; that the police pressured Holland and twisted his
statements and did not fully investigate the case; and that the State’s evidence
did not prove Holland’s guilt. In rebuttal, the prosecutor argued:
[Defense counsel] talked to you about the ugly consequences of addiction
and how the defendant can’t get up here and tell you what he doesn’t
remember because of it. Really? Is there any testimony about the
defendant’s addiction to sherm or any other drug? Is there any testimony
at all about the effects of sherm that he smoked that night? Is there any
testimony on how it might or might not affect your memory, no.
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NO. 62118-1-I / 5
Holland did not object.
The prosecutor later responded to defense
counsel’s suggestion that Holland could have learned details of the shooting by
overhearing a cellular phone conversation between police officers or other State
witnesses, by arguing, “By golly, those witnesses were up there. Why didn’t she
ask them.” Defense counsel objected to “burden shifting,” but the trial court did
not make a ruling, and the prosecutor continued his argument.
The jury found Holland guilty of the lesser-included offense of murder in
the second degree and of unlawful possession of a firearm in the first degree.
The trial court imposed a standard range sentence. Holland appeals.
CUSTODIAL STATEMENTS
Holland assigns error to the trial court’s factual finding that “the defendant
stated that he acknowledged and understood” his Miranda rights. Challenged
findings of fact are reviewed for substantial evidence, which is enough evidence
to persuade a fair-minded, rational person of the truth of the finding.2 We treat
unchallenged findings as verities on appeal.3
Officer Lee testified that she “just read [Holland] his rights and asked him
if he understood. He said that he did and that was it.” When asked about
statements Holland made to her, Officer Lee testified, “I asked him his name
[and] he gave me his name and the birth date and then I read him his rights. He
acknowledged it and then we had no further conversation.” Officer Lee also
2
3
State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).
State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
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NO. 62118-1-I / 6
testified, “I don’t recall his exact words, but he acknowledged his rights to me.
So it was affirmative that he understood.” Despite Officer’s Lee’s agreement
with defense counsel’s suggestion that Holland may have nodded rather than
spoken his acknowledgment, Officer Lee’s other statements describing her
interactions with Holland provide enough evidence to persuade a fair-minded,
rational person that Holland “stated that he acknowledged and understood” his
rights. Holland fails to demonstrate error.
Holland also contends that the trial court erred when it admitted his
custodial statements based on its conclusion that he impliedly waived his
Miranda rights. He argues that the totality of the circumstances indicates that he
was worn down by lengthy questioning, was impaired by the drugs in his system,
and was under the mistaken impression that only written or recorded statements,
rather than oral statements, could be used against him.
We review a court's conclusion of law that a criminal defendant has
waived his Miranda rights de novo.4 A criminal defendant may waive his right to
remain silent if the waiver is made knowingly, voluntarily, and intelligently.5 If
these elements are met, a defendant's statements are admissible.6
A valid
waiver may be implied from the facts of a custodial interrogation.7 An implied
waiver “has been found where the record reveals that a defendant understood
4
See State v. Johnson, 94 Wn. App. 882, 897-98, 974 P.2d 855 (1999).
Miranda, 384 U.S. at 444.
6
Miranda, 384 U.S. at 444.
7
State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986).
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NO. 62118-1-I / 7
his rights and volunteered information after reaching such understanding” or that
a defendant's answers “were freely and voluntarily made without duress,
promise or threat and with a full understanding of his constitutional rights.”8
The trial court found that Holland was advised of his rights, understood
them, voluntarily waived them by answering questions posed by the officers and
detectives, and never “indicated anything other than a complete willingness to
speak with the police.” Holland provided a false name and date of birth, asked
about the shooting before police told him the reason they stopped him, provided
various conflicting details about his activities, and ultimately admitted that he
“may have” done the shooting, but claimed that his prior drug use caused a lack
of memory during the time of the murder. The trial court also found that “[n]o
threats or promises were made to induce [Holland] to speak.” Holland does not
argue that his responses were coerced, and nothing in the record so suggests.
Under these circumstances, the trial court did not err when it concluded that
Holland impliedly waived his rights.9
PROSECUTORIAL MISCONDUCT
Holland argues that the prosecutor committed misconduct by shifting the
burden of proof in his statements regarding Holland’s claimed drug addiction and
8
Terrovona, 105 Wn.2d at 646-47.
See Terrovona, 105 Wn.2d at 647 (affirming trial court finding of implied
waiver where defendant had not been specifically asked whether he would waive
rights but police advised him of rights, he understood them, he answered
questions about victim’s death, and nothing in the record indicated he was
coerced into making statements).
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the source of Holland’s knowledge of the shooting.
By claiming prosecutorial misconduct, Holland bears the burden of
establishing that the prosecutor's conduct was both improper and prejudicial.10
Even improper remarks are not grounds for reversal if they respond to a defense
argument and are not so prejudicial as to be incurable by an instruction.11
Failure to object to a prosecutor's improper remark constitutes waiver 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.12 Prejudice occurs only if “there is a substantial likelihood the instances
of misconduct affected the jury’s verdict.”13 We review misconduct claims in the
context of the total argument, the evidence addressed, the issues in the case,
and the jury instructions.14
A prosecutor is entitled to make a fair response to defense counsel’s
arguments.15 The mere mention that the defendant lacks evidence to support his
theory of the case does not constitute misconduct or shift the burden of proof to
the defendant.16 A prosecutor may comment on the absence of certain evidence
if persons other than the defendant could have testified about the matter.17
10
State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006).
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
12
Russell, 125 Wn.2d at 86.
13
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
14
State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
15
Russell, 125 Wn.2d at 87.
16
State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553 (2009) (no
misconduct when prosecutor outlined numerous reasons why jury should find the
State’s witnesses more credible than the defendant’s witness).
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First, Holland did not preserve his claim of error by objecting to the
prosecutor’s comments about drug addiction and the effects of sherm.
And
although the record reflects that Holland objected to the later comment about the
phone calls, he did not obtain a ruling from the trial court on the objection or
request a curative instruction. Holland does not argue or demonstrate that either
comment was so prejudicial as to be incurable by an instruction.
Second, even if Holland had properly objected to both comments, there
was no misconduct.
The prosecutor’s comments were a pertinent reply to
defense counsel’s arguments and properly encouraged the jury to draw an
unfavorable inference from the lack of evidence to support Holland’s theory of
the case.18 Evidence to support Holland’s claims of drug addiction, memory
loss, and contemporaneous cellular phone calls about the shooting could have
been supplied by witnesses other than the defendant. The trial court properly
instructed the jury that the State had the burden of proof.
Holland fails to
establish prosecutorial misconduct.
Affirmed.
WE CONCUR:
17
Jackson, 150 Wn. App. at 887 (citing State v. Ashby, 77 Wn.2d 33, 3738, 459 P.2d 403 (1969)).
18
See State v. Hartzell, 153 Wn. App. 137, 162, 221 P.3d 928 (2009).
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