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                                                                                            20i5AUG - 14 Ap 9: S9



       IN THE COURT OF APPEALS OF THE STATE OF W

                                             DIVISION II



STATE OF WASHINGTON                                                           No. 46139 -


                                  Respondent,


        V.



TRAVIS JEFFREY PARDUE,                                               UNPUBLISHED OPINION


                                             t.




       SUTTON, J. -   Travis J. Pardue appeals his jury trial conviction for one count of residential

burglary. He argues that ( 1) his trial counsel was ineffective for failing to move to exclude a

portion of a recorded police interrogation during which Pardue exercised his right to counsel,

2) his trial counsel was ineffective for failing to move to exclude a portion of the recording that

disclosed inadmissible prior bad acts evidence and for introducing inadmissible bad acts testimony

from two witnesses, and ( 3) the prosecutor committed misconduct in closing argument by arguing

that Pardue had   an obligation   to   present evidence.   Because Pardue does not establish ineffective


assistance of counsel and   has   waived   his   prosecutorial   misconduct   claim, we affirm.
No. 46139 -1 - II



                                                        FACTS


                                               I. BACKGROUND


                                     A. BURGLARY AND INVESTIGATION


        Between 4: 00 and 4: 30 PM on August 8, 2013, William Thomas ( Tom) Sweatman heard

                                                                                                                  Tom1
someone    running   out of    his house   when   he    returned   to his Cosmopolis home           after work.




saw two men running across his deck to a nearby Jeep; they did not stop when Tom yelled at them.

Tom followed the       Jeep   in his truck. RP ( Mar. 11, 2014)           at   39. As he drove past his father-in-


law' s nearby home, Tom also noticed that its garage door was open.

                                  Tom              to   drive up          to the   Jeep   and see   the   occupants.   In
        During   the   pursuit,         was able                   next




addition, he observed that both the driver and passenger were wearing white gloves, which they

eventually threw out of the window along with a purple or blue item.

        When Tom stopped following the Jeep, he contacted the police; an officer met him at his

home. His    master    bedroom     and a   bathroom had been        ransacked.      Empty drawers from a jewelry

box   were on   the bed.      In addition, the garage door and a side door of the father-in-law' s house


were open and there appeared to be firearms missing from the house.

        The investigating officers eventually located the Jeep, which was owned by Deanna

Lincoln.    Lincoln asserted that she had loaned the Jeep to a man named Rom Drittenbas on

August 7.    Although he returned the car, the car went missing on the morning of August 8, and




 1 Because Tom and his daughter Christi share a last name, we refer to them by their first names to
 avoid confusion; we intend no disrespect.




                                                            2
No. 46139 -1 - II




Lincoln reported it stolen.2 Lincoln also knew Pardue and knew that Pardue and Drittenbas were

friends.


           The officers also recovered the gloves and a purple Crown Royal bag from the roadway.

Pardue' s DNA was found on one of the gloves.


           After Tom reported the burglary, his daughter Christi Sweatman suggested that Pardue, her

former boyfriend, might be involved in the crime. She thought it was more than a coincidence that

Pardue had called her at about 11: 00 AM on August 8, and told her that he had planned to stop by

her house to leave a note for her in her car but did not want to run into her father. Pardue also told

her that he    and   his friend " Rom"       were       then going to go to        Ocean Shores.   1 Verbatim Report of


Proceedings ( RP)      at   149- 50.   Christi told Pardue that she was out of town with her mother, sister,

and grandfather and. that her father was not going to be home until later.

           Tom eventually identified Pardue in a photo lineup as one. of the men involved in the

burglary. Tom also later identified Rom in another photomontage.

                                                   B. POLICE INTERVIEW


           Officers located        and arrested     Pardue.     After an officer advised Pardue of his Miranda'


rights, Pardue agreed to talk to him.


           When the officer asked Pardue if he knew anything about a possible burglary, he

responded, "    I don' t    ever   do any   of   that   stuff man."   Clerk'   s   Papers ( CP), Ex. 32   at   7. The officer




 2 Lincoln later testified that on August 8, she had received a call from Drittenbas who told her that
 he " was in a high speed chase with the homeowner" and asked her to report that the car had been
 stolen.    1 Verbatim Report of Proceedings ( RP) at 93.

  Miranda v: Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).



                                                                 3
No. 46139 -1 - II



then asked Pardue about his criminal history and whether it involved narcotics. Pardue responded,

 No.      I just do like a whole bunch of domestic violence, uh, situations with me and my ex and

that' s   about   it. Just No Contact Orders."             CP, Ex. 32 at 7. Pardue denied having been involved in

any property crimes or thefts. When the officer asked Pardue where he was on August 8, Pardue
responded, "      I'   m   pretty   sure   I   was   hanging   out with   my ...   friend Nessa. That' s who I' ve been


pretty    much    hanging       out with."       CP, Ex. 32 at 8.


           Pardue denied having talked to Christi on the day of the robbery, but he later admitted to a

phone conversation that was very similar to the one Christi had described as having occurred that

          Pardue                           that Christi                   anything to him   about a   burglary.   He then
day.                   also   asserted                    never   said




commented:




                   She' s I mean she has been acting really funny every time I talk to her like
           you know blah, blah this and this and that and the other thing. I' m just like okay.
           I kind of heard through the grapevine that something like that happened but I never
           thought that she would point the finger at me for something like that.

CP, Ex. 32        at   10.    When the officer asked Pardue why Christi would want to do something like

that to him, Pardue responded:


                  Yeah. Probably. Like me and her were really close and everything and then
           we kind of did drugs together and like that and then she started taking it to [o] far
            inaudible] and I didn' t want to contribute to her habit anymore and keep getting
           her strung out and she lost her job and everything and then she would fuckin call
           my hookups and have people deliver drugs out to her and shit like that and ....

CP, Ex. 32 at 10.




                                                                    M
No. 46139- 1- 11



         The following conversation then ensued:

         OFFICER]          Okay. Has she ever done anything that would lead you to believe
                  that this is fake or that she made it up or that she may have done some of
                  this   stuff   to   get   dope   or   anything like that?    I mean, I you ( sic) didn' t know
                  for a long, long time but do you know her to be doing anything to be
                  involved in anything like that?
         PARDUE              Before I make a statement like that 1probably should have a lawyer
                  present because I don' t want I am not the type of person that will get
                  anybody in trouble for anything or myself in
          OFFICER]           You don' t       got   to talk   about   her.    I don' t   care.   I just didn' t want
                    inaudible] .

         PARDUE              She, I' ve known her to take things from her grandparent' s house
                   before but and

          OFFICER]           I mean she' s not going to get in trouble for it for past stuff because
                   I am not investigating past stuff but I just want I am more worried about is
                   not worried about what I am more trying to figure out because like I said
                   this is something that I am trying to piece together now.

CP, Ex. 32   at   11 (   emphasis added).          The officer and Pardue then talked about whether Christi had

stolen things from her parent' s and grandparent' s homes

         When the officer told Pardue that Tom had identified Pardue as one of the burglars, Pardue

                           involved, stating he                                           CP, Ex. 32           13.   Pardue also
denied   having been                                      was " never even     there."                    at




commented that Christi' s family blamed him for getting their daughter on drugs, so they might

want to implicate him in the burglary.

         Pardue     admitted      that he knew Lincoln            and   had been in her          car "   a couple of times."


CP, Ex 32 at 5. When the officer told Pardue that it was likely the Cosmopolis police would charge

him with burglary and possession of a stolen vehicle and that they had found gloves that may have
his fingerprints on them, Pardue stated that there were gloves in Lincoln' s car with his prints on

them because he used these gloves while in the car injecting drugs.




                                                                  5
No. 46139 -1 - II



                                                       II. PROCEDURE


        The State     charged       Pardue     with   two counts        of residential       burglary.   Before trial, defense


counsel agreed to an order declaring Pardue' s statements during the police interview were

voluntary and knowing and, therefore, admissible under CrR 3. 5. The trial court played the entire
                            4
interview for the    jury.

        The State also presented testimony from the investigating officers, some forensic officers,

Tom, Christi, and Lincoln. They testified to the facts as described above.

        In addition, during cross examination, defense counsel questioned Christi about why she

had implicated Pardue in the burglary:

        Q [ DEFENSE          COUNSEL].              And do     you remember ...          making a statement to the
        cops ...     about the incident?

        A [ CHRISTI].             I do.

        Q.         Okay.         And do you remember that you made a statement implicating
         Pardue] to this crime?

        A.         Yes.

        Q.         Now, can you explain why you would make that leap—
        A.         That leap?
        Q.         Yeah. Like the conversation in the morning to him committing a burglary
        at your     house, why       would you make          that ...        assumption?


        A.         That    leap?     Because        of prior   history. He' s an addict and he was getting
        further into his        addiction and       he has   taken money from           me   before. And   so—   I mean

        I guess it could be a coincidence, but getting a phone call saying you want to leave
        a note and then there' s no note there and then someone breaks into our house when
        we' re gone.




4 After the jury heard the recording, defense counsel objected and asked the trial court to exclude
the portion of the recording following Pardue' s reference to counsel because the interview should
 have been terminated        at   that    point.   Noting   the   prior " stipulation,"      the trial court declined to revisit
the admissibility     of   the    recorded     interview.      1 RP     at   170- 71.   Defense counsel did not argue that
 the reference to counsel was not itself admissible:




                                                                    2
No. 46139 -1 - II




          Q.         Okay.     So    you' re— you' re      saying that— you' re         speculating that it' s Travis?
          You don' t—

          A.         Yeah.

          Q. —            have definitive—

          A.         I   was not    there,   no   I   was not   there.   I did   not see ...    him doing it.

1 RP at 156- 57 ( emphasis added).


          Tom also identified Pardue as one of the men he saw in the Jeep. And Lincoln also testified

Pardue had never, to her knowledge, been in her car.

          Pardue presented an alibi defense through three witnesses: Pardue' s daughters' maternal

grandmother Christine Krenik, Krenik' s mother Eleanor Selness, and Pardue' s former girlfriend

Janessa Sparks. These witnesses testified that on August 8, Pardue was with Krenik and Selness

at their house in Olympia visiting his daughters. At 3: 30 PM, Krenik and Selness left the house to

attend a birthday party for one of Pardue' s daughters, but Pardue remained behind. When defense

counsel asked Krenik why Pardue was at her house, she responded,

                        He   was   visiting his daughters. It       was— we were— can             I say this? We were

          having his daughter' s birthday that day so he came over to see them before the party
          because he couldn' t—he can' t go out to my brother' s because him and my sister
          don' t get along and there' s a restraining order with my daughter.

2 RP at 188 ( emphasis added).


              Selness testified that there were several other people at the child' s birthday party and that

there    were no        invitations   mailed      because       guests were notified       by   word of mouth.   On redirect,


 defense counsel asked Selness if she could explain why Pardue remained behind when the rest of

thein    left to   attend    the   birthday   party. She        responded, "     He had a restraining order against him to

 not   be .      near    the children' s mother."         2 RP at 211.




                                                                     7
No. 46139 -1 - II



          Sparks testified that Pardue was with her the morning of August 8, and that he had called

Christi       on   her   phone.    Sparks also testified that she had later picked Pardue up at Krenik and

Selness'      s    home   at about     4: 30 PM,      and    she (   Sparks) and Pardue spent the rest of the evening

together.



          In closing argument, the prosecutor argued:

                         Now,   you   heard from ...         the grandmother and the great grandmother of his
          children and you            heard from his  Okay. And here they are— I don' t—
                                                             girlfriend.

          it' s unfortunate for them, because six ' months later they' re being asked to
          reconstruct something that happened and [ to] be honest. Okay. And the child' s
          birthday was the 27th of July but, oh, gee, it was on this Thursday, August the 8th,
              I know that.


                         Now. I—I don' t see a party invitation, I didn' t see a calendar where a date
              was written, and        1 didn' t see   aPattie or whoever else who was at the                       party   or—   if
                                   that it was the     8th   and     they'   re certain   that   they left   at   3: 30— around
              they' re   certain

              3: 30. Well,    we all    have been to Olympia                 you now   the distance      and      the time.   We
              know that Mr. Pardue got there you know.


2 RP     at   241 (   emphasis added).        Pardue did not object to this argument.


              The jury found Pardue guilty of the residential burglary of Tom' s residence. 5 Pardue
appeals his conviction.


                                                               ANALYSIS


              Pardue argues that he received ineffective assistance of counsel on various grounds and

 that the prosecutor engaged in prosecutorial misconduct in closing argument. These arguments

 fail.




 5 The jury found him not guilty of the other residential burglary charge.


                                                                         8
No. 46139 -1 - II




                                 I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

                                              A. STANDARD OF REVIEW


          To succeed on his ineffective assistance of counsel claim, Pardue must establish that

defense   counsel' s conduct was         both deficient       and prejudicial.        State v. Grier, 171 Wn.2d 17, 33,


246 P. 3d 1260 ( 2011).          Counsel' s representation is deficient if it falls below an objective standard


of reasonableness based on consideration of all the circumstances. State v. McFarland, 127 Wn.2d

322, 334- 35, 899 P. 2d 1251 ( 1995).               Pardue must overcome a strong presumption that counsel' s .

performance was reasonable, and counsel' s tactical decisions cannot form the basis for a claim of

ineffective   assistance of counsel.          Grier, 171 Wn.2d            at   33; McFarland, 127 Wn.2d       at   336.   To


establish prejudice, Pardue must show that but for defense counsel' s deficient performance, the


result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694,
104 S. Ct. 2052, 80 L.Ed. 2d 674 ( 1984).


        B. FAILING TO OBJECT TO EVIDENCE DISCLOSING EXERCISE OF RIGHT TO COUNSEL

          Pardue first argues that defense counsel provided ineffective assistance by stipulating to

the admission of the recorded police interview without objecting to the portion of the interview in

which   Pardue     refers   to   counsel.   Pardue contends that the admission of this evidence could have

allowed    the   jury to " improperly       infer   guilt   based   on   the   exercise of a constitutional right."   Reply

Br. at 2. We disagree.


          Taken in context, Pardue' s reference to counsel related to his willingness to comment on

Christi' s potential involvement, not his own:




                                                                0J
No. 46139 -1 - II



          OFFICER]          Okay. Has she ever done anything that would lead you to believe
         that this is fake or that she made it up or that she may have done some of this stuff
         to get dope or anything like that? I mean, I you ( sic) didn' t know for a long, long

         time but do you know her to be doing anything to be involved in anything like that?

         PARDUE         Before I make a statement like that Iprobably should have a lawyer
         present because 1 don' t want 1 am not the type ofperson that will get anybody in
         trouble for anything or myself in .. .

CP, Ex. 32 at 11 ( emphasis added).


         Commenting on a defendant' s exercise of his right to counsel can be improper because it

can   infer   a   defendant believes himself to be guilty.      United States ex rel. Macon v. Yeager, 476

F. 2d 613, 616- 17 ( 3rd Cir. 1973).         But Pardue' s reference to counsel was intended to protect


another person, not himself, so there was no reason for a jury to potentially infer Pardue' s guilt.

Thus, even if defense counsel had raised this argument, it is unlikely the trial court would have .

granted a motion to exclude this portion of the interview. Accordingly, Pardue fails to show that

the result of the proceeding would have been different, and this argument fails.

                       C. FAILING TO OBJECT TO OR ELICITING PROPENSITY EVIDENCE


         Pardue next argues that defense counsel provided ineffective assistance by stipulating to

the admission of the police interview without objecting to the portion of the interview in which

Pardue refers to his domestic violence convictions and by eliciting other propensity evidence when

questioning Selness         and   Christi.   Specifically,   Pardue   refers   to ( 1)   the portion of his police


interview in which he admits to having prior domestic violence convictions and a no contact order,

 2) Selness' s testimony that Pardue was subject to a restraining order, and ( 3) Christi' s testimony

that Pardue had " taken" money from her in the past. 1 RP at 156.




                                                         10
No. 46139 -1 - II



                                                   1. POLICE INTERVIEW


         During the police interview, Pardue adamantly denied committing any type of property

crimes, but he admitted that he had a history of domestic violence with his " ex" and no contact

order violations.     CP, Ex. 32       at   7. Although the information about the domestic violence and no


contact orders was arguably not relevant to this crime and it is likely that the trial court would have

granted a motion to exclude this portion of the interview, Pardue does not show that a failure to

object   to this   part   of   the interview     was    not   a reasonable       defense tactic.    That Pardue readily

admitted he had committed some crimes while simultaneously denying any involvement in any

property crimes could suggest that Pardue was not being evasive and was telling the truth during

the interview. Defense counsel could have reasonably chosen not to object to this portion of the

interview to bolster Pardue' s credibility. Because this could have been a reasonable tactical choice,

Pardue does not establish ineffective assistance of counsel on this ground.,


                                               2. SELNESS' S TESTIMONY


         Pardue next argues that defense counsel provided ineffective assistance by soliciting

Selness'   s   testimony   that Pardue       was   subject    to   a    restraining   order.   Selness commented on the


restraining order when defense counsel asked her why Pardue did not accompany the rest of the

family   to his daughter'       s   birthday   party.   Defense counsel could have reasonably solicited this

testimony to explain why Pardue was not with the rest of the family and missed an important event
 in his daughter' s life. Thus, this could have been a reasonable tactical decision.

           Additionally, every.if defense counsel did not intentionally solicit this testimony, the jury

 had already heard Pardue admit to being subject to a restraining or no contact order during the

 police interview and Krenik had also testified about a restraining order. Thus, this testimony was



                                                                   11
No. 46139 -1 - II




merely cumulative and defense counsel could have chosen not to object in order to avoid drawing
additional    attention        to the   testimony.    Furthermore, because the jury had already heard this

information from two              other   sources,   any failure to object to Selness' s testimony was not

prejudicial. Accordingly, Pardue does not show ineffective assistance of counsel on this ground.

                                                  3. CHRISTI' S TESTIMONY


        Pardue next challenges the portion of Christi' s testimony in which she states that Pardue

had " taken money from [ her] before."               1 RP     at   156. Read in context, it appears defense counsel


was attempting to elicit testimony to show Christi' s suspicion that Pardue was involved in the

burglary was mere speculation. Defense counsel' s attempt to demonstrate that Christi' s belief that

Pardue was involved in the burglary was mere conjecture was not an unreasonable tactic. And it

does not appear that defense counsel' s questions were intended to prompt Christi to testify that

Pardue had previously taken money from her.6 In fact, there is nothing in the record suggesting

that defense counsel was aware of this fact before questioning Christi. Furthermore, it would have .

been a reasonable tactical decision for defense counsel to not move to strike this portion of Christi' s

response     in   order   to   avoid    drawing   attention   to this    statement.   State v. Gladden, 116 Wn. App.

561, 568, 66 P. 3d 1095 ( 2003) (          failure to object could be described as legitimate trial tactic because

counsel wanted        to   avoid    drawing    attention    to the      remark).   Accordingly, Pardue fails to show

ineffective assistance of counsel on this ground.




6 Pardue does not argue that defense counsel should not have elicited Christi' s testimony about
Pardue' s drug addiction.



                                                                   12
No. 46139 -1 - II



                                          II. PROSECUTORIAL MISCONDUCT CLAIM


           Finally, Pardue argues that the prosecutor engaged in misconduct during closing argument

by violating the missing witness doctrine and improperly suggesting that Pardue had the burden to
present evidence.             Because Pardue fails to show that any alleged improper argument could not

have been cured with a proper instruction, he has waived this argument.


            A defendant arguing that prosecutorial misconduct violated his or her right to a fair trial

has the burden of showing the prosecutor' s conduct was both improper and prejudicial in the

context of     the   entire     trial."   State   v.   Walker, 182 Wn.2d 463, 477, 341 P. 3d 976 ( 2015) (   citing In

re   Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012)).                     A prosecutor can


commit misconduct by violating the missing witness doctrine or commenting on the lack of

evidence.      State     v.   Cheatam, 150 Wn.2d 626, 843- 44, 81 P. 3d 830 ( 2003); State v.' Carter, 74 Wn.


App.   320, 332, 875 P. 2d 1 ( 1994),              aff'd, 127 Wn.2d 836, 904 P. 2d 290 ( 1995).

           But when an appellant raises a prosecutorial misconduct issue for the first time on appeal,

he must also show " that the misconduct was so flagrant and ill -intentioned that an instruction

would not      have      cured   the   prejudice."      Glasmann, 175 Wn.2d at 704; see also Carter, 74 Wn. App.

at   332   n: 14.   In   such cases, "[    w]e do not focus on the prosecutor' s subjective intent in committing

misconduct, but instead on whether the defendant received a fair trial in light of the prejudice

caused by the violation of existing prosecutorial standards and whether that prejudice could have
been   cured with a           timely   objection."      Walker, 182 Wn.2d at 488 ( citing State v. Emery, 174 Wn.2d

741, 762, 278 P. 3d 653 ( 2012)) (                emphasis added).




                                                                  13
No. 46139 -1 - II




        Pardue argues that the prosecutor. engaged in misconduct when he argued that Pardue had

not presented potential evidence related to his daughter' s birthday party, namely testimony from

any party guest or physical evidence of t-he party that could have corroborated his alibi defense.
He further argues that this improper argument was prejudicial because his entire defense rested on

his alibi defense, and he asserts, without discussion, that the argument was flagrant and ill

intentioned.   But Pardue fails to specifically address whether any potential prejudice caused by

this alleged error.could have been cured by a timely objection.

        Although Pardue' s alibi was key to his defense, he does not show that the trial court could

not have neutralized any of this potentially improper argument with a curative instruction advising

the jury that the burden of proof was on the State and that Pardue was not required to present any

evidence.'     Because Pardue did not object to the prosecutor' s argument, he has waived his

challenge to the prosecutor' s argument.




  We also note that the trial court had already instructed the jury that the State had the burden of
proof; we presume    that the   jury   follows the instructions. CP   at   15- 16 ( Jury Instruction 3); State v.
Johnson, 124 Wn.2d 57, 77, 873 P. 2d 514 ( 1994).




                                                      14,
No. 46139 -1 - II



        Pardue fails to establish ineffective assistance of counsel and he has waived his

prosecutorial misconduct claim. Thus, we affirm.


        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.




                                                      SUTTON, J.
 We concur:




 t JHANSON, C. J.


             a




 BJOR




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