Opinion
No. 36283-0-II.
July 22, 2008.
Petition for relief from personal restraint.
Denied by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
UNPUBLISHED OPINION
Jeffrey K. Day petitions that his restraint for his first degree child molestation conviction is unlawful. He argues that (1) the trial court violated his right to a fair trial by failing to instruct the jury on trial irregularities; (2) the prosecutor committed misconduct by making improper comments in his closing argument; and (3) his trial counsel rendered ineffective assistance when he failed to present a character defense and failed to object to inadmissible evidence. We deny Day's petition.
Facts I. The Crime
In February 2002, the State charged 10-year-old DJ and two others with arson. DJ's mother retained attorney Jeffery Day to represent DJ in juvenile court. Throughout the course of his representation, Day met with DJ both in his office and at restaurants, including McDonald's. Day secured dismissal of the charges against DJ.
After Day's legal representation of DJ ended, Day continued to take DJ to the movies, sports events, and Toys R Us. Eventually, DJ began spending the night at Day's home. On February 14, 2004, DJ was sleeping at Day's home when he awoke to find he was no longer wearing his pants. DJ went to Day's bedroom, where he found Day sleeping, "crawled on the other far side [of the bed] and went to sleep." Report of Proceedings (RP) at 132. Later that night, DJ woke to find Day touching him "by [his] testicles" inside his underwear. RP at 132-33.
DJ asked to watch a movie, but then said that he had to go home for the evening. Day agreed to take him home, but took a shower first. While Day was in the shower, DJ tried unsuccessfully to call his mother or uncle. Day took DJ home, and DJ told his mother what had happened. His mother reported the incident to the police.
II. Procedure
The State charged Day with first degree child molestation. Before trial, the State moved to exclude evidence that Day had represented DJ in a criminal matter. Day countered that the criminal nature of the charge was relevant to explain "why [he] would be at various court appearances with [DJ]." RP (Sept. 29, 2005) at 15. The trial court limited evidence regarding the scope of Day's legal relationship with DJ to Day's representation of DJ "in a juvenile matter . . . [without mention that] it was an offender or a criminal matter." RP (Sept. 29, 2005) at 15.
A. Trial
While testifying about the night of February 14, 2004, DJ held an "orange-yellow Koosh ball." Day did not object. At one point, DJ's mother interrupted DJ's testimony by standing up suddenly from her seat in the courtroom, crying, and leaving the courtroom abruptly. Day did not ask the trial court to instruct the jury to disregard DJ's mother's departure, nor did the court give such an instruction sua sponte.
Day testified that (1) he had removed DJ's pants while DJ slept in order to "make him comfortable and have him sleep the way he had slept before"; RP at 482; (2) although DJ did crawl into bed with him (Day), he (Day) got out of the bed and went to the media room to sleep; and (3) he (Day) had not touched DJ inappropriately, either intentionally or accidentally. Day presented no other witnesses.
During closing, the prosecutor argued to the jury;
You've got the testimony of a child and the testimony of an adult. [DJ] described the event, and the defendant described the event almost identical.
Beyond a reasonable doubt tells you that you are convinced beyond a reasonable doubt if you have an abiding belief in the truth of the charge. . . .
There's no reason to doubt [DJ]. He's credible. He's not mistaken about what occurred. He wasn't confused about what occurred, wasn't making it up.
RP at 547. The prosecutor also argued that DJ understood the gravity of his allegations, noting,
[Day's] counsel . . . tells you that the . . . 12-year-old child, has no concept of these allegations. He doesn't appreciate the importance of what he said. Well, I submit to you he does . . . look at [DJ], and you can truly appreciate that he knows this is serious. Certain events in our lives are significant enough where we dress up: weddings, funerals and court. Most 12-year-old children don't have a wardrobe full of fine suits that lawyers do, but [DJ] came to court dressed like he would for a significant event.
He wore the one suit he had. He was here for two days, and he wore it twice, but that should tell you how he appreciates that this was serious. You can't deflate what he says just because he's 12-years-old, and that's what the defendant would have you do.
RP at 588-90.
Observing that Day understood he had "the right to remain silent," Day's attorney argued that Day's willingness to cooperate demonstrated his innocence: "He practices criminal law. He understands that. He understands he has a right to remain silent. Why doesn't he remain silent?
Well, it's the guilty that flee. The innocent man leaves no tracks." RP at 575.
The State rebutted:
[Day's] counsel then says, [Day] signed the Miranda form. He should know, he's a lawyer, he doesn't have to talk. He's represented defendants before. Only the guilty flee. My client stood there and told you all about what he knew. Well, he also knew he had time to reflect. He had time to think about what he was going to say. . . . He's a lawyer, he's a pro tem judge, and he knew who his accuser was, an 11-year-old boy at the time.
He was willing to stand up and say, no witnesses. It's going to come down the [DJ] and to me. I'm the lawyer. I'm the part-time judge. I'm the adult.
RP at 590-91. Day did not object to any of these arguments.
The jury found Day guilty of first degree child molestation. The trial court sentenced him to a minimum term of 60 months to life in prison. Day appealed.
B. Direct Appeal
On direct appeal, Day argued that the State had presented insufficient evidence to support his conviction. We disagreed, holding that (1) we could not review the jury's credibility determination in favor of DJ; (2) DJ's testimony was sufficient to support a sex offense conviction; and (3) sufficient evidence supported Day's conviction for first degree child molestation.
Day filed a personal restraint petition, again challenging his conviction.
Analysis I. Standard of Review
Under RAP 16.4, we will grant appropriate relief to a petitioner if the petitioner is under unlawful restraint. In re Personal Restraint of Davis, 152 Wn.2d 647, 670, 101 P.3d 1 (2004).
To be entitled to relief, the petitioner must show either a constitutional error that resulted in actual and substantial prejudice, a higher standard of review than the harmless error standard on direct appeal, or a nonconstitutional error that is a fundamental defect that results in a complete miscarriage of justice. In re Personal Restraint of Cook, 114 Wn.2d 802, 811, 792 P.2d 506 (1990) (citing Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)).
A petitioner's arguments in a personal restraint petition may not be a reiteration of those issues raised in his direct appeal, unless the interests of justice require a rehearing of that issue. Davis, 152 Wn.2d at 671.
Where a petitioner's arguments are based on matters outside the trial record, the petitioner must "demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner's evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits." In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). Here, Day submitted affidavits from six individuals, including himself.
II. Fair Trial
Day argues that the trial court violated his right to a fair trial by (1) allowing DJ to play with a Koosh ball while testifying; (2) failing to instruct the jury to disregard DJ's mother's abrupt departure from the courtroom while DJ testified; and (3) preventing him (Day) from discussing the criminal nature of his legal representation of DJ. Because these errors are not constitutional in nature, Day must show the errors resulted in a complete miscarriage of justice in order to be entitled to relief. Day fails to make such a showing.
Day also appears to argue that the trial court denied him a fair trial because the State presented insufficient evidence to support his conviction, based on inconsistencies in DJ's testimony. This argument also fails.
Arguments in a personal restraint petition may not reiterate issues raised on direct appeal unless the interests of justice require a rehearing of that issue. Davis, 152 Wn.2d at 671. We have previously reviewed sufficiency of the evidence in Day's direct appeal, and Day does not establish that reconsideration of this issue is required in the interest of justice. Therefore, we do not further consider this issue.
Due Process
The Due Process Clause of the Fourteenth Amendment requires a "fair trial in a fair tribunal." Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975)). At minimum, due process requires fundamental fairness and a meaningful opportunity to present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994) (citing California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). But the constitution "entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
1. Victim Holding Toy While Testifying
Day argues that the trial court unfairly created sympathy for DJ by allowing DJ to hold a Koosh ball while testifying. The State responds that DJ's holding of a Koosh ball while testifying does not amount to a constitutional error and that Day's claim that the toy created sympathy is "purely speculative." We agree with the State.
In State v. Hakimi, 124 Wn. App. 15, 22, 98 P.3d 809 (2004), review denied, 154 Wn.2d 1004 (2005), Division One of our court held that a trial court did not abuse its discretion by allowing two nine-year-old girls to hold dolls while testifying. 124 Wn. App. at 22. The court discussed the issue under the abuse of discretion standard, not as a constitutional error, and held that the trial court had "weighed [properly] the interests of Hakimi's two victims and any potential prejudice to Hakimi in allowing the girls to testify while holding a doll." Id. at 21.
Here, as in Hakimi, the trial court's allowing DJ to hold a Koosh ball while testifying was not an error of constitutional magnitude. Because Day did not object to DJ's holding the Koosh ball, the trial court did not rule on this issue. But even if had Day objected, this issue would have been subject to the trial court's discretion. See State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969); ER 611(a). DJ's holding the Koosh ball was not a fundamental defect in Day's trial that resulted in a complete miscarriage of justice. Therefore, we do not consider it for the first time on appeal.
2. Victim's Mother's "Outburst"
Day next contends that the trial court denied him a fair trial when it failed to instruct the jury to disregard DJ's mother's "outburst" during DJ's testimony. The State responds that this issue is not of constitutional magnitude and, thus, Day fails to show that this interruption in DJ's testimony amounted to a fundamental defect in the trial resulting in a complete miscarriage of justice. Again, we agree with the State.
Day cites various cases from other jurisdictions where a court avoided a "new trial [because] . . . the trial judge took substantial steps to insure the outburst did not prejudice the defendant." Day PRP Brief at 18. But in all these cases, the "outburst" consisted of verbal accusations directed toward the defendant. See e.g. State v. Savage, 161 Conn. 445, 290 A.2d 221 (1971) (as defendant left stand, victim called him a liar); State v. Sorrels, 33 N.C. App. 374, 235 S.E.2d 70 (1977) (where victim shouted at defendant "You did it. You know what you did"). In contrast, here, the "outburst" appears to have been slight.
Day did not ask the trial court to instruct the jury to ignore DJ's mother's actions; thus, Day appears to argue that the trial court should have instructed the jury sua sponte. But Day does not show that the trial court's alleged "failure" to instruct the jury to disregard DJ's mother's nonverbal interruption amounted to a fundamental defect in the trial resulting in a complete miscarriage of justice. Again, Day's denial of fair trial argument fails.
3. Scope of Day's Legal Representation
Day further contends that the trial court denied him a fair trial when it barred evidence of the criminal nature of his legal representation of DJ. The State once again responds that this error is not of constitutional magnitude and that the trial court acted properly by excluding the underlying facts of Day's representation of DJ. Once again, we agree with the State.
When the State charges the defendant with a crime, the trial court should allow the defendant "great latitude in the cross-examination of prosecution witnesses to show motive or credibility . . . [t]his is especially so in prosecutions of sex crimes." State v. Peterson, 2 Wn. App. 464, 466-67, 469 P.2d 980 (1970) (citing State v. Tate, 2 Wn. App. 241, 469 P.2d 999 (1970)). But ER 609 prohibits impeachment of a witness with evidence of a crime if the crime charged did not result in a conviction. ER 609(c). Generally, evidence of a juvenile adjudication is not admissible at trial. ER 609(d). Moreover, not only was DJ not even adjudicated to have committed a crime, but also the charge was dismissed.
Furthermore, Day does not show that his representation of DJ on a criminal matter was relevant to the charges here. Contrary to Day's assertions, the record shows that the trial court allowed him to refer to his legal representation of DJ "in a juvenile matter," excluding only the criminal aspect of the representation. Nonetheless, Day contends that the specific nature of the representation was relevant to show "that a defense attorney has to gain the trust of a client to effectively represent the client and learn everything about a case." Day PRP Brief at 23. This assignment of nonconstitutional error does not amount to a complete miscarriage of justice and, therefore, does not warrant a new trial.
4. No Prosecutorial Misconduct
Day next contends that the prosecutor acted improperly during closing arguments and, thus, denied him a fair trial by (1) expressing his personal opinion on DJ's credibility as a witness; (2) appealing improperly to the jury's passion and prejudice by commenting on DJ's attire during trial; and (3) referencing Day's status as an attorney. This argument also fails.
We review a prosecutor's alleged misconduct "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994) (citing State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990)). Where the defendant did not object at trial, we will reverse for prosecutorial misconduct during closing arguments only where "the prosecutorial misconduct is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (citing State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237 (1987)). Because allegations of prosecutorial misconduct are of constitutional magnitude, we examine these assignments of error under an actual prejudice standard.
a. Personal opinions on credibility
Day argues that the prosecutor commented improperly on DJ's credibility as a witness. We disagree. Day is correct that in closing argument, a prosecutor may not express his personal opinion about the credibility of a witness and the guilt or innocence of the accused. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). But such is not the case here. Prejudicial error does not occur until "it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) (quoting State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990)).
Day assigns error to the prosecutor's statement that "[t]here's no reason to doubt D.J. He's credible. He was not mistaken about what occurred, wasn't making it up." Day PRP Brief at 25 (citing RP at 547). But in the context of the entire argument, it is clear that the prosecutor was not expressing his personal opinion; rather, he was commenting on the conflicting evidence:
[DJ] described the event, and the defendant described the event almost identical.
Beyond a reasonable doubt tells you that you are convinced beyond a reasonable doubt if you have an abiding belief in the truth of the charge.
There's no reason to doubt [DJ]. He's credible. He's not mistaken about what occurred. He wasn't confused about what occurred, wasn't making it up.
RP at 547.
The prosecutor's comparison of the two witnesses' versions of the incident comprised inferences from the evidence; it was not an expression of the prosecutor's opinion about DJ's credibility. We hold, therefore, that Day fails to establish prosecutorial misconduct on this basis.
b. Appeal to jury's passion and prejudice
Day further argues that the prosecutor improperly appealed to the jury's passion and prejudice by commenting on DJ's attire during trial and by referencing Day's status as an attorney. The State responds that Day's arguments are speculative and, when viewed in light of the entire argument, did not amount to misconduct. We agree with the State.
It is improper for a prosecutor to appeal to the prejudice and passions of the jury or to assume facts not in evidence. State v. Claflin, 38 Wn. App. 847, 849-50, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985). But the prosecutor has "wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
i. Victim's attire
Day argues that the prosecutor commented inappropriately on the fact that DJ wore a suit at trial. The State asserts that the prosecutor made a supported inference in his closing argument.
Day also claims that DJ's suit was "several sizes too large . . . [and made] him look small and vulnerable." Day PRP Brief at 26. But the record does not support this assertion. Thus, this claim does not amount to a fundamental miscarriage of justice and we do not further consider it.
The prosecutor did not appear to be commenting on DJ's attire, or his financial status, as Day argues. Instead, when read in light of the entire argument, it appears that the prosecutor made the assertions in response to Day's counsel's implication that DJ did not take his accusations seriously; the prosecutor argued:
[Day's c]ounsel . . . tells you that the . . . 12-year-old child, has no concept of these allegations. He doesn't appreciate the importance of what he said. Well, I submit to you he does . . . look at [DJ], and you can truly appreciate that he knows this is serious. Certain events in our lives are significant enough where we dress up: weddings, funerals and court. Most 12-year-old children don't have a wardrobe full of fine suits that lawyers do, but [DJ] came to court dressed like he would for a significant event.
He wore the one suit he had. He was here for two days, and he wore it twice, but that should tell you how he appreciates that this is serious. [DJ] did appreciate that this is serious. You can't deflate what he says just because he's 12 years old, and that's what the defendant would have you do.
RP at 588-90. Day fails to show that the prosecutor's comment was so flagrant or ill intentioned that a curative instruction would not have obviated any prejudice. Furthermore, Day never even requested such a curative instruction.
ii. Day's attorney status
Day also assigns error to the prosecutor's reference to his status as an attorney. But this assignment of error also fails when we read the prosecutor's reference in the context of the entire argument.
Defense counsel argued that, as an attorney, Day knew he could remain silent upon arrest but nonetheless chose to cooperate, thereby demonstrating his innocence because "(t)he innocent man leaves no tracks." RP at 575. The State responded to these defense statements by arguing:
[Day's] counsel then says, [Day] signed the Miranda form. He should know, he's a lawyer, he doesn't have to talk. He's represented defendants before. Only the guilty flee. My client stood there and told you all about what he knew. Well, he also knew he had time to reflect. He had time to think about what he was going to say. . . . He's a lawyer, he's a pro tem judge, and he knew who his accuser was, an 11-year-old boy at the time.
He was willing to stand up and say, no witnesses. It's going to come down the [DJ] and to me. I'm the lawyer. I'm the part-time judge. I'm the adult.
RP at 590-91.
Read in context, the prosecutor's comments about Day's status as an attorney were not an inappropriate response to Day's invoking his profession to demonstrate his innocence. Again, Day fails to show that his trial was unfair.
III. Effective Assistance of Counsel
Finally, Day argues that his trial counsel provided ineffective assistance when his counsel failed (1) to present a character defense at trial; (2) to object to DJ holding a Koosh ball while testifying; (3) to object to the trial court's failure to instruct the jury to disregard DJ's mother's abrupt departure from the courtroom during DJ's testimony; and (4) to object to prosecutorial misconduct during closing arguments. Day PRP Brief at 41-46. The State argues that, based on the whole record, the verdict would not have been different had trial counsel (1) presented a character defense, or (2) objected to Day's alleged errors. We agree with the State.
A. Standard of Review
To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). An attorney's representation is deficient when his or her performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). We strongly presume effective assistance of counsel. And we will reverse on ineffective assistance grounds only if the defendant shows there was no legitimate strategic or tactical rationale for his trial attorney's decisions. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
To prove a counsel's failure to object constituted ineffective assistance, a defendant must show (1) the failure to object fell below prevailing professional norms; (2) the trial court would have likely sustained the objection; and (3) the result of the trial would have been different had the evidence not been admitted. Davis, 152 Wn.2d at 714 (citing State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001). Day fails to sustain his burden here.
B. Character Defense
Day contends that he received ineffective assistance because his trial counsel did not present a character defense. The State responds that "[i]t was a sound tactical decision to forego the risks associated with character witnesses and adhere to attacking the credibility of DJ." Br. of State at 20. We agree with the State.
Despite Day's submission of affidavits from persons willing to testify about his good character and "sexual morality," we cannot say that Day's trial counsel failed to exercise sound discretion by foregoing the presentation of these witnesses in light of the unpredictable nature of their cross-examination by the State. Deferring to trial counsel's strategic decisions, we find no error in Day's trial counsel's decision not to present a character defense on Day's behalf. Accordingly, we need not address the prejudice prong of the ineffective assistance of counsel test.
Moreover, although Day claims he told his attorney about witnesses willing to testify about his (Day's) truthfulness, the evidence might not have been admissible even if presented. See ER 404(a)(1) (character evidence of accused admissible if the character trait is pertinent to the crime charged).
C. Failure To Object
Again deferring to trial counsel's tactical decisions, we hold that Day's counsel's decision not to object to alleged errors comprised a defensible legitimate trial strategy. Davis, 152 Wn.2d at 714. Had Day's counsel objected to DJ's holding the Koosh ball or to DJ's mother's "outburst," such objection might have drawn unwanted attention and undue emphasis to these events.
And because we hold that the content of the prosecutor's closing arguments did not amount to misconduct, Day's trial counsel's failure to object to these arguments does not amount to deficient performance. See Davis, 152 Wn.2d at 717 (quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (holding that because it is not common to object during closing argument "absent egregious misstatements," a decision not to object during closing arguments qualifies as permissible professional legal conduct).
Having found that Day failed to meet the first prong of the ineffective assistance of counsel test, we need not consider Day's additional argument that the result of the trial would have been different if his counsel had objected to the alleged errors.
Because Day fails to establish either a constitutional error that resulted in actual prejudice or a nonconstitutional error that resulted in a miscarriage of justice, we deny his petition.
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 pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J., Penoyar, A.C.J., concur.