Opinion
No. 58924-5-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08314-6, Michael Hayden, J., entered September 8, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Schindler, A.C.J., and Baker, J.
It is misconduct for a prosecutor to malign a defense attorney in argument by casting the State as the only party concerned with the truth. But an appellant's burden to show the misconduct was prejudicial is heavy where the appellant did not object at the time. Here, the prosecutor improperly disparaged defense counsel in closing argument. But because there was no objection, and any prejudice arising from the improper remarks could have been remedied by an appropriate curative instruction, the claim of error has been waived.
The State charged Stephen Banks with first degree murder for killing 79-year-old Rose James. Rose had been the proprietor of a Seattle hotel that offered affordable long-term housing. She employed Banks to work at the front desk. Banks assumed more responsibility over the years and began assisting Rose with taxes, accounting, and computer projects. When Rose's lease expired in 2003, Banks continued his work for a few more months in an office that Rose set up in the basement of her home.
Rose, ordinarily punctual, did not answer the door when her harp teacher came on November 17, 2004 for a standing appointment. Alerted by the harp teacher, firefighters broke into Rose's home and found her lying dead in her living room, brutally beaten. A bent fireplace poker lay by her body. Her purse was missing and the money bags in her safe that usually held at least a few thousand dollars were empty. DNA samples gathered at the scene linked Banks to the crime. Police arrested him in Nevada about six months after the murder. He spoke with detectives and denied involvement in the killing.
The State charged Banks with first degree murder committed either with premeditation or as felony murder in the course of robbery. A jury trial in July 2006 lasted 10 days. Two of the State's key witnesses were Dr. Richard Harruff, the Chief Medical Examiner for King County, and Dr. Beverly Himick from the Washington State Patrol Crime Laboratory. Dr. Harruff testified that Rose had died from a combination of strangulation and blunt force trauma to her head.
Banks maintained a general denial defense before trial but defense counsel announced during his opening statement that Banks would admit to killing Rose James. Banks took the stand and testified that he did not remember anything that occurred between throwing the first punch and finding Rose lying dead on the floor. The defense trial theory was that Banks killed Rose in a spontaneous act of rage and then took the money as an afterthought separate from the killing. Banks argued that the jury should convict him of second degree murder, not first degree. The jury was instructed on second degree murder as a lesser included offense.
The jury found Banks guilty of first degree murder and returned a special verdict finding that he had been armed with a deadly weapon. The trial court imposed a sentence of 344 months. Banks appeals. He argues that egregious prosecutorial misconduct in argument deprived him of a fair trial. Banks did not object to any of the statements that he now claims were improper. Nor did he request a curative instruction or a mistrial.
During closing argument, the prosecutor characterized the defense as being unconcerned with the truth. The prosecutor, in describing the thoroughness of the State's investigation, recounted how detectives had flown to Nevada to gather DNA samples from another suspect to rule him out as the killer:
[PROSECUTOR]: [W]e wanted to make sure that we left no stone unturned, we are giving you the straight goods.
In glaring contrast to that — those people who are sitting at counsel table.
Report of Proceedings, Aug. 1, 2006 at 32.
The defense closing argument claimed the State was distorting the truth:
[DEFENSE COUNSEL]: Why does the State spin it one way when they know the truth's something else?
. . .
Why does the State try to make you think the evidence will point in one direction, then a couple of days later, bring on a witness that completely points to something else?
. . .
Why does the State try to trick you? Why does the State, when they have the evidence in their hand, lead you astray, or lead you down another road?
Because the State's got a theory. And they'll put on evidence to support that theory, and they'll cast aside evidence that doesn't support that theory.
Report of Proceedings, Aug. 1, 2006 at 52, 53, 55-56.
In rebuttal, after discussing some of the circumstantial evidence, the prosecutor argued it was defense counsel who was putting a spin on the truth:
[PROSECUTOR]: Again, I'm not suggesting — what I'm suggesting is there are a myriad of pieces of circumstantial evidence that can be explained in more than one way.
Some of them are consistent with these lies that Mr. Banks has been telling about this murder, and some of them are equally consistent with what the State's been telling you.
And speaking of lies, there were — you know, [defense counsel] spent some time talking about the spin the State puts on this case.
And let me suggest to you, in all due respect, there's a very good reason he is seated next to Mr. Banks and not a Doctor Harruff or Beverly Himick, or perhaps on this side of the table where we look for the truth.
Report of Proceedings, Aug. 1, 2006 at 90-91.
The prosecutor remarked, "The difference between that side of the table and this one is we have pursued with all our might the truth."
Report of Proceedings, Aug. 1, 2006 at 116.
Banks compares the prosecutor's statements to remarks that led to reversal in Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983). In Bruno, a witness who originally gave a statement helpful to the government's case later repudiated the statement after speaking with the accused's attorney. In argument, the prosecutor launched a persistent attack characterizing this sudden reversal as the direct product of the discussions the witness had with the defense attorney. Bruno, 721 F.2d at 1194. The prosecutor also hinted to the jury that hiring an attorney was in some way probative of the defendant's guilt and that defense counsel had been paid a large sum of money solely to lie and distort the facts. Bruno, 721 F.2d at 1194. Defense counsel objected. The court overruled the objection, stating "this is argument." Bruno, 721 F.2d at 1194. The jury convicted the defendant of first degree murder. California courts affirmed the conviction, but the Ninth Circuit reversed the conviction and criticized the remarks as not only unfounded but also as harmful to justice:
[It is not] accurate to state that defense counsel, in general, act in underhanded and unethical ways, and absent specific evidence in the record, no particular defense counsel can be maligned. Even though such prosecutorial expressions of belief are only intended ultimately to impute guilt to the accused, not only are they invalid for that purpose, they also severely damage an accused's opportunity to present his case before the jury. . . . Furthermore, such tactics unquestionably tarnish the badge of evenhandedness and fairness that normally marks our system of justice and we readily presume because the principle is so fundamental that all attorneys are cognizant of it.
Bruno, 721 F.2d at 1195. Accord, State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993) (remarks disparaging defense counsel are improper); State v. Gonzalez, 111 Wn. App. 276, 282-84 (improper to argue that prosecutors, unlike defense attorneys, seek justice); United States v. Frascone, 747 F.2d 953, 957-58 (5th Cir. 1984) (improper argument sought "to draw the cloak of righteousness around the prosecutor in his personal status as government attorney").
As the State now acknowledges, the prosecutor's comments here maligned defense counsel and were therefore improper. But Bruno is not squarely on point because defense counsel in Bruno objected to the improper comments, thereby preserving the issue for appellate review, and the trial court overruled the objection, thereby signaling that the jury was permitted to consider the argument. Banks, on the other hand, did not object.
Appellate courts do not ordinarily fault trial courts for failing to interfere with an improper argument in the absence of an objection. "The absence of a defense objection may be the result of a deliberate defense strategy to let the State embarrass itself." State v. Neidigh, 78 Wn. App. 71, 80, 895 P.2d 423 (1995). When an appellant claims that improper argument prejudiced his right to a fair trial, and there was no objection at the time, "the issue becomes whether any curative instructions would have effectively erased the prejudice." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Appellate review is precluded unless the defendant can establish that "the prosecutorial misconduct is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." Belgarde, 110 Wn.2d at 507. In Belgarde, the prosecutor's misconduct was prejudicial enough to warrant a reversal despite the lack of objection. The prosecutor stated that the defendant was associated with the American Indian Movement (AIM), "a deadly group of madmen" that were butchers and "killed indiscriminately." Belgarde, 110 Wn.2d at 506, 507. The Supreme Court held that the remarks caused irreparable damage: "An objection and an instruction to disregard could not have erased the fear and revulsion jurors would have felt if they had believed the prosecutor's description of the Indians involved in AIM." Belgarde, 110 Wn.2d at 508.
Here, the defense closing argument was itself provocative and disparaging to the State. Possibly, the lack of objection reflected a deliberate defense strategy to incite the prosecutor to lose his cool in front of the jurors. If defense counsel had objected, the court could have stricken the remarks and pointedly admonished the prosecutor to refrain from personal attacks. The prejudice could have been effectively neutralized by the court showing its disapproval of the tactic. Accordingly, we conclude Banks has not preserved this issue for review.
Banks also contends that the prosecutor improperly expressed a personal opinion that Banks lied during his testimony. Banks testified that he had initially lied to investigators when he told them that he had no knowledge of the murder. He said he actually remembered hitting Rose once and after that a "roar" filled his head and the next thing he remembered, Rose was dead. Banks claimed to have no recollection of the actual sequence of events that led to her death. The prosecutor argued:
But I want to remind you again, there is nothing in these instructions that say making up some story about not being able to remember it, or making up some story about having a roar in your ears is not a defense to any kind of murder in this state, and I suspect probably anywhere else.
Report of Proceedings, Aug. 1, 2006 at 33.
During rebuttal argument, the prosecutor returned to the theme that Banks was untruthful. He referred to a portion of Dr. Harruff's testimony about the blood spatter evidence that was not completely consistent with the State's theory about how the murder occurred. He implied that the State's witnesses, unlike Banks, were telling the truth: "if there is one thing that has been consistent about this, witnesses have given you the straight goods. Well, all but one of them, of course." He denounced as unbelievable Banks's claim to have no memory of the killing:
Report of Proceedings, Aug. 1, 2006 at 100-01.
And I am not in any way, shape or form suggesting that this roar that the defendant heard, because I don't believe for a moment that any such roar existed, and I think it would be foolhardy of all of you to do the same.
. . .
And I'm telling you I don't believe, and I think the evidence suggests that you can't believe one word about I have no recollection of anything else that happened.
Report of Proceedings, Aug. 1, 2006 at 101, 103.
A prosecutor must not express a personal belief as to the credibility of witnesses. But a prosecutor is afforded wide latitude in closing argument to draw inferences from the evidence, including commenting on the credibility of witnesses and arguing inferences about credibility based on evidence in the record. This court will consider the context in which alleged improper statements are made. State v. Millante, 80 Wn. App. 237, 250-51, 908 P.2d 374 (1995). "Use of the word `lie,' even though repeated, does not, by itself, establish prosecutorial misconduct. . . . Read in context, it is clear that the prosecutor's statements were proper comments on credibility that were based on evidence in the record." Millante, 80 Wn. App. at 251. And a prosecutor's use of the words "I think" and "I believe" in closing argument do not necessarily indicate misconduct. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Here, as in Millante, the defendant gave two contradictory accounts. He admitted he was lying when he initially denied involvement in the murder. It was not improper for the prosecutor to draw the inference that Banks was also lying when he admitted the murder but claimed not to remember the details. Because any prejudice could have been cured had Banks objected and requested a curative instruction, the claimed error must be treated as waived.
STATEMENT OF ADDITIONAL GROUNDS
Pro se, Banks presents five other issues for possible review. He contends the desk clerk at his apartment should not have been allowed to testify because one detail in Corona's testimony was contradicted by physical evidence. This claim of error is unfounded. The prosecutor simply allowed the clerk to recount the events as he remembered them. It was for the jury to weigh his credibility.
Banks contends it was improper for the prosecutor to question him about telephone calls he made from jail because tapes of the calls were not submitted into evidence and mentioning the calls suggested to the jury that he was in custody. Like the trial court, we see no reason to view the line of questioning as improper.
Banks contends the trial court erred in denying a defense motion in limine to exclude any mention of the fact that Rose had been a nun for 29 years in the early part of her life. The court ruled that this information was admissible in a limited fashion to explain who the victim was, but not to elicit undue sympathy. The trial court struck an appropriate balance under ER 403.
Banks contends there was insufficient evidence to warrant the deadly weapon sentence enhancement because the State did not prove "that the victim was alive when a weapon was used, or that the weapon was in fact the cause of death." When this question was raised on cross-examination of Dr. Harruff, he testified that in view of the bleeding in the scalp, Rose "was probably still alive when she was hit with the poker." Even if strangulation was also a cause of her death, and the autopsy could not establish the exact sequence of events, this testimony was sufficient to support the deadly weapon enhancement.
Statement of Additional Grounds at 2.
Report of Proceedings, July 20, 2006 at 177.
Affirmed.