Opinion
No. 58558-4-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-13609-6, Richard D. Eadie, J., entered July 21, 2006.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Baker and Becker, JJ.
A jury found Thomas Bryant guilty of assault in the second degree — domestic violence. Bryant contends prosecutorial misconduct deprived him of a fair trial requiring reversal of his conviction. Because Bryant cannot establish either prejudice or that a curative instruction could not neutralize any misconduct, we affirm.
FACTS
At approximately 8:30 p.m. on December 2, 2005, Rebecca Bryant called her neighbor Mike Wielenga to ask for his help. Rebecca was crying and asked Wielenga to come to her house and get her son. Rebecca told Wielenga that she and her husband, Thomas Bryant, "got in a fight and her arm hurt." Rebecca said that Bryant pushed her to the ground and pushed her into the television. Wielenga called 911 because he thought Rebecca's arm may have been broken.
At approximately 8:57 p.m., King County Deputy William Hurley and Deputy Abigail Steele responded to the 911 call. Deputy Hurley said that Rebecca
was crying and in obvious pain. She was clinching her arm, and hunched over. She was shaking. She wasn't hysterical, not quite hysterical, but very emotional, very upset. I thought she seemed scared. She had a hard time talking complete sentences because of the pain.
Rebecca told the deputies that Bryant picked her up and threw her on the kitchen floor. When Deputy Hurley asked Rebecca about the large crack running from the top to the bottom of the 60-inch screen television, she said "?[h]e shoved me into it' and then threw her across the kitchen where she landed on the kitchen floor." While talking to Deputy Steele, Rebecca said "her arm was hurt and that her husband had done it." Rebecca agreed to sign a written statement reiterating that Bryant threw her on the floor in the kitchen and hurt her arm. During the 20 to 25 minutes they spent with Rebecca, Deputy Hurley and Deputy Steele each testified that Rebecca did not exhibit any signs of intoxication.
When Deputy Steele talked to the Bryants' eight-year-old son, C.B., he told her that his Dad was drinking that night, that he heard his parents fighting, and then he heard his mother screaming. After his Dad left, C.B. said he immediately went to check on his mother. He said he found her on the kitchen floor and she was hurt.
My mom and dad started fighting yesterday because my mom told my dad about a shark show on TV, but dad wouldn't let me watch it because he was watching Star Wars.
Tonight my dad was drinking. My friend, James, came over to spend the night. I was in my room with James, but I could hear my parents fighting. My dad said that he didn't love her anymore. I heard my mom screaming and it scared me. I heared [sic] her scream a lot. Then I couldn't hear dad anymore, so I went out and found my mom on the floor, in the kitchen. She was hurt. So, I got her some ice and water.
Then we called my uncle, who called a neighbor, and came down and called the ambulance because she was hurt. My dad drinks a lot, and this happened before.
According to the medics' report, Rebecca said that during an argument, her husband lost control, and threw her to the ground, causing her to fall with her full body weight on her arm. She also told the medics that she had pain in her neck from being thrown into the television. The medics' report states:
`35 year old involved in domestic dispute with husband. Stated she got in a dispute with her husband when he lost control and threw her to the ground. Patient did fall on the floor with full body weight on her right arm. Patient also complained of right neck pain due to also being thrown into the TV. Patient states she and husband had been drinking tequila. No medical history. No allergies.'
At 9:40 p.m., a Northwest Hospital emergency physician, Dr. Richard Waddell, examined Rebecca. Rebecca had a significant amount of pain in her right elbow and some neck pain. Dr. Waddell testified that there were no lacerations on her hands. Rebecca told Dr. Waddell that she was "involved in an altercation with her husband" and that her husband threw her on the ground and pushed her into the television. Rebecca also told the doctor that her husband had pushed her on two previous occasions. Dr. Waddell ordered x-rays of her neck, right forearm, and right elbow. The x-rays revealed multiple fractures in her right forearm and elbow. Dr. Waddell testified that the injuries Rebecca suffered were consistent with her description of what happened. Dr. Waddell placed her arm in a splint and released her with orders to follow up with an orthopedic surgeon. According to Dr. Waddell, there was no indication whatsoever that Rebecca was under the influence of alcohol.
The next day, Deputy Hurley, Deputy Steele, and Deputy Porter went to the house to arrest Bryant. As they approached the house, Bryant and Rebecca stepped outside. The first thing Bryant asked Deputy Hurley was "?[i]s this about last night?'" Bryant then said he was very drunk the night before and did not remember hurting Rebecca.
After Bryant was arrested, Rebecca recanted. Rebecca contacted King County Detective Robin Cleary and told her she lied to the police, the medics, and the emergency room doctor. Rebecca said she lied because she wanted Bryant to get "`a wake-up call'" about his drinking. Rebecca told Detective Cleary that she and Bryant were arguing about his drinking problem that night and when he ignored her, she "hit the [television] screen and broke it." Rebecca said that she then went to a nearby tavern and drank four shots of tequila. After returning home, Rebecca said "she slipped and fell in some water in the kitchen."
The State charged Bryant with assault in the second degree — domestic violence. Rebecca's neighbor, Wielenga, Deputy Hurley, Deputy Steele, Dr. Waddell, Rebecca, and the bartender at the tavern testified during the four day trial. By stipulation, C.B.'s statements to Deputy Steele and Rebecca's statement to the medics were also admitted into evidence.
At trial, the defense relied on Bryant's statements to the police that he did not remember what happened and Rebecca's testimony that she lied and that she broke the television and hurt herself when she slipped and fell. Rebecca testified that after she and Bryant argued about Bryant's drinking problem, she left and drove to a nearby tavern where she drank four shots of tequila and a beer. When she returned home, Rebecca said she stood in front of the television and started "nagging" Bryant about his drinking. When Bryant ignored her, Rebecca said, "?I hit the TV two times and it broke.'"' Rebecca testified that, after Bryant left she fell. "?I was coming back in from going outside and he was going off and I think it was snowing and, yeah, I came back in and, yeah, then I was on the floor, then I fell.'" When asked what caused her to fall, she said, "?I was coming back in from outside, my boots were wet, I fell.'"
Rebecca admitted that she told the Deputies and Dr. Waddell that her husband threw her on the kitchen floor, breaking her right arm. But she adamantly denied ever saying that Bryant also shoved her into the television. Rebecca testified that she lied to her neighbor, the Deputies, the medics, and Dr. Waddell, and she blamed Bryant in order to get him to stop drinking. Rebecca also testified that when the Deputies arrived and later when she saw Dr. Waddell, she was "really, really drunk" and "hammered." The bartender, Jennifer Eutsler, testified that she believed Rebecca came in on Friday, December 2 at about 8:00 p.m. Eutsler said that Rebecca appeared upset, drank a beer and three shots of tequila, and left after about an hour and a half. The jury convicted Bryant of assault in the second degree.
The court imposed a mid-range standard sentence of six months with 30 days in jail and the balance to be served on work release.
ANALYSIS
Prosecutorial Misconduct
Bryant contends the prosecutor committed misconduct that requires reversal of his conviction while questioning Rebecca and in closing argument. During the prosecutor's examination of Rebecca, Bryant objected to some of the prosecutor's questions but not others. Bryant did not object to any of the prosecutor's remarks during closing argument that he now contends are improper.
A defendant who alleges prosecutorial misconduct must establish that the conduct was both improper and prejudicial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1994) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). Any allegedly improper statements must be viewed in the context of the issues in the case, the evidence, and the instructions to the jury. Brown, 132 Wn.2d at 561. To establish the conduct was prejudicial, the defendant must prove there is a "substantial likelihood the instances of misconduct affected the jury's verdict." State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). Reversal is not required unless within reasonable probabilities, "the outcome of the trial would have been materially affected had the error not occurred." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). If the prejudice could have been cured by an instruction to the jury, but the defense did not request one, reversal is not required. Russell, 125 Wn.2d at 85.
Examination of Rebecca
In arguing that the prosecuting attorney committed misconduct while questioning Rebecca, Bryant primarily focuses on when the prosecutor asked Rebecca whether it "would surprise you to know that no one at the tavern remembers you being there that night." Bryant objected to the question as based on facts not in evidence and asked the court to strike. The trial court sustained Bryant's objection and motion to strike. On appeal, the State concedes the question was improper. The State also concedes that three other questions that Bryant objected to during Rebecca's examination were also improper — whether Rebecca thought the doctors and officers were conspiring to convict her husband, that the State did not accept Rebecca's "new accidental version," and the prosecutor's comment that "I don't want you to feel you are on trial here." But the State contends Bryant cannot establish prejudice. We accept the State's concessions and agree that even though the questions were improper, Bryant cannot establish that there is a substantial likelihood the misconduct affected the jury's verdict.
We disagree with Bryant's argument on appeal that the prosecutor's question is analogous to the knowing use of perjured testimony under Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
Rebecca's consistent statements to her neighbor, to the Deputies and the medics who responded to the 911 call, and to Dr. Waddell, admitting that Bryant pushed her into the television and threw her onto the kitchen floor, hurting her arm, contradicted her testimony at trial. In addition, Rebecca's testimony was contradicted by C.B.'s statements to the police and Rebecca's statements to Detective Cleary about what happened.
Rebecca told her neighbor that she and Bryant were fighting that night and her arm hurt. The deputies testified that when they arrived at the Bryants' home, Rebecca appeared scared and was crying, shaking, and upset. Rebecca told the deputies that Bryant shoved her into the television and threw her on the ground in the kitchen. She said the same thing to the medics, but she also said that her neck hurt from being shoved into the television. At the hospital, Rebecca told Dr. Waddell that Bryant shoved her into the television and threw her to the ground. Dr. Waddell testified Rebecca's injuries were consistent with her description of what happened and were not consistent with her striking the television screen.
C.B.'s undisputed description of what happened also corroborates Rebecca's contemporaneous account and contradicts her testimony at trial. Rebecca testified that after Bryant left, she fell on the floor. And that after laying on the floor for about an hour, and deciding to lie and blame Bryant for the fall, she called for C.B. But C.B. said that he heard his parents fighting, heard his mom screaming, and when he could not hear his dad anymore, he immediately left his room and found his mom on the kitchen floor and she was hurt.
Rebecca's testimony about how she sustained her injuries also conflicted with her later description to Detective Cleary. At trial, Rebecca testified she hit the television after she returned from the tavern and she slipped and fell on the floor because her boots were wet from the snow. But Rebecca told Detective Cleary that she hit the television screen and broke it before going to the tavern and that as Bryant was leaving, she slipped in water on the floor and fell. On this record, there is no substantial likelihood that the prosecutor's improper questions affected the verdict.
Bryant next contends that a number of other questions that he did not object to improperly assumed facts not in evidence, the questions asked Rebecca to comment on the credibility of other witnesses, and were an improper expression of the prosecutor's personal opinion. The prosecutor cannot ask a witness whether another witness is lying. State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991). But asking whether another witness is mistaken is merely objectionable. State v. Wright, 76 Wn. App. 811, 822, 888 P.2d 1214 (1995). It is also improper for a prosecutor to vouch for the credibility of a witness. State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003). While a prosecutor "may not offer a personal opinion of witness veracity," the prosecutor may "?comment on the credibility of witnesses'" based on the evidence. State v. Neidigh, 78 Wn. App. 71, 74, 895 P.2d 423 (1995) (quoting State v. Kwan Fai Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986)). Prejudice is not established unless "it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983).
Here, even if the questions that Bryant challenges for the first time on appeal were improper, we conclude he has waived his right to review because he cannot show the misconduct was so flagrant and ill-intentioned that it could not have been neutralized by an admonition to the jury. A timely objection and a curative instruction could have remedied any potential prejudice to the questions the prosecutor asked Rebecca. Moreover, defense counsel's failure to object, move for a mistrial, or to request a curative instruction strongly suggests that in context, the questions did not appear prejudicial to Bryant. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Closing Argument
Bryant also contends that the prosecutor impermissibly shifted the burden of proof, commented on his right to remain silent, and made improper remarks that either expressed a personal opinion or referred to facts not in evidence during closing argument.
A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on the credibility of the witnesses based on the evidence. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). To establish prosecutorial misconduct in closing argument, the defendant "bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Comments are prejudicial only if "there is a substantial likelihood the misconduct affected the jury's verdict." Brown, 132 Wn.2d at 561. The prejudicial effect of improper comments during closing argument must be viewed not in isolation, but "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Id. Where, as here, the defense fails to object to an improper remark during closing argument, error is waived unless the remark is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Brown, 132 Wn.2d at 561. In addition, improper remarks by the prosecutor are not grounds for reversal if invited or provoked by defense counsel "unless the remarks are not pertinent reply or are so prejudicial that a curative instruction would be ineffective." Russell, 125 Wn.2d at 86.
Relying on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996), Bryant argues the prosecutor impermissibly shifted the burden of proof by telling the jury that in order to acquit, the jury had to find the defense created some reasonable doubt. In Fleming, the prosecutor told the jury that "for you to find the defendants . . . not guilty of the crime of rape in the second degree, . . . you would have to find either that [the victim] has lied about what occurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom." Fleming, 83 Wn. App. at 213. On appeal, we held that because the argument misstated the law, misrepresented the role of the jury and the burden of proof, "it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken." Fleming, 83 Wn. App. at 213.
Here, unlike in Fleming, the prosecutor unequivocally told the jury at the beginning of closing argument that the State had the burden to prove each element of the charged crime beyond a reasonable doubt. And in addressing the to-convict jury instruction, the prosecutor reiterated that in order to convict Bryant of assault in the second degree, the jury had to find that the State has proved the elements of the crime beyond a reasonable doubt, and that the defense had no burden to do so. But in anticipation of the defense argument, the prosecutor told the jury that the defense would claim the State did not prove one or more of the elements. Near the end of the State's closing argument, the prosecutor addressed what he anticipated the defense response, "and what they have to argue to you in order to create some reasonable doubt." After stating that there were only a number of arguments a defendant could make, the prosecutor proceeded to list potential defense arguments including mistaken identity, self-defense, insanity, alibi, or putting the victim on trial. When reviewed in context, the prosecutor did not argue that the jury had to convict Bryant because there was no evidence to support any of these potential defense arguments. The prosecutor clearly told the jury the State had to prove each element beyond a reasonable doubt and did not impermissibly shift the burden to the defense.
The record also does not support Bryant's claim that the prosecutor improperly encouraged the jury not to rely on the court's definition of reasonable doubt and instead provided his own. The court instructed the jury on reasonable doubt and Jury Instruction No. 12 states that "[t]he law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions."
During the defense closing, Bryant's attorney asked the jury to acquit because "[Bryant] didn't do it, because you heard from Rebecca that she made it up." In rebuttal, the prosecutor responded by arguing that because Rebecca's testimony was not credible, Bryant did not provide a "reason not to believe" he assaulted Rebecca. The prosecutor's rebuttal argument and comment on Rebecca's credibility was in response to the defense argument also did not impermissibly shift the burden of proof to Bryant. Russell, 125 Wn.2d at 96; Neidigh, 78 Wn. App. at 75.
Bryant also contends that the prosecutor impermissibly commented on his right to remain silent and expressed a personal opinion by arguing that "?[i]t's a tragedy that she has to come up here and do his bidding'" and that "a world where the victim of a crime do the bidding of the defendant in a general sense is one of those pathologies of domestic violence that we see again and again." Bryant claims the prosecutor's remarks insinuate that Rebecca was forced to testify so Bryant could avoid doing so. "The test employed to determine if a defendant's Fifth Amendment rights have been violated is whether the prosecutor's statement was of such character that the jury would `naturally and necessarily accept it as a comment on the defendant's failure to testify.'" State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987).
The cases that Bryant relies on are distinguishable. In Ramirez, the court held the prosecutor committed misconduct by arguing that another reason a defendant does not testify is because he is guilty. Ramirez, 49 Wn. App. at 336. In State v. Messinger, 8 Wn. App. 829, 509 P.2d 382 (1973), the court held the prosecutor committed misconduct by commenting on the defendant's failure to contradict or deny that certain conversations occurred. Messinger, 8 Wn. App. at 840.
Unlike in Ramirez or Messinger, the prosecutor did not expressly refer to Bryant's decision to not testify nor did the prosecutor directly comment on Bryant's failure to present certain evidence. The prosecutor's remarks were in response to the defense argument that even though Bryant did not testify, "everything he had to say was brought out by the officers" or "Ms. Bryant when she was here, when she was testifying to you, concerning him." We conclude that the prosecutor's remarks were not of such character that the jury would naturally and necessarily accept them as a comment on Bryant's failure to testify or a personal opinion of Bryant's guilt.
Citing State v. Reed, 102 Wn.2d 140, 648 P.2d 699 (1984), Bryant also contends the prosecutor improperly vouched for the credibility of the State's witnesses and improperly expressed a personal opinion of Bryant's guilt by stating that it was not possible for Wielenga, Dr. Waddell and the medics to be mistaken and wrong," "I don't think this case even comes close to reasonable doubt," and the State believes that the evidence "point in one direction, that the defendant did this to her."
In Reed, the court held that the prosecutor committed prejudicial misconduct by asserting his personal opinion of the credibility of the witness and the guilt or innocence of the accused.
First, he called the petitioner a liar no less than four times. Next, the prosecutor stated that the defense counsel did not have a case, and that the petitioner was clearly a `murder two.' Finally, he implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars.
The court also noted that "[n]o one, not even the prosecutor, questions the impropriety of these comments." Reed, 102 Wn.2d at 145.
And as previously noted, Bryant did not object to any of the prosecutor's remarks during closing argument. Where, as here, there was no objection, a claim of error is waived unless the remark is so flagrant and ill-intentioned that it "causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Brown, 132 Wn.2d at 561. And "[p]rejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion." Papadopoulos, 34 Wn. App. at 400.
Here, the prosecutor's remark that it is not possible that all the State witnesses are wrong is not a "clear and unmistakable" expression of personal opinion. And unlike in Reed, the prosecutor's other remarks are not so "flagrant and ill-intentioned" that an instruction to the jury not have cured any prejudice. In addition, prior to closing argument, the court instructed the jurors that they were the "sole judges of the credibility of each witness" and the weight to be given to the testimony of each witness, that the lawyers remarks, statements, and arguments are not evidence, and the jurors "must disregard any remark, statement, or argument that is not supported by the evidence or the law in the court's instructions."
Cumulative Error
Citing to State v. Henderson, 100 Wn. App. 794, 998 P.2d 907 (2000), Bryant also argues that the cumulative effect of the instances of prosecutorial misconduct materially affected the outcome of the trial. Henderson is distinguishable. In Henderson, because the only evidence establishing defendant's participation in the alleged robbery consisted of testimony that was not credible, the court held that the cumulative effect of the incidents of prosecutorial misconduct materially affected the outcome of the trial and no instruction could have erased the error. Henderson, 100 Wn. App. at 805. But here, the prosecutor's remarks were not so flagrant and ill-intentioned that they could not have been addressed by a curative instruction and we conclude there is not a substantial likelihood prosecutorial misconduct affected the verdict.
Statement of Additional Grounds
Bryant argues pro se that he is entitled to a new trial because the court did not require the State to elect whether it relied on the act of shoving Rebecca onto the kitchen floor or the act of shoving Rebecca into the television. The jury must unanimously decide that the defendant committed a criminal act. State v. Coleman, 159 Wn.2d 509, 150 P.3d 1126 (2007); State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), and State v. Crane, 116 Wn.2d 315, 804 P.2d 10 (1991). To convict the defendant of the crime of assault in the second degree, the State had to prove the defendant recklessly inflicted substantial bodily harm. While there was testimony that Rebecca had some pain in her neck from being shoved into the television, the only testimony that Rebecca sustained substantial bodily harm related to the injury to her right arm when she was thrown to the kitchen floor. We conclude the trial court did not error in failing to give a unanimity instruction.
We affirm Bryant's conviction.