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In Craven, a decision that issued after Kasparova's trial, this court concluded that the same prosecutor's reference to a "shared common intellectual sense" and "shared common moral sense" amounted to prosecutorial misconduct.
Summary of this case from State v. KasparovaOpinion
No. 78849-3-I
11-16-2020
STATE of Washington, Respondent, v. Zachary Damien CRAVEN, Appellant.
Nielsen Koch PLLC, Attorney at Law, Eric J. Nielsen, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant. Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Carla Barbieri Carlstrom, King Co. Prosecutor's Office, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, for Respondent.
Nielsen Koch PLLC, Attorney at Law, Eric J. Nielsen, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Carla Barbieri Carlstrom, King Co. Prosecutor's Office, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, for Respondent.
PUBLISHED IN PART
Verellen, J. ¶1 Jurors should reach a verdict based upon the evidence presented at trial and the law provided by the court. Because this process should be based in reason and logic, a prosecutor makes an improper closing argument by emphatically inviting jurors to rely on their emotions and moral sense as well as their intellect when reaching a verdict. Although Zachary Craven demonstrates the State's closing argument was improper, he fails to show it was prejudicial in view of the trial court's timely oral instruction to the jury that the application of the law to the facts is "an intellectual, not an emotional decision." Retrial is not required.
Report of Proceedings (RP) (May 23, 2018) at 2434.
¶2 Craven's remaining issues also do not warrant any relief on appeal.
¶3 Therefore, we affirm.
FACTS
¶4 Robert Luxton and Angelika Hayden were in a close relationship for decades and raised Hayden's biological grandson, Zachary Craven. Craven called Luxton "grandpa" and Hayden "mom." As Craven got older, his relationship with Hayden deteriorated. In 2013 and again in April of 2015, Craven pleaded guilty to domestic violence felony harassment for threatening to kill Hayden. He then moved in with Luxton, who no longer lived with Hayden.
¶5 On July 1, 2015, Luxton saw Craven come into their house from the garage and inject something into his arm. Luxton had never seen Craven use drugs like that before. Craven then took out an old .22 caliber pistol Luxton kept in the garage, put it to Luxton's temple, and said, "I will kill you." Although scared, Luxton said, "No, you won't." Craven hit Luxton's temple with the gun.
RP (May 1, 2018) at 622.
Id.
¶6 On July 7, Luxton went to check on Hayden at home because she was not answering her phone. The front door was ajar, and he saw Hayden slumped over the coffee table in her living room. The television was on. He saw blood and a shell casing from a .22. Hayden had been shot once in the right temple, killing her.
¶7 That same day, Theresa Cunningham and her parents flew back to Washington after a vacation to Indiana. They were supposed to be picked up from the airport by Meagan Smith, who was one of Cunningham's best friends and who had been house-sitting for them. Smith was not at the airport or answering her cell phone, so Cunningham's uncle drove them home. No lights were on in the house, even though it was around 11:00 pm. The front door was locked, and Smith had their keys. Cunningham and her father walked to the back door. It was open. Cunningham used her cell phone as a flashlight as they walked into the house. She saw Smith's body on the kitchen floor and began to scream. Smith had been shot once in the head, killing her. A shell from a .22 was on the floor. They fled from the house. Cunningham called 911 and said her ex-boyfriend, Zachary Craven, had killed Smith.
¶8 After responding to the Cunningham home, Renton Police Officer Christopher Reyes brought Cunningham and her parents to the station for an interview. About 10 minutes into his interview with Cunningham, her phone rang. She put the phone on speaker and, in a clear voice, she and Officer Reyes heard Craven say, "I'm in trouble. I need help. Come meet me alone." Craven said he was at a drugstore in downtown Renton. Officer Reyes told dispatch where to find him.
RP (May 3, 2018) at 892.
¶9 Officer Dave Adam was on patrol around 1:00 a.m. when the call went out to detain Craven as a person of interest in Smith's death. Officer Adam found Craven waiting outside the drugstore. He called Craven's name and ordered him to lie on the ground. Craven dropped the bag he was holding, put up his hands, and began to walk away. After Craven ignored several more orders to stop, Officer Gary Berntson tased and arrested him. Officer Berntson took Craven to the police station and then to the hospital because Craven complained of pain in his wrists. Craven's blood was drawn at the hospital, and it tested positive for methamphetamine and traces of opiates.
¶10 The State charged Craven with second degree assault and two counts of first degree murder. Craven entered pleas of not guilty, made a general denial to the charges, and raised a mitigating theory of voluntary intoxication. The State moved to admit documents Craven wrote and gave to an inmate, who then provided them to the police. The court admitted the documents but reserved ruling on admitting the inmate's police interview because the inmate refused to testify. The State also moved to admit dozens of pieces of evidence under ER 404(b), and Craven moved to sever the charges against him. The court admitted some of the ER 404(b) evidence and denied the motion to sever.
¶11 In his opening statement, Craven admitted to killing Hayden and Smith but argued it was not intentional or premeditated. Over the lengthy trial, 44 witnesses testified, including more than 20 police officers and 7 scientists with the Washington State Patrol crime laboratory. During closing argument, the prosecutor argued, "[T]he law is rooted in our ... common intellectual sense [and] common moral sense. What that means is that if we apply the law to the evidence in this case, and if we follow the law, we will reach the correct verdict. And it should feel right when you do so." He repeatedly emphasized "it should feel right" in the head, heart, and gut when applying the law to the facts to find Craven guilty. After the jury found him guilty, the court sentenced Craven to 72 years’ incarceration.
RP (May 23, 2018) at 2434.
Id. at 2434-44, 2455-56, 2507-08.
¶12 Craven appeals.
ANALYSIS
I. Prosecutorial Misconduct
¶13 "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Prosecutors represent the public, including defendants, and have a duty to see that fair trial rights are not violated. Prosecutors must " ‘seek convictions based only on probative evidence and sound reason.’ " A prosecutor acts improperly by seeking a conviction based upon emotion rather than reason. Reversal is required if the improper conduct prejudiced the defendant.
Rules of Professional Conduct (RPC) 3.8 cmt. 1.
State v. Monday, 171 Wash.2d 667, 676, 257 P.3d 551 (2011) (citing State v. Case, 49 Wash.2d 66, 71, 298 P.2d 500 (1956) ).
In re Glasmann, 175 Wash.2d 696, 704, 286 P.3d 673 (2012) (quoting State v. Casteneda-Perez, 61 Wash. App. 354, 363, 810 P.2d 74 (1991) ).
State v. Echevarria, 71 Wash. App. 595, 598, 860 P.2d 420 (1993) (quoting State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968) ); see Glasmann, 175 Wash.2d at 712-13, 286 P.3d 673 (reversing convictions obtained by prosecutor's prejudicial appeals to emotion).
State v. Warren, 165 Wash.2d 17, 26, 195 P.3d 940 (2008).
¶14 Craven alleges the prosecutor's closing argument prejudiced him. We review allegations of prosecutorial misconduct for an abuse of discretion. We review the argument within the context of the trial as a whole. Craven bears the burden of proving the prosecutor's argument was both improper and prejudicial.
State v. Lindsay, 180 Wash.2d 423, 430, 326 P.3d 125 (2014) (quoting State v. Brett, 126 Wash.2d 136, 174-75, 892 P.2d 29 (1995) ).
In re Gentry, 179 Wash.2d 614, 631, 316 P.3d 1020 (2014) (citing State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006) ).
Lindsay, 180 Wash.2d at 430, 326 P.3d 125 (citing Warren, 165 Wash.2d at 26, 195 P.3d 940 ).
¶15 During closing arguments, the prosecutor equated having a verdict "feel right" or "make sense" emotionally and morally with applying the law to the facts of the case:
[PROSECUTOR]: Members of the jury, the law isn't supposed to be mystic. It's supposed to represent us as a society. It's our shared beliefs, our shared understandings, our shared morals. The law is simply a codification of those things, and that's what you have before you in the form of those jury instructions. At first blush they may seem wordy, confusing, complicated. But if you take the time to actually read them, think about them, you will see that they make sense. It's because the law is rooted in our shared common intellectual sense, the law is rooted in our shared common moral sense.
[DEFENSE]: I'm going to object, Your Honor. Improper argument.
COURT: Objection overruled.
[PROSECUTOR]: Common intellectual sense, common moral sense. What that means is that if we apply the law to the evidence in this case, and if we follow the law, we will reach the correct verdict. And it should feel right when you do so.
[DEFENSE]: Objection, Your Honor.
COURT: Objection overruled. Jury will apply the law to the facts. The law is what is contained in my instructions. The facts are the evidence, which the jury finds to have been proven and established. It is an intellectual, not an emotional decision, but that is the process that will be used.
[PROSECUTOR]: If we follow the law, we will reach the correct verdicts. If you follow the law, you will reach the correct verdicts. And when do you that, it will feel right here intellectually.
[DEFENSE]: Objection, Your Honor, to characterization of the feeling right here.
COURT: The objection is overruled. Your objection is noted.
[PROSECUTOR]: It will feel right here intellectually [indicating the head]. Remember our shared common intellectual sense. It will feel right here morally [indicating the heart], our shared common moral sense. That's the law, and it should feel right here [indicating the gut or stomach].[ ]
[DEFENSE]: Objection, Your Honor.
COURT: The objection is noted.
[PROSECUTOR]: And that's because the law makes sense. It makes sense here, and it makes sense here, and it makes sense here. (Indicating.)
....
... The defendant must be found guilty of assault in the second degree for pistol whipping Luxton on the 2nd. The defendant must be found guilty of murder in the first degree for the premeditated killing of his 66 year old grandmother Angelika Hayden. The defendant must be found guilty of murder in the first degree for the premeditated killing of 21 year old Meagan Smith. These are the only conclusions that make sense. These are the only verdicts that make sense.
[DEFENSE]: Objection, Your Honor.
COURT: Objection overruled.
[PROSECUTOR]: When you consider the evidence, and you follow the law, these verdicts make sense. They make sense here. (Indicating.) They make sense here. (Indicating.)
[DEFENSE]: I'm going to object again.
[PROSECUTOR]: And they make sense here (Indicating.).
Thank you.[ ]
During a sidebar, defense counsel expanded on his objection and noted the prosecutor touched his head, heart, and gut or stomach when arguing where "it feels right." RP (May 23, 2018) at 2457.
Id. at 2433-35, 2455-56.
Craven argues this argument was improper because it asked the jury to come to a decision based equally upon what feels right intellectually in the head, emotionally in the heart, and viscerally in the gut. The State concedes the prosecutor's argument was "inartful" but contends he was not asking the jury to base their verdict on emotion.
¶16 Read as a whole, the prosecutor told the jurors they would know Craven's guilt beyond a reasonable doubt by, in equal measure, recognizing it intellectually and feeling it emotionally in their hearts and viscerally in their guts. Equating "common intellectual sense" with "common moral sense," invited jurors to give the same weight to their rationality as to their emotions and instincts. By arguing "only [guilty] verdicts make sense" when also arguing the law must "make sense" in the head, heart, and gut, the prosecutor told jurors that arriving at a guilty verdict was as much emotional as intellectual. This can be understood only as an appeal to considerations other than the reasoned, intellectual application of law to facts. It risked a conviction based upon reasons other than the evidence.
Id. at 2434, 2435.
Id. at 2455-56.
Matter of Det. of Urlacher, 6 Wash. App. 2d 725, 748, 427 P.3d 662 (2018) (citing State v. Ramos, 164 Wash. App. 327, 338, 263 P.3d 1268 (2011) ), review denied sub nom., In re Det. of Urlacher, 192 Wash.2d 1024, 435 P.3d 276 (2019).
¶17 The prosecutor tried to blunt the impact of this theme in rebuttal:
PROSECUTOR: Let me set something else straight. [Defense] [c]ounsel accused me of asking you or suggesting that you convict based on morals or a gut feeling. It's an example of overselling. It's taking my comments out of context. What I reminded you repeatedly was to apply the facts and the evidence to the law. The law makes sense because it's rooted in our intellect and our morals. And when you apply the facts to the evidence, it should feel right.
DEFENSE: I'm going to object again, Your Honor.
COURT: Objection overruled.
PROSECUTOR: Not just do whatever feels right. That's a different argument. And let's be clear, I said it should feel right because it makes sense. I never felt that—I never said that you should feel good about it. I never said you should feel bad about it. The point was if you follow the law and apply the evidence to the law, you will reach the right conclusion.[ ]
RP (May 23, 2018) at 2507-08 (emphasis added).
Despite the prosecutor's belated attempt, his core theme remained the same: each juror should feel right intellectually, emotionally, and instinctually when applying the law to the facts. He is incorrect. As a judicial officer, the prosecutor should have understood that following and applying the law will not always feel right emotionally or instinctually. In fact, as the court instructed, jurors are court officers with an obligation to set aside their biases and intellectually apply the law to the facts even if the result is personally distasteful or disappointing. The prosecutor urged the jury to rely upon their emotions and instincts when weighing the facts alleged. It was improper for the prosecutor to insist a juror should "feel right" and have a decision "make sense" in the heart and in the gut when reaching a verdict.
See RCW 4.44.260 (a juror's duty is to reach a verdict "according to the law and evidence as given them on the trial"); see also 11 Washington Practice, Pattern Jury Instructions: Criminal 1.02, at 22 (4th ed. 2016) ("As jurors, you are officers of this court. You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference."); cf. In re Pers. Restraint of Yates, 177 Wash.2d 1, 30, 296 P.3d 872 (2013) (the right to trial by jury "is violated by the inclusion on the jury of a biased juror, whether the bias is actual or implied") (citing Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) ).
We recognize that closing arguments in a criminal trial often involves facts that can excite emotion. A prosecutor is not compelled to ignore such facts. But arguing from facts that are inherently emotional is distinct from arguing for reliance upon emotion to decide a fact.
¶18 The State cites State v. Curtiss to support the propriety of closing argument because "a criminal trial's purpose is a search for truth and justice." In Curtiss, the court approved of the prosecutor's closing argument that because a trial is "a search for the truth and a search for justice," the jury should "[c]onsider all the evidence as a whole" and convict if "you know in your gut ... you know in your heart that Renee Curtiss is guilty as an accomplice to murder." The court reasoned "a criminal trial's purpose is a search for truth and justice. Accordingly, the State's gut and heart rebuttal arguments in this case were arguably overly simplistic but not misconduct." The court recited that the prosecutor's single, fleeting "heart and gut" argument did not appeal to emotion, but it did not explain its reasoning. It also explained no prejudice would have resulted because the jury followed the court's standard instruction not to base its decision on sympathy, prejudice, or personal preference, and that Curtiss, who did not object to the argument, failed to show an additional jury instruction could not have cured any error.
161 Wash. App. 673, 250 P.3d 496 (2011).
Resp't’s Br. at 39 (citing id. at 701, 250 P.3d 496 ).
Curtiss, 161 Wash. App. at 701, 250 P.3d 496.
Id. at 702, 250 P.3d 496.
Id.
¶19 We disagree with Curtiss’s conclusion that a "heart and gut" argument is not an appeal to emotion. A jury should reach its verdict based upon the evidence presented at trial, not each juror's preferences or feelings in their heart or gut. Because the prosecutor's argument here emphatically and expressly invited jurors to use their emotions and visceral instincts equally with their intellect when reaching a verdict, closing argument was improper. The search for justice is not consistent with this "heart and gut" appeal to emotion.
When considering allegations of prosecutorial misconduct, our Supreme Court has taken judicial notice of other cases in which that prosecutor has made the same argument. Warren, 165 Wash.2d at 27 n.4, 195 P.3d 940. Thus, we note our concern that the same prosecutor has made the same closing argument in other cases, almost word-for-word. E.g., State v. Bacani, No. 76371-7, slip op. at 16-18, 2018 WL 3026165 (Wash. Ct. App. June 18, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/763717.pdf; State v. Berhe, No. 75277-4, slip op. at 21-23, 2018 WL 704724 (Wash. Ct. App. Feb. 5, 2018), (unpublished), http://www.courts.wa.gov/opinions/pdf/752774.pdf, rev'd on other grounds, 193 Wash.2d 647, 444 P.3d 1172 (2019). Bacani is distinguishable because the defendant did not object this argument appealed to emotion. No. 76371-7, slip op. at 15-22. We decline to adopt the reasoning in Berhe because it relies solely upon Curtiss to conclude this argument was proper. No. 75277-4, slip op. at 22-23.
¶20 However, Craven fails to show the argument was prejudicial. Before closing argument, the court provided the standard jury instruction explaining each juror must "reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference." More significantly, after the prosecutor's first insistence that a correct verdict should "feel right," the court correctly instructed the jury:
CP at 464.
COURT: [The] jury will apply the law to the facts. The law is what is contained in my instructions. The facts are the evidence, which the jury finds to have been proven and established. It is an intellectual, not an emotional, decision, but that is the process that will be used.[ ]
RP (May 23, 2018) at 2434 (emphasis added).
This curative instruction reminded the jury of its duties and, having been given so timely, shaped the jury's understanding of the rest of the prosecutor's closing argument, significantly limiting any prejudicial impact.
See State v. Stein, 144 Wash.2d 236, 247, 27 P.3d 184 (2001) ("We presume that juries follow all instructions given.") (citing Degroot v. Berkley Constr., Inc., 83 Wash. App. 125, 131, 920 P.2d 619 (1996) ).
¶21 Citing State v. Perez-Mejia and State v. Allen, Craven insists this instruction failed to cure any prejudice because the court also overruled his objections. Perez-Mejia is not apt because the trial court there did not provide a curative instruction after overruling the defendant's objection to an improper closing argument. Allen is also inapposite. There, the prosecutor repeatedly misstated the law during closing argument, the court overruled the defendant's objections without providing a curative instruction, and the jury's questions during deliberation showed it had been misled. Because the court here correctly stated the law when providing a curative instruction, we presume the jury followed the court's instructions, and nothing suggests the jury was misled, Craven fails to show prejudice from closing argument.
134 Wash. App. 907, 143 P.3d 838 (2006).
182 Wash.2d 364, 341 P.3d 268 (2015).
Stein, 144 Wash.2d at 247, 27 P.3d 184.
¶22 Affirmed.
¶23 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
WE CONCUR:
Bowman, J.
Appelwick, J.