Opinion
No. 59365-0-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03225-6, Richard D. Eadie, J., entered December 21, 2006.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Becker and Lau, JJ.
Joaquin Garnica appeals his convictions for rape in the first degree and three counts of tampering with a witness. He contends that his Sixth Amendment right to confront witnesses against him was violated when the trial court admitted the accuser's out-of-court statements to medical personnel and a police officer. He also challenges the sufficiency of the evidence to support his rape in the first degree conviction and contends that the State committed prosecutorial misconduct in closing argument. We hold that Garnica's right to confrontation was violated when the trial court allowed the jury to consider, for the truth of the matter asserted, the non-testifying accuser's testimonial statements to a police officer. However, because the untainted evidence of Garnica's guilt is overwhelming, the error was harmless. Finding no other error, we affirm.
The rape conviction and two of the counts of tampering with a witness included a domestic violence designation.
I
On April 1, 2006, M.A., an adult, left her home and went to her boyfriend Luis Pedrisco Calderon's house where she spent the night and the two had sex. Leticia A., M.A.'s mother, testified that she and M.A.'s father, Garnica, were concerned because they did not know of M.A.'s whereabouts. The mother testified that she and her three sons left the house after Garnica started to drink and told her to leave.
Luis testified that on the morning of April 2 a "very drunk" Garnica forced his way into Luis's house, grabbed M.A. by her hair, and threw her to the floor. He then dragged her outside. Luis's father, Donitilo Calderon Ontiveras, lived with Luis and was home around 8:00 a.m. or 8:30 a.m. when he saw Garnica enter the house without permission, grab M.A. by her hair, and slap her. Garnica then pulled her and threw her against a pickup truck. After she got up from her knees, "they went out to the trees."
At about 10 a.m. Seattle Police Officer Kate Tierney responded to a call involving a family disturbance, and a language barrier. M.A.'s mother testified that she had called the police from a pay phone because she wanted to tell them that her husband threw her out and that she was taking her children to California. On cross-examination, she denied ever telling police that M.A. had told her she had been raped. The mother did testify that when Garnica and her daughter showed up at the pay phone, her daughter was crying and could not speak.
Officer Tierney testified that when she arrived, the family was standing around the pay phone and Garnica explained that the police were called because the family argued about M.A. not being in the laundry room as she was supposed to have been. Garnica was very calm, but M.A. was guarded and looked like she had been crying. Officer Tierney described M.A. as being hunched over, disheveled, and constantly making sure her top was zipped up. M.A. started to cry when she was talking to her mother in Spanish. Officer Tierney testified that at that point she was not sure what she was dealing with, so she decided to take M.A. away from the others, who were with other police officers. Officer Tierney explained that
[t]hrough my training, I was advised that if you have a group, sometimes if you remove one, they will tell you what happened. I had a feeling it was more than just a verbal. So, I asked her if she would come and talk to me privately. She said she would. We walked about 20 feet away.
After Officer Tierney took M.A. aside, she noticed that M.A. had a redness on her head. Officer Tierney testified that M.A. "told me that she had been hit; and then she told me that she had been raped." M.A.'s knees were muddy and her socks and shoes were soaked. Garnica was then taken into custody.
Later, King County Sheriff's Deputy Anthony Vowell arrived in response to a request from Seattle Police to assist them in the "investigation" of a "special assault that may have happened in the county." Deputy Vowell testified that his job was to attempt to get a statement from the victim. Deputy Vowell testified that M.A. took him to Luis's house and explained that her father came there, grabbed her, slapped her several times, and dragged her out of the house onto the street. Deputy Vowell testified that M.A. told him that Garnica had taken her to a grassy area by a stream where he raped and choked her. Deputy Vowell testified that based on his experience as a deputy and previous experience as a medic, he observed injuries on M.A.'s neck that were consistent with someone who had been choked.
M.A. was taken to Harborview Hospital for a medical examination. At the hospital, emergency room social worker Susan Fouts screened M.A. to make sure that she received medical care. M.A. told her that she had been sexually assaulted vaginally three times early in the morning. When Fouts was asked if M.A. described any other physical assaults that occurred as part of or in conjunction with the commission of rape, Fouts testified that M.A. had been grabbed, her hair pulled, and she had been dragged.
Dr. Naomi Hodde examined M.A. and testified that M.A. said that she had been dragged by her hair, strangled, and raped three times vaginally and one time anally. Dr. Hodde testified that she observed a bruise and swelling over M.A.'s right eye, a lot of bruising on her neck that "appeared like a pattern, that she had been strangled, finger pattern on her neck."
Sexual assault nurse Susan Dippery also examined M.A. and testified that M.A. stated that she had been raped with genital to vaginal contact and penis to anus contact. The nurse observed that M.A.'s genitals were swollen and red, with purple bruising and tears in the hymen that were consistent with recent trauma. The nurse also observed tiny scratches on M.A.'s forearms and legs, as well as twigs and other debris in her hair.
The State also introduced evidence that Garnica's DNA (deoxyribonucleic acid), as well as that of M.A. and Luis, was found in swabs taken from semen found in M.A.'s underwear, as well as from swabs taken from her vagina, her anus, and Garnica's penis. Garnica was the major DNA contributor to the sample taken from M.A.'s anus. A forensic scientist testified that the chance that someone other than Garnica was the source of the semen in M.A.'s anus was one in 620 quadrillion.
Garnica testified at trial and denied everything. Deputy Christopher Knudsen testified that Garnica gave him three different versions of events of what happened the morning of the rape. In one version, M.A. went home with Garnica after she and her boyfriend happened to drive by and see Garnica after he got in a fight with an unknown Asian male. In another version, Garnica knocked on Luis's door and M.A. agreed to come home with him. Garnica also told police that a friend drove him to find M.A., but did not want to drive him home so they got a ride from an unknown Mexican male.
At trial, Luis identified Garnica as the voice in several recorded conversations of telephone calls made from the jail to Luis, Leticia, and M.A., urging them not to go to court. In one of the calls, Garnica told M.A., "I know that I fucked up because of you, but I was really drunk."
Prior to trial the State, unsure if M.A. or her mother would appear to testify, requested that M.A.'s out-of-court statements be admitted under various legal theories. The trial court granted the State's request to admit M.A.'s statements to medical personnel under the medical treatment exception to the hearsay rule. The trial court also granted the State's request to admit M.A.'s initial report under the fact of complaint doctrine. Under the doctrine of forfeiture by wrongdoing, the trial court also granted the State's motion to admit M.A.'s and her mother's out-of-court statements if they failed to appear to testify because the evidence showed that Garnica pressured them not to come to court.
Both M.A. and her mother appeared to testify. However, not long after M.A. took the stand, before she testified as to anything Garnica had done to her, M.A. said that she was not feeling well and the court took a recess. Garnica did not have an opportunity to cross-examine M.A. The State later decided not to recall her to the stand. The prosecutor asserted to the court that M.A.'s problems were stress-induced and that the State did not want to force her to return to testify. The State noted that it was not contending that M.A. was unavailable to testify as defined by case law applying the forfeiture by wrongdoing doctrine, and, thus, that doctrine was no longer applicable. The State also proposed a limiting instruction concerning M.A.'s testimony and her statements made to Deputy Vowell, which the trial court gave to the jury:
I am instructing you to disregard entirely the testimony provided by the witness, [M.A.]. You may not consider it as evidence. You also may not consider any observations that you made of her. You must consider this case as though the witness, [M.A.], did not appear in court at all.
The second matter. With regard to the testimony of Deputy Vowell, you must disregard the testimony by Deputy Vowell regarding statements made to him by [M.A.]. This includes any statements made regarding the location of any alleged crime and any exhibits previously admitted that relate to any location. Those exhibits are no longer evidence for you to consider, with the exception of the photographs of the home that other witnesses testified regarding. You may, however, consider as evidence any of Deputy Vowell's observations and any actions he took in his investigation of the case.
No such instruction was given regarding the testimony of Officer Tierney.
Throughout the course of proceedings, Garnica, appearing pro se, repeatedly argued that if the State did not produce M.A. to testify in court, then he should be set free because all of the evidence presented against him was a lie. Garnica admitted that he called Leticia from jail, but denied that the voice on the recordings that were introduced at trial was his voice. Leticia testified that Garnica telephoned her multiple times from jail. She gave conflicting testimony regarding what he told her: "I do remember him telling us not to come to court, and I would just stay quiet. But, I don't remember him having said that."
The jury convicted Garnica of one count of rape in the first degree and three counts of tampering with a witness. In the answer to an interrogatory, the jury found that at the time of the rape, Garnica had inflicted serious physical injury on M.A. The jury was unable to reach a verdict on a second count of rape in the first degree, or on charges of kidnapping in the first degree and burglary in the first degree.
The State dismissed a charge of felony harassment prior to deliberations.
II
Garnica first contends that his Sixth Amendment right to confrontation was violated when the State declined to recall his accuser to the stand for cross-examination, but the trial court, nonetheless, allowed medical personnel and a law enforcement officer to testify to the jury about statements his accuser made to them. The State contends that M.A.'s statements to medical personnel were properly admitted pursuant to ER 803(a)(4), and that M.A.'s "initial report [to law enforcement] was properly admitted, with appropriate limitations, under the `fact of complaint' doctrine."
ER 803(a)(4) states the following statements are not excluded by the hearsay rule, even though the declarant is available as a witness:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI.
In its watershed 2004 decision, Crawford [ v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the United States Supreme Court reformulated the analysis of confrontation clause claims. Crawford explained that the confrontation clause "bars `admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'"
State v. Ohlson, 162 Wn.2d 1, 10, 168 P.3d 1273 (2007) (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)).
The State does not contend that M.A. was unavailable to testify or that Garnica had a prior opportunity to cross-examine her. The central issue then is whether the admitted statements were testimonial in nature pursuant to
Crawford. Statements to Medical Personnel
Garnica contends that the trial court's admission, under ER 803(a)(4), of M.A.'s statements to medical personnel violates his right to confrontation because the witnesses knew M.A.'s statements could be useful in a future criminal prosecution, and the medical personnel were trained and "accustomed to dealing with police and prosecutors as well as domestic violence programs."
"Nontestimonial statements do not implicate the confrontation clause and are admissible if they fall within a hearsay exception." State v. Saunders, 132 Wn. App. 592, 601, 132 P.3d 743 (2006), review denied, 159 Wn.2d 1017 (2007). Statements made for the purposes of medical diagnosis or treatment fall within a hearsay exception. ER 803(a)(4). "Typically, the purpose of giving a statement to a provider of medical diagnosis or treatment is to obtain appropriate care." Saunders, 132 Wn. App. at 603.
Here, Garnica's contention that the medical witnesses who interviewed M.A. "knew the statements would be useful in a future criminal prosecution," is not supported in the record. Similarly, Garnica's claim that "[e]mergency room physicians are trained and accustomed to dealing with police and prosecutors as well as domestic violence programs" is nothing more than a conclusory statement without citation to the record for support. Regardless, whether M.A.'s statements to medical personnel are testimonial does not turn on whether the medical personnel may have had previous experience dealing with police and prosecutors. The question is whether M.A. made statements for the purpose of receiving a medical diagnosis or treatment.
Fouts, the emergency room social worker, testified that her "major purpose is to make sure that [sexual assault victims] get medical care." Fouts gathered information about what happened to M.A. and provided it to other medical personnel who then examined M.A. Nothing in the record suggests that Fouts interviewed M.A. for the purpose of aiding the prosecution. M.A. also made statements to Dr. Hodde and nurse examiner Dippery while they were attempting to provide a medical diagnosis and treatment. Nothing in the record suggests otherwise.
The two decisions Garnica cites for support are not helpful to him as one has been overruled and the other has been withdrawn from publication. See People v. Vigil, 104 P.3d 258 (Colo.App. 2004), overruled by People v. Vigil, 127 P.3d 916, 923-24 (Colo. 2006) (holding that a child's statements to an examining doctor was not testimonial in nature simply because the doctor was a member of a child protection team; that "fact . . . does not, in and of itself, make him a government official absent a more direct and controlling police presence"); In re T.T., 351 Ill. App. 3d 976, 815 N.E. 2d 789 (2004), withdrawn from publication, noted at No. 1-03-0551, 2007 Ill. App. Lexis 993 (Sept. 7, 2007).
Garnica's Sixth Amendment right was not violated by the admission of M.A.'s statements to medical personnel.
Statements to Law Enforcement
Garnica next contends that M.A.'s statements to Deputy Vowell and Officer Tierney were testimonial in nature and the admission of those out-of-court statements, thus, violated his right to confrontation pursuant to Crawford. The State contends that M.A.'s statements were not offered into evidence to prove the truth of the complaint made to police, but were, instead, properly admitted under the fact of complaint doctrine.
Before discussing the merits of Garnica's argument, we must first determine which statements were actually admitted under the fact of complaint doctrine.
The fact of complaint or "hue and cry" doctrine is a case law exception to the hearsay rule. It allows the State in a sex offense case to present evidence in its case in chief that the victim made a timely complaint to someone after the assault. Details of the complaint and the identity of the offender are not permitted.
State v. Ackerman, 90 Wn. App. 477, 481, 953 P.2d 816 (1998) (citations omitted).
The evidence is not hearsay because it is introduced for the purpose of bolstering the victim's credibility and is not substantive evidence of the crime. The rule is grounded in the time-honored assumption that in forcible rape cases the absence of evidence of seasonable complaint creates an inference that the victim's testimony has been fabricated. Allowing the State to present the fact of complaint in its case in chief dispels this inference.
State v. Bray, 23 Wn. App. 117, 121-22, 594 P.2d 1363 (1979) (citations omitted); accord State v. Murley, 35 Wn.2d 233, 236-37, 212 P.2d 801 (1949); State v. King, 131 Wn. App. 789, 795 n. 3, 130 P.3d 376 (2006), review denied, 160 Wn.2d 1019 (2007); State v. Walker, 129 Wn. App. 258, 266, 118 P.3d 935 (2005). The confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington, 541 U.S. 36, 60 n. 9, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
When the trial court granted the State's pretrial motion to admit, pursuant to the fact of complaint doctrine, M.A.'s statements to "non-professional witnesses" that she had been raped, no specific witnesses were named. After it developed at trial that Garnica would not have an opportunity to cross-examine M.A., the State attempted to avoid violating Garnica's confrontation rights by proposing limiting instructions. However, the limiting instruction actually given addressed only statements M.A. made to Deputy Vowell. In proposing this instruction, the prosecutor readdressed the fact of complaint exception.
I realize there is one potential caveat: the fact of complaint. I should say as an aside, this language could become very burdensome. This could be elaborated on. [M.A.'s] statement to Deputy Vowell that "I was raped," is allowable, permissible evidence. The instruction is structured in such a way as to tell the jury to disregard the statements [M.A.] said to the deputy, other than the statement she said she was raped. It's entirely within the Court's power to decide it's proper. It is proper.
However, the instruction actually given was not worded so as to inform the jurors that while they were to disregard most of M.A.'s statements to Deputy Vowell, they could still consider the fact that she told him that she had been raped. Moreover, when the trial court agreed to give the limiting instruction to the jury, it made no comment on the "caveat" regarding the fact of complaint. In fact, the trial court instructed the jury to "disregard the testimony by Deputy Vowell regarding statements made to him by [M.A.]." However, the State did not propose, and the trial court did not give, a limiting instruction concerning statements made by M.A. to Officer Tierney. Notwithstanding the State's intention to the contrary, the jury was instructed to disregard all of M.A.'s statements to Deputy Vowell. The jury is presumed to have followed the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Thus, we focus our analysis on M.A.'s statements to Officer Tierney.
It is not altogether clear whether M.A.'s statements to Officer Tierney were actually admitted under the fact of complaint doctrine as the State contends. However, Garnica does not put forth any argument addressing whether the fact of complaint doctrine was properly applied. Instead, Garnica focuses his argument on his claim that the admission of M.A.'s out-of-court statements violated his confrontation rights.
In granting the State's pretrial motion to admit M.A.'s statements under the fact of complaint doctrine, the trial court stated that the admission of such statements would be "subject to proper foundation being laid." It is not clear whether the trial court considered the proper foundation to include M.A. testifying at trial. Courts have not explicitly stated that it is required that the complainant testify at trial in order for the prosecution to introduce out-of-court statements under the fact of complaint doctrine.
The fact of complaint doctrine is not listed as one of the exceptions to the hearsay rule in ER 803. "Rule 803 defines twenty-three exceptions to the hearsay rule. The exceptions listed in Rule 803 apply in every case, regardless of whether the declarant is available as a witness." 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence , Rule 803 cmt. (1), at 386 (2007) (emphasis added).
In almost all of the cases where the fact of complaint doctrine has been applied, the victim testified at trial. See State v. Ferguson, 100 Wn.2d 131, 132, 144, 667 P.2d 68 (1983); Murley, 35 Wn.2d at 235, 237; King, 131 Wn. App. at 794, 795 n. 3; State v. Alexander, 64 Wn. App. 147, 149, 822 P.2d 1250 (1992); State v. DeBolt, 61 Wn. App. 58, 59, 63, 808 P.2d 794 (1991); State v. Fleming, 27 Wn. App. 952, 954, 957, 621 P.2d 779 (1980); State v. Ragan, 22 Wn. App. 591, 593, 598, 593 P.2d 815 (1979). However, in Ackerman, the trial court admitted the child victim's out-of-court statements under the fact of complaint doctrine after the court determined that the victim was unavailable to testify. But, the trial court also admitted the victim's statement describing the sexual offense, as reported to her treatment counselor, under the medical treatment exception. Ackerman, 90 Wn. App. at 480-81.
The State contends that because M.A.'s out-of-court statements to Officer Tierney were not offered for the truth of the matter asserted, they are not hearsay and, thus, no error occurred. The State's argument is unpersuasive for several reasons.
First, despite the State's claim that "appropriate limitations" were given on Officer Tierney's testimony, the trial court never instructed the jury so as to restrict the jury's consideration of M.A.'s statements to Officer Tierney. The only limiting instruction given concerned Deputy Vowell's testimony. Thus, under the court's instructions, the jury was allowed to consider M.A.'s statements to Officer Tierney for the truth of the matters asserted.
Second, all of the cases the State relies upon on this issue are not helpful because they were decided before Crawford. See Murley, 35 Wn.2d 233; Ackerman, 90 Wn. App. 477; Fleming, 27 Wn. App. 952; Ragan, 22 Wn. App. 591. Moreover, confrontation rights were not at issue in three of the cases because the victim testified at trial. See Murley, 35 Wn.2d at 235, 237; Fleming, 27 Wn. App. at 954, 957; Ragan, 22 Wn. App. at 593, 598.
In Ackerman, the victim did not testify and the court determined that she was unavailable to testify. 90 Wn. App. at 480. Nevertheless, the appellate court analyzed whether the defendant's confrontation rights were violated, Ackerman, 90 Wn. App. at 482-84, holding that the defendant's confrontation rights were not violated because the victim was unavailable and her statements were reliable because they were supported by particular guarantees of trustworthiness. Ackerman, 90 Wn. App. at 484. This analysis of confrontation clause rights is no longer viable. See Crawford, 541 U.S. at 60-69.
Third, Crawford expressly rejected the notion of relying on evidentiary rules to determine the constitutional limitations on the admissibility of out-of-court statements. "Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Crawford, 541 U.S. at 51. " [E]x parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them." Crawford, 541 U.S. at 51.
[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.
Crawford, 541 U.S. at 53-54 (emphasis added).
"While Crawford `le[ft] for another day any effort to spell out a comprehensive definition of testimonial,' the Court did identify that a `core class of `testimonial' statements exist.'" Ohlson, 162 Wn.2d at 10 (quoting Crawford, 541 U.S. at 51, 68). "The Court also stated that `[s]tatements taken by police officers in the course of interrogations' were within the core class." Ohlson, 162 Wn.2d at 10 (quoting Crawford, 541 U.S. at 52).
After Crawford, this court considered whether the right to confrontation was violated when the out-of-court statements were admitted under the fact of complaint doctrine. Walker, 129 Wn. App. at 266-73 (holding that the victim's out-of-court statements to her mother were not testimonial and that there was no Crawford violation even though, at trial, the victim refused to testify orally, but instead pointed to the pubic area of a picture to indicate where the defendant had touched her). Following Crawford and Walker,
We concluded that the trial court's admission of the victim's out-of-court statements to her mother as fact of complaint evidence was made with the understanding that the victim would testify at trial. Walker, 129 Wn. App. at 266.
the Court elaborated on "which police interrogations produce testimony" in the consolidated cases of Davis v. Washington (statements to law enforcement officers during a 911 call) and Hammon v. Indiana (statements to law enforcement officers at a crime scene).
Ohlson, 162 Wn.2d at 11 (footnote omitted) (quoting Davis, 547 U.S. at 822). The Court held that with respect to police interrogations, the question presented by the confrontation clause is "whether, objectively considered, the interrogation that took place . . . produced testimonial statements." Davis, 547 U.S. at 826.
To summarize, Davis announced that whether statements made during police interrogation are testimonial or nontestimonial is discerned by objectively determining the primary purpose of the interrogation. If circumstances objectively indicate that the primary purpose is to enable police assistance to meet an ongoing emergency, the elicited statements are nontestimonial. If circumstances indicate that the primary purpose is to establish or prove past events, the elicited statements are testimonial. Characteristics to consider when objectively assessing the circumstances of the interrogation include the timing of the statements, the threat of harm, the need for information to resolve a present emergency, and the formality of the interrogation.
Ohlson, 162 Wn.2d at 15.
In Hammon, the Court held that the accuser's statements to the police officer who interviewed her after responding to a domestic disturbance call were testimonial. Ohlson, 162 Wn.2d at 13 (citing Davis, 547 U.S. at 830).
With respect to timing, Hammon made the statements in question "some time after the events described were over. When the officer questioned [Hammon] for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) `what is happening,' but rather `what happened.'"
Considering the threat of harm and the need for information to resolve a present emergency, the Court emphasized that when Hammon made her statements, "[t]here was no emergency in progress." In fact, when the officers first arrived, Hammon "told them that things were fine" and that "there was no immediate threat to her person." During the later interrogation, the police "actively separated" Hammon and her husband and "forcibly prevented [him] from participating in the interrogation."
Finally, while "the Crawford interrogation was more formal," Hammon's interrogation was "formal enough." The questioning "was conducted in a separate room, away from [Hammon's] husband," and Hammon's statements "deliberately recounted, in response to [that] questioning, how potentially criminal past events began and progressed." The Court concluded, "[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct," rendering the resulting statements testimonial.
Ohlson, 162 Wn.2d at 13 (citations omitted) (quoting Davis, 547 U.S. at 830).
Most importantly, the State conceded at trial that, absent the application of the forfeiture by wrongdoing doctrine, M.A.'s statements to Officer Tierney and Deputy Vowell
would be considered testimonial, certainly subsequent to cases such as the Hammond [sic] case, that the Supreme Court ruled on. . . . The State concedes that at the time of those statements, it was not an ongoing emergency. The defendant was separated, not too unlike the situation in Hammond, [sic] actually. The State would never attempt to argue that those statements were not testimonial.
Because M.A. did not testify and her statements to Officer Tierney were both testimonial and available for the jury to consider for the truth of the matter asserted, Garnica's Sixth Amendment right to confrontation was violated.
III
We next consider whether the violation of Garnica's right to confrontation was harmless.
"A violation of the confrontation clause is subject to harmless error analysis, using `the overwhelming untainted evidence test.'" Ohlson, 162 Wn.2d at 19 n. 4 (internal quotation marks omitted) (quoting Davis, 154 Wn.2d at 305).
The untainted evidence of Garnica's guilt is overwhelming. Multiple witnesses observed Garnica grab M.A. by the hair and drag her from Luis's house. Garnica was seen taking M.A. to a patch of trees. Police observed a crying, disheveled M.A. who had muddy knees and soaked socks and shoes. Medical personnel testified that M.A. told them she had been raped vaginally and anally that morning and that in conjunction with the commission of the rape, she had been choked, grabbed, her hair had been pulled and she had been dragged. Police and Dr. Hodde observed bruising on M.A.'s neck consistent with M.A. having been choked. Nurse Dippery observed scratches on M.A.'s arms and legs, as well as twigs and other debris in M.A.'s hair. Nurse Dippery also observed injuries to M.A.'s genitals that were consistent with recent trauma.
Police testified that Garnica gave three different versions of events. Luis identified Garnica as the voice in several recorded conversations of telephone calls made from the jail to Leticia, M.A., and Luis, urging them not to go to court. Furthermore, Garnica's DNA was found in M.A.'s underwear as well as in her vagina and anus. The chance that someone other than Garnica was the source of the semen in M.A.'s anus was one in 620 quadrillion. The untainted evidence is overwhelming and necessarily leads to a finding of guilt beyond a reasonable doubt. Thus, any error in admitting M.A.'s out-of-court statements to Officer Tierney was harmless.
IV
Garnica next contends that there was no evidence of the victim's words and conduct to prove forcible compulsion.
We review insufficiency-of-the-evidence challenges in a light most favorable to the State and decide whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). To prove Garnica committed rape in the first degree, the evidence must show that the rape was committed by engaging in sexual intercourse by forcible compulsion and inflicting serious physical injury on the victim. RCW 9A.44.040(1)(c). "`Forcible compulsion' means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped." RCW 9A.44.010(6).
Here, the evidence, viewed in the light most favorable to the State, shows that Garnica slapped, grabbed, pulled, dragged, and choked M.A. as part of or in conjunction with the commission of the rape. That evidence is sufficient to show that the rape was committed by engaging in sexual intercourse by forcible compulsion and inflicting serious physical injury on the victim. Garnica's claim that evidence of the words used by the victim to manifest a lack of consent is necessary to support a conviction is not supported by any authority.
Garnica next contends that even if the evidence proved forcible compulsion, the evidence was insufficient to prove Garnica inflicted serious physical injury. Garnica did not propose a jury instruction defining "serious physical injury" at trial. Nevertheless, he now urges, without any supporting authority, that this court adopt the Model Penal Code's definition of "serious bodily injury" as the definition of "serious physical injury" because other criminal statutes incorporate the term "bodily harm." See RCW 9A.36.011(1) (requiring "intent to inflict great bodily harm" as an element of the crime of assault in the first degree).
Model Penal Code § 213.1(1)(a) states that "[a] male who has sexual intercourse with a female not his wife is guilty of rape if . . . he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone." Model Penal Code § 210.0(3) defines "serious bodily injury" to mean "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Unlike the Model Penal Code, our legislature expressly chose to require "serious physical injury," not "serious bodily injury," as an element for the crime of rape in the first degree. RCW 9A.44.040(1)(c). This court has already considered the fact that the legislature chose not to define "serious physical injury" and that case law also has not defined the term. State v. Taitt, 93 Wn. App. 783, 791, 970 P.2d 785 (1999).
"In our view it is neither necessary nor desirable to attempt to do so in a jury instruction. The term speaks for itself, is adaptable to the type of injury in issue and permits argument both pro and con. The jury is usually told it may rely upon common sense and the `common experience of mankind.'"
Taitt, 93 Wn. App. at 791 (quoting State v. Welker, 37 Wn. App. 628, 638 n. 2, 683 P.2d 1110 (1984)). There is no reason to revisit Taitt.
Garnica relies on Taitt for the proposition that M.A.'s bruises and abrasions are not sufficient to constitute "serious physical injury."
The issue before this court in Taitt was whether an exceptional sentence violated the real facts doctrine. The sentencing court had imposed an exceptional sentence based on the fact that the defendant, who was convicted of two counts of rape in the second degree, acted with deliberate cruelty by choking his victims into unconsciousness. Taitt, 93 Wn. App. at 788-89. This court concluded that the real facts doctrine was not violated because "[c]hoking someone to unconsciousness does not necessarily constitute the infliction of serious physical injury" " as a matter of law." Taitt, 93 Wn. App. at 785, 791 (emphasis added). We concluded that "whether [the defendant's] acts constitute deliberate cruelty or rise to the level of serious physical injury under the first degree rape statute is a factual question for the sentencing court." Taitt, 93 Wn. App. at 791-92. We expressly stated that whether choking someone to unconsciousness is a serious physical injury is a question of fact. Taitt, 93 Wn. App. at 785.
"Under the real facts doctrine, the sentencing court may not justify an exceptional sentence by using facts that would elevate the crime for which the defendant was convicted to a more serious crime." Taitt, 93 Wn. App. at 789-90.
Here, the jury unanimously answered that factual question by finding that Garnica did inflict serious physical injury on M.A. As previously discussed, that finding is supported in the record. Accordingly, the conviction of rape in the first degree is supported by sufficient evidence.
V
Garnica next contends that he was denied a fair trial because the State committed prosecutorial misconduct in closing argument by stating that M.A. testified about a number of jail conversations she had with Garnica, and by repeating that Officer Tierney testified that M.A. told her she was raped. Garnica also alleges prosecutorial misconduct because the prosecutor, during rebuttal closing, suggested the reason M.A. did not testify at trial was because of Garnica's calls to her from the jail.
A defendant claiming prosecutorial misconduct bears the burden of demonstrating that the conduct was improper and that it prejudiced the defense.
State v. Harvey, 34 Wn. App. 737, 740, 664 P.2d 1281 (1983). Prejudice exists if there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Where, as here, a defendant does not object or request a curative instruction, he has waived the error unless we find the remark "`so flagrant and ill-intentioned'" that no instruction could have cured the resulting prejudice. McKenzie, 157 Wn.2d at 52 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Garnica contends that the trial court thwarted his attempt to make an objection during the State's closing argument. However, that is not borne out in the record.
During the State's closing argument, the prosecutor stated that "M.A. also testified about a number of jail conversations that she had with the defendant." The prosecutor also reiterated that Officer Tierney testified that M.A. told her she was raped. Garnica did not object to either of these statements. After the State's closing argument, the trial court excused the jury and told Garnica that "I know you tried to get the [c]ourt's attention. You will have your opportunity to address the jury right after our recess." At this time, Garnica did not object to the challenged statements, but instead accused the prosecutor of threatening his family and making a mockery of the law.
During Garnica's closing argument, he told the jury that he did not have an attorney because they all work together to send innocent people to jail. Garnica stated that it was the prosecutor's "duty and his obligation . . . to bring here the young lady because she is the one who need[s] to be here so that you could tell whether she was lying." Garnica suggested to the jury that M.A. accused him of rape because she was mad and that the reason she did not testify was "[b]ecause she knows that she was lying. She knew that she was going to look bad here, in front of you."
Soon thereafter, when the prosecutor objected to Garnica arguing to the jury that M.A. knew that Garnica's children needed him and that M.A.'s mother was also suffering, Garnica responded by stating, "I did not object when you were talking." The trial court instructed Garnica that he may speak to the court or to the jury, but not to the prosecutor. Garnica responded: "That's what I am doing. . . . I swear to that, he is a corrupt individual. He is also deceiving the board of directors of this case. And he is threatening my family so they wouldn't come over."
In rebuttal argument, the prosecutor stated: "[Garnica] is not the victim. His daughter is the victim. Why did you not get to hear from his daughter? Just remember, what the defendant told his daughter, over and over, in calls from the jail."
At this point, the trial court directed Garnica to sit down and stated that Garnica would be heard from after the prosecutor finished. The prosecutor completed his argument and the jury was excused. The trial court then asked Garnica if he wanted to be heard, at which time Garnica replied: "I wanted to say something in front of the jury, not with all of you."
It is clear from the record that the trial court did not thwart Garnica from objecting to any of the statements he now challenges. The trial court gave Garnica the opportunity to make an objection immediately after the jury was recessed and he chose not to state any objection at that time. Because Garnica did not object to any of the prosecutor's statements that he now challenges, he has waived the claim of error unless we find the challenged remark so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice.
It is obvious from the record that the prosecutor misspoke when he said M.A.'s first name, instead of Leticia, when stating that "[M.A.]" testified about a number of jail conversations that she had with the defendant. M.A. made no mention of jail conversations during her brief time on the witness stand. However, Leticia did testify that she had a number of jail conversations with Garnica. An instruction could have cured any possible resulting confusion or prejudice.
Moreover, although Garnica's confrontation rights were violated by the admission of M.A.'s testimonial statements to Officer Tierney, this evidence was presented at trial and the prosecutor did not commit misconduct simply by making arguments based on the evidence admitted at trial.
Finally, Garnica contends that the prosecutor violated the court's in limine order when he suggested that the reason M.A. did not testify was because of the telephone calls Garnica made to her from the jail. Garnica also contends that it was improper for the prosecutor to suggest that the reason M.A. did not testify was because of Garnica when, in fact, the prosecutor chose not to recall M.A.
"A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). "Otherwise improper remarks are not grounds for reversal when they are invited, provoked, or occasioned by defense counsel, and when the comments are in response to counsel's acts or statements, unless they go beyond the scope of an appropriate response." State v. Prado, ___ Wn. App. ___, ___, 181 P.3d 901, 914 (2008) (citing State v. Davenport, 100 Wn.2d 757, 761, 675 P.2d 1213 (1984)).
We first note that the trial court's instruction was for the jury to consider the evidence as if M.A. had never appeared at all. That does not preclude the prosecution from arguing reasonable inferences made from the evidence that the jury was allowed to consider. Garnica's claim that the reason M.A. did not testify was because she knew she was lying invited the prosecutor to respond by reminding the jury that Garnica had called M.A. from jail, urging her not to come to court. This was an appropriate response to Garnica's closing argument.
None of the challenged statements were so flagrant and ill-intentioned that no instruction could have cured any resulting confusion or prejudice. No relief is warranted.
VI
Garnica also submitted a statement of additional grounds for review, most of which repeats the Sixth Amendment argument addressed in the brief of appellant. He further claims that the State both forced M.A. to come to court and testify and then, after the trial began, threatened her and the rest of his family so that they would not testify. No evidence supports his claims. All of his additional claims are without merit. Affirmed.
We Concur