Opinion
No. 60829-1-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-12105-4, Brian D. Gain, J., entered November 13, 2007.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Lau, J.
A prosecutor has a duty to ensure fairness to the accused and to ensure a verdict based on reason, not passion or prejudice. Here, the prosecutor alleged, among other things, that defense counsel had used "tricks" and "trickery" on the jury, that those tactics caused the prosecutor "not to be proud to say [he's] a lawyer," and that defense counsel had done "an incredible job trashing and revictimizing the actual victim in th[e] case." The remarks were not invited or provoked by defense argument, were entirely improper, and were flagrant and ill intentioned. We are not persuaded that a curative instruction would have cured the resulting prejudice. Accordingly, we reverse and remand for a new trial.
Report of Proceedings (RP) (Oct. 3, 2007) at 148, 154.
FACTS
On the evening of October 25, 2006, police officers responded to a reported armed robbery outside a bank in Kent. Twenty-one year old Robert Richardson related the following events. He had just withdrawn $40 from an automated teller machine (ATM) at the bank and was sitting in his parked car. Two men approached. The shorter man pulled out a semiautomatic pistol and demanded money. The man took the $40 Richardson had obtained from the ATM and another $300 Richardson had in his wallet. The two men then fled in the direction of some nearby apartments.
Richardson described the men in some detail, noting that the shorter of the two was Hispanic and had a goatee, and the other wore a ski mask. Police canvassed the surrounding area without success. Richardson later identified Avelino Gomez in a photomontage as a possible suspect.
When questioned by Detective Ford, Gomez initially denied any involvement and claimed he had never been at the bank. At some point, Gomez admitted he had been in a store across the street from the bank. When told that Richardson had identified him, Gomez changed his story and claimed that the robbery was committed by a tall white guy who had a goatee and wore a hoodie. According to Gomez, he and the tall white guy were across the street from the bank at a Mexican food store. They noticed a dark red car at the ATM and approached it. The tall man pulled a revolver and demanded money from the driver. Gomez claimed his own involvement was limited to telling the driver to hurry up. Gomez said the driver handed over two $20 bills, after which he and the tall man fled to some nearby apartments.
The detective later confirmed the existence of the food store and the color of Richardson's car.
Gomez was charged with robbery in the first degree while armed with a firearm. His first trial ended in a mistrial after the jury could not each a verdict.
At the second trial, Richardson identified Gomez as one of the robbers. He testified the money they took was for parts to fix a car belonging to Darrell Brocious, who had advanced him the funds for the parts. Richardson testified he was planning to buy the parts from Brandon Busch. He admitted having previously told others, including defense counsel, that he intended to buy the parts from someone named Chris, explaining that Busch had asked not to be involved. Richardson admitted he had spent Brocious' advance on other things, including a trip to Las Vegas. He denied having financial problems, though he admitted it had taken him some months to replace the money he had spent. He testified that the money taken in the robbery was part of the funds advanced by Brocious: "I went to get some of the money, and that's when it got stolen, so I had to pay back the money that got stolen." Cross-examination of Richardson elicited a number of inconsistencies in his versions of events, such as whether he had or had not repaid Brocious.
RP (Sept. 26, 2007) at 90-91.
Cameras on the bank's two ATMs were programmed to take still photographs upon sensing motion within their range. The photographs are time stamped, and may be viewed as stills or "played" as a video. The photos taken that night were admitted in evidence. The bank's security officer testified they showed Richardson using the ATM, returning to his car, then returning again to the ATM for an inquiry transaction. Richardson then got into his car. Shortly thereafter, one or two other cars drove through the parking lot, one of which "stalled" near Richardson's car. Richardson appeared to get out of his car, and shortly after that, police arrived. At one point, a possible silhouette of a person's head is visible at or near Richardson's car while he is at the ATM. Otherwise, no other individuals are seen until police arrive. Although Richardson denied it, the photos also showed Richardson returning to the ATM once again, after police arrived. He withdrew another $40.
The defense theory at trial was that Richardson fabricated the robbery because he had no money to buy the parts or repay Brocious. A media technology expert who examined the physical scene and the photos testified that the robbers could not have approached Richardson's car without being photographed by the ATM cameras. Darrell Brocious testified Richardson had worked on many vehicles for him, the most recent project being restoration of a 1966 Mustang. Brocious had advanced Richardson several thousand dollars for parts, but Richardson had not purchased the parts and had not paid him back. Brandon Busch testified that he worked with Richardson at a hardware store, had never said he did not want to be involved, and had never had an agreement with Richardson related to car parts. Richardson had been short of funds to the point of having a negative bank balance several times in the weeks surrounding the robbery.
In closing, defense counsel was highly critical of the detective's investigation, including his failure to obtain security surveillance tapes from other businesses in the area, his failure to review photos from both bank ATMs, and his interrogation of Gomez. Counsel also engaged in a strong attack on Richardson's credibility, pointing out the numerous inconsistencies in his various statements and concluding:
Mr. Richardson absolutely cannot tell the truth. He is one of those people that is just a compulsive liar, and he doesn't care who it affects. He makes the story up as he goes along. It doesn't matter if it affects Brandon Busch, Darrell Bracious, or Chris Romeo, or Joe Bossi, or myself, or Melissa Baysinger, or Mr. Kim, the prosecuting attorney; it doesn't matter. And it doesn't matter if it affects members of the jury either. He really doesn't care.
RP (Oct. 3, 2007) at 141.
The prosecutor began his rebuttal argument as follows:
There is a saying in sports. A lot of coaches use it; a lot of armchair quarterbacks use it. They say the best defense is a good offense. That's what you just heard. You just heard defense counsel trash everybody in our case without any merit, without any foundation, without any substantive evidence to support it.
Robert Richardson is a liar. Detective Ford is lazy. Don't trust anything anyone says except maybe the statement given by my client. Nothing matches up. . . .
. . . .
Ladies and gentlemen, there were a lot of facts that you have written down in your notes in your note pads that don't match up to what she just came up here and said. Maybe she is confused. Maybe the defense is confused about the facts, but you have the facts. And you go through those facts and you look at them, and you figure out what exactly happened on October 25, 2006.
Let me tell you a couple of these tricks that she just used on you folks. Trick No. 1. . . .
. . . .
But she . . . does a little time trick with you. . . . Tricks. Tricks. Don't buy into these tricks. You know what occurred.
Another trick.
. . . .
[Richardson] didn't lie. He told you what he thought occurred. Why is he on trial here today? Why is it that for 55 and another five minutes we are talking about Robert Richardson who was a victim to a horrific robbery? Why do we revictimize a victim?
Because that's what they do. Because that's what she has done today. It's not fair to Robert. It's not fair to you folks.
Imagine you being robbed. Do you want people to trash you like that in open court in front of 14 people that you don't know?
I would rather not report it to the police next time; I don't want to get trashed.
Gun from the waistband, another trick. . . . It's another lawyer trick. I'm not proud to say I'm a lawyer when I hear something like that. But that's what is going on. It's trickery.
Don't give in to this, folks. She is trying to confuse you. She tried to confuse [Richardson] in four different interviews. . . . Getting tripped up, trying a little trickery, trying to get him to say something he doesn't really want to say, make him talk about topics he doesn't really want to talk about.
Id. at 144-48.
The prosecutor went on to accuse defense counsel of "trashing" the State's witnesses, and characterized the defense theory as follows:
Ladies and gentlemen, in the criminal justice system, there are what we call spoken defenses and there are what we call unspoken defenses. . . . The spoken defense in this case is general denial. I didn't do it. The unspoken defense, the defense that the defense attorney is embarrassed to say is, Robert Richardson fabricated this whole story.
Id. at 149-50.
The prosecutor then proceeded to argue why the jury should not believe that Richardson fabricated the robbery. Towards the end he said, [l]adies and gentlemen, defense has done an incredible job trashing and revictimizing the actual victim in this case.
Id. at 153.
The defense made no objections during the prosecutor's rebuttal. The jury found Gomez guilty as charged.
Gomez moved for a new trial based on prosecutorial misconduct in closing argument. The trial court denied the motion, ruling that while he would not comment on the prosecutor's choice of words, the argument was not improper.
ANALYSIS
Prosecutorial misconduct is grounds for reversal only when the conduct "was both improper and prejudicial in the context of the entire record and circumstances at trial." Prejudice is established only if there is a substantial likelihood the misconduct affected the jury's verdict. The defendant bears the burden of showing both that the conduct was improper and that it caused prejudice. When the defendant fails to object to a comment made by the prosecutor in closing argument, even a comment that touches on a constitutional right, the alleged misconduct will not be reviewed unless the comment is so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been remedied by a curative instruction to the jury. In analyzing prejudice, we look to the context of the total argument, the issues, the evidence and the instructions.
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003).
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
Hughes, 118 Wn. App. at 727.
State v. Smith, 144 Wn.2d 665, 679, 30 P.3d (2001); State v. French, 101 Wn. App. 380, 386-88, 4 P.3d 857 (2000).
State v. Warren, 165 Wn.2d 17, 195 P.3d 940, 944 (2008).
Appeals to the passion, prejudice, or sympathy of jurors are improper. A prosecutor has a duty to ensure a verdict is free from prejudice and based on reason, not passion. Nor may a prosecutor disparage or misstate the role of defense counsel. Gomez contends the prosecutor's "trickery" and "victimization" arguments did exactly that, were flagrant, ill intentioned, and prejudicial, and require reversal. We agree.
Viereck v. United States, 318 U.S. 236, 247, 63 S. Ct. 561, 87 L. Ed. 734 (1943).
State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993).
Warren, 195 P.3d at 946; State v. Gonzales, 111 Wn. App. 276, 283-84, 45 P.3d 205 (2002); see generally State v. Reed, 102 Wn.2d 140, 145-48, 684 P.2d 699 (1984) (improper for prosecutor to urge jury not to be swayed by defendant's "city lawyers"); State v. Neslund, 50 Wn. App. 531, 562, 749 P.2d 725 (1988) (recognizing that attacks on defense counsel's integrity may be reversible misconduct); State v. Negete, 72 Wn. App. 62, 66-67, 863 P.2d 137 (1993) (improper for prosecutor to argue that defense counsel is being paid to twist the words of a witness).
Words like "tricks" and `trickery" are accusations of wrongdoing. We have reviewed the record and find nothing to suggest that Gomez's counsel engaged in anything other than the able presentation of a vigorous defense. She emphasized the numerous inconsistencies in the evidence to argue reasonable doubt. Doing so is not trickery.
At the hearing on the motion for a new trial, the prosecutor alleged that defense counsel had argued evidence admitted at the first trial and not heard by this jury. No such argument is made in the briefs on appeal. We have reviewed the record and find no significant discrepancies between the evidence and the arguments to which the prosecutor objected.
Yet the prosecutor made a direct, unprovoked and false allegation of duplicity on the part of defense counsel. His argument impugned both the integrity of the attorney and the very legitimacy of challenging the State's evidence. To attack that role is to attack the integrity of the adversary system. It is the prosecutor's duty to protect that system and "`to seek a verdict free of prejudice and based on reason.'" The prosecutor's rebuttal violated that duty, and the State acknowledges as much, at least as to the inflammatory references to "revictimizing victims" and the statement that the prosecutor was not proud as a lawyer to hear defense counsel's argument.
Echevarria, 71 Wn. App. at 598 (quoting State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968)).
The argument was flagrant and ill intentioned. Because there was no objection, the inquiry is whether the misconduct was "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."
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
The State simply says it was not. We cannot agree.
Defense counsel employed no tricks. She merely argued from the evidence, which suffered numerous inconsistencies. Richardson's version of events was in part contradicted by bank records and was not clearly supported by the photographic record. His testimony as to the provenance and destination of the money was contradicted by the testimony of his friends and by his own several, admittedly false, statements. The photographs raised other questions, appearing to show Richardson walking around to the side of the building and showing no sign of the robbers.
The prosecutor's ultimate purpose — to argue that the evidence did not support the defense theory — was certainly proper. But before getting to that, the prosecutor engaged in a sustained, damning attack that did not have a proper purpose. The trickery theme was developed over several pages. It was designed to persuade the jury to take a dim view of defense counsel and the "tricks" to which she resorted in arguing reasonable doubt. Further, the prosecutor emphasized his victimization theme repeatedly, even suggesting that other crime victims might not come forward if required to face such piercing cross-examination — an appeal to passion, not to reason. The effect of these comments was plainly prejudicial.
See In re Detention of Gaff, 90 Wn. App. 834, 841, 954 P.2d 943 (1998).
On the other hand, Gomez confessed. But the confession was neither recorded nor videotaped. The defense contended it was coerced and/or that the officers may have inadvertently given Gomez information he then confessed to. Despite the confession, however, the first trial ended in a hung jury, while the jury that returned a guilty verdict was urged to do so by improper argument.
The State does not suggest what instruction to the jury, at what point in the prosecutor's argument, might have cured the prejudice. We do not believe such accusations of deception and skullduggery or such blatant appeals to sympathy could be easily disregarded after admonishment by the court. On the contrary, we think the misconduct here, falsely suggesting chicanery and sharp practice by defense counsel and repeatedly invoking an inflammatory victimization theme, prejudiced Gomez beyond the curative reach of an instruction.
In Warren, the prosecutor committed similar misconduct by alleging that "mischaracterizations" in defense counsel's closing were "an example of what people go through in a criminal justice system when they deal with defense attorneys," and described the argument as "a classic example of taking these facts and completely twisting them to their own benefit, and hoping that you are not smart enough to figure out what in fact they are doing." Warren, 195 P.3d at 946. The court held the comments improper but not so flagrant and ill intentioned that no instruction could have cured them. In Warren, however, the remarks were not part of a well developed theme, and the court specifically referenced the weight of evidence favoring conviction. Id.
Given our disposition, we need not address Gomez's argument that the misconduct constituted constitutional error such that the State must prove it harmless beyond a reasonable doubt.
Reversed.
WE CONCUR: