Opinion
No. 38176-1-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Grays Harbor County, No. 08-1-00227-9, F. Mark McCauley, J., entered July 14, 2008.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Appelwick and Quinn-Brintnall, JJ.
Unpublished Opinion
Ronald J. Hart appeals his conviction for second degree unlawful possession of a firearm, arguing that prosecutorial misconduct during closing argument denied him a fair trial. We agree that the prosecutor's remarks amounted to flagrant and ill intentioned misconduct but, because Hart failed to object and a curative instruction would have overcome any prejudice, we affirm.
Former RCW 9.41.040(2) (2005). We note that the information and judgment and sentence both refer to "RCW 9.41.040(1)(b)" — first degree unlawful possession of a firearm. Clerk's Papers at 1, 23. This reference appears to be either a scrivener's error or a reference to former RCW 9.41.040(1)(b) (1997), the former subsection relating to second degree unlawful possession of a firearm. Throughout the record, the State consistently alleged that Hart committed second degree unlawful possession of a firearm.
FACTS
According to Hart's mother, on April 16, 2008, Hart asked her to drive him to the Fairgrounds Road trailer park because he left some clothing there. Hart's mother agreed and, when they arrived at the trailer park, Hart retrieved a backpack and returned to her vehicle. Shortly after they returned home, she answered the door and found Detective Keith Peterson of the Grays Harbor County Sheriff's Office there to serve an outstanding arrest warrant for Hart, based on a tip that Hart had just left the trailer park in his mother's vehicle. She consented to a search of her home. During the search, officers found Hart in the attic and arrested him.
Later that day, Peterson learned that Hart had taken a pistol grip shotgun from a vehicle near Fairgrounds Road. Peterson returned to Hart's mother's home, searched again with her consent, and found a pistol grip shotgun hanging on a wall rack in a downstairs room. Hart's mother was surprised when the police located the shotgun and said that she does not allow guns in her home. Police found no fingerprints on it and never saw Hart with the shotgun. Peterson also found what appeared to be Hart's backpack.
At the jail, Peterson advised Hart of his Miranda rights and Hart agreed to speak with him. According to Peterson, Hart told him that he asked his mother to take him to Fairgrounds Road to pick up a stolen pistol grip shotgun from a blue pickup truck. Peterson wrote a statement memorializing the information that Hart provided. He said that he reviewed the statement with Hart and that Hart voluntarily signed it.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Hart with second degree unlawful possession of a firearm. Both Hart and Peterson testified at a CrR 3.5 hearing and the trial court ruled that Hart voluntarily signed Peterson's written statement and that it was admissible at trial.
At trial, Hart stipulated that he had a previous conviction for possessing a stolen firearm. He also admitted to travelling to the Fairgrounds Road address but denied picking up a stolen pistol grip shotgun. Instead, Hart testified that he brought only the backpack home. He denied telling Peterson anything about a shotgun and testified that he signed the written statement because Peterson threatened to arrest Hart's mother for harboring a fugitive. Peterson denied making any such threat but admitted discussing the possibility of arresting her and also telling Hart that "he had put his mother in a hard position." Report of Proceedings (RP) at 44.
All references to the report of proceedings relate to the transcript of June 26, 2008.
During closing argument, the prosecutor told jurors, "So now you've got to ask yourself, who do you believe? Did this officer make up the whole thing? Is he so desperate that he made up the whole thing?" RP at 51. During rebuttal, the prosecutor discussed what the jury had to consider to acquit Hart:
To find the defendant not guilty, the first thing you have to decide is that the defendant read and signed the statement that wasn't true. You think he did that? No, he did not. The other thing you would have to conclude is that the officer somehow slipped this into — put in information that [Hart] didn't tell him. Did that happen? No. What did the defendant tell him? Things that Officer Peterson didn't tell [Hart]. Things that he told Officer Peterson, that it was a pistol grip shotgun, that it was in the back barroom of the house. You can read the statement, it's here. Or do you think — do you think Detective Peterson wrote all of this out and put in the information that he knew and then just had the defendant sign it? Or do you think Detective Peterson put down the items and the information that the defendant told him.
All right. Do you think the defendant — excuse me, do you think that Officer Peterson lied? Do you think Officer Peterson made up this whole story and then had the defendant sign it?
RP at 57-58. The prosecutor finally stated, "If you believe Officer Peterson lied and made this up, find [Hart] not guilty." RP at 60. Hart did not object to these arguments.
The jury convicted Hart as charged. He appeals.
ANALYSIS
Prosecutorial Misconduct
Hart contends that the prosecutor's remarks during closing arguments constituted misconduct requiring reversal. Although we agree that the prosecutor's argument amounted to flagrant and ill intentioned misconduct, we disagree that it was so prejudicial that it requires reversal in light of Hart's failure to object to the argument at trial, which would have allowed the trial court to give the jury an effective curative instruction.
A. Standard of Review
The Sixth Amendment guarantees defendants a fair trial, not an error-free trial. State v. Fisher, 165 Wn.2d 727, 746-47, 202 P.3d 937 (2009). To establish prosecutorial misconduct, Hart must show that the prosecutor's comments were improper and prejudicial. See Fisher, 165 Wn.2d at 747. Prejudice means "a substantial likelihood [that] the misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
But, as here, the defendant's failure to object to an improper comment constitutes waiver unless the comment was "`so flagrant and ill-intentioned that it evince[d] an enduring and resulting prejudice' incurable by a jury instruction." Fisher, 165 Wn.2d at 747 (internal quotation marks omitted) (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)).
Prosecutors may draw reasonable inferences from trial evidence and have wide latitude in closing arguments. Fisher, 165 Wn.2d at 747. We review such comments "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." Brown, 132 Wn.2d at 561. Prosecutorial misconduct during closing argument is analytically distinct from misconduct during cross-examination, so we look only to cases analyzing the former. State v. Wright, 76 Wn. App. 811, 820, 888 P.2d 1214 (1995).
B. Improper Argument
Hart argues that it was improper for the prosecutor to argue that the jury had to find that Peterson was lying in order to acquit Hart. According to Hart, this argument presented a false choice and misstated the jury's role of determining whether the State had proved guilt beyond a reasonable doubt.
"[W]here a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State's witnesses are mistaken." Wright, 76 Wn. App. at 826. It is permissible to simply state the obvious — that jurors cannot accept conflicting versions of the facts. Wright, 76 Wn. App. at 826.
But "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." State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996); see also State v. Wheless, 103 Wn. App. 749, 758, 14 P.3d 184 (2000); Wright, 76 Wn. App. at 826; State v. Barrow, 60 Wn. App. 869, 875-76, 809 P.2d 209 (1991). This argument suggests that the jury may base its verdict on something other than whether the State proves the defendant's guilt beyond a reasonable doubt. Fleming, 83 Wn. App. at 213; Wright, 76 Wn. App. at 826.
In Barrow, the prosecutor told jurors: "[I]n order for you to find the defendant not guilty on either of these charges, you have to believe his testimony and you have to completely disbelieve the officers' testimony. You have to believe that the officers are lying." 60 Wn. App. at 874-75 (internal quotation marks omitted). Division One held that this argument was improper because the jury only needed reasonable doubt of the defendant's involvement in the drug transaction to acquit him. See Barrow, 60 Wn. App. at 870, 875-76.
Similarly, in Fleming, a case involving second degree rape charges against two defendants, the prosecuting attorney argued that "`for you to find the defendants . . . not guilty of the crime . . ., 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 her bedroom.'" 83 Wn. App. at 213 (emphasis omitted) (quoting Fleming RP at 668). Again, Division One held that the remarks were improper. Fleming, 83 Wn. App. at 213-14.
Here, the prosecutor's arguments are similar to those in Barrow and Fleming:
To find the defendant not guilty, the first thing you have to decide is that the defendant read and signed the statement that wasn't true. You think he did that? No, he did not. The other thing you would have to conclude is that the officer somehow slipped this into — put in information that [Hart] didn't tell him. Did that happen? No. . . .
All right. Do you think the defendant — excuse me, do you think that Officer Peterson lied? Do you think Officer Peterson made up this whole story and then had the defendant sign it?
RP at 57-58. Then the prosecutor said, "If you believe Officer Peterson lied and made this up, find [Hart] not guilty." RP at 60.
We hold that these arguments were improper because they instructed the jury that acquittal turned on whether the jury believed that Peterson was a liar, not whether the State proved all elements of the crime beyond a reasonable doubt.
C. Flagrant and Ill Intentioned
Hart did not object to the prosecutor's improper remarks at trial and he argues on appeal that they were "flagrant and ill intentioned because the only direct evidence [of possession] linking Hart to the shotgun was the thin thread of his statement to Peterson." Br. of Appellant at 11. Hart relies on Fleming, where Division One held that the veracity argument was "flagrant and ill-intentioned" because the prosecutor made it two years after published case law held that the same argument was improper. 83 Wn. App. at 213-14. It explained that "[m]isstating the bases upon which a jury can acquit may insidiously lead, as it did here, to burden-shifting." Fleming, 83 Wn. App. at 214. Division One handed down Fleming in 1996, and, by now, Washington courts have long and "repeatedly" held these remarks to be misconduct. Fleming, 83 Wn. App. at 213; see Wheless, 103 Wn. App. at 758; Wright, 76 Wn. App. at 826; Barrow, 60 Wn. App. at 875-76. Accordingly, we hold that the remarks here were flagrant and ill intentioned.
In addition to the improper veracity argument, the prosecutor argued that the defendants, who did not testify, failed to present any evidence that the victim fabricated her story or was confused. Fleming, 83 Wn. App. at 214. Division One held that this argument invaded the defendant's right to remain silent. Fleming, 83 Wn. App. at 214-15.
D. Not Incurably Prejudicial
Hart finally claims that the prosecutor's remarks were so prejudicial that no timely curative instruction could remedy their prejudice. But failure to object to improper comments strongly suggests that they "did not appear critically prejudicial . . . in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Washington courts set a high bar for incurable prejudice based on a prosecutor's veracity arguments during closing arguments. See Wheless, 103 Wn. App. at 758 n. 24; Fleming, 83 Wn. App. at 213-14; State v. Riley, 69 Wn. App. 349, 353-54, 848 P.2d 1288 (1993). In Wheless and Riley, prosecutors made arguments similar to those made here regarding veracity. 103 Wn. App. at 758; 69 Wn. App. at 351, 353 n. 5. Division One held that they were improper but not so incurably prejudicial as to require reversal. Wheless, 103 Wn. App. at 758; Riley, 69 Wn. App. at 354. In Barrow, Division One noted that a "curative instruction particularly could have obviated any prejudice engendered by these [similar] remarks." 60 Wn. App. at 876. And although the Fleming court reversed for prosecutorial misconduct, it was equally concerned with the prejudice to the defendants' right to silence and the fact that they had no burden to present exculpatory evidence. 83 Wn. App. at 214-16.
Here, as in Wheless, Riley, and Barrow, the prosecutor's closing argument was not incurably prejudicial. And the State presented substantial evidence of Hart's guilt, so the prosecutor's remarks were unlikely to have prejudiced the trial's outcome. First, Hart's mother testified that she did not allow firearms in her home, so she was surprised that Peterson found a firearm on the same day Hart showed up, especially in a room that she used daily. Second, Peterson testified that, at the jail, Hart told him that he asked his mother to drive him to Fairgrounds Road so Hart could pick up a pistol grip shotgun from a blue pickup truck and that Hart voluntarily signed the statement Peterson prepared memorializing Hart's statements at the jail. Third, the jury heard testimony that Hart accurately described the gun to Peterson, despite Hart's insistence that he only learned about the pistol from Peterson. Finally, Hart was in the attic, where he could have been hiding, when Peterson and other police arrived. Fleeing or hiding from the police is circumstantial evidence of guilt. State v. Thompson, 69 Wn. App. 436, 444, 848 P.2d 1317 (1993).
We defer to the fact finder on issues of credibility and weight of the evidence. State v. Ague-Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007). The jury heard conflicting testimony from Peterson and Hart and resolved it in the State's favor. Moreover, the trial court instructed the jury that it had to find each element of the crime beyond a reasonable doubt to convict Hart and we presume that the jury followed those instructions. State v. Trout, 125 Wn. App. 403, 420, 105 P.3d 69 (2005).
From our review of the record, it appears that the prosecutor's argument constituted flagrant and ill intentioned misconduct, but it was not so prejudicial that a timely defense objection and instruction would not have remedied whatever prejudice the remarks may have caused. Accordingly, we hold that Hart waived this issue for appellate review and his claim fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and APPELWICK, J., concur.