Opinion
65746-1-I
09-24-2012
STATE OF WASHINGTON, Respondent, v. Jeffrey L'Heureux, Appellant.
UNPUBLISHED OPINION
Appelwick, J.
L'Heureux appeals his conviction for first degree burglary, felony harassment, and interfering with domestic violence reporting, with an aggravating factor supporting an exceptional sentence on the first two counts. He argues he was deprived of his right to a fair trial, because of prosecutorial misconduct during closing arguments. Alternatively, he argues that the sentencing enhancement must be vacated, because the special verdict form included an erroneous unanimity instruction. Finding no error, we affirm.
FACTS
Jeffrey L'Heureux and Rhonda Curtis began a romantic relationship in the early 1990s. Their relationship was marked by physical abuse, periodic breakups, and heavy use of drugs and alcohol. In April 2009, L'Heureux and Curtis broke up and both moved out of their shared apartment.
On August 18, 2009, Curtis was helping her brother Troy move out of his apartment in the complex where she and L'Heureux used to live together. Troy left her alone at his apartment and told her not to let anyone come in. The State and defense counsel presented two alternative theories for what happened next.
The State argued that on August 18, L'Heureux unlawfully entered the apartment while Troy was away. Curtis locked herself in a bedroom, but L'Heureux broke the bedroom door off its hinges. He slammed her head against a wall, threatened to kill her, and prevented her from calling 911. Curtis had a swollen lip, a small bump on her head, and a leg injury when the police arrived after Troy called 911.
The defense argued, on the other hand, that Curtis willingly let L'Heureux into Troy's apartment on August 18. L'Heureux claimed there was no violence between the two that day. Rather, he testified that Curtis made up the story, because she was upset that L'Heureux asked her about money missing from his DSHS account. According to L'Heureux, he simply left the apartment when Curtis became angry and threatened to send him to prison.
L'Heureux was charged with first degree burglary, felony harassment, and interfering with domestic violence reporting. The first two counts alleged an aggravating factor in support of an exceptional sentence under RCW 9.94A.535(3): the crimes involved domestic violence and were part of a pattern of prolonged physical abuse. At trial, the jury heard testimony regarding six different domestic violence incidents between L'Heureux and Curtis, five of which involved physical abuse. The State asked the jurors to find the aggravating factor based on this history of L'Heureux abusing Curtis. Jurors were instructed that they had to be unanimous in answering the special verdict forms on the aggravating factor.
During closing, defense counsel argued that the State failed to establish an ongoing pattern of abuse. The defense emphasized Curtis's poor memory and inability to remember details, and suggested that Curtis's memory might be better if the August 18 events had in fact occurred as she claimed they did. Indeed, Curtis testified at trial that she did not have a good memory. She had difficulty remembering details of past assaults by L'Heureux, and conceded she was likely under the influence of drugs or alcohol at those times.
In rebuttal, the State addressed Curtis's poor memory. The prosecutor drew inferences about potential causes of Curtis's memory loss:
Which brings me to Rhonda Curtis'[s] testimony. Defense counsel alleges that because she can't remember every single detail of what happened, because her memory is, frankly, bad, given not just years of drug and alcohol abuse but years of physical abuse --Id. Defense counsel immediately objected that the prosecutor was arguing facts not in the evidence. In response, the court instructed the jurors that, "ultimately you will decide what are the facts established in this case." Id. The prosecutor continued, stating that Curtis's "memory is not great. Maybe it's because of a lot of different things." Id. The State did not call an expert or any other witness to establish reasons for Curtis's memory loss.
The jury found L'Heureux guilty on all counts, and found the aggravating factor present via special verdict on the first two counts. The court imposed an exceptional eighty-four month sentence on count one, nine months above the standard range, based on the jury's special verdict finding the aggravating factor. L'Heureux timely filed his notice of appeal.
DISCUSSION
L'Heureux argues that he did not receive a fair trial, because the prosecutor improperly argued facts outside the record. L'Heureux maintains that this improperly portrayed him as particularly violent, thereby prejudicing the outcome of his trial. L'Heureux also argues that under State v. Bashaw, 169 Wn.2d 133, 148, 234 P.3d 195 (2010), overruled by State v. Nuñez, 174 Wn.2d 707, P.3d (2012), the special verdict forms for the aggravating factor improperly included a unanimity instruction.
I. Prosecutorial Misconduct
Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). The appellant bears the burden of establishing the impropriety of the statements and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). We evaluate a prosecutor's conduct by examining it in the full trial context, including the evidence presented, the total argument, the issues in the case, and the jury instructions. Monday, 171 Wn.2d at 675. Referencing evidence outside the record or appealing to the jury's passion and prejudice constitute prosecutorial misconduct. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). But, a prosecutor has wide latitude during closing argument to draw reasonable inferences from the evidence. Id. A prosecutor is also entitled to make a fair response to the arguments of defense counsel. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
A defendant suffers prejudice only where there is a substantial likelihood that the prosecutor's misconduct affected the jury's verdict. Id. Prosecutorial remarks that may otherwise be improper are not grounds for reversal if they are provoked by defense counsel and are in reply to defense arguments, unless the remarks are so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86. In State v. McKenzie, 157 Wn.2d 44, 56–57, 134 P.3d 221 (2006), a prosecutor using the word "'guilty'" in rebuttal was not misconduct, because it was in response to defense counsel's recurring use of the word and theme "'innocent.'" The McKenzie court noted that before closing arguments, the jurors were instructed that the attorney's remarks were arguments, not evidence. Id. at 57 n.3.
In State v. Warren, 165 Wn.2d 17, 23, 195 P.3d 940, 944 (2008), the defendant asserted misconduct when the prosecutor repeatedly misstated the burden of proof during closing argument. There, the State conceded and the Court agreed that the prosecutor's conduct was improper. Id. at 24, 27. However, the trial judge gave a curative instruction to the jury explaining the correct burden of proof. Id. at 25. The Court presumed that the jury was able to follow the judge's instruction. Id. Looking at the prosecutor's improper statements in the context of the total argument, evidence, and jury instructions, the Court concluded that any error was cured by the remedial jury instruction. Id. at 28.
Appellant argues that the prosecutor's statement was improper, because it portrayed L'Heureux as so physically violent that he caused Curtis's memory problems. Appellant asserts there was no evidence to support the prosecutor's argument, and no testimony that established such a connection. But the prosecutor's remarks must be examined in the context of the full trial. Monday, 171 Wn.2d at 675. The jury heard testimony about five prior incidents where L'Heureux assaulted Curtis. These repeated incidents were enough for the jury to find the aggravating factor of a pattern of physical abuse. No great inferential leap was required for the jury to conclude that L'Heureux was violent toward Curtis. Further, state law is clear that during closing, prosecutors may draw reasonable inferences and make fair responses to defense counsel's arguments. Fisher, 165 Wn.2d at 747; Russell, 125 Wn.2d at 87. The prosecutor here was responding to defense counsel's implication that Curtis's memory was so poor that she was misremembering or lying about the event in question.
Even if the prosecutor's remarks were improper, L'Heureux has failed to establish prejudice. Brown, 132 Wn.2d at 561. The trial judge immediately gave a curative instruction to the jury after defense counsel objected to the prosecutor's remarks. The instruction was almost identical to the one given in McKenzie, 157 Wn.2d at 57 n.3, where the Supreme Court found that the instruction helped cure any potential prejudice. This court presumes that the jury was able to follow the judge's instruction. Warren, 165 Wn.2d at 28. Also similar to McKenzie, the judge told the jury before the State's rebuttal: "[T]his is argument. It is not evidence. You are the ultimate judges of what was established by the evidence and what was not. You should take the argument in that context as well as all the statements of counsel." L'Heureux has put forth no evidence that the prosecutor's remarks were so prejudicial that the curative instruction was ineffective. Viewing the prosecutor's remarks in the full context of the trial—including evidence of past physical abuse and the jury instructions—the prosecutor did not commit misconduct.
II. Special Verdict
L'Heureux argues that his exceptional sentence should be vacated, because the jury received special verdict forms containing an erroneous unanimity instruction under Bashaw, 169 Wn.2d at 148. The instruction read, in relevant part:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms. In order to answer the special verdict forms "yes, " you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."
Our Supreme Court recently overruled Bashaw and expressly upheld an instruction identical to the one given here. Nuñez, 174 Wn.2d at 709-10. In reaching its decision in Nuñez, the Court agreed with the State's argument that the legislature "intended complete unanimity to impose or reject an aggravator" under the Sentencing Reform Act of 1981. Id. at 715 (referring to RCW 9.94A.537(3)). There was no error in the special verdict instruction.
We affirm.