Opinion
No. 53372-0-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-02507-7. Judgment or order under review. Date filed: 11/05/2003. Judge signing: Hon. David F Hulbert.
Counsel for Appellant/Cross-Respondent, Tom P Conom, Attorney at Law, Edmonds Bay Bldg, 51 W Dayton St, Edmonds, WA 98020-4111.
Counsel for Respondent/Cross-Appellant, Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
David McKenzie was convicted of three counts of rape of a child in the second degree. He contends the prosecutor engaged in various acts of misconduct. But McKenzie did not object to the alleged misconduct or request a curative instruction, and while one of the prosecutor's arguments was improper, its effects could have been cured by an instruction. We reject McKenzie's remaining claims, and affirm.
FACTS
After David McKenzie's youngest stepdaughter, C.T., accused him of having sexual intercourse with her on multiple occasions, he was charged with three counts of second degree child rape. C.T. testified that the sexual abuse first began in 1997, when she was living at a Lake Stevens residence with her mother, her older sister Shelby, and her stepfather McKenzie. McKenzie would enter her bedroom at night, pull the blankets away, and insert his fingers in her vagina, and sometimes would also touch her breasts with his hands and mouth. According to C.T., this was almost a daily ordeal. She testified she eventually told him to stop, and McKenzie responded, 'I thought you liked it. I thought it was fun.' Report of Proceedings (RP) (June 24, 2003) at 41.
Afterwards, C.T. told a circle of friends about the abuse, and eventually confided in her father. Her father did not allow her to return to her stepfather's house, and thereafter, she lived with him. Her mother remained with McKenzie, and C.T. seldom saw her mother after the disclosure. C.T.'s father confirmed C.T.'s account of her disclosure, and testified that C.T.'s mother and McKenzie appeared to want to address the matter in Canada in order to avoid the local judicial system.
McKenzie denied the charges, and testified that C.T. had a reputation within the family of being untruthful. During cross-examination, the prosecutor asked McKenzie about the fact that various family members attending the trial proceedings appeared to be unsupportive of C.T. The defense did not object to this line of questioning, and explored the same subject on redirect. McKenzie testified he was not surprised by the family's reaction, '[b]ecause of [C.T.'s] accusations.' RP (June 26, 2003) at 247. McKenzie admitted that he did not want police to find out about the accusations, and had explored the possibility to sending C.T. to Canada for counseling or mediation. McKenzie was worried about what effect his current legal predicament would have on the family's finances and relationships.
The State's rebuttal witnesses testified that C.T. had a reputation in the community for being truthful.
The jury found McKenzie guilty. He retained new counsel and moved for a new trial on grounds that the prosecutor committed misconduct, and that trial counsel was ineffective in failing to object. The trial court denied the motion. .
McKenzie does not raise ineffectiveness of counsel in this appeal.
DECISION
'A defendant's right to a fair trial is denied when the prosecutor makes improper comments and there is a substantial likelihood that the comments affected the jury's decision.' State v. Thompson, 73 Wn. App. 654, 663, 870 P.2d 1022 (1994). McKenzie contends that he was deprived of his right to a fair trial by prosecutorial misconduct in his own cross-examination and in closing argument.
Where improper argument is alleged, the defendant must show both the impropriety of the argument and its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995). Such alleged misconduct is reviewed 'in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Reversal will occur only when the reliability of the verdict is called into question. Id. at 86.
Cross-Examination. McKenzie contends the prosecutor committed reversible misconduct by cross-examining him about how other members of his family interacted with C.T. A defendant who takes the witness stand may be cross-examined in the same manner as any other witness. State v. Robideau, 70 Wn.2d 994, 998, 425 P.2d 880 (1967). McKenzie did not object to the prosecutor's questions, and on redirect, he gave testimony that explained the family's behavior toward C.T. and supported the defense theory of the case. There was no error.
Argument. McKenzie claims the prosecutor engaged in improper argument when she expressed her personal opinion that he was guilty and referred to him as a 'rapist'; suggested that he was willing to buy C.T.'s silence; improperly characterized him as 'lying'; asserted he had taken C.T.'s innocence; vouched for the credibility of certain State witnesses; and accused the defense witnesses and McKenzie's other family members of venality.
McKenzie concedes he did not object to any of these arguments at the time they were made. In the absence of an objection and request for curative instruction, any error is deemed waived unless the misconduct is 'flagrant and ill intentioned, and the prejudice resulting therefrom so marked and enduring that corrective instructions or admonitions could not neutralize its effect.' State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996).
Opinions of Prosecutor. It is improper for a prosecutor to express his or her personal opinion about the guilt or innocence of the accused. State v. Sargent, 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985). Prejudicial error does not occur unless 'it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion.' Id. at 344 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983).
McKenzie points out that the prosecutor peppered her argument with words like 'guilty man' and 'rapist,' without prefacing her statements with the phrase 'the evidence shows.' He cites to State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956) for the proposition that such language is both unethical and extremely prejudicial. But in Case, the prosecutor plainly stated his own personal beliefs about the defendant's guilt, and so characterized them. Here, the prosecutor's comments were not personalized, and were conclusions available from the evidence. Under these circumstances, the language is 'excused if not approved.' Id. at 68. As the court said many years ago, 'if the evidence indicates that the defendant is a murderer or killer, it is not prejudicial to so designate him.' State v. Buttry, 199 Wash. 228, 250, 90 P.2d 1026 (1939). Both the charges and the evidence support the designations here, and it was not misconduct to so refer to McKenzie. Further, a simple objection and curative instruction would have obviated any prejudice from repetitive or harsh terminology.
Improper Suggestions. Counsel may not make prejudicial statements that are unsupported by the record. State v. Dhaliwal, 150 Wn.2d 559, 577, 79 P.3d 432 (2003). McKenzie contends the prosecutor improperly suggested, without 'a shred of evidence,' that McKenzie 'was the kind of person who would be willing to, and in fact attempted to, bribe a witness to buy her silence.' Appellant's Brief at 34.
The challenged argument occurred in rebuttal. Responding to the defense argument that McKenzie did everything he could and did not try to hide the allegations, the prosecutor replied that McKenzie did try to hide it: 'He said, I kept trying to get a mediator to take care of this. A mediator. What would that have involved? [C.T.], how much money do you need? Not to say anything?' RP (June 26, 2003) at 298. She went on to say, '[He] said [to himself] . . . I don't want to get in trouble. I don't want it to be in the newspaper. I don't want anyone to think I did something bad. So I'll cover it up, I'll sweep it under the rug. Maybe I'll get a mediator and pay her off.' Id. at 302.
McKenzie relies on State v. Reeder, 46 Wn.2d 888, 285 P.2d 884 (1955). Reeder was convicted of shooting and killing a man he found in bed with his (second) wife. Three times in closing argument, the prosecutor asserted that Reeder had threatened his first wife with a gun. The only evidence on the question was to the contrary. Further, the prosecutor referred to the allegations in the divorce complaint, despite the exclusion of the document from evidence. The court reversed, holding that the harm caused 'could not have been cured by instructions to disregard the statements so flagrantly made.' Id. at 893.
The prosecutor here did not similarly argue facts not in evidence. There was testimony from which the jury could reasonably infer that McKenzie did attempt to conceal the allegations of abuse, and McKenzie testified he wanted to get a mediator. Reeder is therefore inapposite. A prosecutor is afforded wide latitude in arguing inferences from the evidence; it was not unreasonable for the prosecutor to question what McKenzie intended by the suggestion of mediation in Canada, especially after the defense argument painted McKenzie's response to the allegations as exemplary. While the inference she suggested was harsh and perhaps overstated, it was not illogical, and once again, any prejudice could have been obviated by a timely objection and curative instruction. See Russell, 125 Wn.2d at 87-88.
Next, McKenzie observes that the prosecutor in effect called him a liar no less than five times, and argues this goes beyond what the law permits and constitutes flagrant misconduct. We disagree. The prosecutor principally argued that McKenzie was lying to himself. Further, '[u]se of the word 'lie,' even though repeated, does not, by itself, establish prosecutorial misconduct.' State v. Millante, 80 Wn. App. 237, 251, 908 P.2d 374 (1995). McKenzie's theory of the case was that C.T. had a history of being untruthful, and that her allegations against him were but one more example i.e., C.T. was a liar. The direct conflict in the evidence meant that one of them was a liar. In this context the prosecutor's argument was not unduly inflammatory or otherwise improper. Where the prosecutor argues inferences from the evidence, including inferences as to why the jury would want to believe one witness over another, there is no misconduct. Copeland, 130 Wn.2d at 290. And again, even assuming the prosecutor overstated this theme, a curative instruction would have neutralized any prejudice.
Of greater concern is injection of C.T.'s innocence into the proceedings.
A prosecutor may make a fair response to the arguments of defense counsel, but may not resort to naked attempts to elicit an emotional response from the jury or arouse the prejudice of the jury against the defendant. Russell, 125 Wn.2d at 87; State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). Here, defense counsel had talked to the jury about how, although McKenzie was innocent, he would, given our system of criminal justice, have to settle for a finding of not guilty rather than a proclamation of innocence. The prosecutor responded by engaging in her own discussion of innocence, on the general theme that 'there is no one innocent in this courtroom,' and 'David McKenzie stole [C.T.'s] innocence.' RP (June 26, 2003) at 296. These references were used at the outset of the rebuttal argument, and were repeated several times throughout. The parties concur that the prosecutor was making reference to sexual innocence, and McKenzie points out that defense counsel made no reference to C.T.'s sexual background in his closing argument.
McKenzie first contends the prosecutor's assertion that no one in the courtroom was innocent amounted to denying him the presumption of innocence. This complaint is overblown, and ignores the fact that the State's objective is to persuade the jury of the defendant's guilt. McKenzie also complains that references to C.T.'s lost innocence is an improper use of the 'rape shield laws.' As the rape shield law appears to have had no place in these proceedings, this characterization is not helpful.
But McKenzie also contends these repeated references to C.T.'s innocence were 'simply a naked appeal by the prosecutor to the jury's passion and prejudice.' Appellant's Reply Brief at 22. We agree the argument was improper. References to C.T.'s lost innocence went beyond any response to the defense argument, suggested an irrelevant comparison, and appealed to the jury's sympathy for the child. While the temptation to respond in colorful ways to defense arguments may often be great, it should usually be resisted. The improper remarks were, however, subject to objection and curative instruction. While we do not approve of the prosecutor's argument, we agree with the trial judge that it was not so flagrant under the facts presented as to warrant a new trial.
Witness Credibility. McKenzie first contends the prosecutor vouched for the credibility of two witnesses who testified regarding C.T.'s reputation for being truthful. We disagree. The challenged remarks were a fair, if not perfectly accurate, characterization of the testimony. There was no misconduct in these comments.
McKenzie next contends the prosecutor unfairly impugned the credibility of family witnesses in her rebuttal argument when she stated:
I guess the up side to this is that David has more money for Shelby now if [C.T.] is out of the way. Because she's out of her life and she's out of the grandmas' lives and she is out of the stepkids' lives. So the goose that laid the golden egg has not even been beheaded, and they are all here to make sure he isn't.
RP (June 26, 2003) at 300. McKenzie contends this amounted to an accusation of bribery of the defense family witnesses. We disagree. Evidence had been presented showcasing the pivotal role McKenzie played in his family, including financial dependence. Evidence had also been presented, as discussed above, as to the family's rejection of C.T.'s allegations. Most family members, however, did not testify. The only family witnesses for the defense were C.T.'s mother, who was still married to the defendant and financially dependent upon him, and her sister Shelby, who was openly hostile to C.T. and was also financially dependent on McKenzie to some extent.
Further, the prosecutor was responding to the defense closing, in which counsel emphasized that C.T. was not credible within her family:
Because what this case really boils down to, ladies and gentlemen, this really does come down to one person's word against the other. . . . [Y]ou have never had the opportunity that [C.'s] grandmother has had, her other grandmother has had, [C.'s] mother has had, to know [C.] and to know her history and to know what she is like. . . .
. . . [W]hat you do know is that all of these people . . . thought [C.] was lying. Every single one of them. And there is an answer as to why, and the answer is because they know [C.T.].
Id. at 279.
And, later:
Would you expect the McKenzie family, if they didn't believe a person that they have known for her entire life, if they didn't believe her and not believe her for good reason, why in the devil would they go up to her and console her and comfort her? David said that she has attacked everybody in his family. Everybody.
Id. at 285.
Further, the defense was the first to mention McKenzie's relative wealth: If David had been guilty of this, you would see a man that has apparent financial ability, motive to follow through with it, and he would do something to attempt, to really attempt to cover this up. He really did do and behaved like an innocent man did. . . . He did nothing to attempt to cover it up. [C.T.'s natural father] Max is hurting financially. There could have been a financial settlement perhaps to try and quiet things down. Simply no efforts like that were made.
Id. 290-91.
McKenzie's influence on family members, and the family's rejection of C.T., were matters raised in evidence, and were first argued by the defense. It was within the bounds of proper argument for the prosecutor to identify potential reasons for bias. In context, the prosecutor was highlighting issues the jury should examine in considering credibility. Remarks that would otherwise be improper are not grounds for reversal if where they were invited, provoked, or occasioned by defense counsel and where they are in reply to or in retaliation for his acts and statements, unless they go beyond the scope of an appropriate response. Russell, 125 Wn.2d at 86. Again, a prosecutor should exercise great care before using words that might inflame the jury, but the colorful metaphor used here does not rise to the level of incurable misconduct.
Cumulative Error. Finally, McKenzie contends that the cumulative effect of the prosecutor's misconduct warrants reversal. 'An accumulation of non-reversible errors may deny a defendant a fair trial.' State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426 (1997). Here, however, the only error was the prosecutor's injection of relative innocence. We have already held that error insufficient to justify reversal.
Further, McKenzie did not timely object to any of the remarks to which he now assigns error. The absence of a timely objection 'strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial.' State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990); State v. Klok, 99 Wn. App. 81, 85, 992 P.2d 1039 (2000). Defense counsel was a vigorous advocate throughout trial. Indeed, in ruling on McKenzie's motion for a new trial, the court observed that McKenzie was represented at trial by an 'experienced attorney,' and that the failure to object 'may just as easily have been a strategic decision on his part as anything else.' RP (Nov. 5, 2003) at 43.
Sufficiency of Evidence. McKenzie next challenges the sufficiency of the evidence to support two of the three counts of second degree child rape. The question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). A sufficiency challenge admits all reasonable inferences in favor of the State and against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
'In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed.' State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). When the State presents evidence of multiple criminal acts, the jury must unanimously agree that each act was committed. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). In cases where multiple counts of sexual abuse are alleged to have occurred within the same charging period, the evidence is sufficient as to every count charged if certain prerequisites are met:
First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time period in which the acts occurred. The trier of fact must determine whether the testimony of the alleged victim is credible on these basic points.
State v. Hayes, 81 Wn. App. 425, 438, 914 P.2d 788 (1996). McKenzie does not dispute that the evidence was sufficient to support one of the counts charged. The trial court gave a Petrich instruction, informing the jury it must be unanimous as to which act constituted the conduct supporting its finding on each count, and that it must find separate and distinct acts to support each count. Although C.T. did not specify what happened on each and every occasion, she described McKenzie's usual conduct in detail. While C.T. was unable to pinpoint the exact dates of those incidents, she was able to describe the general time frame. In sum, the record shows that separate and distinct acts of sexual intercourse were committed during the charging period, the jury was properly instructed, and the evidence was sufficient to convict McKenzie of each count charged.
'There are allegations that the defendant committed acts of child rape on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.' Clerk's Papers at 146.
McKenzie argues in his pro se brief that the trial court erred by denying his motion for bail pending appeal, contending the court improperly refused to consider his eligibility under RCW 10.73.040 and CrR 3.2. He asks us 'to set a reasonable appeal bond during the pendency of [his] appeal.' Pro Se Brief of Appellant at 17. Given our disposition, this issue is moot.
Affirmed.
ELLINGTON, A.C.J., BECKER, J. and BAKER, J.