Opinion
No. 64742-3-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-00673-6, Charles R. Snyder, J., entered December 15, 2009.
Reversed and remanded by UNPUBLISHED OPINION per Leach, A.C.J., concurred in by Lau and Spearman, JJ.
Richard Paul Moore appeals his conviction of second degree assault and a deadly weapon sentencing enhancement. He claims that the prosecutor improperly shifted the burden of proof to the defense during rebuttal closing argument, depriving him of a fair trial. Moore also argues that the trial court erroneously instructed the jury that it must be unanimous to answer "no" to the special verdict form for aggravating sentencing factors. Finally, he asserts several claims in a statement of additional grounds, including there was "no factual basis" for the charge, the trial court abused its discretion in declining to excuse a juror for cause, and his due process rights were "possibly" violated. Because the trial court erred in instructing the jury on the unanimity requirements for the special verdict, we vacate the sentence enhancement and remand the case to the trial court for further proceedings consistent with this opinion.
Background
On the evening of May 31, 2009, Todd Johnson was dozing on his bed in the 12-room house north of Bellingham where he lived with his fiancé. Around midnight, pounding at his door awoke him. Johnson got up, and Michelle Leininger, a friend of Johnson's who was on his back porch at the time, told Johnson not to tell anyone she was there. Johnson opened the door to Moore, who lived in the room adjacent to his. Moore asked Johnson, "Where are the girls?" Johnson told Moore that he was alone. Suddenly, Johnson's door swung toward him. Johnson caught the door and moved to push it open when he felt as if he had been punched. Johnson drew in a breath, and blood spurted from his chest and onto the floor. Johnson did not see a knife but saw Moore make a movement with his hands as if he were folding something and putting it in his pocket. Moore retreated to his room.
Johnson told Leininger that Moore had stabbed him. He then went downstairs to call the police. Paramedics arrived and took Johnson to the emergency room, where a doctor treated him for a four-inch stab wound and collapsed lung.
Sergeant Robert VanderYacht of the Bellingham Police Department detained Moore around 1:30 a.m. the night of the stabbing. The State charged Moore with second degree assault while armed with a deadly weapon.
At trial, Johnson testified he was absolutely certain that Moore attacked him. Leininger testified that although she did not see Moore stab Johnson, she heard the conversation between them and was "positive" the voice at the door belonged to Moore.
Leininger became acquainted with Moore about a month before the stabbing.
Brent Ebinger, a fellow resident at the house where Moore and Johnson lived, testified that Moore had been unusually angry in the days leading up to the stabbing due to a rent increase. He also testified that he frequently saw Moore with knives but never with a folding-blade knife.
VanderYacht testified that he did not observe blood nor did he feel a weapon on Moore when he conducted a pat-down search of him.
Deputy Courtney Polinder of the Whatcom County Sheriff's Office investigated the crime scene the night of the stabbing. He testified that he searched Moore's room and did not find blood or a knife consistent with the crime. Polinder visited Moore at the Whatcom County Jail and took photographs of Moore's hands, which were specked with what appeared to be blood. At the hospital, Johnson told Polinder that he saw Moore pull a fixed-blade knife with a black handle out of his pocket and stab him. Johnson did not tell Polinder that he saw Moore fold a knife and put it in his pocket after he was stabbed.
At trial, the defense argued that Leininger was mistaken in her identification of Moore's voice and Johnson was not credible based on the lack of physical evidence against Moore and the inconsistencies in Johnson's account. Nonetheless, a jury convicted Moore as charged and found by special verdict that he was armed with a deadly weapon. The trial court sentenced him to 24 months total confinement, 12 months for the assault and 12 months for the deadly weapon enhancement.
Moore appeals.
Analysis
Moore claims that prejudicial prosecutorial misconduct denied him a fair trial. A defendant claiming prosecutorial misconduct bears the burden of demonstrating that the prosecutor's conduct was both improper and prejudicial.
State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
At the end of defense's closing argument, Moore's counsel stated, "I submit to you that there is uncertainty. There are other plausible explanations. You have every reason to doubt and I ask you to find him not guilty."
In rebuttal, the prosecutor argued, "If there are other plausible theories of the defense, the one person that could present those to you is unable to; that's the defense counsel. . . . She never provided an alternative to that the Defendant did what he's charged with doing." Defense counsel objected on the ground that the prosecutor's statement improperly shifted the burden of proof to Moore. The court "noted" Moore's objection. Somewhat later, the prosecutor again suggested that Moore had an obligation to rebut the State's case when he asked, "Is there an alternative explanation even though none has been presented?" Defense counsel did not object to this comment, and the prosecutor continued his rebuttal by properly discussing the reasonable doubt standard.
Moore contends the prosecutor's comments were improper. The State argues that the prosecutor's comments were a proper response to Moore's statement, "There are other plausible explanations." "As an advocate, the prosecuting attorney is entitled to make a fair response to the arguments of defense counsel." Here, however, the statements went beyond what would have been a fair and adequate reply. The State has the burden to prove every element of the crime beyond a reasonable doubt. The defendant has no obligation to present evidence. It was improper for the prosecutor to comment on Moore's failure to do so.
State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997).
In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
See State v. Cleveland, 58 Wn. App. 634, 647-48, 794 P.2d 546 (1990); State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996); State v. Traweek, 43 Wn. App. 99, 106-07, 715 P.2d 1148 (1986), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991); State v. Warren, 165 Wn.2d 17, 26-27, 195 P.3d 940 (2008) ("[I]t is an unassailable principle that the burden is on the State to prove every element and that the defendant is entitled to the benefit of any reasonable doubt. It is error for the State to suggest otherwise.").
Even though the prosecutor's statements were improper, we will reverse only if Moore can show prejudice. Prejudice exists where there is a substantial likelihood that the prosecutorial misconduct affected the verdict. In analyzing prejudice, we review the prosecutor's comments in the context of his entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting Brown, 132 Wn.2d at 561).
State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998).
We find our Supreme Court's decision in State v. Warren instructive. There, the prosecutor repeatedly told jurors in closing that the defendant was not entitled to "the benefit of the doubt." Defense counsel objected each time, and the trial court interrupted the argument to give an "appropriate and effective curative instruction." Although it deemed the prosecutor's actions improper and flagrant, the court held that the "correct and thorough curative instruction" cured any error. Warren, therefore, did not show that the prosecutor's improper argument resulted in prejudice.
165 Wn.2d 17, 195 P.3d 940 (2008).
Warren, 165 Wn.2d at 24-25.
Warren, 165 Wn.2d at 28.
Warren, 165 Wn.2d at 28.
Warren, 165 Wn.2d at 28.
Here, the court gave a curative instruction at the conclusion of the prosecutor's rebuttal argument:
I'll remind the jury that Instruction Number 3 does state in the first paragraph, "The Defendant has no burden of proving that a reasonable doubt exists. As to these elements, the proof lays with the prosecutor." Be sure you read the instructions carefully and consider all the terms in those instructions when it says you're to consider them as a whole when you make your decision.
We conclude that, as in Warren, this instruction cured the error.
Moore argues that the trial court's instruction came too late. We presume, however, that the jury followed this instruction. Additionally, and unlike the prosecutor in Warren who repeatedly mischaracterized the law, the prosecutor here properly discussed the reasonable doubt standard in the remainder of his argument. Also, the prosecutor thoroughly recited the evidence against Moore, which was strong. Examining the prosecutor's improper comments in the context of the entire argument, we find that Moore has not demonstrated a substantial likelihood that this misconduct affected the verdict. Moore's claim therefore fails.
See State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994).
Moore also contends that the jury instructions accompanying the special verdict form incorrectly stated the law. The State sought a deadly weapon sentence enhancement. The trial court instructed the jury to use the special verdict form if it found Moore guilty of assault. The court further instructed the jury that it had to be unanimous to answer the form:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form "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."
Moore argues for the first time on appeal that the trial court committed reversible error in instructing the jury that it had to be unanimous to answer "no" to the special verdict form.
Moore relies on State v. Bashaw to support this argument. There, the State charged Bashaw with three counts of delivery of a controlled substance and sought a school bus zone sentence enhancement. The special verdict form asked the jury to make a finding as to whether each charged delivery occurred within 1,000 feet of a school bus stop. In the instruction explaining the special verdict forms, the court told the jury, "`Since this is a criminal case, all twelve of you must agree on the answer to the special verdict.'"
169 Wn.2d 133, 234 P.3d 195 (2010).
Bashaw, 169 Wn.2d at 137.
Bashaw, 169 Wn.2d at 139.
Our Supreme Court held this instruction was erroneous:
Though unanimity is required to find the presence of a special finding increasing the maximum penalty, it is not required to find the absence of such a special finding. The jury instruction here stated that unanimity was required for either determination. That was error.
Bashaw, 169 Wn.2d at 147 (citation omitted) (citing State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003)).
Because the instructions here required juror unanimity to answer the special verdict form "no," Bashaw controls, and the trial court's instructions were in error.
The State counters that Moore failed to preserve this issue for our review. An error may be raised for the first time on appeal if it is a manifest error affecting a constitutional right. "An error is `manifest' if it had `practical and identifiable consequences in the trial of the case.'"
RAP 2.5(a)(3); State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999).
State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977 (2000) (quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).
The State relies on footnote 7 of Bashaw to argue that the error is not of constitutional magnitude. Footnote 7 reads, "This rule is not compelled by constitutional protections against double jeopardy, but rather by the common law precedent of this court, as articulated in Goldberg." The State reasons that this comment conclusively precludes Moore's argument.
Bashaw, 169 Wn.2d at 146 n. 7 (citations omitted).
But it is "well-settled that an alleged instructional error in a jury instruction is of sufficient constitutional magnitude to be raised for the first time on appeal." Moreover, the Bashaw court apparently regarded this issue as a constitutional one. In Bashaw, as here, no one objected to the erroneous instruction at trial. And while the court in footnote 7 expressly noted that double jeopardy considerations did not compel Bashaw's holding, it did not exclude the possibility that an erroneous jury instruction affects other constitutional rights, such as a defendant's right to the due process of law. In fact, the court applied a constitutional harmless error analysis to determine whether the instructions were prejudicial error. Bashaw strongly suggests that constitutional considerations compelled the court's decision, notwithstanding footnote 7.
Davis, 141 Wn.2d at 866 (citing State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996)).
State v. Bashaw, 144 Wn. App. 196, 198-99, 182 P.3d 451 (2008).
Bashaw, 169 Wn.2d at 147-48.
Because the trial court's error had constitutional dimensions and practical and identifiable consequences — the jury's special verdict added an additional 12 months to Moore's sentence — we reject the State's claim that Moore waived his ability to challenge the instruction on appeal.
Finally, the State argues that any error was harmless.
Bashaw is also determinative in this regard. The error here was the procedure by which unanimity would be inappropriately achieved. . . . The result of the flawed deliberative process tells us little about what result the jury would have reached had it been given a correct instruction. . . . We therefore cannot conclude beyond a reasonable doubt that the jury instruction error was harmless.
Bashaw, 169 Wn.2d at 147-48 (holding that the error was not harmless even though the trial court polled the jurors and found its verdict to be unanimous).
The trial court's instruction here was error. This error was not harmless. The remedy, as in Bashaw, is to vacate the sentence enhancement and remand for proceedings consistent with this opinion.
Moore makes three additional claims in a statement of additional grounds. First, Moore claims that there was "no factual basis for this charge," citing the testimony of Sergeant VanderYacht. Moore argues that VanderYacht committed perjury when he testified on direct examination that another officer from the Bellingham Police Department handcuffed Moore at the time of his arrest and then testified on cross-examination that from the time he detained Moore, he never let Moore out of his sight. Moore's argument is unpersuasive. First, it is difficult to see the relationship between this testimony and the State's assault charge. Second, VanderYacht's statements are not inherently contradictory. Moore's claim therefore has no merit.
VanderYacht testified on direct examination,
A: At that point, I was by myself. I instructed [Moore] to, to, to lay down, to, on the, on the pavement, to get his, to spread his arms wide from his body, and told him that just stay in that position, and I, I used my portable radio to advise the dispatcher that I had made contact with Mr. Moore, and that he was being detained.
Q: Okay, and did you conduct any search of Mr. Moore at that time?
A: I did not. The arriving officer from the Bellingham Police Department handcuffed him.
And VanderYacht testified on cross-examination,
Q: How long was it before the, approximately before the sheriff's deputy came?
A: He was there I, I indicated like nearly within a minute. It was very, very quick.
Q: And Mr. Moore was never out of your sight —
A: Correct.
Q: — from the time you took him, you detained him?
A: Correct.
Second, Moore contends that the trial court improperly denied his challenge for cause to juror 15 on the basis of juror bias. RCW 4.44.170 allows a challenge for cause based on either actual or implied bias. Actual bias must be established by proof. The challenging party must prove that the challenged juror has formed or expressed an opinion that would prevent her from trying the case impartially. Expression of a preliminary opinion itself is insufficient to sustain the challenge unless the trial court is satisfied, from all the circumstances, that the juror cannot disregard the opinion in order to try the case fairly and impartially. We will disturb a trial court's determination that a juror is fit to serve only if the trial court abused its discretion.
State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991).
RCW 4.44.190; Ottis v. Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747, 754-55, 812 P.2d 133 (1991).
Noltie, 116 Wn.2d at 838.
Here, Moore objected to juror 15 based on her 15-year personal friendship with one of the lead detectives in Moore's case and her friendship with the prosecutor's wife. The court denied Moore's challenge because, although she had a relationship with the detective,
[T]here was nothing from the information that she provided during the course of voir dire that would indicate that she was somehow, that she believed she was somehow make a decision or give extra credibility or greater weight to his testimony.
She did indicate that she was unsure, she said she wasn't certain that she could guarantee being 100 percent unbiased, but she also said this she had to hear the evidence. She didn't know what would happen, and she would do everything that she can, and which is what is generally what the Court expects of people, and I was unpersuaded that she said anything that would indicate that her friendship with Detective Collins or Mr. Setter would affect her ability to hear the case and be objective.
The trial judge was in the best position to determine whether juror 15 had the ability to be fair and impartial, and he determined that she did. Because sufficient evidence in the record supports this decision, we defer to the trial court's judgment on appeal and reject Moore's claim.
See Noltie, 116 Wn.2d at 839.
Finally, Moore claims that his due process rights were "possibly" violated because a story in the Bellingham Herald "accusing me of assault" was available at the time of his trial. But the foundation of any constitutional claim is improper State action. Because Moore fails to allege that a State actor violated his constitutional rights, we reject his argument.
Lugar v. Edmonson Oil Co., 457 U.S. 922, 923-24, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); Southcenter Joint Venture v. Nat'l Democratic Policy Comm., 113 Wn.2d 413, 422-23, 780 P.2d 1282 (1989).
Conclusion
Because the special verdict form improperly required unanimity for a negative answer, we vacate Moore's deadly weapon sentence enhancement and remand for proceedings consistent with this opinion.
WE CONCUR.