Opinion
No. 58603-3-I.
November 13, 2007.
Appellant Whitney Phillips failed to object to the majority of the prosecutor's comments he now claims constituted prosecutorial misconduct. We find no error because the allegedly improper arguments were made in response to Phillips's own closing argument. Any prejudice to Phillips could have been cured had he objected.
On November 30, 2005 a 911 operator received two consecutive hang up calls from a home in Tukwila. Officer William Devlin and another officer went out to investigate. A woman, Deloris Cain, directed them to a bedroom in the back part of the house where Officer Devlin found Whitney Phillips. Cain had three domestic violence protection orders prohibiting Phillips from contacting her or coming to her home. Officer Devlin arrested Phillips for violating the no-contact orders.
Three weeks later, on December 21, Officer Devlin saw Phillips and Cain walking together down the sidewalk. Officer Devlin testified that he recognized both Phillips and Cain from his earlier contact with them at Cain's home. He stopped his patrol car to investigate further. Two other officers arrived at the scene. Officer Devlin confirmed that the no-contact order was still in effect, and arrested Phillips for a second time.
The State charged Phillips with two counts of felony violation of a domestic violence no-contact order for his contacts with Cain on November 30 and December 21. The matter proceeded to a jury trial on April 3, 2006. Officer Devlin was the State's only witness. The State submitted into evidence certified copies of the prior no-contact orders. The jury returned a guilty verdict.
Phillips appeals. He contends that the prosecutor committed misconduct on three separate occasions during the trial. First, he claims the prosecutor violated a motion in limine precluding the State from referring to Cain as a victim since there were no allegations of assault. During closing argument, the prosecutor stated:
The defendant has vast experience with no-contact orders from the evidence you have before you. Clearly, he knew he had a no-contact order, not only on 11/30, but he certainly knew he had it 20 days later when he was arrested walking down the road with the same victim — or, sorry, with the same Deloris Cain that he was previously arrested for being in contact with.
Report of Proceedings, April 4, 2006 at 7.
Phillips did not object to the prosecutor's use of the term "victim."
Phillips also claims that the prosecutor introduced facts not in evidence during closing argument. Officer Devlin testified that on December 21, he recognized Phillips and then checked his identification to verify his identity. Officer Devlin stated that he also checked Cain's identification, but that another officer ran her name through the dispatch system. The officer who ran Cain's name through the dispatch system did not testify at trial. Phillips argued that there was reasonable doubt surrounding whether Phillips was actually walking with Cain on the second occasion: "I don't know if Ms. Cain was ever really there on that sidewalk December 21st; someone else could be. . . ." The prosecutor responded in rebuttal that Officer Devlin makes a limited number of arrests: "He identified them because 20 days before he arrested the defendant for that. He would remember that. 20 days. It's Tukwila. It's not like, you know, he's making hundreds of arrests a day. . . ." Phillips objected on the basis that the prosecutor was referring to facts not in evidence. The court overruled the objection.
Report of Proceedings, April 4, 2006 at 15.
Report of Proceedings, April 4, 2006 at 17.
Finally, Phillips claims the prosecutor improperly implied during rebuttal argument that the reason Cain was not there to testify was because she feared Phillips. But Phillips had invited the prosecutor to explain why Cain did not testify: "There's probably one person that could at least explain whether there was willful contact, but you didn't hear from her." The prosecutor responded that Cain's presence was not necessary at trial:
Report of Proceedings, April 4, 2006 at 13.
Ms. Cain is not here. That's true. She's not here. And if you have any question in your mind why not, look at the record that's here before you today. Why would she be here? What does she have to gain from being here? There's nowhere in the elements that says she has to be here in court. The defendant doesn't follow the no-contact orders, so what protection do we provide her? Other than holding him accountable for what he's done on November 30th and December 21st.
Report of Proceedings, April 4, 2006 at 18-19.
Phillips did not object to this argument.
The prosecutor also responded to Phillips's argument that the State should have called additional officers as witnesses to clear up questions about the case:
Officer Devlin got up here under oath and testified to you. He told you what happened. He was the only person that had contact with them on both occasions. The other officers, what would they say? The exact same thing. Do you need someone else to come in and say Officer Devlin was telling you the truth?
Report of Proceedings, April 4, 2006 at 16.
Again, Phillips did not object to this portion of the rebuttal argument.
An appellant claiming prosecutorial misconduct bears the burden of establishing the impropriety of the prosecutor's comments and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Comments are prejudicial only where there is a substantial likelihood the misconduct affected the jury's verdict. "Remarks of the prosecutor, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Where the defense fails to object to an improper comment, the error is considered waived "`unless the comment is 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. McKenzie, 157 Wn.2d 44, 52, 157 Wn.2d 44 (2006), quoting Brown, 132 Wn.2d at 561. Further, the absence of an objection by defense counsel "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).
The only statement that Phillips objected to during the State's closing was the prosecutor's assertion that Officer Devlin did not make hundreds of arrests each day. It is true that the State did not present evidence to show how many arrests Officer Devlin generally makes per day. The prosecutor was responding to the defense argument that it was unlikely Officer Devlin would remember Phillips and Cain from their encounter at the time of the first arrest three weeks earlier. Phillips has failed to show that any prejudice resulted from this comment.
We review the remainder of the claims of prosecutorial misconduct under a stricter standard of review since Phillips failed to object below. The prosecutor's reference to Cain as a victim did violate a motion in limine. But the prosecutor rephrased and the comment was not incurably prejudicial. It is quite likely that the jury had already inferred from the existence of the protection orders that Cain had been the victim of past incidents of domestic violence at the hands of Phillips.
The prosecutor's other arguments, even if improper, are not grounds for reversal because they were pertinent and appropriate responses to Phillips's statements in closing, and within the latitude given to a prosecutor to respond to attacks on witness credibility. Phillips's comment in his closing argument that there were "plenty of other people that could have shown up to make this pretty simple" invited the prosecutor to explain why Cain and the three other officers were not present to testify. The prosecutor accurately stated the law when explaining that Cain's presence was not necessary at trial.
The prosecutor's comment that Officer Devlin was the only person who had contact with Phillips and Cain on both occasions and that the other officers would say the "exact same thing" does not amount to arguing testimony not presented at trial. The scenario here is quite different from a prosecutor personally vouching for the credibility of a key state witness, as was done in State v. Sargent, 40 Wn. App. 340, 343, 698 P.2d 598 (1985). In Sargent, the prosecutor stated: "I believe Jerry Lee Brown. I believe him when he tells us that he talked to the defendant. . . . There was no other reason he would be testifying other than the fact that the people that called him as a witness believed what he has to say." Sargent, 40 Wn. App. at 343.
In contrast to Sargent, the prosecutor's comments in this case drew a proper inference from Officer Devlin's testimony that he had checked Cain's identification but another officer ran her name through the dispatch system on December 21. The comments were not a personal opinion. The remarks were properly made in response to the defense's closing argument and do not constitute misconduct.
Phillips assigns error to the trial court's failure to enter findings of fact and conclusions of law in support of the court's pretrial decision to deny Phillips's motion to suppress evidence. After Phillips filed this appeal, the court did enter findings and conclusions as required by CrR 3.6(b).
"It is the general rule in this state that findings and conclusions may be submitted and entered even while an appeal is pending." State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984). The trial court filed its findings and conclusions in superior court on May 8, 2007. Phillips's reply brief was not due in this court until July 2, 2007 in which Phillips had the opportunity to explain how he was prejudiced by the belated filing or to present argument that the findings were tailored to the issues on appeal. In the absence of any argument demonstrating how the delay was prejudicial, we conclude there was no error.
Phillips's judgment states that the maximum penalty for this crime is 10 years imprisonment and/or a $20,000 fine. Both Phillips and the State agree that the maximum penalty is actually five years imprisonment and/or a $10,000 fine. The State concedes on appeal that the inaccurate maximum penalty is a scrivener's error and agrees that the case should be remanded to correct the judgment and sentence.
We affirm the conviction, but remand for the trial court to amend the judgment and sentence to reflect the accurate maximum penalty. FOR THE COURT: