Opinion
No. 30952-1-II
Filed: April 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 03-1-00200-3. Judgment or order under review. Date filed: 10/02/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Jeffrey Michael Taylor appeals convictions for child rape and molestation. We affirm.
Between November 1999 and April 2000, Taylor and his wife Kim were staying with Kim's parents. KH, then age 9, did not live with Kim's parents, but she came there after school each day until her mother got off work.
In January 2003, KH told her mother that Taylor had touched her inappropriately. The mother notified the police. On March 12, 2003, KH told Detective Gardner that Taylor had molested her in a van. She did not allege penetration.
On March 21, 2003, Taylor initially told Gardner that he had never been alone with KH. Then, as he and Gardner continued to talk, he said that `it could have happened . . . [b]ut I just don't remember.' When Gardner asked if Taylor could have done the things that KH alleged, Taylor stated that it was `a possibility. I have been to a psychologist in the past for doing impulsive things and being rebellious towards my parents and family.' Taylor acknowledged the opportunity and time to molest KH, said he was willing to get counseling or take tests to see if the acts did occur, and asked for help rather than jail time because he had a new family to take care of. They did not discuss rape.
Report of Proceedings (RP) at 126.
RP at 127.
In June 2003, KH told Gardner that Taylor had put his finger in her vagina while they were playing with baseball cards, while they were playing video games on a computer, while they were in the TV room, and while they were in Taylor's bedroom.
On June 5, 2003, the State filed an information which, as later amended, charged Taylor with child molestation in the first degree and four counts of child rape in the first degree. Count I alleged:
In the County of Mason, State of Washington, between the 1st day of November, 1999 and the 30th day of April, 2000, the Defendant, JEFFREY M. TAYLOR, did commit RAPE OF A CHILD IN THE FIRST DEGREE, a Class A felony, in that said defendant being at least twenty-four (24) months older than a child, engaged in sexual intercourse with that child who was less than twelve (12) years of age and to whom the Defendant who was not married, named herein as Jane Doe . . . to-wit: inserted his finger in her vagina when he was showing her his baseball cards; contrary to RCW 9A.44.073.
Clerk's Papers (CP) at 79-80.
The other rape counts were identical, except that in the `to-wit' clause, Count II alleged that Taylor had `inserted his finger in her vagina when he was showing her how to play a computer game;' Count III alleged that Taylor had `inserted his finger in her vagina when they were in the television room and his wife walked past the room;' and Count IV alleged that Taylor had `inserted his finger in her vagina in his bedroom.'
CP at 80.
Before trial, the State moved to exclude time sheets from Taylor's work. Taylor's counsel responded that he would not be offering them, as he expected that testimony from Taylor's wife would encompass the same information.
At the beginning of trial, the court read the charging information to the jury venire.
After the jury was selected and sworn, KH took the stand but became upset after giving her name, age, year in school, and identifying Taylor. The court took a recess, and she did not complete her testimony until later in the day. When she did, she said that Taylor had `unzipped [her] pants and put his hand in [her] private parts,' and `put his finger inside' her. She did not remember how many times he had done this, but he had done it while they were in his bedroom, while they were playing video games, while they were in the TV room, and while they were looking at baseball cards. He had also grabbed her `privates,' outside of clothing, while they were in a van.
RP at 91.
RP at 92.
KH's mother testified that she usually picked up KH around 6 p.m., and that Taylor was `usually always there.' KH's great-aunt testified that Taylor and Kim stayed at her house except on Mondays and Wednesdays; that KH was not permitted in the Taylor's bedroom; that Taylor `was hardly home when [KH] was there;' that KH and Taylor had never been in the van together; and that her house did not have any video game machines or computers that worked. Taylor's father, Stanley, testified that Taylor and Kim stayed at his home on Mondays and Wednesdays. Kim testified that when they did not stay at Stanley's home on Mondays and Wednesdays, they both left for work at 5 or 5:30 a.m. and did not return home until 7 or 8 p.m. due to the length of their commute. Kim also testified that the aunt and uncle did not have a working computer or video game in their house.
RP at 76.
RP at 156.
At the end of the evidence, the court instructed that the jury could not consider the charges against the defendant as evidence in the case. The court also gave a to-convict instruction for each of the five counts. The four relating to child rape (Counts I-IV) did not state the alleged act of intercourse or its location. Rather, they stated:
To convict the defendant of the crime of rape of a child in the first degree as charged in [Count I, II, III, or IV], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) Between the 1st day of November 1999 and the 30th day of April 2000, the defendant had sexual intercourse with [KH];
(2) That [KH] was less than twelve years old at the time of the sexual intercourse and was not married to the defendant;
(3) That the defendant was at least twenty-four months older than [KH]; and
(4) That the acts occurred in the State of Washington.
CP at 42-45.
The jury began deliberations at about 2 p.m. At 4:40 p.m., the court received a note in which the jury asked if it could see the `charging information.' Without objection from Taylor, the court replied yes and provided the information. Later the same day, the jury asked if it could `reach a verdict on some counts and be hung on others.' The court responded, `Yes.' The next day, the jury found Taylor guilty on three counts of child rape in the first degree, not guilty on one count of child rape in the first degree, and not guilty of child molestation in the first degree. After sentencing, Taylor filed this appeal.
CP at 29.
CP at 28.
CP at 28.
I.
The first issue is whether the trial court erred by providing the charging information to the jury during deliberations. Taylor claims that the jury could not use extrinsic evidence, the charging information was such evidence, and that he was denied a fair trial.
Extrinsic evidence is `information that is outside all the evidence admitted at trial, either orally or by document.' It may not be considered `because it is not subject to objection, cross examination, explanation or rebuttal.' It will warrant a new trial if `there is reasonable ground to believe the defendant may have been prejudiced.'
Richards v. Overlake Hosp. Medical Center, 59 Wn. App. 266, 270, 796 P.2d 737, review denied, 116 Wn.2d 1014 (1990).
State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994).
State v. Cummings, 31 Wn. App. 427, 430, 642 P.2d 415 (1982).
Assuming without holding that it was error to furnish the charging document to the jury during deliberations, the error was harmless beyond a reasonable doubt under the particular circumstances here. The court had read the document to the jury at the trial's outset, so the jury already knew its contents. The court expressly instructed the jury that the document was not evidence, extrinsic or otherwise, and the jury is presumed to have followed that instruction. The information did not contain any allegations that were not supported by sufficient evidence, and during trial its allegations had been subjected to cross examination, explanation, and rebuttal. Perceiving no prejudice, we decline to reverse.
Balisok, 123 Wn.2d at 118.
This conclusion also disposes of Taylor's contention that his counsel was ineffective for not objecting when the court proposed to furnish the jury with a copy of the information. Prejudice is an essential component of ineffective assistance. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
II.
The next issue is whether the prosecutor engaged in misconduct during closing argument. Given that Taylor did not object, he must show not only `that the prosecutor's conduct was improper and prejudiced his right to a fair trial,' but also that the improper conduct was `so flagrant and ill intentioned that no curative instructions could have obviated the prejudice.' Prejudice `is a substantial likelihood the instances of misconduct affected the jury's verdict.' We review in context, considering `the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions.'
State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)).
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)).
Carver, 122 Wn. App. at 306.
A.
Taylor claims that the prosecutor should not have argued that `sexually based crimes are considered especially heinous. Especially, especially, heinous when they are committed against a child.' `[R]eference to the heinous nature of a crime and its effect on the victim can be proper argument.' Such a reference is improper, however, if it only `[a]ppeals to the jury's passion and prejudice.'
RP at 333.
State v. Claflin, 38 Wn. App. 847, 849-50, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985).
State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993); Claflin, 38 Wn. App. at 850.
The comment in issue here was a brief preface to the prosecutor's recital of the evidence. Taken in context, it was not substantially prejudicial, and any prejudice could have been cured by a prompt objection and curative instruction. It does not warrant reversal.
B.
Taylor claims that the prosecutor improperly abridged his right to remain silent. The prosecutor argued:
The testimony from the Defendant's mother-in-law who could not even draw a diagram of her own residence. We have testimony of the Defendant's wife. That testimony was nearly identical, identical. It's been discussed, and discussed, and discussed, and re-discussed. And when his wife said she didn't know, or didn't remember the last time she talked with her husband about this case, she pinpointed to last night. He's the only one that sat here, listened to all the testimony and was able to tell somebody what anyone else said.
RP at 333-34.
`When a prosecutor improperly remarks on a defendant's failure to testify, it violates his Fifth Amendment privilege against self-incrimination.' But in State v. Miller, the court did not outlaw comments `that Miller had the opportunity to tailor his testimony after hearing all the other witnesses.' The court said:
State v. French, 101 Wn. App. 380, 386, 4 P.3d 857 (2000); see also State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987).
110 Wn. App. 283, 40 P.3d 692 (2002).
Miller, 110 Wn. App. at 283-84.
A witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate and indeed, given the inability to sequester the defendant, sometimes essential to the central function of the trial, which is to discover the truth.
Miller, 110 Wn. App. at 285 (quoting Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L.Ed.2d 47 (2000)).
It was not misconduct for the prosecutor here to argue similarly.
C.
According to Taylor, the prosecutor argued that Taylor made statements to Gardner about all the charges, when in reality Taylor had made statements to Gardner only about the molestation charge. The prosecutor stated:
And let's talk about the Defendant's statement to Detective Gardner. `I don't remember doing what [KH] said I did. I did live with [KH's aunt] at the time that this occurred and when [KH] was at the house being babysat. I'm not saying it didn't happen, but I just don't remember.' Not something you forget, molesting and raping an 8, 9 year old child.
. . .
`If I did something that is wrong, I'm willing to go on probation or do whatever it takes to stay out of jail so I can take care of my family. I have a new baby and a new job with responsibilities. If I did do something to [KH], I would be very upset and remorseful about it. And I would want [her parents] to know I would never do anything to hurt [KH] intentionally.' But he did. You don't rape and molest a child accidentally. You just don't do it accidentally.
RP at 336.
We agree that the prosecutor should not have referred to the rapes while discussing what Taylor said to Gardner. On the other hand, the prosecutor was entitled to argue, outside the context of Gardner's discussion with Taylor, that neither molestation nor rape is something one forgets or does by accident. The argument was brief, and the jury cannot have been confused about whether Taylor and Gardner had discussed only the molestation; Gardner himself testified that KH had not made allegations of penetration until after his interview with Taylor, and his testimony on the point was not challenged. The jury was instructed not to regard the arguments of counsel as evidence, and it is presumed to have followed the court's instructions. There was little prejudice, what there was could easily have been obviated by an objection and curative instruction, and we decline to reverse on this ground.
D.
Taylor contends that the prosecutor impermissibly used the `golden rule' argument in closing argument. The prosecutor said:
You saw a little girl, 12 years old, on this witness stand. You'll recall before you got to sit in these chairs, whether you wanted to or not, how would a little girl feel coming to tell a bunch of strangers, 14 people, about these horrible things that the Defendant did to her. Terrified, scared, embarrassed, and possible even a little guilt because when she finally disclosed to her mother, it was wrong. You saw one terrified, frightened, humiliated, embarrassed little girl up here who was not able to get past the fact that [her aunt] babysat her. That was enough to set her off. And it took the rest of the day to get her back up here and calm down. That was no act. Nobody's that good, especially a little 12 year old girl.
. . .
This happened in 1999 and 2000. And [KH] could not recall a lot of details. And she was not asked a lot of details. We needed her to say what happened and get her out of here.
. . .
No one's asking you to be sympathetic to [KH]. We're just asking you to be aware that you acknowledge that a child would be terrified, frightened, embarrassed, humiliated on the witness stand.
RP at 337, 349.
A `golden rule' argument is one that `urg[es] the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position.' It is improper `because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.'
Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 139, 750 P.2d 1257 (1988) (quotation omitted).
Adkins, 110 Wn.2d at 139 (quoting Rojas v. Richardson, 703 F.2d 186, 191 (5th Cir. 1983)).
After testifying for a few minutes, KH was too upset to continue. She had to come back and finish later. In the argument just quoted, the prosecutor was merely asking the jury to judge KH's credibility in light of how she was feeling in court. He was not asking the jurors to put themselves in KH's position, or to resolve the case as they would want it resolved for them or their families. There was no misconduct on this ground.
These holdings also dispose of Taylor's argument that his counsel was ineffective by not objecting during closing argument. Counsel was not deficient on any of the four grounds, nor did any of the four generate enough prejudice to warrant relief. McFarland, 127 Wn.2d at 334-35.
III.
In a pro se statement of additional grounds, Taylor argues that his counsel was ineffective by not objecting during the prosecutor's closing argument. First, he asserts that counsel should have objected to the prosecutor's use of a statement he made to Gardner about having seen a psychologist. Gardner testified:
I asked Jeff if it was possible that this incident did happen with he and [KH]. Jeff said, `There is a possibility. I have been to a psychologist in the past for doing impulsive things and being rebellious towards my parents and family.' Jeff also agreed, contrary to his handwritten statement, that he did have the opportunity and the time to do what [KH] alleged happened.
RP at 127.
In closing arguments, the prosecutor stated:
He also told Detective Gardner when asked if it was possible that he did this to [KH], `There is a possibility. I have been to a psychologist in the past for doing impulsive things and being rebellious towards my parents and family.' He also agreed, contrary to his handwritten statement, that he did have the opportunity to do exactly what [KH] said he did.
RP at 336-37.
The prosecutor merely reiterated Gardner's testimony, and defense counsel had no grounds on which to object.
Second, Taylor contends that his counsel should have offered time records from his employer to show that he lacked an `opportunity to commit these alleged crimes during the time periods, which I was accused of.' KH's great-aunt, Taylor's father, and Taylor's wife all testified about his work schedule. The record does not show what, if anything, the employer's records would have added. Taylor has not shown either deficient performance or resulting prejudice.
Statement of Additional Grounds at 2.
McFarland, 127 Wn.2d at 334-35.
Third, Taylor alleges that his counsel did not permit him to testify. Although he was the only one with `authority to decide whether or not to testify,' he must show interference with his authority by evidence, as opposed to mere allegations, and he has not produced evidence here.
State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999).
Robinson, 138 Wn.2d at 759-60.
Finally, Taylor asserts that his attorney did not call certain witnesses. The record does not show what any of them would have said if called. Accordingly, Taylor has not borne his burden of showing both deficient performance and resulting prejudice.
McFarland, 127 Wn.2d at 334-35.
Affirmed.
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.
ARMSTRONG and HUNT, JJ., concur.