Opinion
No. 24010-0-III.
October 31, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01057-1, Robert G. Swisher, J., entered March 23, 2005.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling Dooris PS, Po Box 20129, Spokane, WA, 99204-7129.
Julia Anne Dooris, Gemberling Dooris Ladich, Po Box 20129, Spokane, WA, 99204-7129.
Counsel for Respondent(s), Heather Dawn Czebotar, Attorney at Law, 7122 W Okanogan Pl Ms G, Kennewick, WA, 99336.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Schultheis, J.
A prosecutor is not permitted to vouch for the credibility of a witness. Here, the prosecutor suggested that a witness was genuine, accurate, credible, and honest in response to testimony that the witness had learning disabilities and severe dyslexia. The prosecutor's statements were improper. But Mr. Thompson has not demonstrated prejudice requiring reversal of his conviction.
The trial court included Mr. Thompson's prior juvenile adjudications in setting his offender score. We hold that juvenile adjudications fall within the prior conviction exception to Blakely. We affirm Mr. Thompson's conviction and sentence for first degree burglary.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
On August 21, 2004, Albert Thompson entered the home of his former girl friend, Anjia Arnold. Ms. Arnold had broken up with Mr. Thompson approximately two weeks prior. It is unclear from the testimony whether Ms. Arnold let Mr. Thompson in the door or whether Mr. Thompson forced his way in. However, once Mr. Thompson was inside Ms. Arnold's home, she immediately asked him to leave. Mr. Thompson refused and stated that he wanted to use Ms. Arnold's phone.
Mr. Thompson picked up the phone to use it. He then put the phone down and began to accuse Ms. Arnold of cheating on him. Mr. Thompson physically attacked Ms. Arnold and tried to suffocate her with his hands. He also threatened to kill Ms. Arnold.
Immediately following the assault, Ms. Arnold went to the home of her friend and neighbor, Beth Rieger. Ms. Rieger testified that she had heard Mr. Thompson shouting at Ms. Arnold to open the door. A short time after Mr. Thompson fled Ms. Arnold's home, Ms. Arnold knocked on Ms. Rieger's door looking "tore up." Report of Proceedings (RP) at 34. Ms. Rieger testified that there were scratches and bruises on Ms. Arnold's neck and body, and that Ms. Arnold was sobbing. Ms. Rieger convinced Ms. Arnold to call the police to report the incident, and Mr. Thompson was charged with first degree burglary.
During trial, defense counsel indicated to the court out of the presence of the jury that he thought Ms. Rieger may have "some cognitive disability that would affect her ability to observe or recall." RP at 46. Defense counsel asked the court for permission to question Ms. Rieger as to whether she had a disability. Although defense counsel did not pursue this line of questioning, Ms. Rieger volunteered on the stand that she suffered from "severe dyslexia." RP at 49. She further stated that she had memory difficulties that inhibited her recollection of events.
During closing arguments, the State addressed statements made by Ms. Rieger regarding her dyslexia and her memory problems. Specifically, the prosecutor stated:
Now by Ms. Rieger's own admission, ladies and gentlemen, she has dyslexia, some problems learning, reading, but I suggest to you that everything that she told you today was genuine, accurate and credible. Ms. Rieger may be a simple person, but she's an honest person. This wasn't her fight.
RP at 112.
The prosecutor also emphasized that the striking nature of this event made it more likely that Ms. Rieger would remember specific details about the assault, and that she provided the jury with clearly articulated details of the evening of the assault. Mr. Thompson was found guilty of first degree burglary and was sentenced to 42 months of confinement. This appeal followed.
ANALYSIS Prosecutorial misconduct — vouching
Prosecutors are not permitted to state their personal beliefs about a defendant's guilt or innocence or about the credibility of the witnesses. State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003). But, a prosecutor may argue reasonable inferences from the evidence. Id. at 577. This court also recognizes a distinction between the personal opinion of the prosecuting attorney and the expression of an opinion that is "`based upon or deduced from the testimony in the case.'" State v. Long, 65 Wn.2d 303, 308, 396 P.2d 990 (1964) (quoting State v. Armstrong, 37 Wash. 51, 55, 79 P. 490 (1905)).
Any defendant who alleges prosecutorial misconduct must establish both improper conduct and prejudice. Dhaliwal, 150 Wn.2d at 578. This court views the prosecutor's statements in the context of the "entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id.
Generally, a defendant must object to the allegedly improper statements at trial, or the argument is deemed to have been waived. However, if the prosecutor's statements were "`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,'" then a defendant may raise a claim of prosecutorial misconduct for the first time on appeal. Dhaliwal, 150 Wn.2d at 578 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Here, the prosecutor referred to one witness as an "honest person," and called her testimony "genuine, accurate and credible." RP at 112. The prosecutor was expressing a personal opinion to the jury about Ms. Rieger's credibility, and was therefore impermissibly vouching for Ms. Rieger as a witness.
However, Mr. Thompson must demonstrate that these statements caused such enduring prejudice that no curative instruction could have neutralized their effect. Mr. Thompson has not demonstrated such prejudice. Ms. Rieger testified only to a limited set of facts at trial: Ms. Arnold's mental state and appearance after the alleged assault. The victim, Ms. Arnold, was the key and critical witness. Therefore, Ms. Reiger's testimony likely had little influence on the jury and its ultimate decision to convict.
Additionally, the trial court instructed the jury that the jurors were the "sole judges of the credibility of the witnesses and of what weight is to be given the testimony of each." Clerk's Papers at 25. A jury is presumed to have followed the court's instructions. Long, 65 Wn.2d at 309. Because the trial court unequivocally informed the jury that it was the exclusive judges of credibility, any potential prejudice from the prosecutor's remarks was neutralized.
Juvenile adjudications in adult sentencing
Every criminal defendant has a constitutional right to have a jury determine whether the factors permitting an exceptional sentence have been established beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely, 542 U.S. at 301. However, as noted in Apprendi and Blakely, facts relating to a prior conviction are an exception to the rule requiring any fact that increases the maximum statutory penalty to be proved to a jury. Apprendi, 530 U.S. at 476; Blakely, 542 U.S. at 301. This is largely because recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing of an offender's sentence." Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). Therefore, facts related to prior convictions are "potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing." Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
Based on this exception, prior convictions do not need to be proved to a jury beyond a reasonable doubt in order to enhance a defendant's sentence. The issue for this court is whether juvenile adjudications fall within the prior convictions exception.
There is no Sixth Amendment right to a jury trial for juveniles. McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971). Likewise, the Washington constitution has "not been construed to guarantee the right of trial by jury in juvenile proceedings." Monroe v. Soliz, 132 Wn.2d 414, 424, 939 P.2d 205 (1997). "Because of the differences between the juvenile justice system and the adult criminal system, the denial of a jury trial to juveniles has been repeatedly held constitutional." State v. J.H., 96 Wn. App. 167, 170, 978 P.2d 1121 (1999).
A juvenile adjudication is not considered a conviction for a crime. J.H., 96 Wn. App. at 174. However, juvenile adjudications are counted as criminal convictions under the Sentencing Reform Act of 1981 if the offender being sentenced was charged as an adult. RCW 9.94A.030(11).
While there are significant substantive and procedural differences between juvenile adjudications and adult criminal convictions, all juvenile proceedings still must satisfy the basic requirements of due process and fairness. In re Gault, 387 U.S. 1, 12, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). "Accused juveniles are provided their full range of constitutional rights such as the right to an attorney, to confront witnesses, the privilege against self-incrimination and suppression of evidence illegally obtained." State v. Lawley, 91 Wn.2d 654, 657, 591 P.2d 772 (1979).
The due process protections afforded in juvenile proceedings ensure that the fact-finding process is reliable without the need for a jury. State v. Weber, 127 Wn. App. 879, 890-91, 112 P.3d 1287 (2005). These procedural safeguards include the requirement of proof beyond a reasonable doubt, and the rights to counsel, to cross-examine witnesses, to notice of the charges, and the right against self-incrimination. Id. at 890. These procedural safeguards are sufficient to bring prior juvenile adjudications within the prior conviction exception. Id. at 892. See also State v. Mounts, 130 Wn. App. 219, 122 P.3d 745 (2005) petition for review filed (Wash. Sept. 6, 2006).
This court notes that the Supreme Court has granted review of this decision on January 31, 2006. See State v. Weber, 156 Wn.2d 1010, 132 P.3d 147 (2006).
We conclude that the prior convictions exception is rooted in the overall procedural protections that are provided to both adults and juveniles. Although juvenile and adult offenders are not allocated identical rights under the constitution, every juvenile offender is guaranteed the protections of due process under the constitution. Moreover, there are substantial procedural rights afforded to juveniles in Washington that help to guarantee that sufficient safeguards exist to render the results of juvenile proceedings reliable. We hold that juvenile adjudications fall within the prior convictions exception in Blakely.
We affirm Mr. Thompson's conviction and sentence.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and SCHULTHEIS, J., concur.