State
v.
Tellez

Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division OneMay 11, 2009
150 Wn. App. 1011 (Wash. Ct. App. 2009)

No. 61934-9-I.

May 11, 2009.

Appeal from a judgment of the Superior Court for King County, No. 07-1-09115-3, Monica J. Benton, J., entered June 27, 2008.


Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Lau, JJ.


UNPUBLISHED OPINION


SCHINDLER, C.J.

Nolberto D. Tellez appeals his conviction for two counts of rape of a child in the first degree and two counts of child molestation in the first degree. Tellez contends the prosecutor engaged in a number of instances of misconduct during closing argument that deprived him of the right to a fair trial, including appealing to the passion and prejudice of the jury, making remarks that were not supported by evidence, and vouching for the credibility of a witness. Tellez also argues that cumulative error deprived him of a fair trial. Because the prosecutor's remarks were in response to the defense closing argument, were otherwise not objected to, or the court sustained an objection and granted the defense motion to strike, Tellez cannot show prejudice and we affirm.

FACTS

In October 1999, Tellez lived in Seattle at the Barton Place apartments with R.A., R.A.'s 7-year-old daughter, A.S., and her 5-year-old son, E.S. In 2000, Tellez and R.A. had a son, A.T. In 2001, Tellez and R.A. married. In December 2001, the family moved to the Wellington apartments.

In November 2006, 14 year old A.S. told her mother, that Tellez had sexually abused her. R.A. reported the allegations to the police and told Tellez to move out. However, soon thereafter, R.A. allowed Tellez to move back in. After Tellez moved back, A.S. went to live with her boyfriend, V.J., and his family. In 2007, A.S. and V.J. had a child together.

In May 2007, the State charged Tellez with two counts of rape of a child in the first degree when A.S. was 10 or 11 years old, and two counts of child molestation in the first degree when A.S. was 7 to 9 years old.

A.S. testified at trial that Tellez started abusing her when she was 7 years old and did not stop until she was 12. A.S. said the abuse began when the family was living at the Barton Place apartments. She said that Tellez began to regularly kiss her on the mouth and touch her vagina with his hand. A.S. testified that Tellez "made me lick his penis" and "move my hands up and down" on his penis. A.S. said Tellez would typically come into the bedroom while her brother was asleep.

A.S. testified that the abuse continued after the family moved to the Wellington apartments. When she was 10 years old, Tellez began to regularly insert his fingers inside her vagina. A.S. said that Tellez also started touching her breasts when she was 10 or 11. A.S. testified that after she got her own bedroom, Tellez began regularly putting his mouth on her vagina.

A.S. testified about a specific incident that occurred at the Wellington apartment when she was 12 years old. A.S. said that Tellez put on a condom and tried to put his penis in her vagina, but that he stopped after she said it hurt. A.S. said Tellez went in the bathroom and then returned to show her the semen in the condom. A.S. testified that Tellez stopped sexually abusing her soon after this incident because she told him she would "tell my mom about what he is doing, and not to do it no more."

A.S. testified that she felt "disgusted" about what Tellez did to her, but was afraid to tell anyone. A.S. testified that she was too scared to tell her mother what happened because "she would probably think it is my fault." A.S. also testified that Tellez told her that if he went to jail "me and my brothers and mom won't have . . . no one to take care of us, no money for anything."

In April 2006, A.S. told her boyfriend V.J. about the sexual abuse. "I just wanted to get it out, you know. I wanted to, like, tell someone." A.S. said that when she told V.J. about the abuse she did not plan to move in with V.J. and his family.

A.S. said that in November 2006, V.J. demanded that she tell her mother about the abuse. A.S. testified that she was too scared to tell her mother what happened because "she would probably think it is my fault." A.S. said that after telling her mother, she wanted to move in with V.J.'s family because "I didn't feel comfortable no more with [Tellez] being there, me being in the same house."

R.A. testified that some incidents caused her concern about Tellez's relationship with A.S. While the family was living at the Barton Place apartments, the school reported that A.S. was having difficulty with her school work and recommended counseling. R.A. testified that when she told Tellez that the school was recommending that A.S. see a therapist, Tellez told her: "`There is something I want to tell you. [A.S.] has touched my penis.'" R.A. testified that on another occasion when she went into A.S.'s bedroom, Tellez was in the room next to A.S. However, Tellez and A.S. denied anything sexual. R.A. also testified that when A.S. disclosed the sexual abuse, "[Tellez] told me that [A.S.] was the one that was seducing him." Tellez "said to me he was sorry for what he had done, that I was a good person, I didn't deserve it."

After Tellez was arrested, R. A. said Tellez called from the jail to discuss the possibility of pleading guilty. The telephone call was recorded. R.A. testified that during the call, "[h]e said to me that there may be something that could be done for him if he plead guilty, for him to get out under treatment, that he would do what is possible." R.A. said that Tellez also sent a letter to her from jail asking her "to forgive him for what he had done."

The defense theory at trial was that A.S. was not telling the truth and she fabricated the allegations because she wanted to live with V.J. Tellez argued that A.S.'s late disclosures and her intimate relationship with V.J. supported his theory.

Tellez testified and denied having any sexual contact with A.S. Tellez claimed that he was never alone with the children when they lived at either Barton Place or the Wellington apartments. Tellez testified that when the school recommended counseling for A.S., he told R.A. "one night when she left them with me sleeping, [A.S.] was trying to pull down my shorts, but I never told her that she had touched my penis." Tellez said that in the letter he wrote to R.A. from jail, he asked her to forgive him, not because of the sexual abuse allegations, but "because with her we have always been fighting, like it says here [in the letter], like cats and dogs." As to the telephone call from jail, Tellez said that R.A. suggested that he plead guilty. "What she said once when she came to see me here at the jail is I could go out of the jail if I were to participate in a program."

The jury convicted Tellez as charged. The court sentenced Tellez to a standard range sentence for each of the rape of a child convictions, and for each of the child molestation in the first degree convictions, to be served concurrently.

ANALYSIS

Tellez contends the prosecutor engaged in a number of instances of misconduct during rebuttal argument that deprived him of a fair trial. Tellez asserts the prosecutor improperly made remarks that appealed to the passion and prejudice of the jury, were not supported by evidence, or impermissibly vouched for the credibility of R.A. Tellez also contends that cumulative error deprived him of a fair trial.

A defendant alleging prosecutorial misconduct must establish the conduct was improper and had a prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). We review a prosecutor's allegedly improper remarks in the context of the issues in the case, the evidence, and the jury instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant has the burden of demonstrating "there is a substantial likelihood the misconduct affected the jury's verdict." Brown, 132 Wn.2d at 561.

During closing argument, a prosecutor "has wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Gentry, 125 Wn.2d 570, 641, 888 P.2d 1105 (1995). But a prosecutor may not make a remark "calculated to appeal to the jury's passion and prejudice and encourage it to render a verdict on facts not in evidence." State v. Stover, 67 Wn. App. 228, 230-31, 834 P.2d 671 (1992). A prosecutor may not state a personal belief about the credibility of a witness. State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008).

The jury is presumed to follow the court's instructions that counsel's arguments are not evidence and to disregard arguments not supported by evidence. Warren, 165 Wn.2d at 29. If counsel makes an improper remark, the jury is presumed to follow a curative instruction. Warren, 165 Wn.2d at 28. In determining the effectiveness of a curative instruction, the trial court is given great deference, "[s]ince the trial judge is best suited to determine the prejudice of the statements." State v. Escalona, 49 Wn. App. 251, 254-255, 742 P.2d 190 (1987).

If the defense fails to object to a prosecutor's remark, the issue of misconduct is waived unless the remark is "so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Brown, 132 Wn.2d at 568. If acts or statements by defense counsel invite or provoke a prosecutor to reply with a pertinent but improper remark, there are no grounds for reversal unless the remark is so prejudicial that a curative instruction would be ineffective. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

Tellez asserts the prosecutor improperly appealed to the passion and prejudice of the jury in responding to the defense argument that A.S. is "not a young, immature, unknowing kind of girl" because of her sexual relationship with V.J. The prosecutor argued:

Incidentally, is it really any wonder she became sexually active at such a young age when given she was repeatedly sexually abused by her stepfather? There are no winners in this kind of situation. It's just a sad reality in these inter-family sexual abuse cases. Nevertheless, you need to hold the defendant accountable for what he did to her for all those years.

There is no dispute that the prosecutor's rebuttal argument was in direct response to the argument of the defense and that the defense did not object. Because the argument was not flagrant and ill-intentioned, any resulting prejudice could have been cured by a jury instruction.

Tellez next argues that the prosecutor made remarks during rebuttal argument that were not supported by evidence. In the first instance, the prosecutor argued:

[O]utside of the sexual abuse, you have been presented with no evidence that the defendant was anything but a loving father and husband. But you know from your common experience that people, adults who sexually abuse kids can otherwise be nice and caring people.

Because the court sustained the defense objection and motion to strike, we presume the jury followed the court's instructions. The court's written instructions also expressly told the jury that counsel's arguments are not evidence and to disregard arguments not supported by evidence:

If I have ruled that any evidence is inadmissible, or if I have asked you to disregard any evidence, then you must not discuss that evidence during your deliberations or consider it in reaching your verdict. . . . The lawyers' remarks, statements, and arguments are intended to help you understand the evidence . . . [T]he lawyers' statements are not evidence . . . You must disregard any remark, statement, or argument that is not supported by the evidence . . .

Tellez also claims the prosecutor's argument concerning the recorded telephone conversation with R.A. was not supported by evidence. The prosecutor argued:

Even the defendant contemplated doing the right thing in this case. When he called [R.A.] from the jail, and you heard about the jail call, and he said, well, if I plead guilty, like you said that day, then I can get out under treatment, he contemplated doing the right thing, pleading guilty and getting treatment. You know he's talking about sexual deviancy treatment because —

The court sustained Tellez's objection and instructed the jury to disregard the prosecutor's remark.

Thereafter, the prosecutor argued:

He's in jail, talking about pleading guilty to a case involving sexual assault. He's connecting that in the same sentence with treatment. So you can surmise from that that's what he's talking about.

The court again sustained Tellez's objection, "I have sustained it once. Move on."

The prosecutor then argued:

Now, another reason this call is compelling is because innocent people don't contemplate pleading guilty to serious crimes such as this. And people who don't have problems such as those don't talk about the issue of treatment.

Tellez objected, stating "[t]his is not in evidence." The court overruled the objection, stating "[t]he jurors have instructions on how to treat counsel's argument."

Tellez argues the prosecutor's remarks were improper because there was no evidence that he was contemplating "sexual deviancy treatment," or that "innocent people don't contemplate pleading guilty to serious crimes such as this." However, the defense first focused on Tellez's statements in the telephone conversion with R.A. about treatment and pleading guilty during the defense closing argument. The defense argued:

You heard about a phone call that Mr. Tellez made to [R.A.] where he said, if I plead guilty, like you asked me that day, I could get out on treatment. It's clear he's thinking about something [R.A.] has told him to do. She's told him, I think you ought to plead guilty. He's saying, if I plead guilty, like you asked me. He never says, I'm going to plead guilty or I am guilty.

Even if improper, the prosecutor's remarks were in pertinent reply to the defense argument. In addition, the court sustained Tellez's objection about "sexual deviancy treatment" and specifically instructed the jury to "disregard the earlier comment."

Tellez next argues that the prosecutor improperly vouched for the credibility of R.A. during rebuttal argument by stating "[s]he's an honest person." But the court sustained the defense objection and the motion to strike the remark.

In addition, a prosecutor's remark about the credibility of a witness is not improper unless it is "clear and unmistakable" when viewed in context that the prosecutor is expressing a personal opinion rather than arguing inferences from the evidence. McKenzie, 157 Wn.2d at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983)).

Here, the prosecutor was responding to the defense argument that R.A. was not credible because Tellez allegedly was "seeing another woman. That must have been [a] devastating position for her to be in. Yet . . . She didn't want to have vengeance on him. That's just not credible." The prosecutor argued:

You can also believe [R.A.'s] testimony about the statements that [Tellez] made to her . . . because if she was going to just make something up to say, oh, I want to cook his goose, I want to come up with something to hang him for this, it would be a whole lot more compelling, whole lot simpler to say, yeah, when we talked about it, he admitted that I did it. But she didn't do that. That would have been much easier . . . Instead, she told you exactly what he did say . . . There was also an issue of this sort of extramarital affair that was touched on in passing. But there was really no additional evidence of anything along those lines. And [R.A.], hopefully, doesn't strike you as a person who is a vengeful person. She's pretty forgiving for everything. She allowed him to move back in the house even after what happened with him and her daughter. She's an honest person. Again, if she wanted to —

In context, the prosecutor's remark about R.A.'s honesty was not a clear and unmistakable expression of personal opinion.

In the alternative, Tellez argues that cumulative error denied him a fair trial. The cumulative error doctrine applies if there are "several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Tellez did not object or the court sustained his objection and motion to strike, cumulative error did not deprive Tellez of a fair trial.

We affirm.

WE CONCUR.