Opinion
No. 52289-2-I
Filed: March 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-02089-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Robert H. Alsdorf.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Erin Hairopoulos Becker, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Thomas Clarke was convicted of child molestation in the first degree and was sentenced to life in prison with no parole under the Persistent Offender Accountability Act. He had three prior convictions: two counts of indecent liberties and one count of assault in the second degree with sexual motivation, all committed against boys. He alleges prosecutorial misconduct, ineffective assistance of counsel, and challenges the Persistent Offender Accountability Act on several constitutional bases.
FACTS
In January 2002, Thomas Clarke saw Fred Schneider (Schneider) panhandling at a Costco. Clarke began talking with Schneider and offered him a job helping Clarke in Clarke's janitorial business. Schneider accepted, and later took Clarke to meet his family. Schneider was living with his sister and brother-in-law, Linda and Eugene Needham, their four children, and a family friend, Doug Talley (Talley). The group shared two rooms at the Spruce Motel in Tukwila, Washington. At the time, Eugene Needham was unemployed due to an injury, and Linda Needham, Schneider and Talley were disabled and received government assistance checks. Clarke offered to pay the Needham's three boys, Michael, D'Angelo and Daryl, $15 each per shift to help him and Schneider in his janitorial work. The Needhams agreed. Clarke began picking up Schneider and the boys on Friday afternoons and taking them to jobs. Clarke fed everyone fast food and paid them as promised. Since the work was not finished until late in the evening, Clarke preferred not to drive them back to Tukwila, suggesting instead that Schneider and the boys stay with him overnight in his Seattle apartment. The Needhams agreed.
Clarke's apartment was a single room in the Boylston Hotel. When staying the night, Schneider and 13-year-old Michael would sleep on the floor, and 11-year-old D'Angelo and 9-year-old Daryl would alternate between sleeping on the floor and sharing the bed with Clarke. These visits occurred several times.
The manager of the Boylston Hotel noticed that Clarke had children visiting him and called the police. Clarke was a registered sex offender, and had three prior convictions for sexually abusing boys. The officers that responded to the call questioned both Clarke and the boys, who denied that anything inappropriate had occurred. The police called Eugene Needham to tell him of Clarke's history, and then drove the boys home.
Back at the motel, Daryl told his father that Clarke had touched his penis while he stayed in Clarke's bed. Daryl later repeated this to the police. The police then arrested Clarke and interviewed him. Clarke initially denied any wrongdoing, but eventually admitted touching Daryl's penis. On March 7, 2002, Clarke was charged with one count of child molestation in the first degree.
At trial, Daryl testified that Clarke touched his penis when they slept on the bed together. During cross-examination, defense counsel asked Daryl if he was making up this story in the same way he had told lies in the past, and Daryl said he was. Defense counsel pointed this out in closing argument. The prosecutor responded by saying that Daryl had likely not been paying attention to defense counsel's question and got mixed up because Daryl was `being cross-examined by somebody whose sole purpose is to confuse him.' Defense counsel did not object to this comment.
Detectives Tim Fields (Fields) and Donna Lopez (Lopez), the two officers that had interviewed Clarke after his arrest, also testified at trial. Lopez testified that during the interview Fields asked Clarke if he had ever received treatment while incarcerated for his prior convictions. Clarke had said he never entered treatment because he did not do anything wrong, and he had heard from other inmates that he would never be released if he underwent treatment. Fields then told him that this was incorrect, that treatment was designed to move offenders back into society. Between Lopez's and Fields' testimony, defense counsel moved to admit evidence that Clarke was facing a life sentence if convicted, arguing that the jury should know that Clarke would not be moved back into society if convicted. The trial court denied this motion.
Clarke was found guilty. At sentencing, the prosecutor offered evidence of Clarke's prior convictions in order to show that he was a persistent offender. The trial court, without a jury, found that the state had met its burden and sentenced Clarke to life in prison under the Persistent Offender Accountability Act (POAA). Clarke appeals.
ANALYSIS I. Prosecutorial Misconduct
Clarke argues that prosecutorial misconduct denied him a fair trial. Specifically, Clarke cites to the prosecutor's statement that defense counsel `is a trained lawyer, and he actually is able to manipulate that child, confusing him.' Clarke also cites to the prosecutor's statement that Daryl was `being cross-examined by somebody whose sole purpose is to confuse him.' Defense counsel did not object to these comments at trial. A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. Brown, 132 Wn.2d at 561. Failure to object to a prosecutor's improper remark constitutes a waiver of any misconduct; however, appellate review is not precluded if the misconduct is so flagrant and ill-intentioned that no curative instructions could have neutralized the resulting prejudice. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995).
Assuming without deciding that the comments were improper, Clarke has not shown that they likely affected the jury's verdict. Fields testified that Clarke confessed to touching Daryl's penis. In addition, the trial court gave the jury instructions that the lawyer's statements were not evidence, and that the jury must disregard statements not supported by law or evidence. It is presumed that jurors follow the court's instructions. State v. Cunningham, 51 Wn.2d 502, 505, 319 P.2d 847 (1958). Thus, there is no substantial likelihood of prejudice.
In addition, Clarke has not shown that the comments were so flagrant and ill-intentioned that a curative instruction would have been useless. Cases in which the prosecutor's comments rose to that level involved more extreme comments that were about the defendant, not defense counsel. In addition, similar comments about defense counsel have not been held to be flagrant and ill-intentioned. In State v. Negrete, 72 Wn. App. 62, 66, 863 P.2d 137 (1993), the prosecutor stated in closing argument that defense counsel was being paid to twist the words of the witness. The court found that although the remark was improper, it was not prejudicial beyond cure. Negrete, 72 Wn. App. at 67. Here, the prosecutor stated that defense counsel was manipulating and confusing Daryl on the stand. Thus, Clarke has not shown that a curative instruction would not have remedied any impropriety; accordingly, his claim must fail.
See, e.g., State v. Belgarde, 110 Wn.2d 504, 506-08, 755 P.2d 174 (1988) (prosecutor stated in closing argument that a group that the defendant was affiliated with, the American Indian Movement, was a group of butchers analogous to the Irish Republican Army and Kadafi; Court stated that this was testimony in the guise of argument, and would likely have caused a feeling of revulsion in the jurors if they believed the description); State v. Charlton, 90 Wn.2d 657, 660-65, 585 P.2d 142 (1978) (prosecutor commented on the defendant's exercise of the marital privilege); State v. Claflin, 38 Wn. App. 847, 849-51, 690 P.2d 1186 (1984) (prosecutor read an inflammatory poem by a rape victim that the appellate court held improperly appealed to the passions and prejudice of the jurors).
Clarke contends that since the prosecution's statement deprived him of his constitutional right to counsel, the comment must be reviewed under the standard of whether it was harmless beyond a reasonable doubt. Since we do not find that an error of constitutional dimensions occurred, we need not analyze the statement under that standard.
II. Ineffective Assistance of Counsel
Clarke contends that his counsel's failure to argue that the state had opened the door to evidence of potential punishment constitutes ineffective assistance of counsel. Specifically, Clarke argues that the state opened the door to the otherwise inadmissible issue of potential punishment when Lopez testified about the conversation between Clarke and Fields. Lopez testified that Fields told Clarke that treatment is set up to help offenders overcome problems `so they can get back out and function in society.' Defense counsel later argued that he should be permitted to introduce evidence of the life sentence Clarke faced, to show that Fields' statement was untrue. The trial court did not admit that evidence. Clarke argues that counsel's failure to use the `open door' argument when seeking to admit the evidence constituted ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that his or her lawyer's performance was so deficient that the lawyer was not functioning as `counsel' for Sixth Amendment purposes, and (2) that there is a reasonable probability that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). When assessing the adequacy of the lawyer's performance, courts apply a strong presumption of reasonableness. Thomas, 109 Wn.2d at 226. Clarke contends that the `open door' doctrine is so well-established that a failure to raise it constitutes deficient performance. Clarke further contends that if the evidence had been admitted, the jury may have been less inclined to convict him, knowing he would not be released.
Clarke does not argue that defense counsel's failure to object to this testimony or failure to move to strike it constitutes ineffective assistance of counsel.
Clarke also states in a footnote that defense counsel's failure to object to the prosecutor's allegedly improper closing remarks `may be seen' as evidence of ineffective assistance of counsel. As Clarke has neither cited any authority for this proposition nor briefed the issue, we do not address it here.
Clarke's argument fails for several reasons. First, the evidence sought to be admitted was not relevant evidence. While otherwise inadmissible evidence is admissible if the witness opens the door, this inadmissible evidence must also be relevant to an issue at trial. State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998). The punishment imposed upon conviction is irrelevant to the fact-finding process. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 402.42 (4th ed. 1999). Second, evidence of Clarke's sentence is improper: it is well-established that a jury in a non-capital case cannot be informed about the defendant's possible sentence. State v. Townsend, 142 Wn.2d 838, 846-47, 15 P.3d 145 (2001). A lawyer's failure to argue an alternate theory for the admission of irrelevant and/or improper evidence does not constitute deficient performance.
Third, the brief mention of the conversation between Clarke and Fields is not sufficient to open the door to evidence of Clarke's potential sentence. A passing reference to a prohibited topic does not open the door to inadmissible evidence that goes beyond the purpose of the original testimony. See Stockton, 91 Wn. App. at 40 (defendant charged with unlawful possession of a firearm did not open the door to questions about his drug use by testifying he thought a man who approached him was trying to sell him drugs); State v. Avendano-Lopez, 79 Wn. App. 706, 714-15, 904 P.2d 324 (1995) (defendant's testimony that he had recently been released from jail did not open the door to questions about his prior drug transactions). Thus, Lopez's testimony about the conversational context of Clarke's confession did not open the door to evidence of his potential sentence.
The evidence sought to be admitted was properly excluded because it was irrelevant, improper, and beyond the scope of Lopez's testimony. Therefore, Clarke cannot show that there was a substantial probability he was prejudiced by its exclusion.
Even if the evidence had been admitted, the trial court's instructions specifically told the jury that it has `nothing whatever to do with any punishment that may be imposed in case of a violation of the law. The fact that punishment may follow conviction cannot be considered by [the jury] except insofar as it may tend to make [the jury] careful.' Clarke's argument assumes that the jury did not follow the trial court's instructions when deliberating, and would not have followed the instructions had it received the sentencing information. Since we presume that jurors follow the court's instructions, Cunningham, 51 Wn.2d at 505, Clarke's argument that he was prejudiced fails, as does his claim of ineffective assistance of counsel.
III. Cruel and Unusual Punishment
Clarke contends that his sentence of life in prison without parole is cruel and unusual punishment in violation of the federal and Washington constitutions. Washington courts review four factors in deciding whether a defendant's punishment is cruel: (1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction. State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980). No one factor is dispositive. State v. Gimarelli, 105 Wn. App. 370, 380-81, 20 P.3d 430 (2001). The Washington constitutional provision barring cruel punishment provides more protection than the federal constitution. State v. Thorne, 129 Wn.2d 736, 772, 921 P.2d 514 (1996). Thus, a finding that Clarke's sentence passes muster under the Washington provision negates the need for a federal constitutional analysis. Thorne, 129 Wn.2d at 772-73.
Clarke first points out that analysis of the `nature of the offense' prong has focused on the violent nature of offenders' crimes. Clarke argues that because his crime did not entail `any use of force, violence or fear to achieve his criminal ends[,]' the first prong militates against the constitutionality of his sentence. Clarke's argument is unavailing. Under the first Fain factor, courts consider whether the crime was violent and whether it was committed against a person. Gimarelli, 105 Wn. App. at 381. In Gimarelli, the defendant was sentenced to life in prison with no parole under the POAA after he was convicted of attempted child molestation in the first degree. Gimarelli, 105 Wn. App. at 381. The court noted that attempted child molestation in the first degree is a crime against a person, and that the legislature had classified it as a `serious and violent sex offense.' Gimarelli, 105 Wn. App. at 381. The court affirmed the defendant's sentence. Gimarelli, 105 Wn. App. at 381. As Clarke's crime was similar, the first Fain factor is satisfied.
In fact, Clarke was convicted of child molestation in the first degree, whereas the defendant in Gimarelli was only convicted of attempted child molestation in the first degree.
Clarke next contends that his life sentence is contrary to the purposes of the POAA because it `gives him no incentive to improve himself, and every reason to act badly.' However, the purposes of the POAA include the improvement of public safety and the reduction of serious repeat offenders. Thorne, 129 Wn.2d at 765-66; RCW 9.94A.555. Clarke has now been convicted of indecent acts against four different young boys. Therefore, his sentence is in accord with improvement of public safety and reduction of serious repeat offenders.
Clarke argues that his sentence is much harsher than what he would have received in other jurisdictions, violating the third Fain factor. He notes that Washington's `two strikes' law for sexual offenders is harsher than most comparable laws in other states because almost all of the other states' `two strikes' laws `apply to aggravated sex offense crimes requiring both some degree of penetration and the infliction of serious bodily injury.' State v. Morin, 100 Wn. App. 25, 32-33, 995 P.2d 113 (2000); Respondent concedes that Washington's law is among the harshest in the country. However, this factor alone is not dispositive — Washington courts have upheld life sentences for crimes similar to Clarke's while recognizing the harshness of Washington's law. See, e.g., Gimarelli, 105 Wn. App. at 381-82 (defendant convicted of attempted child molestation in the first degree); Morin, 100 Wn. App. at 32-34 (defendant convicted of indecent liberties by forcible compulsion).
Indecent liberties by forcible compulsion is placed in the same category as child molestation in the first degree for the purposes of determining a persistent offender. RCW 9.94A.030(32)(b)(i)(A).
Clarke claims that his sentence violates the fourth Fain factor because he would have received a much shorter sentence for murder in the second degree and other serious non-sexual offenses. This assertion is inaccurate. Clarke had already been convicted of indecent liberties and assault in the second degree with sexual motivation. Both of those crimes are considered `most serious offenses' and count as prior strikes for the purposes of determining a persistent offender. RCW 9.94A.030(28); RCW 9.94A.030(32)(a). Thus, a conviction for murder in the second degree, assault in the first degree, or manslaughter in the first degree would have resulted in the same sentence for Clarke, since those crimes are also considered `most serious offenses' and would count as a third strike under the POAA. RCW 9A.32.050(2); RCW 9A.36.011(2); RCW 9A.32.060(2); RCW 9.94A.030(28)(a); RCW 9.94A.030(32)(a). Clarke also would have received the same sentence for rape of a child in the second degree, indecent liberties by forcible compulsion, or assault of a child in the first degree with sexual motivation. RCW 9.94A.030(32)(b). Thus, Clarke's sentence is the same as it would have been had he committed any other `most serious offense.' Clarke's life sentence is thus not cruel under the Washington constitution, and need not be analyzed under the federal constitution.
IV. Additional Constitutional Issues
Clarke brings several additional constitutional challenges to his conviction and sentence. He contends that the POAA violates separation of powers principles because it eliminates judicial discretion in sentencing. However, in Thorne, the Court held that the fixing of penalties belongs to the legislative branch of the government. Thorne, 129 Wn.2d at 767-69. The legislature is free to set punishments, subject to the prohibition of cruel and unusual punishment. Thorne, 129 Wn.2d at 767-69. The Court thus found that the POAA did not violate the separation of powers doctrine. Thorne, 129 Wn.2d at 767-69. As Thorne has not been overruled, Clarke's argument fails.
Clarke also argues that the POAA violates the Guarantee Clause of both the federal and Washington state constitutions because the initiative process that led to its enactment lacked the requirements of a republican form of government. Clarke acknowledges that this argument was rejected by the Court in State v. Davis, 133 Wn.2d 187, 943 P.2d 283 (1997), which held that `any challenge to the Three Strikes Law based on the `Guarantee Clause' would be frivolous.' Davis, 133 Wn.2d at 190. However, Clarke argues that Davis is unpersuasive, as it was decided based on abbreviated briefing under an Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) motion to withdraw. This court has recognized Davis as controlling authority on the issue of constitutionality of the POAA under the Guarantee Clause. State v. Cruz, 91 Wn. App. 389, 396, 959 P.2d 670 (1998), rev'd on other grounds, 139 Wn.2d 186, 985 P.2d 384 (1999); State v. Bridges, 91 Wn. App. 102, 104-05, 955 P.2d 833 (1998). As we decline to overrule that holding today, Clarke's argument must fail.
Clarke argues that due process requires that the prosecution prove to a jury beyond a reasonable doubt that he is a persistent offender. Because he was found to be a persistent offender only by a preponderance of the evidence and through a judicial hearing, Clarke claims his rights were violated. Clarke argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) requires that any fact that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. However, Clarke's reliance on Apprendi is misplaced. The Court in State v. Wheeler, 145 Wn.2d 116, 123-24, 34 P.3d 799 (2001) declined to extend Apprendi to hold that sentence enhancements based on prior convictions are unconstitutional. The Court reaffirmed this holding in State v. Smith, 150 Wn.2d 135, 143, 75 P.3d 934 (2003). As neither Wheeler nor Smith has been overruled, Clarke's due process challenge fails.
Finally, Clarke contends that the POAA is an unconstitutional bill of attainder. However, controlling authority again defeats Clarke's challenge. In order for a statute to constitute a bill of attainder, `it must specify the affected persons, it must inflict punishment, and it must lack judicial trial.' Thorne, 129 Wn.2d at 759. The Thorne Court held that the POAA did not specify the affected persons because those with prior serious convictions can avoid the sentence by not committing the third crime. Thorne, 129 Wn.2d at 759. The Court also held that since a trial is required to find guilt and a judicial hearing to find the prior `strike' offenses, the POAA does not lack judicial trial. Thorne, 129 Wn.2d at 759-60. Thus, the Court held that the POAA was not a bill of attainder. Thorne, 129 Wn.2d at 759-60. As Thorne has not been overruled, Clarke's argument fails.
V. Additional Grounds for Review
Clarke raises two additional grounds for review. He objects to the use of his confession. He claims that during his interview with Fields, he told Fields repeatedly that he did not want to make a statement. Clarke notes that he never signed a statement and that the brief tape recording of the interview indicates he was making no statement. At the pre-trial hearing on the admissibility of Clarke's confession, Fields testified that he had given Clarke the full Miranda warnings prior to interviewing him, and Clarke waived his rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
Fields also stated that Clarke confessed to touching Daryl. After the confession, Fields had Lopez get a tape recorder and asked Clarke if he could record some of Clarke's statements. Fields noted that Clarke did not want to talk about the allegation on tape, and that Clarke said his attorneys had told him never to give a taped statement. Fields also stated that when he told Clarke he was going to leave and type up the statement so Clarke could read it and sign it, Clarke said his attorney told him not to sign anything. The trial court determined that all of Clarke's statements prior to the tape recorder discussion could come in, and all statements afterwards could not, as the conversation about the tape recorder was sufficient to constitute an invocation of the right to have an attorney present. At trial, Fields testified that Clarke admitted to touching Daryl. The statement that Fields wrote was admitted, and Clarke's lack of signature was noted.
We review a trial court's decision on the admissibility of evidence for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Clarke suggests nothing, nor is there anything in the record, to indicate that the trial court abused its discretion in admitting Clarke's statements made prior to the tape recorder conversation. Thus, Clarke's argument must fail. Clarke also contends that the Needham boys were in counseling, and notes that neither the prosecutor nor his attorney called the counselor at trial. Clarke asserts that the counselor would have testified that the Needham boys never said anything to her — presumably he means they never said anything to her about being molested. However, Clarke's assertion as to what the counselor would have testified to is purely speculative — he offers no proof or support for his contention. Thus, Clarke's argument must fail.
Affirmed.
KENNEDY and AGID, JJ., Concur.