Opinion
No. 25377-5-III.
January 8, 2008.
Appeal from a judgment of the Superior Court for Kittitas County, No. 06-1-00125-6, Michael E. Cooper, J., entered July 17, 2006.
Reversed and remanded by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Brown, J.
Gary D. Engelstad Jr. appeals his convictions for first degree burglary with a deadly weapon, first degree assault, and intimidating a witness while armed with a deadly weapon. He contends multiple instances of prosecutorial misconduct denied him a fair trial. He also claims that trial counsel's failure to object to this misconduct constituted ineffective assistance of counsel. Concluding that the prosecutor committed prejudicial misconduct in eliciting evidence regarding an alibi witness's arrest for making a false statement to a police officer, we reverse and remand.
FACTS
Late in the evening on May 9, 2006, Mac Eugene Gill was asleep in his bedroom when he was awakened by blows from a baseball bat and golf club. He saw three people with bandanas over their noses and mouths. He later recognized one of the assailants as Jared Staloch. Mr. Gill managed to run out of his bedroom and call 911, while the three assailants fled. The emergency room physician who examined Mr. Gill after the attack testified that his injuries could have been fatal.
Mr. Gill had been scheduled to testify for the State in Mr. Engelstad's May 16 trial for an alleged assault against Mr. Gill. Prior to the May 9 attack, Mr. Staloch and Corey Faulkner had been threatening to beat up Mr. Gill if he identified Mr. Engelstad as his assailant at trial. Because of these threats, Mr. Gill believed Mr. Faulkner and Mr. Engelstad were possible suspects in the May 9 attack. During a jail interview, Mr. Staloch told a detective that he and Mr. Engelstad were involved in the assault.
The State charged Mr. Engelstad by amended information with first degree burglary with a deadly weapon, first degree assault, and intimidating a witness while armed with a deadly weapon. At trial, Mr. Staloch testified that on May 8 Mr. Engelstad asked him if he wanted to help beat up a "snitch." Report of Proceedings (RP) (June 28, 2006) at 37. The next evening, he, Mr. Engelstad, and another person drove to Mr. Gill's house. According to Mr. Staloch, Mr. Engelstad was carrying a golf club when he entered Mr. Gill's house. While Mr. Staloch was attending to a barking dog he heard Mr. Gill screaming. When he arrived in Mr. Gill's bedroom, he saw Mr. Engelstad and another person hitting Mr. Gill with a baseball bat and golf club.
Lucas Shriner, a friend of Mr. Engelstad's, testified that Mr. Engelstad was angry with Mr. Gill for agreeing to testify against him. He conceded telling Detective Darren Higashiyama in an interview that Mr. Engelstad wanted to beat up Mr. Gill. But he also testified that a number of people were angry with Mr. Gill.
Detective Higashiyama estimated that it was a 14-to 15-minute drive from Mr. Gill's house to Mr. Staloch's house and then to Mr. Engelstad's house. Noting that Mr. Gill's 911 call came in at 10:57 p.m., the detective calculated that if Mr. Engelstad had driven home immediately after the call came in, he would have arrived about 11:10 p.m.
Mandyee Bailes, Mr. Engelstad's girl friend and an alibi witness, claimed that she was with Mr. Engelstad until about 10:30 p.m. on May 9. The prosecutor attempted to discredit her testimony by asking her whether she had been arrested for making a false statement to the detective regarding this case. She responded that she had. Defense counsel did not object.
The prosecutor asked Detective Higashiyama about Ms. Bailes' inconsistent statements during the investigation. The detective testified that during his first interview with Ms. Bailes, she told him that she and Mr. Engelstad had been baby-sitting for a friend the evening of May 9. When the friend's work records revealed that she had not worked on May 9, Ms. Bailes continued to insist that Mr. Engelstad had been with her the entire evening of May 9. Detective Higashiyama then informed the jury that he arrested Ms. Bailes for making a false statement regarding this assertion. Again, defense counsel did not object.
The defense theory was that Mr. Staloch was merely the State's puppet, who in exchange for a plea bargain was willing to implicate Mr. Engelstad to protect his friend, Corey Faulkner. The defense elicited multiple inconsistencies in Mr. Staloch's statements to police, focusing on Mr. Staloch's initial statement to police that he did not witness the assault because he was trying to quiet a dog in another room.
The defense also tried to suggest that Mr. Faulkner was the true assailant, pointing to Mr. Gill's testimony that he heard someone say Mr. Faulkner's first name during the assault, and that Mr. Faulkner had threatened to beat up Mr. Gill if he testified against Mr. Engelstad. Finally, Mr. Engelstad's mother was a second alibi witness, testifying that Mr. Engelstad arrived home before the 11 p.m. news on May 9. Mr. Engelstad did not testify.
Ultimately, the defense strategies were not successful. A jury found Mr. Engelstad guilty of all three charges. Mr. Engelstad appeals, contending prosecutorial misconduct and ineffective assistance of counsel denied him a fair trial.
DISCUSSION
Although Mr. Engelstad raises several issues, it is necessary to deal only with one, i.e., whether the prosecutor's elicitation of evidence regarding Ms. Bailes' arrest for making a false statement to a police officer pertaining to this case constituted prejudicial misconduct.
Mr. Engelstad argues that evidence of arrests without conviction is inadmissible to impeach credibility. He also notes that the elicitation of such evidence violates ER 608(b), which prohibits the use of prior bad acts to attack a witness's credibility. The State responds that the information was not elicited to impeach Ms. Bailes' credibility, but to give context to her interview with law enforcement.
The alleged misconduct occurred during the State's attempt to discredit Ms. Bailes by questioning her about inconsistent statements she made to Detective Higashiyama. At trial, Ms. Bailes testified that she could not remember the events of May 8, but did remember that she and Mr. Engelstad were together the evening of May 9, and that she took him home between 9:30 and 10:30 p.m. However, in earlier statements to Detective Higashiyama, she had claimed that she was with Mr. Engelstad on May 8 as well as the entire evening of May 9. When the prosecutor asked her about these inconsistencies, Ms. Bailes explained that she initially had her dates confused, but was now clear on the time frames and events.
Without objection from defense counsel, the prosecutor then asked:
Q. . . . Ms. Bailes, you were subsequently arrested, were you not, based upon the information you're providing to Detective Higashiyama?
A. Yes.
Q. Subsequently appointed an attorney and that attorney has had the opportunity to review the information surrounding this case including what Mr. Engelstad has provided to Detective Higashiyama?
A. Yes.
RP (June 28, 2006) at 15.
Later, during direct examination of Detective Higashiyama, the prosecutor again directed the jury's attention to Ms. Bailes' arrest, questioning the detective as follows:
Q. . . . What did you do next?
A. After [Ms. Bailes] came out?
Q. After she came out?
A. She came out. She lit a cigarette, sat down in a chair Mr. Engelstad Sr., was sitting in. He said, "You're not talking to her." I said, "I have to talk to her." I said, "We either talk to her now or at the station." And then I told her to stand up, placed her under arrest for giving a false statement or obstruction.
RP (June 28, 2006) at 139-40.
At the outset we note that defense counsel made no objection to the State's elicitation of this evidence. Where there is a failure to object to prosecutorial misconduct, request a curative instructive, or move for a mistrial, it constitutes a waiver of our review unless the misconduct is so flagrant and ill-intentioned that no instruction could erase the prejudice. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). We reverse only when there is a substantial likelihood that the misconduct affected the jury's decision. Id. at 509-10. Any allegedly improper statements should be viewed in the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Generally, specific instances of a witness's conduct, introduced to attack the witness's credibility, may not be proved by extrinsic evidence. ER 608(b). Further, it is well settled that "charges, arrests or time spent in custody without convictions are not admissible to affect credibility." State v. Beard, 74 Wn.2d 335, 338, 444 P.2d 651 (1968); State v. Cardenas, 146 Wn.2d 400, 413, 47 P.3d 127, 57 P.3d 1156 (2002); see also 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 608.6, at 432 (5th ed. 2007) (evidence of arrest without a conviction is inadmissible for impeachment).
The reasoning behind this rule is that it is the finding of guilt that impeaches credibility; a witness should not be impeached by mere accusation. See State v. Roberts, 25 Wn. App. 830, 837, 611 P.2d 1297 (1980) ("A witness should not be discredited except by those misdeeds for which he has been convicted."). There is a vast difference between a conviction and an accusation. An arrest does not establish guilt; evidence of arrest is merely an opinion of the witness's guilt.
In view of these authorities, the prosecutor's elicitation of evidence that Ms. Bailes had been arrested for making a false statement was improper. But the State counters that evidence of Ms. Bailes' arrest was not elicited to impeach her credibility, but was necessary to "put in context the actions of the various witnesses as the investigation and prosecution are taking place." Br. of Respondent at 22.
But we fail to see how evidence of Ms. Bailes' arrest was necessary to explain the context of the State's investigation. The jury already had information that Ms. Bailes had provided inconsistent statements to Detective Higashiyama and that her initial story was contradicted by a friend's work records. Even the fact that she eventually refused to answer questions during the second interview with Detective Higashiyama was before the jury. The only purpose we can discern for this evidence was the impeachment of Ms. Bailes. Thus, the prosecutor committed misconduct when he elicited this evidence.
Having concluded that the prosecutor committed misconduct, we must next address whether there is a substantial likelihood that the misconduct affected the jury's verdict, including whether an instruction could have remedied the damage. This case turned on whether the jury believed Mr. Engelstad's alibi witnesses or Mr. Staloch. As indicated, Ms. Bailes testified that she dropped off Mr. Engelstad at his parents' house between 9:30 and 10:30 p.m. on May 9. His mother testified that she was certain Mr. Engelstad was home before the 11 p.m. evening news. Their combined testimony, if believed, would have made it impossible for Mr. Engelstad to participate in the assault within the time frames provided by the State.
There was evidence that both Mr. Staloch and Ms. Bailes had been untruthful during interviews with Detective Higashiyama. In fact, Mr. Staloch conceded during cross-examination that he was "making up stuff" during his first interview with law enforcement. RP (June 28, 2006) at 107. There was also evidence to suggest that he implicated Mr. Engelstad to protect Mr. Faulkner.
Admittedly, the jury had impeachment evidence independent of Ms. Bailes' arrest, but we cannot safely conclude that the evidence of her arrest for making a false statement about events related to this case did not contribute to the verdict. The issue of guilt or innocence turned on the jury's appraisal of the State's eyewitness and the defense's alibi witnesses. The witnesses' conflicting stories and credibility were debated by both sides during closing argument. Branding a key witness for the defense as an accused liar may have been the tipping point for the jury.
Moreover, the prosecutor aggravated the prejudice by emphasizing the arrest during closing argument. Referencing her initial claims that Mr. Engelstad was with her May 8 through May 11, he then argued, "That's what I [Ms. Bailes] am telling you. That's what I am sticking to and that's what I am going to tell you until I am arrested and charged with lying to an officer . . . then I am going to come to court and I am going to fix my story." RP (June 29, 2006) at 21.
Prosecutors have a duty to ensure that defendants receive fair trials. Here, the prosecutor's improper emphasis on Ms. Bailes' arrest for making a false statement denied Mr. Engelstad his right to a fair trial. Therefore, we reverse and remand.
A majority of the panel has determined that 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 BROWN, J., concur.