Opinion
No. 51997-2-I
Filed: December 6, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-08069-0. Judgment or order under review. Date filed: 02/10/2003. Judge signing: Hon. Charles W. Mertel.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Shannon Stein contends the prosecutor improperly commented on his exercise of his constitutional right to appear at his trial when the prosecutor suggested in cross examination that Stein was not credible because he had the opportunity to hear the testimony of all the other witnesses before he testified. The prosecutor's limited cross examination on this point was not improper. We affirm.
FACTS
The same day that Bobby Lynn Kammerer told Stein that their relationship was over, Stein became distraught and began drinking. After leaving several phone messages, Stein went to Kammerer's apartment. Kammerer was on the phone with the 911 operator and refused to let Stein in. Stein kicked in the front door and grabbed Kammerer by her throat. The 911 tape includes Kammerer's screams "Please don't hurt me" and "Let me go."
Kammerer fled. Stein initially followed her, but then got into his car and drove away, hitting the right side of Kammerer's truck with his car. Stein testified about their on and off again relationship, their break up, his drinking, and his telephone messages. He admitted going to her apartment and kicking in the door because he wanted to talk to her and she refused to let him in. He denied assaulting her, but admitted placing his hands on her face and being upset. He also admitted hitting her truck in his haste to leave the apartment.
When the prosecutor began cross examination of Stein by pointing out that he had been present throughout the trial:
Q: All right, Now, Mr. Stein you have been here since the beginning of trial and you've — you've had a chance to hear everybody's testimony; is that correct?
A: That's correct.
Q: so you've had some time to think about what you needed to say; isn't that correct?
A: Sure, you could say that.
The jury found Stein guilty of first degree burglary — domestic violence.
DECISION
Stein contends that the prosecutor's cross examination was an improper comment on his article I, section 22 constitutional "right to appear and defend in person or by counsel." He acknowledges that the Sixth Amendment right to be present at trial does not preclude such a "tailoring" argument. But he offers a Gunwall analysis to argue that article I, section 22 of the Washington constitution provides greater protection than the federal constitution.
State v. Miller, 110 Wn. App. 283, 284, 40 P.3d 692, rev. denied, 147 Wn.2d 1011 (2002) (comment that defendant had the opportunity to tailor his testimony after hearing the testimony of all other witnesses in court did not infringe upon the defendant's Sixth Amendment right to be present at trial).
State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986).
An accused person has a right under the federal and state constitutions to be present at trial. The State may chill the defendant's constitutional rights by highlighting the defendant's exercise of a constitutional right and thereby suggest that the jury draw a negative inference. The State may not comment on or argue unfavorable inferences from the defendant's exercise of a constitutional right. But questioning or argument touching upon a defendant's exercise of his constitutional rights may be permissible, "so long as the focus of such questioning or argument is not upon the exercise of the constitutional right itself."
U.S. Const., amend. V, VI, XIV; Wash. Const. art. 1, sec. 22; State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994); United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985).
See, e.g., United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968); State v. Mace, 97 Wn.2d 840, 844, 650 P.2d 217 (1982).
See, e.g., State v. Fiallo-Lopez, 78 Wn. App. 717, 729, 899 P.2d 1294 (1995) (improper for prosecutor to comment on the defendant's failure to testify).
State v. Miller, 110 Wn. App. at 284 (comment that defendant had the opportunity to tailor his testimony after hearing the testimony of all other witnesses in court did not infringe upon the defendant's constitutional rights).
A defendant who choses to testify is subject to cross examination the same as any other witness. To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect. Failure to object to an allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring prejudice that could not have been neutralized by a curative instruction to the jury.
State v. Etheridge, 74 Wn.2d 102, 113, 443 P.2d 536 (1968).
State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Stein fails to argue or establish that the cross examination was so flagrant or ill-intentioned that it could not have been neutralized by a curative instruction. To the extent he asserts that the cross examination establishes manifest constitutional error under the state constitution so that no objection was necessary to preserve the issue, the argument fails. The comment was, at most, a limited reference to the fact that Stein heard the testimony and knew that he had to explain the circumstances, rather than a blatant, repetitive focus on the constitutional right to be present and to confront witnesses at trial. The prosecutor's focus here was that Stein's claim that he did not assault Kammerer did not make sense and was not believable, while Kammerer's testimony and the 911 tape were credible. Even if our state constitution provides greater protection than the Sixth Amendment, Stein has failed to demonstrate any prosecutorial misconduct, let alone manifest constitutional error.
We affirm.
COLEMAN, J., AGID, J. and APPELWICK, J.