Opinion
No. 33878-5-II.
May 1, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03910-1, Stephanie A. Arend, J., entered September 23, 2005.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Penoyar, J.
Tyran Smith appeals his convictions of (1) homicide by abuse of his two-year-old daughter Tyshell and (2) second degree felony murder for (a) criminally mistreating her, and (b) assaulting her. He challenges his exceptional sentence, arguing that the trial court lacked authority to ask the jury to find aggravating sentencing facts because he committed his crimes after Blakely but before the legislative amendment allowing such jury findings. Smith also argues that the trial court violated his right to due process when it denied his challenge for cause to a racially biased juror and forced him to use a peremptory challenge to remove the juror. In addition, Smith claims that the prosecutor committed prejudicial misconduct during closing argument. In a statement of additional grounds for review, Smith argues that the trial court should not have admitted a videotape depicting Tyshell shortly before her death and that the State failed to prove either conviction. Finding no reversible error, we affirm.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
While her father's girlfriend was feeding her, two-year-old Tyshell made a gurgling sound, slumped forward, and stopped breathing. Tyran Smith, Tyshell's father, tried to revive her while Christina Tierce, Smith's girlfriend, called the paramedics. The paramedics transported Tyshell to the hospital where she was pronounced dead. Tyshell had been living with her father and Tierce for about one month before her death.
Hospital staff observed that Tyshell was visibly emaciated with multiple injuries. She had several contusions and extensive bruising, including a belt mark across her face. Some of Tyshell's injuries were at least a few days old. The autopsy also revealed internal bleeding under Tyshell's skull in four places, each representing an area of blunt force impact equal to a fall from five to seven stories. The medical examiner who performed the autopsy estimated that advanced dehydration, head injuries, and the contusions caused Tyshell's death.
Smith and Tierce told the investigating detectives that they had been camping during the week leading up to Tyshell's death and that a babysitter had taken care of Tyshell. They explained that when they returned from camping, they noticed that something was wrong with Tyshell. After further investigation, detectives became skeptical of the camping-babysitter story and arrested Smith and Tierce.
The State charged Smith with homicide by abuse, alleging as aggravating factors that he committed the crime with deliberate cruelty, to a particularly vulnerable victim and, in doing so, abused his obligation of trust toward Tyshell. The State later added a second degree felony murder charge based on predicate felonies of second degree assault and criminal mistreatment; the State alleged the same aggravating factors it had alleged in the homicide by abuse charge. Smith pleaded not guilty, claiming he was not at home for most of the week leading up to Tyshell's death and that Tierce must have abused Tyshell while he was away. Tierce pleaded guilty to second degree felony murder.
At trial, the State showed the jury a video recording of Tyshell taped during the week leading up to her death. In the video, Tyshell had trouble holding her head up, was unresponsive, and appeared dazed. When she attempted to lie down, Tierce, who was filming, warns her that if she does, Smith is going to come in the room and hit her with a belt.
L.C., who lived with Smith and Tierce, testified that before living with Smith, Tyshell was a happy girl who liked to dance. L.C. told the jury that although both Smith and Tierce spanked Tyshell, Smith disciplined Tyshell the most, using both his hands and a belt. In the week leading up to Tyshell's death, a neighbor heard a man and woman in the Smith residence fighting over a child not eating her food. Another neighbor testified that a child in the Smith home was crying and "horribl[y] screaming" for three to five hours. 7 Report of Proceedings (RP) at 824-26. She also heard a male voice saying, "That's what you get." 7 RP at 825.
Ten-year-old L.C. moved into Smith's home with Tyshell. Previously, she and Tyshell both lived with their mother, Maichellele Sweeten. Smith is not L.C.'s father.
Tierce testified that Smith stopped performing CPR on Tyshell to dictate the babysitter story to her while she called 911. Tierce also said that Smith hit Tyshell in the legs with his belt over her clothes when she refused to eat. Tyshell responded by crying and yelling, "Daddy, stop." 9 RP at 1166. Tierce said she was afraid of Smith and that he "[o]bviously did something" to Tyshell. 9 RP at 1196.
Smith's witnesses supported his claim that he spent a lot of time with friends during the week leading up to Tyshell's death, and often did not get home until late. Smith said that the only bruises he had seen on Tyshell's body before his arrest were two bruises on her head she received from falling in the driveway. But on cross-examination, Smith admitted that, on the night she died, he told detectives where to find bruises on Tyshell's body. He said he only hit Tyshell on the legs with the belt one time and lightly disciplined her on two other occasions.
The jury convicted Smith of homicide by abuse and second degree murder, finding that he committed both underlying felonies; the jury also found that the State proved all aggravating factors beyond a reasonable doubt. The trial court imposed a 600-month exceptional sentence for Smith's homicide by abuse conviction, explaining that it would have imposed the same exceptional sentence for any single aggravating factor. To meet double jeopardy principles, the court did not sentence Smith on the second degree murder conviction.
ANALYSIS I. Sentencing Issues
Smith argues that the trial court erred in imposing an exceptional sentence based on the jury's findings that Smith committed the crime with deliberate cruelty against a particularly vulnerable victim and that an abuse of trust facilitated the crime. He argues that in imposing an exceptional sentence, the trial court violated his Sixth Amendment rights under Blakely, exceeded its statutory authority, violated the doctrine of separation of powers, violated due process, and violated his right to equal protection.
Smith conceded at oral argument that our Supreme Court's decision in State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), disposes of his due process, equal protection, Fifth Amendment, and Sixth Amendment arguments.
Smith argues that the trial court exceeded its statutory authority in submitting the aggravating factors to the jury and in relying on that process to impose Smith's exceptional sentence. He argues, correctly, that in Blakely, the United States Supreme Court struck down as unconstitutional Washington's scheme of imposing exceptional sentences. Blakely, 542 U.S. at 304-05.
To comply with Blakely, the legislature amended the Sentencing Reform Act (SRA) to "create a new criminal procedure for imposing greater punishment than the standard range" in an effort to "restore the judicial discretion that" the Blakely decision limited. Laws of 2005, ch. 68, § 1. These amendments, which some courts refer to as the " Blakely fix" legislation, became effective on April 15, 2005. See Laws of 2005, ch. 68, § 7. Smith maintains that because the legislature did not amend the SRA's exceptional sentence scheme until April 15, 2005, and because he allegedly committed the crime on July 30, 2004, his case falls under a "'statutory hiatus' during which there was no authority" for a court to impose an exceptional sentence. Br. of Appellant at 17, 21. He argues that to apply the " Blakely fix" "retroactively" to his case runs afoul of the constitutional prohibitions against ex post facto laws. U.S. Const. art. 1, § 9; Wash. Const. art. I, § 23; Br. of Appellant at 16.
But our Supreme Court recently held in Pillatos, 159 Wn.2d at 474, that Laws of 2005, chapter 68 applies to all cases in which trial had not begun before its enactment. Smith's trial began on July 5, 2005. Thus, the " Blakely fix" legislation contained in Laws of 2005, chapter 68, applies to Smith's case.
Moreover, the court held that because Laws of 2005, chapter 68 does not attach new legal consequences to any crime, the enactment is not retrospective. Pillatos, 159 Wn.2d at 476-77. Accordingly, Smith's argument that applying Laws of 2005, chapter 68 to his case violates prohibitions on ex post facto laws is without merit.
The amendments contained in Laws of 2005, chapter 68, required the State to (1) provide notice that it would seek a sentence above the standard range and (2) prove facts supporting the aggravating circumstance to a jury beyond a reasonable doubt. Laws of 2005, ch. 68, § 4(1), (2). Laws of 2005, chapter 68, section 4(5) authorizes the trial court to impose an exceptional sentence if the jury finds that the State has proved "one or more of the facts alleged . . . in support of an aggravated sentence" and if "the facts found are substantial and compelling reasons justifying an exceptional sentence." An abuse of trust, deliberate cruelty, and a particularly vulnerable victim are three of the "exclusive list of factors" that support an exceptional sentence under Laws of 2005, chapter 68, section 3(3)(a), (b), (n).
Here, the jury found, by special verdict, that the State proved the aggravating factors alleged in the information beyond a reasonable doubt. The court then imposed an exceptional sentence, stating that the "aggravating circumstances found by the [jury] . . . are substantial and compelling reasons justifying an exceptional sentence." Clerk's Papers (CP) at 262. Because the trial court complied with Laws of 2005, chapter 68, which apply to Smith's case, the trial court did not err in imposing Smith's exceptional sentence. See Pillatos, 159 Wn.2d at 474.
Still, Smith argues that even under Pillatos, his trial started before the effective date of the " Blakely fix" because the trial court exercised its discretion in granting continuances before the date of the amendments, citing State v. Carson, 128 Wn.2d 805, 813, 912 P.2d 1016 (1996) and State v. Andrews, 66 Wn. App. 804, 810, 832 P.2d 1373 (1992). Both cases are distinguishable.
In both Carson and Andrews, the court held that to comply with CrR 3.3's speedy trial guarantee, the court must do nothing more than call the case and entertain a preliminary motion. Carson, 128 Wn.2d at 820; Andrews, 66 Wn. App. at 810. In those cases, the defendants appealed their convictions on the ground that the respective trial courts violated the defendants' speedy trial rights because their cases did not go to trial before the speedy trial expiration date. Carson, 128 Wn.2d at 819-20; Andrews, 66 Wn. App. at 805-09. In both cases, the trial court had continued the trial date and, although the courts did not empanel a jury or entertain opening arguments that day, the court heard and disposed of preliminary motions. Carson, 128 Wn.2d at 820; Andrews, 66 Wn. App. at 805-09. The court held that, for speedy trial purposes, the trial commenced on the day the court entertained preliminary motions. Carson, 128 Wn.2d at 820; Andrews, 66 Wn. App. at 810.
The holdings in Carson and Andrews are narrow and apply only to compliance with CrR 3.3's speedy trial guarantee. See, e.g., Carson, 128 Wn.2d at 820 ("for speedy trial purposes," trial commences when the case is assigned or called for trial and the trial court hears and disposes of preliminary motions); Andrews, 66 Wn. App. at 810 (the issue is whether a defendant's CrR 3.3 speedy trial rights are violated when the court hears and decides a preliminary motion before the speedy trial expiration date). In this case, the trial court granted a continuance before the legislature enacted the " Blakely fix" legislation, but the court did not empanel a jury and present opening arguments until July 5, 2005. For purposes of the amendments enacted in Laws of 2005, chapter 68, Smith's trial did not begin when the trial court entertained preliminary motions. Thus, we decline Smith's invitation to hold that his trial started before the legislature enacted Laws of 2005, chapter 68.
II. Jury Instructions
Smith argues that the trial court improperly instructed the jury on the three charged aggravating factors.
We will reverse an exceptional sentence if (1) the record before the sentencing court does not support that court's reasons for the exceptional sentence or those reasons do not justify a sentence outside the standard sentence range for that offense, or (2) the sentence imposed was clearly excessive or clearly too lenient. RCW 9.94A.585(4). Whether the record supports the sentencing court's stated reasons for imposing an exceptional sentence is a factual determination that we will uphold unless the finding is clearly erroneous. State v. Suleiman, 158 Wn.2d 280, 291 n. 3, 143 P.3d 795 (2006) (citations omitted).
The special verdict form reads as follows:
We, the jury, having found the defendant guilty of the crime of Homicide by Abuse, make the following answers to the questions submitted by the court: QUESTION: Has the State proven the existence of the following beyond a reasonable doubt?
(1) The crime of Homicide by Abuse was facilitated by the defendant's abuse of a position of trust towards Tyshell.
(2) At the time that the crime of Homicide by Abuse was committed, the defendant knew or should have known that Tyshell . . . was particularly vulnerable to the crime, or incapable of resisting the crime, due to extreme youth.
(3) The defendant's conduct during the commission of the crime of Homicide by Abuse manifested deliberate cruelty to Tyshell.
CP at 174. The court also defined "[d]eliberate cruelty" and "abuse of trust" for the jury.
The trial court instructed the jury that "'[d]eliberate cruelty' is violence or other conduct which inflicts physical, psychological, or emotional pain as an end in itself and is more than was necessary to commit the crime." CP at 166.
The court instructed the jury that "[t]o constitute an 'abuse of trust', the State must prove that the defendant used his position of trust to perpetrate the offense." CP at 167. The court also informed the jury that "'[p]osition of trust' is where another has relied or depended on the defendant." CP at 167.
1. Aggravating Factors Inherent in Homicide by Abuse
Smith maintains that these aggravating factors inhere in the offense of homicide by abuse and that the court may not use them to justify an exceptional sentence. He argues that the aggravating factors that the jury found in this case do not significantly distinguish his crime from other homicides by abuse. Smith argues that the instructions permitted the jury to rely on the same facts for establishing guilt and for "aggravating the crime." Br. of Appellant at 38.
Our Supreme Court rejected this argument in State v. Berube, 150 Wn.2d 498, 79 P.3d 1144 (2003). In Berube, a jury convicted two defendants of homicide by abuse of a 23-month-old boy. Berube, 150 Wn.2d at 501-02. The judge found three aggravating factors: abuse of trust; victim vulnerability; and deliberate cruelty. Berube, 150 Wn.2d at 512. On appeal, the defendants argued that those three factors inhered in the crime of homicide by abuse and could not support an exceptional sentence. Berube, 150 Wn.2d at 513. Our Supreme Court disagreed, finding that all three factors were not inherent in the crime. Berube, 150 Wn.2d at 513-14.
Specifically, the court concluded that the victim's extreme youth made him more vulnerable than other victims. Berube, 150 Wn.2d at 513 (citing State v. Russell, 69 Wn. App. 237, 251-52, 848 P.2d 743 (1993)). And the young victim in that case was extremely vulnerable because he completely depended on the defendants for his well being and could not communicate to any other adult about the abuse. Berube, 150 Wn.2d at 513. As in Berube, the record here shows that Tyshell completely depended on Smith and Tierce for her well being and could not communicate to other adults about the abuse. Tyshell's age also made her more vulnerable than other victims; thus, her extreme youth is a valid aggravating factor. See Berube, 150 Wn.2d at 513 (citing Russell, 69 Wn. App. at 251-52). The trial court did not err in instructing the jury to determine whether Tyshell was a particularly vulnerable victim. Because we will affirm the sentence if we find any exceptional factor valid, and because the trial court ruled that it would impose the same exceptional sentence on the basis of any single aggravating factor, we need not consider Smith's claims as to the other aggravating factors. See State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996) (We will affirm the sentence if we find any exceptional factor valid.) (citing State v. Fisher, 108 Wn.2d 419, 429-30, 430 n. 7, 739 P.2d 683 (1987)).
2. Aggravating Factors Inherent in Smith's Second Degree Murder Conviction
Smith argues that the aggravating factors that the jury found cannot support an exceptional sentence for his conviction of second degree felony murder with a predicate of criminal mistreatment. Smith's argument is not ripe. The trial court did not sentence Smith for his second degree felony murder conviction; rather, the court imposed an exceptional sentence on his homicide by abuse conviction.
The trial court did not sentence Smith for the second degree felony murder conviction because such a sentence "would violate [the] Constitutional prohibition against double jeopardy." CP at 262.
III. Juror Bias
During jury selection, defense counsel told the potential jurors that Smith was a black man who had children with a white woman. When asked if anybody had a "bias or a prejudice against an extra-racial relationship," juror 10 said that he did not believe in interracial marriage and that he felt "strongly" about it. RP at 306. Juror 10 then stated that, despite these feelings, he believed he could put his bias aside and judge the case on its merits. Smith nonetheless moved to dismiss the juror for cause. The court denied Smith's motion. Smith then used a peremptory challenge to remove juror 10 from the panel.
1. Denial of Smith's For-Cause Challenge
Smith appeals the trial court's denial of his motion to dismiss a juror for cause, claiming that the failure to do so violated his rights to an impartial jury and due process.
We review a trial court's denial of a for-cause challenge to a juror for an abuse of discretion. State v. Roberts, 142 Wn.2d 471, 517, 14 P.3d 713 (2000) (citing State v. Brett, 126 Wn.2d 136, 158, 892 P.2d 29 (1995)). The trial court abuses its discretion when its decision is manifestly unreasonable, exercised for untenable reasons, or when it rests on untenable grounds. State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
But even if the trial court abuses its discretion in denying a challenge for cause, the defendant's use of a peremptory challenge to remove the challenged juror cures that error. Roberts, 142 Wn.2d at 517 (citing United States v. Martinez-Salazar, 528 U.S. 304, 308-14, 120 S. Ct. 774, 77-80, 145 L. Ed. 2d 792 (2000)). Here, Smith used a peremptory challenge to remove juror 10. Thus, even if the trial court erred in denying his challenge for cause, Smith cured that error when he removed the juror through a peremptory challenge. Roberts, 142 Wn.2d at 517 (citing Martinez-Salazar, 528 U.S. at 308-14).
2. Right to a Fair and Unbiased Jury
Criminal defendants have the right to a fair and impartial jury. U.S. Const. amend. VI; Wash. Const. art. I, § 22. The Washington Constitution provides no greater protection than the federal right to an impartial jury. State v. Fire, 145 Wn.2d 152, 163, 34 P.3d 1218 (2001).
Smith used a peremptory challenge to remove juror 10. And "'[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not'" violate the Sixth Amendment. Fire, 145 Wn.2d at 162 (quoting Roberts, 142 Wn.2d at 518). Smith has not demonstrated that any of the sitting jurors should have been removed for cause. Accordingly, he has not shown a violation of his right to an impartial jury.
3. Due Process
Smith argues that the forced use of a peremptory challenge amounted to an unconstitutional deprivation of his due process rights.
Although the right to a jury trial is constitutional, peremptory challenges are statutory in nature. Ross, 487 U.S. at 88. A court deprives a defendant of his statutory right to peremptory challenges only when the defendant does not receive the number of challenges that state law provides. Ross, 487 U.S. at 89. Accordingly, the forced use of a peremptory challenge is merely an exercise of a challenge, not its deprivation or loss. Fire, 145 Wn.2d at 162-63 (citing Martinez-Salazar, 528 U.S. at 314-15).
Smith argues that Fire is not controlling for several reasons. First, according to Smith, the Fire majority did not reach the due process issue; in addition, Smith argues that an actual majority of the justices in Fire confirmed that under existing Washington law, courts presume prejudice when a defendant is forced to use a peremptory challenge to excuse a biased juror. Smith is mistaken. In Martinez-Salazar, 528 U.S. at 314-15, the United States Supreme Court held that the forced use of a peremptory challenge does not violate due process. The court stated that because the defendant received the number of challenges that state law provided, the court did not deny him due process. Martinez-Salazar, 528 U.S. at 314-15. Although the Fire court did not expressly mention the phrase "due process," it cites the due process analysis of Martinez-Salazar in adopting that case's holding. Fire, 145 Wn.2d at 162-63 (citing Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988) and Martinez-Salazar, 528 U.S. at 314-15).
Finally, although Justice Alexander wrote a separate concurring opinion, he also specifically concurred in the majority opinion. Fire, 145 Wn.2d at 166.
Using a peremptory challenge to create an impartial jury does not violate a defendant's due process rights. Fire, 145 Wn.2d at 162 (quoting Roberts, 142 Wn.2d at 518). Thus, the court did not violate Smith's due process rights when it forced him to use a peremptory challenge to remove juror 10.
IV. Second Degree Murder Predicated on Second Degree Assault
Smith argues that RCW 9A.32.050(1)(b) violates his right to equal protection because it allowed the prosecutor discretion to charge different crimes, with different punishments, for the same criminal act. Smith also argues that we should adopt the merger doctrine and hold that assault cannot serve as a predicate felony for felony murder. Under the merger doctrine, if a person dies as a result of an assault, the assault merges into the resulting homicide and cannot serve as the predicate felony for felony murder "because it is not a felony independent of the homicide." In re Pers. Restraint of Andress, 147 Wn.2d 602, 606, 610, 56 P.3d 981 (2002), superseded by statute, RCW 9A.32.050(1)(b). Smith argues that here, any assault against Tyshell was not independent of the crime of homicide by abuse.
But the jury found that Smith committed second degree felony murder while committing or attempting to commit first degree criminal mistreatment and second degree assault. First degree criminal mistreatment that results in death is a sufficient predicate crime on its own to support a conviction for second degree felony murder under RCW 9A.32.050(1)(b). State v. Daniels, 124 Wn. App. 830, 842, 103 P.2d 249 (2004), review granted, in part, 158 Wn.2d 1005 (2006). Thus, we need not address the constitutionality of allowing second degree assault to serve as a predicate felony because the jury's finding of criminal mistreatment alone supports Smith's felony murder conviction.
V. Prosecutorial Misconduct
1. Standard of Review
To prove prosecutorial misconduct, Smith bears the burden of showing that the prosecutor's actions were improper and prejudicial. State v. Gregory, 158 Wn.2d 759, 809, 147 P.3d 1201 (2006) (citing State v. Kwan Fai Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986)). Prosecutorial misconduct is reversible error only when there is "a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994) (citing State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991)).
Smith did not object to the alleged acts of prosecutorial misconduct at trial. Failure to object to an improper remark waives the error unless the misconduct was so flagrant and ill-intentioned that an instruction could not have cured the prejudice to the defendant. Russell, 125 Wn.2d at 86 (citing State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)).
2. Smith's Exercise of Constitutional Rights
Smith argues that the prosecution's emphasis on Tierce's guilty plea penalized the exercise of his right to trial and violated his right to a presumption of innocence. In his closing statement, the prosecutor compared Tierce's and Smith's actions. He accused both of being "responsible for Tyshell being beat to death." RP at 1646-47.
The prosecutor said, "They were both there, they both participated in it. . . .This isn't a question of somebody having no idea of what was going on. . . .The difference is Christina admitted it and the defendant didn't." RP at 1647. Smith reasons that with this argument, the prosecutor repeatedly compared Tierce's "having pled guilty with Mr. Smith's not having done so." Br. of Appellant at 62.
Prosecutors may not discourage or draw negative inferences from a defendant's exercise of a constitutional right. Gregory, 158 Wn.2d at 806 (quoting State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984)). An argument that implicates constitutional rights, however, infringes on those rights only if "'the prosecutor manifestly intended the remarks to be a comment on that right.'" Gregory, 158 Wn.2d at 807 (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)).
Smith fails to show that the prosecutor improperly alluded to the exercise of his constitutional rights. Read in context, the prosecutor did not comment on Smith's right to trial or his presumption of innocence. The prosecutor did not compare Smith's not guilty plea with Tierce's guilty plea. Rather, the prosecutor said only that Tierce admitted what she had done and Smith did not. This was not a direct reference to Smith's right to a jury trial. Instead, the argument focused on the sufficiency of the evidence that both Tierce and Smith were guilty and that the jury did not have to decide which one of them committed the crimes. Even if the prosecutor implicitly commented on Smith's exercise of his right to trial in comparing Tierce and Smith, Smith fails to show that a jury instruction would not have cured this error.
3. Misstating the Law
Next, Smith argues that the prosecutor misstated the law during closing argument. We evaluate a prosecutorial misconduct allegation by looking at the "total argument, the issues in the case, the evidence addressed in the argument, and the instructions given." Russell, 125 Wn.2d at 85-86 (citing State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990)).
A. Shifting the Burden of Proof
Smith claims that the prosecutor misstated the law of accomplice liability when he told the jurors they could acquit only if they found that Smith was "never in that house." Br. of Appellant at 63. In its rebuttal closing argument, the State argued that defense counsel
said there are three possibilities. . . defendant did it alone. They both beat Tyshell. She beat Tyshell. There's something that counsel left out . . . he failed to tell you . . . that if she beat Tyshell, and he was in that house and he encouraged or aided her in any way, if he was an accomplice to her crime, then he is guilty. . . .[T]he only way he is not guilty is if she, in fact, did [this] all by herself and he was never in that house.
RP at 1731. Smith contends that the "never in that house" phrase would allow the jury to convict him if he was simply present. Smith is correct that a person's presence during a crime is not alone sufficient to prove accomplice liability. State v. Everybodytalksabout, 145 Wn.2d 456, 472, 39 P.3d 294 (2002) (quoting In re Welfare of Wilson, 91 Wn.2d 487, 491-92, 588 P.2d 1161 (1979)). But the prosecutor had just correctly explained that Smith was liable as an accomplice if he was in the house and "encouraged or aided her in any way." RP at 1731. In context, we doubt that the "never in that house" argument misled the jury.
Even if improper, a prosecutor's arguments that the defense invites or provokes are not reversible unless the defendant can show that the arguments are irrelevant or so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86 (citing State v. Dennison, 72 Wn.2d 842, 849, 435 P.2d 526 (1967)). Thus, even if we consider the argument improper, Smith has not demonstrated a substantial likelihood that the argument affected the verdict.
B. Must Believe Defendant to Acquit
Smith also argues the prosecution made statements that gave the jurors a "false choice" about their duties and improperly shifted the burden of proof. Br. of Appellant at 64. The prosecutor told the jury that
to find the defendant not guilty of murder in the second degree, you have to believe his story. . . . You have to find that he is credible, believable, worthy of being believed, worthy of being trusted. You have to believe that he wasn't home on Tuesday when Sharon Webb heard a child screaming . . . he wasn't home on Thursday when Jeremy Spran heard a man and a woman arguing. . . . You have to believe that this man is believable and is credible.
RP at 1720-22.
While it is flagrant misconduct to shift the burden of proof to the defendant, prosecutors have "wide latitude" to make inferences about witness credibility. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997) (citing Hoffman, 116 Wn. 2d at 94-95). And Smith is correct that the jury did not have to believe Smith to acquit him; they had only to entertain a reasonable doubt as to the State's case. But when the State's evidence contradicts a defendant's testimony, a prosecutor may infer that the defendant is lying or unreliable. State v. McKenzie, 157 Wn.2d 44, 59, 134 P.3d 221 (2006) (citing State v. Copeland, 130 Wn.2d 244, 291-92, 922 P.2d 1304 (1996)). To the extent the prosecutor's argument presented the jurors with a false choice, it was error; to the extent the argument asked the jurors to consider who was telling the truth, it was not error. We are not persuaded that the possible error was so egregious that an instruction could not have cured the harm.
4. Improper Appeal to the Jury's Emotions
Smith claims the prosecution also improperly encouraged the jury to decide the case on an emotional basis. In closing, the prosecutor stated that "Tyshell loved to sing, loved to dance, loved food. . . . Her life is gone, and they were both responsible, culpable, and how dare they — how dare they — he does not get off . . . Unjust. Can't happen . . . I ask you to find the truth . . . [and] return a verdict that is just and that is right, the only verdict that is possible and meaningful in this case." 14 RP at 1734-35.
Prosecutors may not appeal to jurors' passions and prejudices, but instructions telling jurors not to rely on these feelings "arguably . . . cure[s] any sympathetic tendencies the jury may have had in this regard." Gregory, 158 Wn.2d at 809. The court instructed the jurors to be impartial and not to decide the case on sympathy or prejudice. See State v. Greiff, 141 Wn.2d 910, 923, 10 P.3d 390 (2000) (jurors are presumed to follow court's instructions) (citing State v. Grisby, 97 Wn.2d 493, 509, 647 P.2d 6 (1982)). Smith fails to prove the court's instruction did not cure any prejudice to him.
5. Cumulative Effect
Finally, Smith contends that the cumulative effect of these acts amounts to reversible error. Multiple incidents of a prosecutor's improper conduct that when combined, materially affect the verdict, violate a defendant's right to fair trial and require a new trial. State v. Henderson, 100 Wn. App. 794, 805, 998 P.2d 907 (2000); State v. Case, 49 Wn.2d 66, 73-74, 298 P.2d 500 (1956).
Smith does not carry his burden of showing that any single act — or cumulative effect of — prosecutorial misconduct was sufficiently flagrant and ill-intentioned to warrant a new trial. Given the considerable evidence of Smith's guilt in this case, Smith fails to show a substantial likelihood that the alleged acts of prosecutorial misconduct affected the verdict.
6. Ineffective Assistance of Counsel
Smith contends that his counsel should have objected to the prosecutor's improper arguments. But we have held that the prosecutor's comments, in context, were either appropriate or of minimal significance. Under these circumstances, Smith cannot show that his counsel's failure to object prejudiced him. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 716-17, 101 P.3d 1 (2004) (defense counsel's failure to object to portions of prosecutor's closing argument not deficient performance because lawyers rarely object during closing argument absent egregious misstatements, and a decision not to object is within the wide range of permissible professional legal conduct).
VI. Statement of Additional Grounds for Review (SAG)
RAP 10.10.
1. Admission of the Videotape.
After Smith and Tierce told police officers that they had been camping during the week before Tyshell died and that they believed a babysitter may be responsible for her death, police officers obtained a warrant to search Smith's residence. Detective Wood, the lead detective in the investigation, testified that police hoped to discover anything placing the babysitter at the crime scene or any camping gear or other evidence that would corroborate Smith's and Tierce's camping story. While searching Smith's house, Wood watched a video on a video camera on Smith's counter. After viewing the video and recognizing Tyshell in the videos, Wood seized the tape and camera.
Wood later talked to the detective that wrote the search warrant, who informed Wood that the warrant did not include the camera. Wood then met Smith at his mother's house, told Smith that he took the camera and tapes, and asked for Smith's "consent to look at it." RP at 434. He did not tell Smith that he and another officer had already viewed some of the videotapes. Smith and Tierce said that they had left the camera at home when they went camping. Wood then told Tierce that he had the video camera, he "saw some stuff with Tyshell on it and [he] wanted to ask [Tierce's] permission for the camera." RP at 435. Wood explained that they could refuse consent. Wood said that "[Tierce] was eager [for Wood to view the tape], but [Smith] was more than willing." RP at 441. Wood testified that if Smith had not consented, he would have applied for a search warrant to seize and view the tapes.
The videotape showed Tyshell on three separate occasions. The first two scenes show her as a healthy, young child. The third scene shows Tyshell sitting on the floor, slumped forward, and barely able to hold up her head. She is too weak to walk, and she has food in her mouth that she either will not or cannot swallow. The videotape also shows bruises on Tyshell's face and arms. At one point during the third scene when Tyshell attempts to lie down, Tierce says, "Don't you lay down. You better sit your ass up because that belt is hanging on the door. Look at it. You see it? Look. The belt is there, it's hanging there. Daddy's waiting for you to lay down. You lay down and he's coming out of that other room." Exhibit 12. Tierce then makes Tyshell turn around and look at the belt hanging on the door. Tierce constantly taunts Tyshell during the third scene. When Tyshell attempts to follow L.C. into the kitchen to get a drink, she is unable to stand up.
Smith moved to suppress the videotape. After a CrR 3.6 hearing, the trial court ruled that the officers' initial seizure of the videotapes violated the Fourth Amendment because the search warrant did not include the tapes. But the court ruled that Smith and Tierce subsequently voluntarily consented to the officers' request to search the tapes. It ruled that the improper seizure of the videotape did not taint Smith's consent. It also ruled that had Smith refused consent, the detective would have applied for a search warrant for the videotapes, that probable cause existed to search the tapes, and that the officers would have inevitably discovered the tapes' contents. Accordingly, the trial court denied Smith's motion to suppress the videotapes.
2. Consent to Seize the Camera and Tapes
Smith argues that the court erred in admitting the videotape into evidence because police officers did not have probable cause to first view, and then seize, the video tape. He argues that "the detectives sought consent only upon the information that they had obtained through their illegal search." SAG at 13.
Smith does not assign error to any of the trial court's findings of fact entered after the CrR 3.6 hearing. Accordingly, those findings are verities on appeal. State v. Cheatam, 150 Wn.2d 626, 633, 81 P.3d 830 (2003), habeas corpus denied, Cheatam v. Waddington, 2006 U.S. App. LEXIS 11122 (9th Cir. 2006) (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)). Thus, we limit our review to determining whether the unchallenged findings support the trial court's legal conclusions. See State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).
Smith freely and voluntarily consented to Wood viewing the videotapes. In certain circumstances, free and voluntary consent to search can vitiate the taint of a prior illegal seizure. State v. Soto-Garcia, 68 Wn. App. 20, 27, 841 P.2d 1271 (1992). But "consent to search obtained through exploitation of a prior illegality may be invalid even if voluntarily given." Soto-Garcia, 68 Wn. App. at 27 (citations omitted). To determine whether a prior illegal seizure taints consent to a search, we consider (1) how close in time the illegal seizure was to the later consent, (2) whether there were significant intervening circumstances, (3) the purpose and flagrancy of the official misconduct, and (4) whether anyone advised the defendant of his Miranda warnings. State v. Armenta, 134 Wn.2d 1, 17, 948 P.2d 1280 (1997) (quoting Soto-Garcia, 68 Wn. App. at 27). Generally, no one factor is dispositive. Soto-Garcia, 68 Wn. App. at 27 (citing State v. Jensen, 44 Wn. App. 485, 490, 723 P.2d 443 (1986)).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Here, the trial court's unchallenged findings show that (1) a significant period of time elapsed between the officers seizing the tape and Smith consenting to the search, (2) the officers informed Smith of his right to refuse consent, (3) the officers' improper conduct was not purposeful and flagrant because they were attempting to determine if the babysitter was on the tape, and (4) officers had repeatedly advised Smith of his Miranda rights. Further, the court also found that Smith not only consented to the officers viewing the videotapes, he urged the officers to view the tapes to determine whether the babysitter appeared in the tapes. These findings support the trial court's conclusion that the improper seizure of the camera and videotapes did not taint Smith's consent.
A substantial intervening circumstance exists where an officer advises a defendant that the defendant can withhold consent. State v. Jensen, 44 Wn. App. 485, 490-91, 723 P.2d 443 (1986).
3. The Videotape's Prejudicial Effect
Smith also argues that the trial court erred in admitting the videotape because it "caused substantial prejudice." SAG at 15.
We will reverse a trial court's decision to admit video evidence only for an abuse of discretion. State v. Davis, 141 Wn.2d 798, 853, 10 P.3d 977 (2000). A trial court abuses its discretion when it exercises discretion on untenable grounds or for untenable reasons. Davis, 141 Wn.2d at 853 (quoting State v. Elmore, 139 Wn.2d 250, 284-85, 985 P.2d 289 (1999)).
A trial court may exclude relevant evidence if its prejudicial effect substantially outweighs its probative value. ER 403. The danger of unfair prejudice exists when the evidence is likely to stimulate an emotional rather than a rational response. State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995) (citing State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987)).
As Smith acknowledges, the State presented the tape for multiple purposes, including to show (1) Smith knew of the tape, (2) Smith inflicted prior injuries to Tyshell, (3) Smith knew of Tyshell's bruises and dehydration, and (4) to impeach Smith's claims that he was not around the house in the week leading up to Tyshell's death. Although L.C. and Tierce both testified that they noticed bruises on Tyshell's body, and Tierce said that Smith was home and often angry with Tyshell in the week leading up to her death, Smith denied knowledge of Tyshell's bruises and said that he was not home during the week leading up to Tyshell's death. The tape corroborated Tierce's testimony that Smith was around the house during the week leading up to Tyshell's death and cast doubt on Smith's credibility. While the tape undoubtedly prejudiced Smith, relevant evidence by definition is prejudicial to one party or the other. See ER 401. Smith fails to show that the unfair prejudice he suffered substantially outweighs the tape's probative value. See ER 403. Thus, the trial court did not err in admitting the videotape.
4. Sufficiency of the Evidence
Smith argues that the State presented insufficient evidence to support his convictions. Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). An insufficiency claim admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)). In reviewing a sufficiency challenge, we draw all reasonable inferences from the evidence in the State's favor and interpret the evidence against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (citing State v. Woods, 5 Wn. App. 399, 404, 487 P.2d 624 (1971)). "Circumstantial evidence and direct evidence are equally reliable." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
5. Homicide by Abuse
To convict Smith of homicide by abuse, the State had to prove, beyond a reasonable doubt, that "under circumstances manifesting an extreme indifference to human life, [Smith, as a principle or an accomplice, caused Tyshell's death] . . . and [that Smith] has previously engaged in a pattern or practice of assault or torture of [Tyshell]." RCW 9A.32.055(1).
The State presented testimony that Smith punished Tyshell the most and that he used a belt when he punished her. L.C. testified that Smith was alone with Tyshell in the house at different times during the week before Tyshell's death. The medical examiner stated that Tyshell's bruises were several days old and that Tyshell had blunt impact injuries on her body. He said that Tyshell had marks on her face that were consistent with being struck by a belt. The medical examiner also testified that Tyshell had suffered from dehydration before her death. Finally, the examiner said that the head injuries that he believed actually killed Tyshell occurred less than 24 hours before her death.
A paramedic testified that he saw numerous bruises on Tyshell's body in different stages of healing. Two neighbors testified that they heard prolonged crying, and one neighbor said she heard a young child screaming and then heard a male voice saying, "That's what you get." RP at 824-26. The State also played the videotape of Tyshell that showed substantial bruising and that she could barely hold her head up and could not walk on her own. In the video, Tierce threatens Tyshell that if she lies down, Smith will come in and hit her with a belt. Medical experts testified that the filming occurred sometime before the head trauma that caused Tyshell's death.
Smith also argues that the State failed to present evidence of a pattern or practice of assaulting or torturing Tyshell. Smith testified that he hit Tyshell with a belt only once, approximately 15 days before her death and that he hit her on the legs over her clothes.
The State presented medical testimony that Tyshell had multiple bruises; some of her injuries were at least a few days old; she was emaciated and dehydrated; she had internal bleeding within her skull in four places, each caused by blunt force trauma consistent with a fall from at least five stories. The medical examiner testified that Tyshell died of dehydration, head injuries, and contusions.
Tierce testified that she knew that Tyshell "was being hurt" and that she was afraid of Smith because "if he can do that to his own child and make threats to his own mom, then he [could] do anything to [her]." 9 RP 1196. When asked, "What did he do to his own child?", Tierce testified that "[o]bviously, he did something to her. We were the only two in the house . . . and [L.C.] sure didn't do nothing." RP at 1196. Tierce also testified that Smith often changed Tyshell's diaper during the weeks leading up to her death and that he never asked her where the bruises came from. Smith denied noticing the belt mark across Tyshell's face or the bruises on Tyshell's body, except for two he said she received from a fall. Smith said that he did not remember telling the detectives that arrived the night of Tyshell's death about the bruises on her bottom and lower back.
Tierce also testified that Smith wrote her letters while they were in jail stating that he wanted her to plead guilty and then exonerate him so that he could take care of the children.
The evidence was more than sufficient to convict Smith of homicide by abuse.
6. Second Degree Murder
The jury found that Smith committed second degree felony murder by causing Tyshell's death while committing the crimes of second degree assault and first degree criminal mistreatment. Smith argues that the State presented insufficient evidence to convict him of second degree felony murder.
To convict Smith of second degree murder as charged, the State had to prove, beyond a reasonable doubt, that Smith, or a person to whom he acted as an accomplice, committed or attempted to commit either first degree criminal mistreatment or first or second degree assault and that either Smith or the person to whom he acted as an accomplice caused Tyshell's death in the furtherance of such crime.
Former RCW 9A.42.020(1) (2004), the applicable criminal mistreatment statute, states that a "parent of a child . . . is guilty of criminal mistreatment in the first degree if he . . . recklessly . . . causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life." The court instructed the jury that "[b]asic necessities of life" means "food, water, shelter, clothing and medically necessary health care, including but not limited to health-related treatment or activities, hygiene, oxygen, and medication." CP at 157.
At trial, medical examiners testified that Tyshell suffered from severe dehydration, one of the causes of her death. L.C. also testified that she knew Tyshell was dehydrated and that Smith told her that he knew she was dehydrated. L.C. also testified that she believed Tyshell needed medical attention because she had numerous bruises and because she "walked funny and ran into walls." RP at 714. L.C. testified that she had to carry Tyshell around the house because she was unable to walk. This evidence was sufficient to prove that Smith, either as a principle or an accomplice, withheld from Tyshell the basic necessities of life.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Houghton, C.J.
Penoyar, J.