Opinion
No. 28501-4-III
November 30, 2010 UNPUBLISHED OPINION
Zachariah Bailey seeks relief from personal restraint imposed for his 2005 Benton County convictions of first degree assault with a 60-month firearm enhancement and first degree unlawful possession of a firearm. He filed a direct appeal and this court affirmed the judgment and sentence. See State v. Bailey, noted at 138 Wn. App. 1019, 2007 WL 1228021, review denied, 163 Wn.2d 1053 (2008). Mr. Bailey, through counsel, timely filed this petition.
Mr. Bailey claims (1) he was denied a fair trial due to numerous alleged instances of prosecutorial misconduct, (2) his trial counsel gave him ineffective assistance by failing to object to the prosecutorial misconduct and failing to request curative instructions, (3) trial counsel was ineffective for failing to request a lesser-included second degree assault instruction, (4) the firearm enhancement violates double jeopardy, (5) cumulative error deprived him of a fair trial, and (6) appellate counsel was ineffective. We conclude that Mr. Bailey's arguments are unpersuasive and deny his petition.
FACTS
Mr. Bailey was a passenger in a pickup truck when he fired several gunshots at a vehicle driven by Robert Hartley. Mr. Hartley, a farmer, observed three persons burning wire on his land. Trial evidence established those individuals were Mr. Bailey, Jesse Chenoweth, and Dan Madrigal. Mr. Chenoweth testified that Mr. Bailey told the others they had to leave because someone (Mr. Hartley) was watching them. They fled in a pickup driven by Mr. Chenoweth, who said that Mr. Bailey started firing gunshots at a vehicle (Mr. Hartley's) that was pursuing them. A bullet hit Mr. Hartley's windshield and entered the passenger seat headrest.
During the escape, Mr. Chenoweth stopped at a farm for gasoline; the resident (Garrett Moon) testified three people were in the truck, although he could only positively identify Mr. Chenoweth. Police recovered the gun from a roadside location where Mr. Chenoweth told police that Mr. Bailey had dumped it. The gun handle contained Mr. Bailey's DNA. Also, DNA consistent with Mr. Bailey's was found on the passenger door handle of the getaway vehicle. His shoes were consistent with a footprint left in the area where Mr. Hartley had seen the threesome burning the wire.
Deoxyribonucleic acid (DNA).
Mr. Bailey testified on his own behalf and denied being present during the incident, although he did admit to loaning Mr. Chenoweth his pistol that morning. The jury rejected Mr. Bailey's alibi defense and convicted him as charged. Additional facts are related below as necessary to resolve the issues in this petition.
ANALYSIS
To obtain relief in a personal restraint petition, Mr. Bailey must show by a preponderance of the evidence that he was actually and substantially prejudiced by an alleged constitutional error, or, for alleged nonconstitutional errors, that a fundamental defect has inherently resulted in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Unlike in a direct appeal where the burden is on the State to establish that any error of constitutional dimension is harmless, the burden shifts to the petitioner on collateral review to establish that any error was not harmless. In re Pers. Restraint of Sims, 118 Wn. App. 471, 476-77, 73 P.3d 398 (2003) (quoting In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982)).
I. Prosecutorial Misconduct
Mr. Bailey claims he was denied a fair trial by numerous instances of prosecutorial misconduct throughout the trial. Mr. Bailey contends the prosecuting attorney (a) improperly called Mr. Madrigal as a witness for the sole purpose of impeaching him and then argued in closing that the impeachment evidence was substantive evidence of Mr. Bailey's guilt; (b) improperly commented on Mr. Bailey's constitutional rights to trial, to confront the witnesses, and his right to counsel; (c) "testified" against him in the guise of examination and argument to the jury; (d) attempted during closing argument to lower the State's burden of proof by distorting the elements of first degree assault; and (e) attempted to shift the burden of proof by arguing to the jury that to acquit the defendant, the jury would have to disbelieve all of the State's witnesses. Notably, Mr. Bailey made no objection at trial to any of the alleged misconduct.
A defendant alleging prosecutorial misconduct must show that the prosecuting attorney's conduct was both improper and prejudicial. State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006); see State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996) (on direct appeal, prosecutorial misconduct that implicates constitutional rights of defendant requires reversal unless the State shows the error was harmless beyond a reasonable doubt). But when, as here, the defendant did not object to any of the alleged misconduct at trial, the issue is waived unless the misconduct was "so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Edvalds, 157 Wn. App. 517, 522, 237 P.3d 368 (2010). And, again, in a collateral attack, the burden shifts to the petitioner to show that he was more likely than not prejudiced by prosecutorial misconduct; i.e., there is a reasonable probability that the misconduct affected the trial outcome. Sims, 118 Wn. App. at 476-77. Allegedly improper arguments are evaluated in the context of the total argument, the issues addressed in the case, and the evidence addressed in the argument. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
A. Impeachment of Mr. Madrigal. Detective Larry Smith interviewed Mr. Madrigal on May 13, 2005 — several weeks before trial. At that time, Mr. Madrigal gave details of the incident and said that Mr. Bailey was the shooter. Detective Smith and the trial prosecutor (Terry Bloor) interviewed Mr. Madrigal again on July 11 — the evening before his trial testimony. Mr. Madrigal then told them he did not think he would be able to say that Mr. Bailey was the shooter.
At the outset of his trial testimony, Mr. Madrigal denied remembering details about the incident. The prosecutor immediately began referring to his May 13 statement to Detective Smith and did so intermittently during direct examination of Mr. Madrigal. But when pressed by the prosecutor, Mr. Madrigal did give direct testimony that he was with Mr. Chenoweth and Mr. Bailey on the day of the shooting, that Mr. Bailey took some property from a farm, and that the three of them fled the scene together when the farmer arrived. He said the farmer pursued them, and that someone fired a shot at the farmer. But Mr. Madrigal still denied knowing who fired the gunshots. The prosecutor asked, "Isn't it true this man right here [Mr. Bailey] took four or five shots at the farmer out of the sliding back window of the vehicle that [Mr.] Chenoweth was driving?" Report of Proceedings (RP) at 163. Mr. Madrigal answered, "If this is what you want to hear, because I cannot say a hundred percent but I must admit it's leaning more towards 100 percent, but I cannot say." RP at 163. The prosecutor then asked, "That is what you told the detective; isn't that correct?" RP at 163. Mr. Madrigal responded, "Yes, I did say that." RP at 163. On cross-examination, Mr. Madrigal again denied knowing who fired the gunshots, but he did say he personally was not the shooter.
Detective Smith subsequently testified that during the May 13 interview, Mr. Madrigal stated that Mr. Chenoweth was driving, that he (Mr. Madrigal) was seated in the middle, and that Mr. Bailey started shooting at the farmer and emptied his gun at the vehicle. The prosecutor then asked about their interview the previous night with Mr. Madrigal. Detective Smith testified that Mr. Madrigal did not deny Mr. Bailey was the shooter, but that he said he may not be able to testify against Mr. Bailey because he was concerned about the results on the outside and he had some feelings for Mr. Bailey.
In closing argument, in reference to Mr. Chenoweth's testimony that Mr. Bailey was the shooter and Mr. Madrigal's admitted statement to Detective Smith, the prosecutor stated that "two people independently said this is the guy, this is the shooter." RP at 405. As mentioned, there were no objections to any of the testimony during closing argument.
ER 607 permits any party to attack the credibility of its own witness. But a party may not call a witness for the primary purpose of eliciting a denial in order to impeach the witness by bringing in otherwise inadmissible hearsay. State v. Hancock, 109 Wn.2d 760, 763, 748 P.2d 611 (1988) (quoting State v. Lavaris, 106 Wn.2d 340, 345, 721 P.2d 515 (1986)). "Impeachment evidence affects a witness' credibility and is not proof of the substantive facts encompassed in such evidence." State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985).
In Lavaris, the court found no error in the admission of a witness's otherwise inadmissible out-of-court police statements implicating the defendant in a murder when the witness's direct testimony corroborated that of the State's star witness concerning the circumstances leading up to the crime. The witness's police statements were admitted through a detective's testimony after the witness denied the statements on direct examination. The court concluded that the State's primary purpose in calling the witness was not to elicit his testimony in order to impeach him with testimony that would have been otherwise inadmissible and, thus, there was no error in admission of the impeachment testimony. Lavaris, 106 Wn.2d at 347.
Here, the prosecutor knew that when Mr. Madrigal testified, he might not name Mr. Bailey as the shooter. Nevertheless, similar to Lavaris, it cannot be said that the State's primary purpose in calling Mr. Madrigal was to impeach him by bringing in otherwise inadmissible testimony. A careful reading of Mr. Madrigal's testimony reveals that, aside from any reference to the May 13 interview, he gave direct testimony that he and Mr. Chenoweth and Mr. Bailey were together and went to a rural farm land area. There, they saw a farmer and left in the pickup at a high speed to try to get away. One of his cohorts was driving and the other shot at the farmer. Thus, Mr. Madrigal's direct testimony corroborated some of Mr. Chenoweth's details surrounding the incident and was highly relevant to the case, particularly in light of Mr. Bailey's theory that he was not present and that Mr. Chenoweth was falsely accusing him.
Under Lavaris, it was not improper for the prosecutor to impeach Mr. Madrigal with his prior statement to Detective Smith after Mr. Madrigal refused to testify to a 100 percent certainty that Mr. Bailey was the shooter. See State v. Newbern, 95 Wn. App. 277, 292, 975 P.2d 1041 (1999) ("`[I]f the witness testifies at trial about an event but claims to have no knowledge of a material detail, or no recollection of it, most courts permit a prior statement indicating knowledge of the detail to be used for impeachment.'") (quoting 5A Karl B. Tegland, Washington Practice: Evidence § 256, at 309 (3d ed. 1989)). And after Mr. Madrigal again denied knowing the shooter's identity on cross-examination, it was not improper under Lavaris for the State to further impeach him through Detective Smith's testimony that Mr. Madrigal had earlier implicated Mr. Bailey as the shooter.
Mr. Bailey's reliance on State v. Allen S., 98 Wn. App. 452, 989 P.2d 1222 (1999) is misplaced. There, a witness told police that the defendant confessed to him in jail. But on the stand, the witness claimed lack of memory about having spoken to the police. The court held that the witness was not subject to impeachment because he said nothing pertinent to the case. Id. at 464. Mr. Madrigal, on the other hand, did give pertinent testimony.
Here, Mr. Bailey did not request a limiting instruction that impeachment testimony could be considered for credibility purposes only. It is not the court's duty to give the instruction sua sponte. Mr. Bailey waived his right to complain about the lack of an instruction. Newbern, 95 Wn. App. at 295-96. The more critical point, however, is that any evidentiary irregularities during the cited testimony were not prosecutorial misconduct, as Mr. Bailey now alleges for the first time in this petition.
Finally, the prosecutor's closing argument that two witnesses stated Mr. Bailey was the shooter was arguably improper to the extent that he suggested Mr. Madrigal's identification of Mr. Bailey was substantive evidence of guilt. It is also arguable that Mr. Madrigal's admission to what he told the detective on May 13 is tantamount to substantive evidence of Mr. Bailey's guilt. In any event, given the lack of a limiting instruction or objection by Mr. Bailey, any impropriety was not flagrant and would not likely have influenced the trial outcome in light of Mr. Chenoweth's testimony and other significant corroborating evidence that Mr. Bailey was the shooter.
B. Prosecutor's Comments on Constitutional Rights. Mr. Bailey first contends misconduct arose during the testimony of Mr. Chenoweth and Mr. Madrigal when the prosecutor sought to portray them as fearful of Mr. Bailey and reluctant to testify in front of him. Mr. Bailey cites to the following direct testimony of Mr. Chenoweth:
Q Is there anything in particular bothering you or making you nervous about testifying?
A Just the normal reasons.
Q Beg your pardon?
A Just the, the, normal reasons.
Q Do you know — do you and the defendant have associates in common?
A Yeah, friends.
Q And they will know, in your opinion — will they be able to know that you've testified today?
A Yeah.
RP at 109-10. On re-direct examination, the prosecutor returned to the theme that Mr. Chenoweth was intimidated while testifying:
Q [Defense counsel Mr. Mendoza] [t]alked about you waivering [sic] about testifying or not. Did Mr. Mendoza visit you in jail?
A Yes, twice.
Q Twice. When is the last time he saw you?
A Last night after I spoke with you guys.
. . . .
Q So you told Mr. Mendoza you were waivering [sic] about testifying —
A Yes.
Q — is that correct? Was he happy to hear that?
A A little bit.
Q You told us you were worried about testifying.
A Yes.
Q What are you worried about?
A I was worried about any harm onto me or my girlfriend or my kid.
Q Why do you think that might happen?
A Because there was the, there was threats made.
Q Has that happened — well, has that happened while you've been in jail?
A Yes.
RP at 141-42. The nature of the threats or who made them was not disclosed.
Next, during direct examination of Mr. Madrigal, the prosecutor stated, "I'm going to ask you to do something that's sort of hard and that's talk about it in front of the defendant; okay?" RP at 155. The prosecutor later elicited from Mr. Madrigal that he was "naturally" kind of worried or scared and "a little bit" afraid of testifying because of what might happen when he (Mr. Madrigal) gets out of jail. RP at 160-61.
The prosecutor later asked Detective Smith:
Q Did you try to — did we try to pressure [Mr. Madrigal] in any way, in your opinion, in any way to try to convince him to testify?
A The only thing that may have been considered pressure is I told Mr. Madrigal that he needed to man up and tell us what happened and tell the truth of what happened, to be honest.
Q That was in reference to a specific witness; wasn't it?
A Yes, it was.
Q Who were you talking about?
A Kozette Rubon.
Q You referred to her as a petite young woman. Was it your impression in talking to her that she wanted to testify?
A No, she did not.
Q And you used her as an example, petite young woman coming to court not wanting to and yet getting up there and being right in front of the defendant.
A Yes, I explained that to Mr. Madrigal. He knew Ms. Rubon. And I told him that she had the guts to do it and he needed to man up and tell the truth as well.
RP at 276-77.
Mr. Chenoweth testified that Mr. Bailey was the shooter. But Mr. Madrigal claimed lack of knowledge or memory and did not conclusively state that Mr. Bailey was or was not the shooter.
In closing argument, the prosecutor discussed "some factors I'd like you to consider when talking about the main issue here, and that was, was the defendant the shooter." RP at 379-80. One of those factors according to the prosecutor was reluctance and inconsistencies in the testimony of Mr. Chenoweth and Mr. Madrigal:
Their reluctance to testify on [Mr.] Chenoweth's part, or they're dishonest, on [Mr.] Madrigal's part. Actually, if you think about it, it actually supports their credibility. They did not want to get up here. They did not want to get up here to testify in front of the defendant. And the reason is they know, because they saw it. He's a dangerous man. They didn't want to do that. They don't want to cross the defendant.
RP at 381-82. Later in closing argument, the prosecutor stated:
[Mr.] Chenoweth was reluctant to testify. My colleague pointed out to him, you know, you said you were wavering, he overcame his fear. [Mr.] Madrigal did not. But that didn't change anything. [Mr.] Madrigal said to us, to the detective, as the detective said, look, I know the defendant's the shooter, he is the shooter. No question in my mind he is the shooter. I don't think I'm going to be able to say that. He wasn't able to overcome his fear.
RP at 388-89.
It is the prosecutor's duty to "seek a verdict free of prejudice and based on reason." State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968). It is misconduct for a prosecutor to induce the jury to draw adverse inferences from a criminal defendant's exercise of a constitutional right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984).
In Mr. Bailey's cited case State v. Willard, 144 Ohio App. 3d 767, 761 N.E.2d 688 (2001), a child rape prosecution, the defendant was granted a new trial due to the cumulative effect of multiple incidents of serious prosecutorial misconduct. The prosecutor commented to the jurors that "`this is what a man who rapes his daughter looks like.'" Id. at 773. The prosecutor also falsely suggested, without evidentiary support, that social workers and detectives believed the victim's sexual abuse allegations. Id. In addition, the prosecutor denigrated defense counsel for cross-examining the child victim who had to "`come in and explain to a courtroom full of strangers the most degrading, dehumanizing acts that a person could suffer,'" and who "`sits here, and we're talking five feet, six feet, from the man who raped her.'" Id. at 773-74. The court held that the cumulative effect of the misconduct warranted a new trial when there was no physical evidence or witness corroboration of the victim's claim of sexual abuse. Id. at 776.
First, the State is correct that a defendant's threat against a witness is relevant when it reveals a consciousness of guilt and ties the defendant to the victim. State v. McGhee, 57 Wn. App. 457, 461, 788 P.2d 603 (1990) (quoting State v. Kosanke, 23 Wn.2d 211, 215, 160 P.2d 541 (1945)). Here, Mr. Chenoweth testified that after the shooting, he stopped the truck at the request of Mr. Bailey, who jumped out and threw the gun by the side of the road near a pole and jumped back in. Mr. Bailey told the others to never return to that location without him "or else." RP at 99. Later that day, Mr. Bailey told Mr. Chenoweth that if the gun was not there when he went back to get it, he would shoot Mr. Chenoweth in the foot. This testimony was admissible under McGhee.
Furthermore, in State v. Bourgeois, 133 Wn.2d 389, 400-02, 945 P.2d 1120 (1997), the court explained that evidence of a witness's reluctance or fear to testify against the defendant may be admitted to bolster the witness's credibility when the witness's credibility has been, or will be, challenged by the defense, or it is inevitably a central issue in the case.
Here, in anticipation that the defense would attack Mr. Chenoweth's credibility, the prosecutor elicited testimony that Mr. Chenoweth was reluctant to testify because his common friends with Mr. Bailey would know he testified. Defense counsel then pointedly challenged Mr. Chenoweth's credibility on cross-examination by asking whether it was true that he was reluctant to testify because he knew what he would be testifying to is false. Mr. Chenoweth responded, "That is not true." RP at 114. Defense counsel then asked, "Isn't it true that you were wavering." RP at 114. Mr. Chenoweth responded that he was reluctant to testify for fear of his family because threats had been made. Defense counsel again asked whether it was true that he was not going to testify and in fact tell the truth about what happened. Mr. Chenoweth responded that he was telling the truth. On re-direct examination, the prosecutor returned to the theme that Mr. Chenoweth was wavering about testifying to rebut the defense's suggestion his testimony was a lie and to show the reluctance was due to intimidation.
Under Bourgeois, the door was opened by legitimate trial tactics for admission of Mr. Bailey's threats and reasons for Mr. Chenoweth's reluctance to testify against Mr. Bailey who had already threatened to shoot him in the foot. In this context, the prosecutor's questions on re-direct about defense counsel visiting Mr. Chenoweth in jail and learning Mr. Chenoweth was wavering about testifying did not implicate Mr. Bailey's exercise of his right to counsel. Instead, the questioning still pertained to Mr. Chenoweth's credibility. No reviewable misconduct arose from Mr. Chenoweth's testimony. Likewise, the prosecutor's reference in closing argument to Mr. Chenoweth's credibility being bolstered by his fear of the "dangerous" Mr. Bailey was not misconduct in light of the trial testimony.
On the other hand, with regard to Mr. Madrigal, the prosecutor was not initially attempting to bolster his credibility. Instead, he impeached Mr. Madrigal's claimed lack of memory by ultimately getting him to admit that he told Detective Smith that Mr. Bailey was the shooter. But defense counsel then elicited from Mr. Madrigal on cross-examination that he did not know who fired the gunshots. Mr. Madrigal's credibility was thus inevitably placed in issue, and it was thus not improper for the State to have also explored reasons why he would not testify that Mr. Bailey was the shooter. Mr. Bailey is correct that Mr. Madrigal never specifically mentioned any fear of Mr. Bailey in his testimony. But he did admit to being "a little bit" afraid of what his testimony would affect when he gets out. RP at 161. The jury could then infer that he was refusing to testify truthfully because he feared repercussions attributable to Mr. Bailey. In any event, the defense made no objection and no prosecutorial misconduct arose during the testimony. Under the circumstances, it was then not improper for the prosecutor to argue in closing that fear of Mr. Bailey was a credible reason for Mr. Madrigal's reluctance to testify against Mr. Bailey.
It does appear, however, that the prosecutor's comments on the difficulty of Mr. Chenoweth and Mr. Madrigal facing Mr. Bailey in open court were improper. Commenting on the presence of the defendant during the testimony of adverse witnesses is misconduct. State v. Jones, 71 Wn. App. 798, 811, 863 P.2d 85 (1993) (citing Dyson v. United States, 418 A.2d 127, 131 (D.C. Cir. 1980)); see also Willard, 144 Ohio App. 3d at 775 (prosecutor committed misconduct by commenting that rape victim had to come to court and endure cross-examination by her assailant's attorney). The prosecutor did this three times, first during Mr. Madrigal's direct examination when he said, "I'm going to ask you to do something that's sort of hard and that's talk about it in front of the defendant; okay?" RP at 155. Next, the prosecutor elicited from Detective Smith that the petite young woman Ms. Rubon had the guts to testify right in front of the defendant and that Mr. Madrigal needed to "man up" and tell the truth as well. RP at 276. Finally, during closing argument, the prosecutor stated, "They did not want to get up here to testify in front of the defendant. And the reason is they know, because they saw it. He's a dangerous man. . . . They don't want to cross the defendant." RP at 382.
In combination, the prosecutor's statements appear as an improper appeal to the jury's passions and prejudice that drew unfavorable inferences from Mr. Bailey's exercise of his Sixth Amendment right to a jury trial and his right to confrontation under Rupe and Jones. We discuss Mr. Bailey's remedy, if any, for prosecutorial misconduct later in our opinion.
C. Prosecutor as Unsworn Witness. This issue stems from Mr. Madrigal's interview by Detective Smith and the prosecutor on the eve of Mr. Madrigal's July 12 trial testimony. Mr. Bailey contends the prosecutor made himself an unsworn witness at trial by repeatedly questioning Mr. Madrigal about their conversations during that interview. Mr. Bailey cites the following passages: "You talked to me and the detective last night; right?"; "You told us you were really worried about testifying, didn't you?"; "[Y]ou told us you were scared about testifying; isn't that correct?"; "Didn't you tell us you were really worried about how this might — this testifying might affect you when you get out?"; "But didn't you tell us that?"; "Well, as I recall, you said, look, I'm not really worried for me but I'm worried about how this might affect me when I get out on the outs; right?"; "Isn't it correct that we left you last night saying we hope you tell the truth?"; "Didn't you tell us that you really didn't want to take an oath and then lie?"; "You remember I just had a brief conversation at the end of court this morning with you, do you recall that?"; "Didn't you tell me, yes, I would know if I was the shooter and I wasn't the shooter?"; "Didn't we tell you — we Detective Smith and I — didn't we tell you yesterday that we just wanted you to tell the truth?"; "Didn't we tell you that there weren't any charges against you; right?"; "We never told you that if you testify you won't be charged; isn't that correct?"; "Didn't we tell you that?"
RP at 159.
RP at 160.
RP at 160.
RP at 160.
RP at 160.
RP at 161.
RP at 161.
RP at 162.
RP at 167.
RP at 168.
RP at 168.
RP at 168.
RP at 168.
RP at 169.
Mr. Bailey then cites to the prosecutor's closing argument:
[Mr.] Madrigal knows he's lying. That's why he had such a tough time keeping his head up, even making eye contact. He knew he was lying, and he told the detective exactly what he was going to do. He didn't deny, he never denied in our meeting that this is the man that shot at Troy Hartley. He never denied that. He just said, I don't think I'm going to be able to say that. I don't think I'm going to be able to. And that's what happened. He lied, but he lied about the defendant shooting Mr. Hartley.
RP at 403-04.
As indicated by Mr. Bailey, it is well established that "the prosecutor has a special obligation to avoid `improper suggestions, insinuations, and especially assertions of personal knowledge.'" United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 2d 1314 (1935)). Assertions of personal knowledge run afoul of the advocate-witness rule, which prohibits attorneys from testifying in cases they are litigating. United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998).
Mr. Bailey likens his case to Edwards. There, a prosecutor discovered a critical piece of evidence — a receipt bearing the defendant's name — inside a bag of narcotics. The next day, the prosecutor elicited testimony regarding his discovery from two police officers who were present when he found the evidence. The court held that the prosecutor's continued participation in the trial after giving implicit testimony that was devastating to the defense and not subject to cross-examination mandated reversal of the conviction. Edwards, 154 F.3d at 922-23.
Here, unlike in Edwards, the prosecutor did not testify or introduce evidence. Instead, in the context of attempting to impeach Mr. Madrigal's newly-claimed lack of memory, the prosecutor merely phrased questions to suggest Mr. Madrigal was not being credible on the stand. The jury knew the prosecutor and detective were both present at Mr. Madrigal's latest interview, so the prosecutor's references to "us" are innocuous. RP at 160. Most significantly, Detective Smith testified that Mr. Madrigal did not deny during the second interview that Mr. Bailey was the shooter. Detective Smith was fully subject to cross-examination. The prosecutor's statement in closing argument that Mr. Madrigal never denied Mr. Bailey was the shooter was proper argument from the evidence. The prosecutor's references to himself as a participant in the interview, while perhaps unnecessary, do not rise to the level of prejudicial misconduct.
D. Prosecutor's Distortion of the Elements of First Degree Assault. First degree assault as charged in this case requires proof of "intent to inflict great bodily harm." RCW 9A.36.011. At the outset of closing argument, the prosecutor stated:
The first thing is that we have the defendant charged correctly. Let's — let me talk a little bit later about why he's the right person. But if somebody pulls a gun on you, and takes a shot and misses, they've committed assault in the first degree. The definition of assault is in number 10, Instruction Number 10, which the charge was read to you. And it says, an assault is an intentional shooting of another person that is harmful or offensive.
I think it goes on to say an assault is also an act done with intent to inflict bodily injury upon another, tending but failing to accomplish it and attempting with present — apparent present ability to inflict the bodily injury. A lot of language there, but what it means is just that. And the example I have is if you pull a gun on somebody, point it at them, you've committed first degree assault. Because assault in the first degree is assaulting somebody with a firearm.
And then again, an assault is when you — in these words — do something with the intent to inflict bodily injury. You have that apparent ability to do so, but then you don't or no bodily injury is forthcoming. So that's a correct charge.
RP at 378-79.
Mr. Bailey views the prosecutor's closing statements in too narrow a context. The prosecutor admittedly misstated the law to the extent he failed to include "great" in the bodily harm component of the intent element. But the State is correct that the prosecutor was discussing someone shooting at the victim and narrowly missing him; therefore, first degree assault was the correct charge. The remainder of the closing arguments by both the prosecutor and defense counsel concentrated on the critical issue in the case — the identity of the shooter and whose testimony was more credible. "Intent to inflict great bodily harm" was never made an issue per se. Instead, the clear defense theory was that Mr. Chenoweth was a liar and falsely accused Mr. Bailey, who claimed he was not even present. In this context, it is not surprising that the defense did not object to the prosecutor's incomplete statement of the elements of first degree assault, knowing that the jury was properly instructed on the crime. The prosecutor's misstatement was not flagrant or ill-intentioned misconduct that could not have been obviated by an objection and curative instruction. As it stands, the jury is presumed to have followed the court's correct instruction on the requisite elements of first degree assault. See State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973 (2010).
Mr. Bailey's cited cases Brown and Fleming are not controlling in these circumstances. Brown v. United States, 766 A.2d 530, 541-43 (D.C. Cir. 2001) (prosecutor's misstatement of the law cumulated with other misconduct in closing argument rendered proceedings fundamentally defective and warranted new trial); State v. Fleming, 83 Wn. App. 209, 216, 921 P.2d 1076 (1996) (prosecutor's misstating nature of reasonable doubt and role of jury, infringing on right to remain silent, and improper shifting of burden of proof to the defense rose to a level manifest constitutional error that was not harmless beyond a reasonable doubt).
E. Prosecutor's Distortion of Nature of Reasonable Doubt. The prosecutor stated in closing argument:
And also concerning the defendant's credibility. Make a list of the people you have to disbelieve to believe him. You're going to have to disbelieve Troy Hartley back here. You're going to have to disbelieve him when he says there were three people, now he only says two. You're going to have to disbelieve Garrett Moon when he says I saw three people, two white men and a Hispanic male. The defendant contradicts that. You have to disbelieve David Marx when he talks about a phony bill of sale. Make a list of the number of people that you have to disbelieve to get to the point where you might give him some credibility.
RP at 386. And later in rebuttal closing argument:
Two people, independently, two people independently said this is the guy, this is the shooter. You make the list of the people you have to disbelieve in order to believe him. You have to disbelieve [Mr.] Hartley, [Mr.] Moon, [Mr.] Marx, [Mr.] Madrigal, [Mr.] Chenoweth, go down the line.
RP at 405.
The prosecutor may argue inferences from the evidence, including inferences why the jury would want to believe one witness over another. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). The same rule applies to the credibility of a defendant. Id. at 291. The prosecutor's argument here was well within this rule when Mr. Bailey personally gave testimony that in some fashion contradicted each witness referred to by the prosecutor. This case is unlike Fleming, where the prosecutor argued that in order to find the defendants not guilty, the jury would have to find either that the victim lied or was confused. Fleming, 83 Wn. App. at 213. There was no such burden shifting in this case and, hence, no misconduct. Mr. Bailey's argument lacks merit.
F. Remedy for Prosecutorial Misconduct. As discussed, Mr. Bailey must show a reasonable probability that any misconduct was incurable and probably changed the trial outcome. In the personal restraint petition context, he must show actual and substantial prejudice from any constitutional infirmity. He has not made that showing.
While it appears that the prosecutor made improper inflammatory comments that implicated Mr. Bailey's right to trial and right to confrontation, the State's evidence against him was very strong. Mr. Chenoweth testified that Mr. Bailey was a passenger in the pickup and fired the gunshots. Mr. Madrigal admitted telling Detective Smith that Mr. Bailey was the shooter. The police recovered Mr. Bailey's gun right where Mr. Chenoweth said Mr. Bailey tossed it. The gun contained Mr. Bailey's DNA, as did the passenger door handle of the fleeing pickup. Mr. Hartley and Mr. Moon each testified there were three people in the vehicle. Footprints consistent with Mr. Bailey's shoes were found at the crime scene. Moreover, alibi witness friends who testified for Mr. Bailey could not preclude his presence at the shooting.
Thus, unlike in Willard, 144 Ohio App. 3d 767, here, there was physical evidence to corroborate the witnesses' testimony that Mr. Bailey was present during the crime and fired the gunshots. Furthermore, Jones illustrates that impermissible comments on constitutionally-protected behavior may be harmless on direct appeal when untainted evidence of guilt is overwhelming. Jones, 71 Wn. App. at 812. Here, given the strength of the State's untainted evidence, Mr. Bailey does not meet his higher burden on collateral attack of showing by a preponderance of the evidence that he suffered actual and substantial prejudice such that the trial outcome differed due to constitutionally proscribed prosecutorial misconduct.
Mr. Bailey was not deprived of a fair trial by any prosecutorial misconduct.
II. Ineffective Assistance of Counsel Re: Prosecutorial Misconduct
Mr. Bailey contends his trial counsel was ineffective for failing to object to any of the above-discussed prosecutorial misconduct and in failing to request any curative instructions, or an instruction limiting the jury's use of Mr. Madrigal's out-of-court statements. Mr. Bailey asserts that there was no conceivable tactical reason for counsel's omissions.
To establish ineffective assistance of counsel, Mr. Bailey must show that his attorney's performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The first element of Strickland is met by showing that counsel's performance was not reasonably effective under prevailing professional norms. The second test is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We presume that counsel's performance was reasonable. Id. at 77. Deficient performance is not shown by matters that go to trial strategy or tactics, but is shown when there is no discernable tactical reason for counsel's failure to object. Id. at 77-78. A defense counsel's failure to emphasize negative events by objecting or seeking a curative instruction may certainly be a tactical choice.
But even assuming lack of legitimate strategic reasons for not objecting and requesting curative instructions for the prosecutor's comments or arguments that may be considered misconduct (such as the witnesses' difficulty in facing Mr. Bailey in open court), Mr. Bailey must still show a reasonable probability that any deficient performance impacted the trial outcome. As discussed above, he fails to make that showing in light of the strength of the State's evidence. He fails his burden under Strickland on this claim.
III. Ineffective Assistance of Counsel Re: Lesser-included Instruction
A defendant is entitled to a lesser-included offense instruction only if each of the elements of the lesser offense are elements of the offense charged (the legal prong), and the evidence supports an inference that only the lesser crime was committed (the factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Here, the legal prong is met but the existence of the factual prong is questionable when the only evidence is that Mr. Bailey fired a bullet directly through his pursuer's — Mr. Hartley's — windshield and narrowly missed him. A second degree assault instruction would require a reasonable inference that Mr. Bailey's assault of Mr. Hartley with a deadly weapon was without intent to inflict great bodily harm and that it was a fluke or bad luck that the gunshot almost hit him. See RCW 9A.36.021(1)(c) (person is guilty of second degree assault if he assaults another with a deadly weapon). Assuming, without deciding, that the lesser instruction could have been given, Mr. Bailey does not overcome the strong presumption that his counsel performed reasonably.
The all or nothing strategy is a recognized legitimate trial tactic that cannot be the basis of an ineffective assistance of counsel claim unless the decision to not request the lesser-included instruction was objectively unreasonable. See State v. Breitung, 155 Wn. App. 606, 618, 230 P.3d 614 (2010). Courts have looked to three factors in making that determination: (1) the difference between the sentences for the greater and lesser offenses, (2) whether the defendant's defense is the same for both the greater and lesser offenses, and (3) the overall risk to the defendant, given the circumstances at trial. Id. at 615 (quoting State v. Grier, 150 Wn. App. 619, 640-41, 208 P.3d 1221 (2009), review granted, 167 Wn.2d 1017 (2010)); State v. Hassan, 151 Wn. App. 209, 219, 211 P.3d 441 (2009); State v. Ward, 125 Wn. App. 243, 249-50, 104 P.3d 670 (2004).
The 240-month sentence Mr. Bailey received for first degree assault, with a 60-month deadly weapon enhancement, is significantly longer than his presumptive sentence for second degree assault. With his offender score of 6, the second degree assault standard range would have been 33 to 43 months, with a 36-month firearm enhancement. This would have subjected him to a potential 79-month sentence — 161 months less than what he actually received. Moreover, the risk of the all or nothing strategy was relatively high in light of Mr. Bailey's DNA being tied to the gun and his cohorts' testimony that he was the shooter. Mr. Bailey then argues that his overarching defense to either charge was that he was not the shooter, but regardless, the State failed to prove that any shooter committed first degree assault.
But Mr. Bailey's only theory of the case was that he was not present and, therefore, he was entitled to outright acquittal on the first degree assault charge. He took the stand and testified that he was not with Mr. Chenoweth and Mr. Madrigal at the time of the shooting. "The reasonableness of the defense strategy may be determined, or significantly influenced, by the defendant's statements or actions." Hassan, 151 Wn. App. at 220 (citing Strickland, 466 U.S. at 691)). If a lesser-included offense instruction would weaken a defendant's claim of innocence, the failure to request such an instruction is a reasonable strategy. Id.
In light of Mr. Bailey's own testimony that he was not present, it would weaken his defense for counsel to then hedge by arguing that if he was the shooter, he intended no great bodily harm, even though his gunshot narrowly missed the person chasing him. Under the circumstances, application of the Ward factors does not overcome the presumption that Mr. Bailey's counsel performed reasonably by not requesting a second degree assault instruction. Mr. Bailey makes no showing that he was prejudiced by any performance of counsel under Strickland.
IV. Firearm Enhancement Violates Double Jeopardy
In his opening petition, Mr. Bailey claimed that addition of the 60-month firearm enhancement violates double jeopardy when use of a firearm is already an element of first degree assault. He now acknowledges the subsequent decision in State v. Kelley, 168 Wn.2d 72, 84, 226 P.3d 773 (2010) (firearm enhancement does not violate double jeopardy when element of underlying offense includes use of a firearm). Mr. Bailey's double jeopardy claim is foreclosed by Kelley.
V. Cumulative Error
The cumulative error doctrine allows a defendant a new trial if multiple errors rendered the trial fundamentally unfair. State v. Saunders, 120 Wn. App. 800, 826, 86 P.3d 232 (2004). Based upon the above analyses, there is no accumulation of errors that deprived Mr. Bailey of a fair trial.
VI. Ineffective Assistance of Appellate Counsel
A petitioner who raises ineffective assistance of appellate counsel on collateral review must show (1) that the legal issue that appellate counsel failed to raise had merit, and (2) that he or she was actually prejudiced by appellate counsel's failure to raise the issue. In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 344, 945 P.2d 196 (1997). Appellate counsel does not render ineffective assistance merely because he or she chooses not to raise all possible issues on appeal. In re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835, 870 P.2d 964 (1994). Again, based upon the above analyses, Mr. Bailey shows no actual and substantial prejudice attributable to appellate counsel's performance when no claim now made by Mr. Bailey would likely have changed the appeal outcome.
VII. Conclusion
Mr. Bailey makes no showing that he was deprived of a fair trial due to prosecutorial misconduct, or that he was prejudiced by any performance of counsel. Mr. Bailey makes no claim entitling him to relief in a personal restraint petition. He fails his burden under Cook.
Accordingly, we deny the petition.
A majority of the panel has determined 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.
BROWN, J. and SWEENEY, J., concur.