Opinion
No. 36101-9-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-00477-1, John R. Hickman, J., entered March 23, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Quinn-Brintnall and Penoyar, JJ.
Ronnie Archibald appeals his convictions for two counts of second degree rape and one count of third degree assault against Shannon Douglass-Wilkins. He argues that (1) he received an unfair trial, (2) the trial court erred in failing to instruct the jury on "missing evidence," and (3) the prosecutor committed prosecutorial misconduct. We affirm.
FACTS
Archibald and Douglass-Wilkins were involved in a sexual relationship for approximately four months. On January 28, 2006, after an evening out with friends, Archibald and Douglass-Wilkins returned to her home. Soon after arriving home, Archibald physically and sexually assaulted her multiple times. Thereafter, she went to a friend's home and, eventually, to the hospital where a sexual assault nurse examined her, a forensic investigator photographed her, and the police interviewed her.
We do not recite the facts of this case because they are unnecessary to our discussion and involve graphic sexual violence.
The State charged Archibald with three counts of first degree rape, counts I, II, and III, and one count of second degree assault with a sexual motivation, count IV. In addition, it charged all counts as domestic violence incidents.
At trial, Archibald admitted that he assaulted Douglass-Wilkins, but denied having any type of intercourse with her. The jury found Archibald guilty of the lesser included offense of second degree rape on counts I and III. The jury also found Archibald guilty of the lesser included offense of third degree assault on count IV. The trial court sentenced Archibald to concurrent incarceration terms of 200 months to life on both second degree rape convictions, and 366 days on the third degree assault conviction.
Archibald appeals.
ANALYSIS
I. Fairness Issues
Archibald argues that the trial court denied him a fair trial because Douglass-Wilkins, a State's witness, referenced his incarceration and a court room security officer repositioned himself when Archibald took the stand. He argues that we should reverse his conviction and remand for a new trial. We disagree.
A. Testimony Regarding Custody
Archibald argues that the trial court violated his right to a fair trial because Douglass-Wilkins referred to a letter that he sent her from jail. Archibald objected to Douglass-Wilkins's testimony and moved for a mistrial. The trial court denied the motion, but offered to provide a curative instruction, which Archibald declined. Our review focuses on the trial court's denial of Archibald's motion for a mistrial.
We review the trial court's denial of a mistrial for an abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). The trial court abuses its discretion if "'no reasonable judge would have reached the same conclusion.'" State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711 (1989)). Moreover, we overturn a trial court's denial of a mistrial only if "there is a 'substantial likelihood' that the error prompting the mistrial affected the jury's verdict," Rodriguez, 146 Wn.2d 270 (internal quotation marks omitted) (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)), or if "'the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" Rodriguez, 146 Wn.2d 269-70 (quoting State v. Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)).
While "references to custody can certainly carry some prejudice, they do not carry the same suggestive quality [as the] defendant" appearing physically restrained during trial. State v. Mullin-Coston, 115 Wn. App. 679, 693, 64 P.3d 40 (2003), aff'd, 152 Wn.2d 107, 121, 95 P.3d 321 (2004). Here, the State jailed Archibald on numerous crimes. Because "[m]any factors go into the determination of whether a defendant will be released pending trial, including the seriousness of the charged crime and the person's ability to pay bail," the jury could have concluded that he was unable to post a bond for his release. Mullin-Coston, 115 Wn. App. at 693. In addition, Douglass-Wilkins did not testify that Archibald was currently in jail, but rather that he sent the letter from jail. During trial, Archibald appeared unshackled, wore a suit and tie, and caused no disruptions. The jury would not necessarily assume that Archibald was still jailed or posed a security threat.
Furthermore, the trial court may cure such an error by giving the jury a curative instruction "if an inadvertent or unavoidable breach brings the jailed defendant's condition to the attention of the jury." State v. Gonzalez, 129 Wn. App. 895, 901, 120 P.3d 645 (2005). Douglass-Wilkins's mention of Archibald's condition appears to have been inadvertent. The parties established the authenticity of Archibald's letter outside of the presence of the jury so that the jury would not learn that Archibald sent the letter from jail. When questioning resumed in the presence of the jury, Douglass-Wilkins testified that Archibald's letter "came from the prison or jail — whatever it's called." RP at 202. Therefore, a curative instruction, as the one the trial court offered, would have cured any error.
The trial court did not abuse its discretion in denying Archibald's motion for a mistrial or in admitting Douglass-Wilkins's testimony.
B. Court Room Security
Archibald also argues that the trial court erroneously permitted the court security officer to reposition himself during Archibald's testimony. Here, the officer asked to move while Archibald testified and Archibald's trial counsel originally objected to the officer's movement, but later suggested an alternative security plan, which the trial court accepted:
[DEFENSE COUNSEL:] The compromise from my point of view would be out of the presence of the jury . . . that he station himself in a chair by the door and the defendant — when he is called to the stand I will accompany him to the stand either in front of counsel table or behind counsel table. Whichever the jail prefers.
THE COURT: I think what — and this is strictly within the court's discretion, and I take great deference to what the jail staff and security staff says — I'm going to allow the officer to sit over by the swinging gate, per his recommendation, and I think we'll just put the defendant on and off the stand outside the presence of the jury.
CORRECTIONS OFFICER: Perfect. Thank you.
THE COURT: That way we avoid any appearance of security issues.
So when he takes the stand, we'll miraculously take our break. . . . But that's the way we'll deal with it. . . . I will put you on and off the stand outside the presence of the jury, sir, so there is no hint of impropriety.
MR. ARCHIBALD: All right.
RP at 332-33.
"Courts have recognized that the accused is thus entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man." State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). "This is to ensure that the defendant receives a fair and impartial trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and article I, section 3, and article I, section 22 (amendment 10) of the Washington State Constitution." Finch, 137 Wn.2d at 843. It also preserves the defendant's presumption of innocence, and "although not articulated in the Constitution, [it] 'is a basic component of a fair trial under our system of criminal justice.'" Finch, 137 Wn.2d at 844 (quoting Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)).
"The court's duty to shield the jury from routine security measures is a constitutional mandate." Gonzalez, 129 Wn. App. at 901. "Measures which single out a defendant as a particularly dangerous or guilty person threaten his or her constitutional right to a fair trial." Finch, 137 Wn.2d at 845. And there is a "substantial danger of destruction in the minds of the jury of the presumption of innocence where the accused is required to wear prison garb, is handcuffed or is otherwise shackled." Finch, 137 Wn.2d at 844. "A trial judge must exercise discretion in determining the extent to which courtroom security measures are necessary to maintain order and prevent injury. That discretion must be founded upon a factual basis set forth in the record." State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981).
Here, Archibald suggested the arrangement that the trial court adopted for positioning the security officer when Archibald testified. Thus, the court security officer did not move with him in front of the jury. This was not error; there was only a small risk of prejudice and that risk was not so inherently prejudicial as to pose an unacceptable threat to the fair outcome of the trial. See Holbrook v. Flynn, 475 U.S. 560, 569, 572, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986) (lesser risk of prejudice from the trial court's use of an armed security officer, rather than shackling, because the jury could draw a wide range of inferences for the cause of the officer's presence); State v. Lord, 161 Wn.2d 276, 285-86, 165 P.3d 1251 (2007). The trial court did not abuse its discretion "in determining the extent to which courtroom security measures [were] necessary to maintain order and prevent injury." Hartzog, 96 Wn.2d at 400.
Even if the trial court did err, Archibald invited any error. "Under the invited error doctrine, a party may not set up error at trial and then complain about the error on appeal." State v. Korum, 157 Wn.2d 614, 646, 141 P.3d 13 (2006). "To be invited, the error must be the result of an affirmative, knowing, and voluntary act." State v. Lucero, 140 Wn. App. 782, 786, 167 P.3d 1188 (2007) (citing In re Pers. Restraint of Call, 144 Wn.2d 315, 328, 28 P.3d 709 (2001)). In addition, "this doctrine precludes judicial review even where the alleged error raises constitutional issues." State v. Phelps, 113 Wn. App. 347, 353, 57 P.3d 624 (2002).
II. Jury Instruction
Next, Archibald argues that the trial court erred by not providing a "missing evidence" jury instruction because the State's forensic witnesses discussed collecting DNA evidence, but the State did not present any results of DNA testing. SAG at 1.
The Washington Supreme Court Committee on Jury Instructions has crafted a "missing witness," but not a "missing evidence" pattern jury instruction in 11 Washington Pattern Jury Instructions: Criminal 5.20 (2d ed. 1994), which provides:
If a party does not produce the testimony of a witness who is [within the control of] [or] [peculiarly available to] that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.
(Alterations in original).
Archibald suggested a missing evidence instruction. But he did not craft or submit such an instruction for the trial court's consideration, nor did the parties discuss such an instruction when reviewing the proposed jury instructions in chambers. And Archibald did not object to the court's instructions for lack of a missing evidence instruction. Archibald's argument in his statement of additional grounds implies that when the defense merely suggests that the trial court could, or should, give a particular jury instruction, without drafting that instruction or proposing it, the defense has properly presented a jury instruction for the trial court's consideration and such suggestion is sufficient to preserve an error for appeal.
Defense counsel stated:
I intend to ask for . . . what's known as the missing witness or missing evidence instruction. . . . Specifically I'm referring to the lack of any testing of the physical evidence for sperm that was in the control, the exclusive control of the State.
I believe that instruction is appropriate, but I know [the State] is opposed to it."
RP at 470.
"[D]efects in instructions not called to the trial court's attention will not be considered when raised for the first time on appeal." State v. Theroff, 95 Wn.2d 385, 391, 622 P.2d 1240 (1980). Under RAP 2.5(a)(3), a party may raise an appellate claim of "manifest error affecting a constitutional right" even though the party did not raise it in t he trial court. An error is manifest if Archibald can show, in the context of the trial, how the error actually prejudiced him. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Jury instructions that misstate the law may amount to an error of constitutional magnitude and may be presumed prejudicial. See State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). Here, there was no jury instruction before the trial court to consider and its absence is not based on a trial court ruling as an issue of law. Therefore, we decline to consider Archibald's argument except to hold that the trial court did not abuse its discretion in failing to provide the jury with a missing evidence instruction that the defense did not propose. III. Prosecutorial Misconduct
Finally, Archibald argues that the prosecutor committed misconduct by expressing a personal belief about his and Douglass-Wilkins's credibility during the State's closing argument.
"To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney's conduct was both improper and prejudicial." State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986 (2007). We review the defendant's allegations of prosecutorial misconduct under an abuse of discretion standard. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). Furthermore, we review the prosecutor's comments "in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given." State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). "Prosecutorial misconduct does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the instances of misconduct affected the jury's verdict." Brett, 126 Wn.2d at 175.
"It is improper for a prosecutor personally to vouch for the credibility of a witness. . . . Prosecutors may, however, argue an inference from the evidence, and prejudicial error will not be found unless it is 'clear and unmistakable' that counsel is expressing a personal opinion." Brett, 126 Wn.2d at 175 (internal quotation marks omitted) (quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)). "[P]rosecutors may argue inferences from the evidence, including inferences as to why the jury would want to believe one witness over another. The same rule has been applied as to credibility of a defendant." State v. Copeland, 130 Wn.2d 244, 290-91, 922 P.2d 1304 (1996) (citation omitted). "[P]rejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990); see also Brett, 126 Wn.2d at 175.
Archibald complains that the prosecutor committed misconduct when he stated to the jury "I submit to you that [the] letter [Archibald sent to Douglass-Wilkins from jail was] evidence of the defendant's own consciousness of guilt. The defendant himself felt he was guilty." RP at 509. Archibald's defense counsel objected to this statement, arguing that the prosecutor was "offering his personal opinion," but the trial court overruled his objection, stating it was the State's "theory of the case." RP at 509-510. Here it is not clear and unmistakable that the prosecutor was expressing his personal opinion of Archibald's guilt, but rather his comments relied on the evidence and inferred that Archibald felt he was guilty because he apologized to Douglass-Wilkins. See Copeland, 130 Wn.2d at 291-92; Brett, 126 Wn.2d at 175. Therefore, Archibald did not prove that the prosecutor's comments were improper and prejudicial. See Weber, 159 Wn.2d at 270.
Archibald next contends that the prosecutor committed misconduct by expressing his personal opinion when he stated that Douglass-Wilkins's "statements [were] clearly reasonable. They [were] clearly consistent." RP at 565. Archibald fails to note that the prosecutor next argued that her statements were "clearly corroborated by the testimony[,] by the witnesses, [and] by the physical evidence." RP at 565. Furthermore, Archibald failed to object to this instance of alleged prosecutorial misconduct at trial and, therefore, he waives the issue of prosecutorial misconduct on appeal 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. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Here the prosecutor did not express his personal opinion, but argued that the evidence showed that Douglass-Wilkins's testimony was credible and, therefore, the prosecutor did not commit misconduct.
Even if we were to find that the prosecutor erred, his conduct was not so flagrant that the trial court could not have neutralized it by a jury admonition. See Stenson, 132 Wn.2d at 719.
We hold that the prosecutor here did not commit prejudicial error because he was arguing inferences from the evidence and not expressing his personal opinion. See Copeland, 130 Wn.2d at 291-92; Brett, 126 Wn.2d at 175; Swan, 114 Wn.2d at 664. The trial court did not abuse its discretion in overruling Archibald's objections and his argument that the prosecutor committed misconduct fails.
We affirm Archibald's judgment and sentence.
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.
QUINN-BRINTNALL, J., PENOYAR, J., concur.