Opinion
No. 37260-6-II.
February 3, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-03315-9, John R. Hickman, J., entered January 11, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Hunt and Quinn-Brintnall, J J.
Bruce Beavers appeals his conviction of second degree robbery, arguing prosecutorial misconduct and ineffective assistance of counsel. We affirm.
A commissioner of this court reviewed the matter under to RAP 18.14 and referred it to a panel of judges.
FACTS
We derive the facts from the trial evidence.
In the early hours of May 20, 2007, Top Foods grocery manager David Gourneau observed Beavers place two bags of frozen shrimp, and possibly other items, into his backpack and followed him until he made his way to the front of the store. Gourneau testified that he then directed a cashier to call Erik Jones, the store's night stocker, to come up front as backup. When Beavers walked through the check-out aisle without paying for anything, Gourneau confronted him and asked him to return the goods that were in his backpack.
Beavers "spun around and said he was going to start swinging" on Gourneau and Jones. II Report of Proceedings (RP) at 98. Gourneau called the police on his cell phone as he and Jones followed Beavers out of the store. Beavers made his way across the parking lot, stopping several times and threatening to start "swinging." RP at 101. When Gourneau and Jones got closer, he swung his backpack in circles to keep them away. Jones grabbed for the backpack, and Beavers punched him in the face. The effort caused Beavers to lose his balance, and Gourneau, Jones, and another store employee tackled him and held him down until the police arrived.
Jones testified to basically the same incident, but some of the details differed. Unlike Gourneau, he could not identify Beavers as the suspected shoplifter. He said that Gourneau himself, not a cashier, asked him to come to the front of the store. According to Jones, the shoplifter did not wait for Gourneau to confront him but bolted for the exit as soon as he saw store personnel waiting in the front of the store. And contrary to Gorneau's account, in the parking lot, the shoplifter agreed to give up the groceries and fiddled with the zipper of his backpack, but then he turned and continued to walk away. Jones agreed that the shoplifter had hit him when he tried to grab the backpack, but he did not think it was a punch, just a swing of the pack.
The State charged Beavers with first degree robbery. At trial, during closing argument, defense counsel focused on the inconsistencies in the testimony of the two men and told the jury:
The only evidence you heard from the State really is the testimony of Mr. Jones and Mr. Gourneau. Those two witnesses were so inconsistent with each other about supposedly the same allegations that I would submit to you that's not proof beyond a reasonable doubt in and of itself.
RP at 194.
In rebuttal, the deputy prosecutor argued:
This all happened in a very short period of time, and that's something you have to take into account in listening to their testimony. Ask yourselves, do you think that the witnesses were lying about what happened or do you think that one of them may have been mistaken about whether it was the . . . backpack or the fist that hit the person?. . . .
There is no indication from either witness that they were concealing something, trying to hide something. In fact, if Erik Jones were going to come in here and lie for who knows what reason . . . he would have gone, "That's him right there."
RP at 203, 205. Defense counsel did not object to these comments.
Ultimately, the jury did not find Beavers guilty of first degree robbery but found him guilty of second degree robbery. He appeals.
ANALYSIS
Beavers contends that the deputy prosecutor's comments amounted to an argument that the jury could not acquit him unless it determined that Gourneau and Jones were lying. Such an argument would be misleading and unfair, but the comments challenged here do not rise to that level. See State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991).
The deputy prosecutor argued that Jones and Gourneau were not lying, but he did not suggest that the jury could not convict unless it found that to be so. The use of the word "lie," even though repeated, does not, in itself, establish misconduct. State v. Millante, 80 Wn. App. 237, 251, 908 P.2d 374 (1995). The State is permitted to comment on a witness's veracity and argue the credibility of its witnesses. See State v. Warren, ___ Wn.2d ___, 195 P.3d 940, 946 (2008); State v. Sandoval, 137 Wn. App. 532, 540, 154 P.3d 271 (2007); State v. Fiallo-Lopez, 78 Wn. App. 717, 730-31, 899 P.2d 1294 (1995). The comments challenged here do not markedly differ from those in State v. Fiallo-Lopez, 78 Wn. App. at 729-30. They were simply an attempt to show that despite the inconsistencies, Gourneau and Jones provided credible evidence about the material aspects of the crime. As such, they do not constitute misconduct.
Even if misconduct, it would not require reversal unless it is prejudicial. See State v. Echevarria, 71 Wn. App. 595, 597, 860 P.2d 420 (1993). Here, there was no dispute that a person walked out of Top Foods with items he did not pay for. The police officer who responded to the scene identified Beavers as the person being detained by Gourneau and Jones. The officer said that he found groceries in Beavers's backpack. He also testified that there was an area of redness, several inches in diameter, on Jones's cheek. There is no doubt that the verdict would have been the same in the absence of the deputy prosecutor's comments.
Beavers also contends that trial counsel provided inadequate assistance because she did not object to the deputy prosecutor's comments. In order to prevail, he must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). As we have determined that the deputy prosecutor did not commit misconduct, it was not deficient performance to fail to object. Beavers's argument fails.
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.
HUNT, J., and QUINN-BRINTNALL, J., concur.