Opinion
No. 55347-0-I.
November 19, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-02403-6, Linda C. Krese, J., entered October 29, 2004.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schindler, J., concurred in by Appelwick, C.J., and Agid, J.
Harold G. Brown was convicted of seven counts of possession of depictions of a minor engaged in sexually explicit conduct with sexual motivation in violation of RCW 9.68A.070. On appeal, Brown contends the Department of Corrections (DOC) did not have the authority to administer the polygraph that resulted in seizure of the sexually explicit depictions because he was not lawfully on community placement. In the alternative, Brown contends that because the polygraph was not a condition of community placement, it was unauthorized. Brown also claims the trial court abused its discretion in admitting fingerprint evidence and prosecutorial misconduct and cumulative error denied him a fair trial. Last, Brown asserts that the imposition of an exceptional sentence violated his constitutional right to a jury trial. In a prior appeal, State v. Brown, No. 54420-9, 2005 Wash. LEXIS 3032 (Nov. 28, 2005), we held Brown was collaterally estopped from arguing his term of community placement was unlawful. In this appeal, we adhere to our previous decision and conclude Brown is barred from arguing his community placement was unlawful. We also conclude that DOC had the authority to conduct a polygraph as part of the community placement condition requiring Brown to participate in crime-related treatment as directed by DOC. And, because the trial court did not abuse its discretion in admitting the fingerprint evidence and neither prosecutorial misconduct nor cumulative error denied Brown a fair trial, we affirm his conviction. But based on the recent decision in In re Personal Restraint Petition of VanDelft, 158 Wn.2d 731, 147 P.3d 573 (2006), cert. denied, 2007 U.S. LEXIS 6275 (May 29, 2007), we reverse the exceptional sentence and remand for resentencing.
In July 1991, Brown pleaded guilty to two counts of child molestation in the first degree, committed in 1989 and 1990. Before the scheduled sentencing hearing in August, Brown had sex with a 13 year-old girl and was charged with rape of a child in the second degree.
On February 26, 1992, Brown pleaded guilty to the rape of a child in the second degree charge and was sentenced on the two counts of child molestation in the first degree. The court imposed a sentence of 85 months for each count of child molestation to be served concurrently and two years of community placement. The mandatory conditions of community placement included no contact with either of the victims or minor females.
On March 5, 1992, the court imposed a 130-month sentence for the rape in the second degree conviction and two years of community placement to be served concurrently with the child molestation sentence. As a condition of community placement, the court ordered Brown to participate in "crime-related treatment or counseling services as directed by the department." Brown's earned early release date was October 26, 2000. While incarcerated, Brown enrolled in the Twin Rivers sex offender treatment program at Monroe. Phase III of the Twin Rivers sex offender treatment program takes place during community placement.
DOC did not release Brown on his earned early release date because he did not have a pre-approved residence. Brown filed a personal restraint petition challenging the pre-approved residence requirement. On July 6, 2002, DOC released Brown to community placement. Before his release, Brown acknowledged that he had received copies of the judgment and sentence as well as the conditions, requirements, and the instructions for the community placement, including the requirement that he "participate in treatment and follow all rules of treatment provider."
After this court's decision in In re Personal Restraint of Stewart, 115 Wn. App. 319, 75 P.3d 521 (2003), DOC conceded that requiring a pre-approved residence before releasing an inmate to community placement was unlawful.
In July 2003, the DOC Community Corrections Officer (CCO) conducted a polygraph examination of Brown "to verify compliance" with the conditions of his supervision. That same month, Brown filed a motion to terminate community placement. Brown argued that he was entitled to credit for the time DOC unlawfully confined him after his earned early release date of October 26, 2000 against the two-year community placement term. With credit for the unlawful confinement, Brown claimed his community placement term ended October 26, 2002.
On September 17, 2003, the superior court denied Brown's motion and refused to terminate the requirement that he serve two years on community placement. The court in its oral decision stated that the remedy for Brown's unlawful confinement was unrelated to the requirement that he serve two years on community placement. Brown did not appeal the superior court decision and order.
On October 17, the CCO conducted another polygraph to verify compliance with the conditions of supervision. When the CCO asked Brown whether he possessed pornography since July, the polygraph indicated Brown's denial was deceptive. During follow-up questioning, Brown denied viewing child pornography but admitted that he watched an adult pornographic DVD at home and accessed pornography on the internet at work on two occasions. After the CCO told Brown that he planned to conduct a search of his home, Brown admitted he had several photographs of nude children but denied the photographs were sexually explicit.
Based on the information Brown provided, the police obtained a warrant to search his home. During the search, the police found a blue folder containing eight pages depicting nude female children between the ages of 6 to 10 years-old in sexual poses, and a DVD titled "Raw X Little Pink Pussies."
Shortly thereafter, DOC filed a violation report alleging Brown violated the conditions of community placement by (1) failing to participate in sexual deviancy treatment by possessing pornography on or about October 17; (2) being terminated from sexual deviancy treatment on October 28, and (3) failing to pay the costs of supervision.
In November 2003, the State charged Brown with seven counts of possession of depictions of a minor engaged in sexually explicit conduct with sexual motivation, in violation of RCW 9.68A.070.
On May 17, 2004, the superior court conducted a hearing on the alleged community placement violations. The court found Brown violated the conditions of community placement and sentenced Brown to 120 days in jail. Brown appealed. On appeal, Brown argued the 120 day sentence was unlawful because his community placement term expired in October 2002. In making this argument, Brown asserted that he was entitled to credit against his community placement term for the time he spent in confinement past his October 26, 2000 earned early release date. This court affirmed the trial court. Because Brown did not appeal from the superior court order denying his motion to terminate community service placement, Brown was barred from raising the same issue in a subsequent proceeding, "[h]e cannot collaterally attack the court's judgment on that issue in an appeal from the community placement violation proceedings." Brown, 2005 LEXIS 3032 at 7.
Prior to the trial on possession of sexually explicit depictions with sexual motivation, Brown moved to suppress the evidence seized from his home. Brown argued that because his community placement term was unlawful, DOC had no authority to administer the polygraph examination. Brown also moved to suppress the statements he made to the CCO before he was given Miranda warnings. In the order denying the motion to suppress, the court concluded the court's previous September 2003 decision denying Brown's motion to terminate the two-year community placement requirement was correct and that the court had no authority to terminate community placement term. The court granted Brown's motion to suppress the statements he made after the CCO told him he would search his home and advised him of his Miranda rights, including his statement that he possessed several photos of nude children that were not sexually explicit.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In this appeal of his conviction for possessing depictions of a minor engaged in sexually explicit conduct, Brown makes the exact same argument he made in his first appeal. Brown challenges the court's denial of his motion to suppress the evidence seized from his home based on the argument that the polygraph was unlawful because he is entitled to credit for the time he served in prison past his early release date against his two-year community placement term. We adhere to our decision that because Brown did not appeal, he cannot collaterally attack the superior court decision that the two-year community placement term was lawful.
No. 54420-9-I, 2005 Wash. App. LEXIS 3032 at 4 (Nov. 28, 2005).
As in the prior appeal, the four requirements for collateral estoppel are met. Brown, 2005 LEXIS 3032 at 7. Collateral estoppel applies when: "(1) the issue in the prior adjudication must be identical to the issue currently presented for review, (2) the prior adjudication must be a final judgment on the merits, (3) the party against whom the doctrine is asserted must have been a party to or in privity with a party to the prior adjudication, and (4) barring the relitigation of the issue will not work an injustice on the party against whom the doctrine is applied." State v. Harrison, 148 Wn.2d 550, 561, 61 P.3d 1104 (2003).
In the alternative, Brown argues that even if his community placement was lawful, because a polygraph is not a condition of his community placement, DOC did not have the authority to conduct a polygraph. There is no dispute the court required Brown to participate in "crime-related treatment or counseling services as directed by the department" as a condition of community placement. While incarcerated, Brown enrolled in the Twin Rivers sex offender treatment program. The Aftercare phase of the program occurs during community placement and the treatment contract required periodic polygraph examinations to monitor compliance. We conclude DOC had the authority to require polygraph examinations as part of the treatment program that was expressly imposed by the court as a condition of community placement.
The State concedes the court erred in concluding DOC had the authority to conduct a polygraph under the 1997 amendment to RCW 9.94A.030(11). In 1997, the legislature added language stating that: "affirmative acts necessary to monitor compliance with the order of a court may be required by the department." Laws of 1997, ch. 144, § 1.
While a copy of the contact is not in the record, the transcript of the hearing establishes that the contract was provided to the court and that under the contract Brown was subject to periodic polygraph testing.
Next, Brown contends the trial court abused its discretion by admitting fingerprint evidence without an adequate foundation. Brown also contends the testimony the State introduced to establish chain of custody for the fingerprint evidence prejudicially implicated his right to silence. A trial court's decision to admit evidence is reviewed for an abuse of discretion. The trial court "is necessarily vested with a wide latitude of discretion in determining admissibility, which will not be disturbed absent clear abuse." State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984).
After the first mistrial, the court granted the State's motion to withdraw two exhibits for a fingerprint analysis, the DVD disk and the folder containing the depictions of nude female children. The State requested an analysis of the DVD disk, and not the disk cover, because the jurors handled the cover during the trial. Similarly, the pages of the photographs were not analyzed because they were taken out of the folder and examined by the jurors. There is no dispute that the fingerprint technician identified Brown's fingerprints on the disk and on the folder. Below, Brown argued the fingerprint evidence was inadmissible because there was no evidence to establish that he did not touch the DVD disk or the folder during the first trial. The court denied Brown's motion to exclude the fingerprint testimony, ruling that Brown's argument went to weight and not the admissibility of the evidence.
The court declared a mistrial based on a violation of the motion in limine order.
To establish chain of custody for fingerprint evidence on the DVD disk and the folder, the State presented the testimony of the court clerk and two security officers who were present during the first trial. The witnesses each testified that they did not see Brown either touch the DVD disk or the folder. On this record, we conclude the trial court's decision to admit fingerprint testimony about the disk and the DVD was not an abuse of discretion and was not unduly prejudicial.
Brown's attempt to argue that the testimony of the security officers was analogous to cases where a defendant is in shackles is unpersuasive. The mere presence of security officers during trial is not per se prejudicial. See State v. Olson, 44 Wn. App. 671, 722 P.2d 887 (1986); State v. Basford, 1 Wn. App. 1044, 467 P.2d 352 (1970).
Brown also argues prosecutorial misconduct denied him the right to a fair trial and requires reversal. A defendant who alleges improper conduct on the part of the prosecutor must establish that the conduct was improper and had a prejudicial effect. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). Any allegedly improper remarks must be viewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the court's instructions to the jury. State v. Dhaliwal, 150 Wn.2d 559, 561, 79 P.3d 432 (2003). Prejudice is established only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the jury verdict. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Brown cites three instances of prosecutorial misconduct during closing argument. The first remark occurred when the prosecutor stated an objection at the beginning of Brown's closing argument.
Counsel: Presumption of innocence. It's a nice, warm, legal fuzzy that we carry, but how do you give it weight? When you look at Mr. Brown sitting there accused of a crime, you are to look at a person that you respect, that you think well of. That person has told you, `I didn't do this.'
Prosecutor: I'm going to object. Mr. Brown did not testify. The Court: Well, overruled. That's not what is being said. Counsel: How much evidence would you need to see before you disbelieve that person? That's the presumption of innocence.
A prosecutor may not comment on the defendant's right to remain silent. State v. Ramirez, 49 Wn. App. 332, 742 P.2d 726 (1987). "The test employed to determine if a defendant's Fifth Amendment rights have been violated is whether the prosecutor's statement was of such character that the jury would `naturally and necessarily accept it as a comment on the defendant's failure to testify.'" Ramirez, 49 Wn. App. at 336.
The prosecutor's statement in the context of the objection is distinguishable from cases where the prosecutor's remarks constituted a comment on the defendant's failure to testify. Rodriguez, 49 Wn. App. 332, 742 P.2d 726 (1987) (in rebuttal, the prosecutor stated that another reason a defendant does not testify is because he is guilty); State v. Reed, 25 Wn. App. 46, 49, 604 P.2d 1330 (1979) (prosecutor's statement in closing argument that "[n]obody has said, `[y]es, I was paid'" was a direct reference to the accused's failure to testify). In addition, here, the court immediately overruled the objection, stating, "[t]hat's not what is being said." We conclude the jury would not "naturally and necessarily" accept the prosecutor's statement as an impermissible comment on the defendant's failure to testify.
The second remark occurred in rebuttal when the prosecutor referred to the young girls depicted in the photographs.
Prosecutor: This is the final chapter in a book that began to be written in a photo studio in eastern Europe, when real girls with mothers and fathers —
Counsel: I'm going to object. This is —
Prosecutor: Argument.
Counsel: — playing on the emotions of the jurors.
The Court: I'm going to sustain the objection.
Because the prosecutor made no further reference after the defense objection to either the girls depicted in the photographs or to their parents, we conclude there is no likelihood the argument affected the jury verdict. Russell, 125 Wn.2d at 86.
Brown also contends the prosecutor's remarks about the photographer who took the pictures misstated the law. In rebuttal, the prosecutor addressed the role of the photographer in the context of the jury instructions.
Prosecutor: You were not asked anywhere in those instructions to decide what the photographer of these little girls had in mind. You are not asked in the instructions to decide what the photographer wanted his reaction to be.
Counsel: I'm going to object. That's a —
The Court: I'm going to overrule. It's argument. The jury needs to refer to the instructions.
After the defense objected, the prosecutor told the jury that the depicted images must be for the purpose of sexual stimulation.
Prosecutor: That is not in the instructions. The instructions tell you that if these are for the purpose of sexual stimulation, they're illegal, and not just sexual stimulation, because the Sears catalog is sort of attractive. I think everyone either did or know somebody who used to look at the National Geographic in the old days to get excited about it.
The prosecutor's argument was not inconsistent with either the jury instructions or State v. Grannis, 84 Wn. App. 546, 930 P.2d 327 (1997). Jury Instruction No. 23 states "?[s]exually explicit conduct' means actual or simulated: . . . [e]xhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer." In Grannis, the defendant secretly photographed minor girls on a playground and taking a bath. Because there was no evidence that the defendant initiated, contributed to, or in any way influenced the girls' conduct, the court held that the evidence did not establish the girls were engaged in "sexually explicit conduct" within the meaning of RCW 9.68A.011(3). The court also concluded that under the statute, "for the purpose of sexual stimulation of the viewer" means "the purpose of the person or persons who initiate, contribute to, or otherwise influence its occurrence." Grannis, 84 Wn. App. at 549-50. The court explained that the initiator or contributor need not be the accused -"[w]hoever the initiator or contributor is, however, his or her purpose must be to sexually stimulate a viewer." Id. at 550. We conclude the prosecutor's argument that the jury did not need to decide the intent and purpose of the photograph is not contrary to Jury Instruction 23 or Grannis.
In sum, we conclude Brown has not established improper prosecutorial misconduct that had a prejudicial effect on the jury verdict nor any likelihood that the prosecutor's remarks affected the jury verdict.
And because the record fails to support Brown's then claimed errors, we also conclude Brown was not denied a fair trial based on cumulative error.
Sentencing
The court imposed an exceptional sentence under RCW 9.94A.589, based on the finding that the multiple offense policy resulted in a presumptive sentence that was clearly too lenient. Brown contends the court's finding and sentence are unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We agree. In State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005) and in In re Pers. Restraint of VanDelft, 158 Wn.2d 732, our state Supreme Court ruled that an exceptional sentence imposed in the form of a consecutive sentence is constitutionally invalid. Accordingly, we reverse and remand for resentencing.
The court sentenced Brown to 12 months for each count with counts V-VII to run consecutive to counts I-IV.
We affirm the conviction but reverse the sentence and remand for resentencing.
Accordingly, we do not address the State's cross appeal challenging the court's decision to suppress part of Brown's statement to the Community Corrections Officer.