Opinion
No. 36648-7-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-00089-7, Lisa R. Worswick, J., entered August 10, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J.; Quinn-Brintnall, J., concurring separately.
UNPUBLISHED OPINION
Sowanbe Olorn Collins seeks review of his convictions for two counts of third degree assault and one count of resisting arrest. We affirm.
Facts
On January 2, 2007, at around 11 pm, Tacoma Police Officer Jeff Thiry stopped Collins after he observed Collins and another man jaywalk near South 21st and "J" Street in the Hilltop neighborhood in Tacoma. Officer Thiry was alone, so he called for backup, and then obtained the men's names and birth dates to write them citations. Trial testimony varied as to what happened next.
Officer Thiry testified that when he ran the information to verify Collins's identity, he discovered that Collins had an outstanding warrant. By this time, Officer Daniel Grant had arrived on the scene as backup and was talking with Collins's companion. Officer Thiry informed Collins that he was going to arrest Collins for the outstanding warrant and told Collins to put his hands behind his back. Collins initially complied, but then pulled away, turned around, and assumed a fighting stance with his fists clinched and arms raised. Officer Grant sprayed Collins with pepper spray, but it had no effect.
Both officers told Collins to stop resisting and that he was under arrest, but Collins did not comply. Collins was kicking and swinging his fists at both officers. Officer Thiry got out his taser, but still Collins would not comply. As Collins continued to struggle and kick at the officers, he and Officer Thiry fell to the ground. Officer Thiry applied the taser. Eventually, the officers were able to subdue Collins and take him into custody. Other officers then began arriving on the scene.
Officer Grant testified similarly that Collins would not comply with verbal commands and that it took both him and Officer Thiry several minutes to subdue Collins. The court also admitted a tape recording of a 911 call from a woman at the scene who reported that two police officers were trying to arrest a man and needed help.
Collins testified that Officer Thiry told him he was under arrest but did not say why. He testified that he complied with Officer's Thiry's request to put his hands behind his back and then Officer Grant sprayed him with pepper spray for no reason. He testified that he accidentally pulled away from Officer Thiry. After he was pepper sprayed for no reason, the officers threw him into a fence, onto the ground, and then into the car. He testified that after he was tased, he might have been waiving his arms and feet, but he never intended to kick or swing at the officers.
The State charged Collins with one count of resisting arrest and two counts of third degree assault, alleging that he intentionally assaulted Officers Thiry and Grant while they were performing their official duties. After hearing the above evidence, the jury convicted Collins as charged. The trial court sentenced Collins to concurrent mid-standard range sentences with a total incarceration of 19 months. Collins filed a timely notice of appeal.
Discussion Admission of 911 Tape
Collins contends that the trial court violated his Sixth Amendment right to confront witnesses when it admitted the 911 tape recording and permitted it to be played for the jury. Collins argues that the recording contained testimonial statements that were impermissibly admitted under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We disagree.
The 911 caller was not available to testify at trial.
The confrontation clause prohibits the admission of testimonial hearsay unless the defendant has an opportunity to cross-examine the declarant. State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87, cert. denied, 549 U.S. 1019 (2006) (citing Crawford, 541 U.S. at 68). Generally, a statement is testimonial if a reasonable person in the declarant's position would anticipate that his statement would be used against the accused in investigating or prosecuting a crime. Shafer, 156 Wn.2d at 389. The Supreme Court in Davis v. Washington, 547 U.S. 813, 823, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), specifically addressed whether a 911 recording was "testimonial" and thus barred by Crawford. Davis clarified that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822. "[Statements] are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822.
The Court assumed (without deciding) that 911 operators acted as agents of law enforcement during 911 calls. Thus, the operators' inquiries qualified as police interrogations. However, that point was not dispositive on the issue of whether the statements made to the operators were testimonial. Davis, 547 U.S. at 823 n. 2.
In Davis, a victim of domestic violence called 911 during a confrontation with her boyfriend. The operator asked the caller to identify the assailant while police were in route to assist her. Davis, 547 U.S. at 817-18. Later, the trial court admitted the 911 tape when the victim did not appear. Davis, 547 U.S. at 819. On review, the Supreme Court held that because the primary purpose of the interrogation was to enable police assistance to an ongoing emergency, the caller's statements were not testimonial, and thus the admission of the 911 tape when the witness was unavailable did not violate the confrontation clause. Davis, 547 U.S. at 828-29.
The circumstance here is analogous. During Collins's arrest, a nearby resident called 911 to request assistance for the two officers. She described events as they happened. She said that two officers were trying to arrest a man, that he was resisting, that the officers were tasing him and trying to get the man on the ground, but it wasn't working and the officers needed help. The caller said that the man had a friend who was interfering, then stated that the man was trying to run from the officers and indicated that more police were needed. She described the other man as being "really defiant." Ex. 1. The caller then noted that other officers were arriving on the scene.
Exhibit 1 is the redacted 911 tape. The record does not contain a transcript of the 911 call.
Here, the caller's statements were clearly meant to " resolve the present emergency," rather than simply telling a story about events that had happened in the past. See Davis, 547 U.S. at 827. The caller's statements on the recording are tense and disjointed. Her words describe an ongoing emergency as it is occurring and the call itself is a request for help for the officers. As in Davis, the caller's statement was informal, contemporaneous with an unfolding event; her words described an imminent danger and contained a plea for help. See Davis, 547 U.S. at 826-30. Davis instructs that such statements, which may fairly be described as "a cry for help" or "the provision of information enabling officers immediately to end a threatening situation" are "nontestimonial." See Davis, 547 U.S. at 832.
Collins contends that the trial court erred because although it admitted the 911 tape under the present sense impression exception to the hearsay rule, it failed to address the primary issue of whether the hearsay was testimonial. That is not so. The court determined that the 911 recording was a call for help, that it was not testimonial, and that it could be admitted provided some comments by the 911 operator were redacted to avoid any undue prejudice. Applying Davis, we hold that the statements on the redacted 911 tape were not testimonial and that the trial court did not err in admitting the 911 tape.
Prosecutorial Misconduct
Collins contends that the prosecutor committed misconduct in closing argument that warrants reversal of his conviction. We disagree.
Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect. See State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998); State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). To establish prejudice, the defense must demonstrate there is a substantial likelihood the misconduct affected the jury's verdict. Brown, 132 Wn.2d at 561. A prosecuting attorney's allegedly improper remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Brown, 132 Wn.2d at 561. Failure to object to an improper comment constitutes waiver of the error unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Brown, 132 Wn.2d at 561. Accordingly, reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. Brown, 132 Wn.2d at 561.
Collins contends that the prosecutor's closing argument was improper in two ways. First he alleges the prosecutor's argument regarding the testimony given at trial improperly shifted the burden to the defense. See State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997) (misconduct for prosecutor to argue that in order to acquit defendant, the jury must find that the State's witnesses were either lying or mistaken). Secondly, Collins contends that the prosecutor voiced his personal opinion about the defendant's credibility and vouched for the officers' credibility. See State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003) (improper for prosecutor to vouch for or against the credibility of a witness, or to express a personal opinion about credibility of a witness or guilt or innocence of the accused). However, the passages from the transcript upon which Collins relies show no burden shifting, personal opinion, or vouching. Read in context, the prosecutor's comments demonstrate advocacy, but nothing improper. Indeed, the prosecutor specifically noted that it was the State's burden to prove to the jury the elements of each charge as set forth in the to-convict instructions.
The prosecutor then correctly noted that the testimony of the officers and the defendant relayed vastly different accounts of what transpired during the arrest. The prosecutor correctly told the jury that it was their task to determine credibility, and pointed out that the instructions so provided. The prosecutor went on to explain how the evidence supported the officers' testimony, how the evidence did not support the defendant's version of events, and urged the jury to consider all of the testimony in light of the other evidence presented in determining credibility. This was not improper. The prosecutor enjoys reasonable latitude in arguing inferences from the evidence, including inferences as to witness credibility. State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006). Also it is not misconduct, for a prosecutor to argue that the evidence does not support a defense theory. Russell, 125 Wn.2d at 87.
Moreover, the prosecutor's comments urging that the jury look for the "ring of truth" when evaluating the officer's and the defendant's testimony was not improper because the prosecutor explained that the ring of truth was to be gleaned from the inferences that flowed from the other evidence. See 4 RP at 218, 220, 226. As to the charge of resisting arrest, the prosecutor reminded the jury that during cross-examination Collins admitted that he pulled away from Officer Thiry. The prosecutor argued that even if the jury believed all of Collins's testimony, he would still be guilty of resisting arrest in light of that admission. The prosecutor stated, "this is the only time you're going to hear me say this, because I don't suggest you should believe a single word the defendant said from the witness stand, but if you believe every single thing he said, he's still guilty of resisting arrest." 4 RP at 216. Read fairly in context, this is not an improper personal opinion on the defendant's credibility. Rather, the prosecutor is merely stating that he is not vouching for the defendant, and noting that if the jury does believe Collins's testimony, that testimony supports the State's case on the resisting arrest charge. Notably, defense counsel made only one objection during the State's closing argument, and that objection was overruled. We hold that Collins has not met his burden of showing any misconduct.
Collins also admitted on cross-examination that he was the man described in the 911 recording as the man resisting arrest, and that his companion was the man described as being belligerent.
Collins alternatively argues that in light of the numerous instances of prosecutorial misconduct during closing argument, his trial counsel was ineffective for failing to object to such misconduct and for failing to seek a curative instruction. But, as noted, Collins has not established anything improper in the prosecutor's closing argument, thus there was no basis for any objection. Accordingly, his alternative assertion of ineffective assistance also fails.
Instructional Error
Collins next argues that the to-convict instructions addressing the third degree assault counts (counts 1 and 2) were constitutionally defective because they did not contain an essential element of the charged crimes. We disagree.
Due process requires the State to prove every element of the charged crime beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005). The statute that Collins was charged with violating provides in relevant part that a person is guilty of assault in the third degree if he or she, "under circumstances not amounting to assault in the first or second degree . . . [a]ssaults a law enforcement officer . . . who was performing his or her official duties at the time of the assault." RCW 9A.36.031(1)(g). The "to convict" instructions at issue did not contain the phrase "under circumstances not amounting to assault in the first or second degree." See CP at 37-38 (Instruction Nos. 8 and 9). However, case law has established that the "under circumstances" language is not an essential element of third degree assault. See State v. Brown, 140 Wn.2d 456, 468, 998 P.2d 321 (2000) (instruction providing that "[a] person commits the crime of assault in the third degree when he assaults a law enforcement officer who was performing his or her official duties at the time of the assault" contained all essential elements of the offense under RCW 9A.36.031(1)(g)). See also State v. Blatt, 139 Wn. App. 555, 559-60, 160 P.3d 1106 (2007), review denied, 163 Wn.2d 1040 (2008) (information charging third degree assault in violation of RCW 9A.36.031(1)(g) was sufficient even though it did not contain the statute's language excluding acts constituting first or second degree assault). Cf. State v. Keend, 140 Wn. App. 858, 872, 166 P.3d 1268 (2007), review denied, 163 Wn.2d 1041 (2008) ("the phrase `not amounting to assault in the first degree' does not function as an essential element of second degree assault").
Moreover, the omitted language is not necessary to find third degree assault of a police officer because the State did not additionally charge first or second degree assault. See State v. Ward, 148 Wn.2d 803, 814, 64 P.3d 640 (2003). Accordingly, all the crime elements were submitted to the jury for a finding beyond a reasonable doubt. We hold that the State met its burden of proving all essential elements regarding the two charges of third degree assault.
Collins also argued in his opening brief that as to the charges for third degree assault under RCW 9A.36.031, the courts' employment of a common law definition of "assault" in the absence of a legislative definition violated the separation of powers doctrine. He withdrew that issue in his reply brief, however, correctly conceding that his argument is foreclosed by the Supreme Court's decision in State v. Chavez, 163 Wn.2d 262, 180 P.3d 1250 (2008).
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.
PENOYAR, A.C.J., concur.
I concur with the majority in affirming Sowanbe Olorn Collins's convictions. I note that Collins's trial counsel did not object to portions of the deputy prosecutor's closing argument he seeks to challenge on appeal and that review of the record does not support a claim that the arguments Collins challenges for the first time on appeal were flagrant and ill-intentioned. In addition, I agree with the majority and find no support in the record for Collins's argument that the prosecutor improperly vouched for the officer's credibility.
I write separately, however, to express my disagreement with the State's assertion in its brief that the deputy prosecutor's argument was proper. I acknowledge that Collins's argument that the deputy prosecutor's closing argument referenced matters outside the record was mentioned only in passing in his reply brief and, therefore, the State had no opportunity to respond to this challenge. And I note that it has long been the law that, because the respondent has been deprived of an opportunity to answer a claim raised for the first time in a reply brief, an issue raised for the first time in a reply brief is raised too late to warrant the appellate court's consideration. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see also Fosbre v. State, 70 Wn.2d 578, 583, 424 P.2d 901 (1967) (citing former Rules on Appeal 41 and holding that contentions raised for the first time in reply "will not receive consideration on appeal" and also holding that points not argued and discussed in the opening brief are considered "abandoned and not open to consideration on their merits"); see also Dang v. Ehredt, 95 Wn. App. 670, 677, 977 P.2d 29 (arguments raised for first time in reply brief to the Court of Appeals would not be considered out of fairness to trial court and opposing parties), review denied, 139 Wn.2d 1012 (1999); State v. Peerson, 62 Wn. App. 755, 778, 816 P.2d 43 (1991) (alleged errors raised for the first time in a reply brief need not be reviewed on appeal even if they are of constitutional magnitude), review denied, 118 Wn.2d 1012 (1992).
Moreover, even if Collins had fully briefed and argued this claim, the error in the deputy prosecutor's closing argument in referencing matters outside the record clearly did not adversely affect the verdict and was harmless. But a review of the record reveals that, when making arguments regarding how the jury should evaluate the officer's credibility, the prosecutor did reference matters outside the record. Specifically, the deputy prosecutor argued that (1) officers jeopardize their careers by providing false testimony and so they would not risk that "punishment" by lying and (2) coming to court was not part of the officer's regular job duties and was a "hassle." I acknowledge that, to those involved in law enforcement or who routinely practice criminal law, these extra record matters (facing formal discipline or perjury charges and loss of career for lying under oath, attending court hearings not a part of officer's regular duties requiring schedule alterations and possible overtime hours) appear to be matters of "common" knowledge. I cannot assume, however, that jurors know the specifics of a police officer's regular job duties and it seems likely that they may believe that testifying in court could be one of those regular duties. And it remains a fact that there was no testimony or other evidence presented that, for example, testifying in court was not part of the officer's regular work duties and was a "hassle" or an unwelcome interruption of the officer's regular duties.
Certainly the mention of these duties or potential punishments for testifying falsely is neither ill-intentioned nor flagrant and does not undermine my confidence in the reliability of the jury's verdict. In this case, although error, the deputy prosecutor's reference to these extra record matters was clearly harmless and does not require reversal of Collins's convictions. Accordingly, I concur in the result.