Opinion
No. 57054-4-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10299-1, Nicole MacInnes, J., entered June 6, 2005.
Counsel for Appellant(s), Jennifer M Winkler, Nielson, Broman Koch, PLLC, Seattle, WA.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Michael Paul Mohandeson, King Co Pros Office, Seattle, WA.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
During Duong Duc Nguyen's trial for first degree rape, a counselor testified that the victim became agitated and anxious when describing the sexual assault and that her demeanor was "pretty common with trauma". Nguyen did not object to this testimony, but contends on appeal that the counselor's remark was an opinion as to his guilt that deprived him of a fair trial. Because the comment does not amount to a manifest constitutional error, Nguyen's failure to object precludes appellate review.
After a trial spanning a week that included nearly 20 witnesses, a jury convicted Nguyen of burglary, indecent liberties, rape and kidnapping, and felony harassment. Nguyen appeals his conviction.
The victim, P.T.H., was an acquaintance of Nguyen's in whom he had a romantic interest. She did not reciprocate Nguyen's affection. On two occasions in February of 2004, Nguyen prevented P.T.H. from leaving her own home and forced her to engage in sexual activity with him. P.T.H. moved in with her parents the next month. Nguyen found her new home, appeared on her doorstep, and demanded a ride home on March 9, 2004. Upon arriving at his home, Nguyen pulled P.T.H. out of her car and into his home where he raped her and took pictures of her unclothed. The next day P.T.H. met with a counselor who assisted her in contacting the police.
At trial, the counselor testified about his meeting with P.T.H. and her demeanor:
Q. Now, was her demeanor consistent throughout the whole interview or did the demeanor change during the course of the interview?
A. She tended to relax after awhile as we talked about what direction to take. What steps to take. Some of her options. She seemed to calm down a little bit, and acted to have some choices so as not victim presentation but more thinking about choices.
Q. Now, when she was — did she tell you — give you dates about exactly what happened to her?
A. Yes, she did.
Q. And when she was relaying those facts to you what was her demeanor like during that period of time?
A. She became more agitated, more anxious as she told the story. This is pretty common with trauma as persons tell it more often they become a little more comfortable in digesting it a little better, but sometimes the first story is difficult for people. So there were interruptions, pauses, avoiding eye contact, uncomfortableness, shifting in the chair. Those kind of anxious behaviors again as she told the story.
Report of Proceedings, March 28, 2005 at 14-15 (emphasis added).
Nguyen did not object to this testimony. On appeal, he contends the statements amounted to an opinion on Nguyen's guilt that violates the Sixth Amendment of the United States Constitution and art. I, §§ 22 of the Washington State Constitution.
Generally, failure to object below precludes appellate review of the issue. RAP 2.5(a). But a "manifest error affecting a constitutional right" may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Nguyen claims that the effect of the counselor's testimony was similar to the expert's testimony in State v. Black, 109 Wn.2d 336, 745 P.2d 12 (1987), where the defendant received a new trial. In Black, the court allowed expert testimony, over the defendant's objection, that the victim was suffering from "rape trauma syndrome." Black, 109 Wn.2d at 339.
In every rape victim that I have seen they exhibit consistent symptoms . . . For example, body soreness, guilt, shame, feelings about the trial, nightmares, flashbacks, these are common symptoms that rape victims experience. There is a specific profile for rape victims and [R. J.] fits in.
Black, 109 Wn.2d at 339.
The Supreme Court concluded the admission of profile testimony was reversible error where Black had properly raised an objection. The State "may not introduce expert testimony which purports to scientifically prove that an alleged rape victim is suffering from rape trauma syndrome." Black, 109 Wn.2d at 349.
In contrast, the testimony in Nguyen's trial was a single, isolated remark by a witness who did not profess expertise in working with sexual assault victims. The State used the counselor's testimony to establish the circumstances in which P.T.H. contacted the police. The comment describing P.T.H. as "anxious" and that this response "is pretty common with trauma" came in response to a question about P.T.H.'s demeanor during their meeting. It was not a deliberate attempt on behalf of the State to sidestep the prohibition on testimony about rape trauma syndrome. The State did not mention the comment during closing argument nor use it as scientific proof that the sexual encounter had been nonconsensual as was done in Black.
Report of Proceedings, March 28, 2005, at 9.
The facts of this case are more similar to those in State v. Madison, 53 Wn. App. 754, 770 P.2d 662 (1989). Madison was charged with statutory rape. A counselor testified that the child victim's sexual behavior was "typical of a sex abuse victim"; that when the child spoke to her she was "very relieved" to share the secret and "very clearly aware of the impact her disclosure would have on many people whom she loved". Madison, 53 Wn. App. at 760. The defense did not object to these statements at trial, but claimed on appeal that they amounted to manifest error.
This court found that the counselor's statements merely explained the child's demeanor: "A witness may properly describe the manner and demeanor of a child at the time he is making such statements, and that description may include inferences." Madison, 53 Wn. App. at 760. The counselor's testimony neither asserted that Madison was guilty nor explicitly asserted that she believed the victim's story. The court concluded that the testimony did not constitute manifest constitutional error, so could not be raised for the first time on appeal. Likewise, the error alleged in Nguyen's trial is not manifest constitutional error, and we will not review it since he failed to object at trial.
We also reject Nguyen's claim of ineffective assistance based on counsel's failure to object so as to preserve the claim of error based on Black. The counselor's comment on P.T.H.'s demeanor did not create the level of prejudice found in Black. The decision of when or whether to object is a classic example of trial tactics and only in "egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." Madison, 53 Wn. App. at 763. Because the prejudice here, if any, was only slight, ineffective assistance of counsel has not been established.
The State agrees with Nguyen that the trial court erred by failing to vacate a kidnapping conviction (Count 5) that merged with one of the first degree rape convictions (Count 6). See State v. DeRyke, 110 Wn. App. 815, 823, 41 P.3d 1225 (2002), affirmed, 149 Wn.2d 906 (2003) ("when a defendant is convicted under the kidnapping provision of the first degree rape statute, the merger doctrine applies to the kidnapping offense"). Accordingly, we remand to the trial court to vacate Count 5 of Nguyen's conviction. In all other respects the conviction is affirmed.