Opinion
No. 50480-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-00459-4. Judgment or order under review. Date filed: 05/06/2002. Judge signing: Hon. Charles S French.
Counsel for Appellant(s), Sarah Mcneel Hrobsky, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402
Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Michael Dull appeals his second degree rape conviction on two grounds. First, he argues that the trial court abused its discretion when it denied a motion for a continuance to compel the attendance of a witness. Second, he argues that the prosecutor denied him the right to a fair trial by making improper comments in closing argument. Dull also appeals his exceptional sentence upward. He argues that the trial court's findings of fact do not support the imposition of a 144-month exceptional sentence. We affirm.
FACTS
Michael Dull and Sheila Workman Bly (Bly) married in July 2000. Shortly after their marriage Bly learned that Dull was having an affair with Joanne Dudder-Conway. In September, Dull told Bly that he had ended the affair. Eventually, Dull and Bly saved enough money to purchase a camper trailer. The trailer consisted of two rooms: a bathroom and a living area. They lived in the trailer until their separation in December 2000. When they separated Bly moved out of the trailer. She went to live with Michael Bly, who she later married. Dull continued to live in the trailer. In late December Bly filed for divorce. Sometime during the first full week of February 2001, Bly contacted Dull about signing her interest in the trailer over to him. Dull refused to meet with her that weekend. But, that Sunday, at approximately 1:00 a.m., Dull drove to Michael Bly's house. He parked his van in Michael Bly's driveway and revved the engine. Bly went out and talked with Dull. Dull asked Bly to get in the van. Bly initially refused, but agreed after Dull promised to turn off the engine and remain parked in Michael Bly's driveway. Dull did turn off the engine, but started it again and left when Michael Bly came out of the house. Dull drove Bly to the trailer.
Once at the trailer, Dull offered Bly an opened container of beer. Bly accepted. She testified that after drinking about half of the beer she felt dizzy and ill. She then laid down on the bed, which was in the same room. When Bly awoke Dull was on top of her, taking off her clothes. He had her legs over his shoulders. Bly testified that this was painful because preexisting injuries made it impossible for her to comfortably have intercourse in this position. While on top of her Dull repeatedly inserted a red and yellow screwdriver into her rectum. He told her it was "ribbed for [her] pleasure." Dull also repeatedly inserted a beer bottle into both her rectum and vagina. Bly did not consent to any of this activity. She testified that she could see, hear and feel what was happening, but could not move.
Bly was kicked by a horse when she was a child and as a result had to undergo numerous surgeries.
When Bly woke up Sunday morning she noticed blood on the sheets of the bed. She then went to the bathroom and saw that she had no pubic hair. She testified that she felt extreme pain in her vagina and rectum when she tried to urinate or have a bowel movement. When she returned to the other room of the trailer she saw Dull's electric razor on the bedside table. She testified that she had no memory of being shaved, and that it was not something to which she had consented.
Bly stayed at the trailer until Dull left on Monday morning. She testified that she stayed with Dull so that he would think that everything was fine, that she did not intend to hold him accountable for his actions. But, when Dull left she called Michael Bly and asked that he come and get her. Bly also called Dudder-Conway, the woman with whom Dull had previously had an affair. Bly testified that she called Dudder-Conway to tell her what had happened and to ask if Dull had ever hurt her.
Bly then talked with a lawyer, filed a no-contact order, and went to the hospital. At the hospital Collette Dahl, a registered nurse, examined Bly. Dahl observed that Bly's vagina was "very red and inflamed." Dahl also noted that multiple lacerations surrounded Bly's anus. She was unable to complete a rectal exam because Bly complained of pain. Slightly over two weeks later Bly returned to the hospital. She saw Doctor George Cox who determined that she was anemic and critically ill. Specifically, Dr. Cox noted that Bly had a deep jagged injury in her rectum that was several centimeters long and which appeared to have been inflicted.
The Snohomish County Prosecutor charged Dull with second degree rape, committed while the victim was incapable of consent by reason of being physically helpless and mentally incapacitated, pursuant to RCW 9A.44.050(1)(b). Dull pleaded not guilty.
One of the witnesses Dull intended to call was Dudder-Conway. Dull did not personally serve her with a subpoena, but did send her one in the mail. He wanted to use her as a witness because she could provide a motive for Bly to make false accusations against Dull. Dudder-Conway would testify that Bly learned of the affair between her and Dull on the same day that Bly went to the police. Dull believed Dudder-Conway would also impeach Bly as to the conversation the two of them had that morning. But, on the second day of trial, Dudder-Conway told Dull that she would not testify. Dull requested a material witness warrant for Dudder-Conway, which the court granted. The court issued the warrant before it learned that Dull had failed to personally serve the subpoena. The police attempted to find Dudder-Conway, but failed. Next, Dull requested a continuance. The court, now aware of the improper service, denied Dull's request, and his subsequent requests for continuance or delay.
In the closing argument, the prosecutor made statements about Dull's counsel:
See, there's a weird problem that every victim has when there's a defense attorney who has a case. And Mr. Leo, as articulate as he is, can stand here and twist facts and twist words for you, but they don't make those things true. And I don't want you to confuse inconsistencies — even the inconsistencies in what he's just told you — with facts that are significant to your deliberation.
The reason that I get to respond after Mr. Leo is, he had the right to respond to what I had to say, and I have the same opportunity, to put in perspective the things that are said that are not accurate. See, part of the problem is, imagine this scenario: Imagine a woman is raped, and she is interviewed by the medical people, and she's interviewed by the police, and she's interviewed by the defense investigator, hired by the person he's hired to get him off.
. . . .
Then she comes to court, sits ten feet away from the man who brutally raped her, to be cross-examined by a person trained to do just that; and imagine if every single thing she said was perfectly consistent. Mr. Leo would be up here saying, My God, you can't believe her, it's so rehearsed; it must not be true, because nobody could possibly tell a story the exact same way. It must be made up, because of that absolute perfection of the story.
So there's really nothing about some inconsistencies, or lack of them, that really helps us except to demonstrate that he's a pretty good lawyer and can draw things out. Marlene Pacher was able to get some things, and he [Mr. Leo] can talk pretty good. But if you really want to understand Sheila Dull, and you really want to understand what happened, sometimes it's as important to listen not to what she said, but the things she didn't say.
(Emphasis added). Dull did not object to these statements at trial. The jury convicted Dull of second degree rape. His offender score was zero, with a standard sentencing range for second degree rape between 78 and 102 months. The trial judge imposed a 144-month exceptional sentence based on deliberate cruelty to the victim.
ANALYSIS
Dull argues that the trial court abused its discretion when it denied his motion for either a delay or a continuance to find Dudder-Conway. We review a trial court's decision to grant or deny a continuance for a manifest abuse of discretion. City of Bellevue v. Vigil, 66 Wn. App. 891, 892, 833 P.2d 445 (1992); State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984). When a defendant makes a motion to continue he must show that he has exercised due diligence to assure the witness's attendance, the witness would offer material evidence, and that the witness can probably be found if the trial court grants the continuance. State v. Lane, 56 Wn. App. 286, 296, 786 P.2d 277 (1989). Subpoenas must be personally served. State v. Jackman, 113 Wn.2d 772, 781, 783 P.2d 580 (1989); see also CrR 4.8, CR 45. Service by mail does not comply with our court rules and cannot constitute due diligence. State v. Adamski, 111 Wn.2d 574, 577, 761 P.2d 621 (1988). Dull served Dudder-Conway by mail; he did not have her personally served. Accordingly, he did not exercise due diligence to assure her attendance. Adamski, 111 Wn.2d at 577. While the court did issue a material witness warrant, it did so before it learned that Dull used an improper means for service of process. The trial court did not manifestly abused its discretion by refusing to grant a continuance once it learned that Dull failed to exercise due diligence to assure Dudder-Conway's attendance at trial.
Dull next argues that the prosecutor's closing argument included statements so flagrant and ill-intentioned that they denied Dull his right to a fair trial. Br. of Appellant at 21. Allegations of prosecutorial misconduct are "waived by failure to make an adequate timely objection and request [for] a curative instruction." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Dull did not object to the statements at trial. An allegation of prosecutorial misconduct may be raised for the first time on appeal where the alleged misconduct is so "flagrant and ill-intentioned, and the prejudice resulting therefrom so marked and enduring that corrective instructions or admonitions could not neutralize its effect." Swan, 114 Wn.2d at 661. The defendant bears the burden of proof to show this prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To show such prejudice "the defense must demonstrate there is a substantial likelihood the misconduct affected the jury's verdict." Brown, 132 Wn.2d at 561. A party "may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on a motion for new trial or on appeal." Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960).
Here, the prosecutor's statements were improper in that they attacked the integrity of the defense counsel instead of the evidence. The question then is whether the improper statements could have been neutralized by a curative instruction. The prosecutor stated:
Mr. Leo, as articulate as he is, can stand here and twist facts and twist words for you, but they don't make those things true.
. . . .
[S]he's interviewed by the defense investigator, hired by the person he's hired to get him off.
. . . .
So there's really nothing about some inconsistencies, or lack of them, that really helps us except to demonstrate that he's a pretty good lawyer and can draw things out.
While these statements are improper, Dull has not shown that they were so flagrant and ill-intentioned that no curative instruction could have neutralized their effect. United States v. Frascone, 747 F.2d 953, 957-58 (5th Cir. 1984). In Frascone, the prosecutor in closing argument stated: "I take an oath to see that justice is done. [The defense attorneys] take an oath to represent their client zealously." Frascone, 747 F.2d at 957. The defense attorney promptly objected and the trial court sustained the objection. Frascone, 747 F.2d at 957-58. On review, the United States Supreme Court wrote that the statement was "improper . . .; it seeks to draw the cloak of righteousness around the prosecutor in his personal status as government attorney and impugns the integrity of defense counsel." Frascone, 747 F.2d at 957-958. However, the Court did not require a reversal because it was persuaded that the curative instruction removed the taint and adequately abated the damage done. Frascone, 747 F.2d at 958.
Dull argues that had he objected he would have only increased the prejudice created by the prosecutor's statements. We disagree. This was a tactical decision that failed to recognize that a jury is presumed to heed the instructions of the court. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991). The remarks here are not more flagrant and ill-intentioned than those made in Frascone and neutralized by proper objection. A curative instruction would have neutralized any taint caused by the prosecutor's remarks. Dull waived the right to make allegations of prosecutorial misconduct on appeal when he failed to make a timely objection and request a curative instruction.
Dull argues that the trial court's findings of fact are insufficient to support an exceptional sentence based on deliberate cruelty. The trial court made three findings of fact: (1) "the defendant's conduct manifested deliberate cruelty to the victim;" (2) "the defendant inserted a screwdriver inside the victim causing immediate injury and an injury which could have been fatal;" and (3) "the insertion would have occurred at a time that the victim was physically helpless or mentally incapacitated." Dull argues that these findings are insufficient to impose an exceptional sentence as a matter of law.
We will not reverse an exceptional sentence "unless the sentencing court's stated reason for imposing the exceptional sentence is clearly erroneous or its stated reason does not justify an exceptional sentence as a matter of law." State v. Jacobson, 92 Wn. App. 958, 964, 965 P.2d 1140 (1998). The threshold for a finding of deliberate cruelty is high. State v. Zatkovich, 113 Wn. App. 70, 82, 52 P.3d 36 (2002). Deliberate cruelty is "gratuitous violence, or other conduct which inflicts physical, psychological or emotional pain as an end in itself." State v. Strauss, 54 Wn. App. 408, 418, 773 P.2d 989 (1989). "A stated reason justifying an exceptional sentence is legally adequate if it is substantial and compelling, and does not duplicate factors necessarily considered by the Legislature in computing the standard range." Jacobson, 92 Wn. App. at 965. The stated reason must be supported by written findings of fact and conclusions of law. State v. Halgren, 137 Wn.2d 340, 345, 971 P.2d 512 (1999). "Without comprehensive, specific written findings, the appellate court cannot properly review the trial court's resolution of the disputed facts and its application of the law to those facts." State v. Greco, 57 Wn. App. 196, 204, 787 P.2d 940 (1990). Where the findings of fact are insufficient to support the trial court's ultimate decision remand for proper findings and conclusions is required. State v. Head, 136 Wn.2d 619, 620-21, 964 P.2d 1187 (1998).
Dull challenges two of the courts findings. He first argues that the third finding of fact is an element of the crime that the State charged him with, and thus not a valid basis for an exceptional sentence. The trial court's third finding of fact states: "[I]nsertion would have occurred at a time that the victim was physically helpless or mentally incapacitated." Dull was convicted of second degree rape committed while the victim was incapable of consent by reason of being physically helpless and mentally incapacitated. The State concedes that a "finding that the victim was physically incapacitated at the time of the offense was not a separate ground for an exceptional sentence, because it was already considered by the Legislature in setting the standard sentence range for the crime." Without further elaboration from the trial court, the third finding cannot justify an exceptional sentence.
The second finding of fact reads: "[T]he defendant inserted a screwdriver inside the victim causing immediate injury and an injury which could have been fatal." Dull argues that this finding violates the real facts doctrine. "An exceptional sentence violates the real facts doctrine if the facts justifying the exceptional sentence establish the elements of a more serious crime." State v. Taitt, 93 Wn. App. 783, 785, 970 P.2d 785 (1999). Dull claims that the trial court's second finding of fact was merely that he caused serious physical injury, an element of first degree rape. Therefore, Dull argues, the trial court based the exceptional sentence on the elements of a more serious crime, in violation of the real facts doctrine. But, the trial court based the sentence on the fact that Dull "inserted a screwdriver inside the victim" not that he caused serious physical injury.
At sentencing, the trial judge noted that Bly's injuries could qualify as a serious physical injury and then stated: "I'm not [imposing the] exceptional sentence on the basis of the excessive injury." Thus, the injury noted in the second finding of fact was not the basis for the exceptional sentence. Also, the real facts doctrine does not apply to acts of domestic violence. RCW 9.94A.535(h)(iii); State v. Blakely, 111 Wn. App. 851, 869, 47 P.3d 149 (2002), review denied, 148 Wn.2d 1010 (2003). Here, Dull and Bly were married at the time of the rape. Dull's rape was an act of domestic violence. The real facts doctrine does not apply in this case. The trial court's finding that inserting a screwdriver into another person constitutes deliberate cruelty is supported by case law. For example, in State v. Tili, 108 Wn. App. 289, 301, 29 P.3d 1285 (2001), this court stated: "[M]ultiple penetrations of different orifices with different objects constitute deliberate cruelty, above and beyond the act of rape itself, especially the penetrations with a sharp object." Tili, 108 Wn. App. at 301 (emphasis added). Dull inserted a screwdriver into his victim. The trial court's finding that this act constituted deliberate cruelty is neither clearly erroneous nor incorrect as a matter of law.
This finding provides sufficient basis to impose the exceptional sentence.
Affirmed.
KENNEDY and BECKER, JJ., concur.