Opinion
No. 61095-3-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05718-6, Michael Hayden, J., entered January 9, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Dwyer, A.C.J., and Agid, J.
Julio Escobedo-Flores was convicted of rape of a child in the first degree, child molestation in the first degree, and rape of a child in the second degree. He appeals, arguing that evidence of his drug use was improperly admitted and that prosecutorial misconduct deprived him of a fair trial. We affirm.
BACKGROUND
K.S. was about 10 years old when her mother, Toma Saxton, moved in with Escobedo-Flores. K.S. and her younger sister lived with their grandparents, but began visiting Saxton at Escobedo-Flores's home. The girls usually visited separately, and when they stayed the night, they shared the same bed as Saxton and Escobedo-Flores.
When K.S. was in sixth grade, she disclosed to her best friend, Tiara McDougall, that Escobedo-Flores was touching her inappropriately. In eighth grade, she told another friend, Jamie McMahan, that she had been raped or molested. At her friends' urging, K.S. disclosed the abuse to her grandmother when she was 14. Her grandmother called the police.
Detective Donna Stangeland obtained a one party consent warrant to record several phone calls from K.S. to Escobedo-Flores in order to obtain a confession. K.S. asked him for an apology and an explanation for the abuse. While he repeatedly denied doing anything to K.S., Escobedo-Flores also said he was sorry, asked K.S. not to be mad, and said he felt so bad he wished he could kill himself.
After Escobedo-Flores was arrested, Detective Stangeland recorded an interview in which he continued to deny touching K.S. But Escobedo-Flores admitted he drank heavily when K.S. was visiting and sometimes forgot what he did while he was drunk. When asked if it was possible that he touched K.S. while drunk, he said several times that he did not remember or did not know. Later, he said he could not have done it even when he was drunk.
The State charged Escobedo-Flores with one count of rape of a child in the first degree, one count of child molestation in the first degree, and one count of rape of a child in the second degree.
At trial, K.S. testified that when she was between 11 and 14 years old, Escobedo-Flores touched and inserted his fingers into her vagina when she was sleeping. K.S. said he also touched her buttocks with his penis and sometimes put his penis in her vagina. On one occasion, he touched her vagina with his tongue. Though she could not remember exactly how many times the touching happened or on what dates, K.S. pinpointed the first time it happened by reference to an event she attended with Saxton that weekend. She also identified the last occurrence by reference to a movie she watched that day with Saxton and Escobedo-Flores.
Saxton remembered the movie and could pinpoint the date because they watched it on the day it was released on DVD.
The defense sought and the court granted a pretrial ruling limiting the testimony of K.S.'s friends under the hue and cry doctrine to the fact she had told them of the abuse. McMahan and McDougall testified accordingly, and neither the State nor the defense asked exactly what K.S. had told her friends.
Saxton testified she never noticed or suspected anything inappropriate between Escobedo-Flores and K.S., even though she slept in short intervals and woke frequently. But at the time of the abuse, Saxton was using methadone, the antidepressant Zoloft, and Trazodone, a "nighttime antidepressant to help you sleep." Over defense objection, Saxton testified she and Escobedo-Flores also used cocaine about half the time that K.S. was visiting, and that when she "crashed" from the high, she would "sleep harder" than usual. Saxton also confirmed that Escobedo-Flores drank heavily on the weekends.
Report of Proceedings (RP) (Sept. 27, 2007) at 128.
Before Saxton testified, the defense conducted voir dire on the issue of Escobedo-Flores's cocaine use during K.S.'s visits. Saxton said they both used cocaine from 9 or 10 p.m. until about midnight, about half the time K.S. was there. The defense moved to exclude the testimony as unfairly prejudicial and irrelevant without expert testimony on cocaine's effects. The court ruled that cocaine's effects were within the jury's common knowledge and allowed the evidence without expert testimony.
RP (Sept. 27, 2007) at 131.
Escobedo-Flores also testified. He denied molesting or raping K.S., denied using cocaine or drinking beer while the girls were visiting, and said that Saxton never used Trazodone or cocaine while they lived together.
The jury convicted Escobedo-Flores as charged.
DISCUSSION Evidence of Cocaine Use
Escobedo-Flores first contends the court erred by admitting evidence that he used cocaine while K.S. was visiting. We review the decision to admit or exclude evidence for abuse of discretion, and find none here.
State v. Cohen, 125 Wn. App. 220, 223, 104 P.3d 70 (2005).
Evidence of drug use at or around the time of the crime is admissible to impeach the defendant's "memory of events and overall credibility." Given Escobedo-Flores's inconsistent statements about whether he was intoxicated when K.S. visited and whether he might have touched her while he was drunk, the evidence that he used cocaine as well as alcohol was relevant to impeach his recollection.
State v. Clark, 48 Wn. App. 850, 863, 743 P.2d 822 (1987) (in prosecution for murder, defendant's use of marijuana was admissible "for an assessment of his memory of events and his overall credibility"); State v. Kendrick, 47 Wn. App. 620, 634, 736 P.2d 1079 (1987) (in murder prosecution in which defendant met victim at a bar, evidence that defendant had used cocaine and alcohol that night "substantially impeached Kendrick's recall of events in [the bar]"); State v. Dault, 19 Wn. App. 709, 719, 578 P.2d 43 (1978) ("Generally, evidence of drug use is admissible to impeach the credibility of the witness . . . if there is a showing that the witness was using or was influenced by drugs at the time of the occurrence which is the subject of the testimony."). See also 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 607.12, at 402 (5th ed. 2008) ("A witness's use of alcohol or other drugs at the time of the events in question is admissible to show that the witness may not remember the events accurately.").
Escobedo-Flores contends that under State v. Powell, evidence of a defendant's drug use is inadmissible absent expert testimony on the effects of the drug on the person's state of mind. Powell involved a charge of first degree burglary while armed with a firearm. The State produced evidence that Powell was under the influence of methamphetamine when he went to his ex-girlfriend's house and tried to pry open the window as relevant to show Powell's state of mind under ER 404(b). Division Two of this court agreed the evidence was relevant, but reversed, holding that in the absence of expert testimony to explain the effects of methamphetamine, the jury was left to "speculate on this question from their own knowledge, knowing only that Powell was a law breaking drug user."
139 Wn. App. 808, 162 P.3d 1180 (2007), rev. granted, 163 Wn.2d 1017, 180 P.3d 1292 (2008).
Id. at 811.
Id. at 818.
This case is unlike Powell. The evidence of drug use was not offered under ER 404(b) to show Escobedo-Flores's state of mind, and was not used for that purpose. The court properly limited the evidence to Escobedo-Flores's drug use at the time of the abuse, and the State did not argue that Escobedo-Flores was more likely to have committed sexual offenses because he used cocaine. Admitting the evidence was not error.
During a lengthy discussion with counsel, the court suggested the evidence was admissible not only to impeach Escobedo-Flores's memory, but also because cocaine is a "disinhibitor" that can make a person more prone to sexual misconduct. Powell would require expert testimony in order to use the evidence for that purpose. But the evidence was offered for impeachment purposes and was admissible on that basis. See State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992) (trial court's evidentiary ruling "may be sustained on any proper basis within the record and will not be reversed simply because the trial court gave a wrong or insufficient reason for its determination").
Prosecutorial Misconduct
Escobedo-Flores next contends the prosecutor's improper rebuttal argument deprived him of a fair trial. Applying the usual standard of review for claims of prosecutorial misconduct, we are satisfied that the remarks had no effect on the verdict.
Prosecutorial misconduct is grounds for reversal only when the conduct "was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). Prejudice is established only if there is a substantial likelihood the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). The defendant bears the burden of showing both that the conduct was improper and that it caused prejudice. Hughes, 118 Wn. App. at 727. When the defendant fails to object to a comment made by the prosecutor in closing argument, the alleged misconduct will not be reviewed unless the comment is so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been remedied by a curative instruction. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001); State v. French, 101 Wn. App. 380, 385-86, 4 P.3d 857 (2000). In analyzing prejudice, the court considers the context of the total argument, the issues, the evidence and the instructions. State v. Warren, 165 Wn.2d 17, 26 n. 3, 195 P.3d 940 (2008).
Disparaging Defense Counsel. Comments that demean the role of defense counsel are improper. They impugn the integrity of the adversary system and are inconsistent with the prosecutor's obligation to ensure a verdict is free from prejudice and based on reason rather than passion. Escobedo-Flores complains that the prosecutor made disparaging remarks about his counsel. The State concedes the remarks were improper, but contends they are unlikely to have affected the jury's verdict
Warren, 165 Wn.2d at 29-30.
Viereck v. United States, 318 U.S. 236, 247-48, 63 S. Ct. 561, 87 L. Ed. 734 (1943); State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993).
In his rebuttal to defense argument, the prosecutor said he was "always leery of when, of how to respond when defense counsel gives the jury information that is just not true, it's just not borne out by the evidence." Escobedo-Flores did not object. Since defense counsel had in fact given the jury information that was inconsistent with the evidence, the remark more likely highlighted a factual dispute than suggested to the jury that defense counsel in general cannot be trusted.
RP (Oct. 2, 2007) at 100.
Defense counsel asserted that Saxton had been in prison from November 2003 until May 2004, and therefore K.S. "didn't even go over [to Escobedo-Flores's house] during the period of time that the State has charged for those two crimes because Tomi was in jail." RP (Oct. 2, 2007) at 91. Saxton testified she had been in jail from January through May 2004.
The prosecutor also remarked that juries should "watch out" when defense counsel makes arguments that attack a child witness's credibility for lack of certain details. Escobedo-Flores's objection was overruled. While the phrasing suggests that such arguments are tactics commonly employed by defense attorneys, the prosecutor did not characterize the argument as an attempt to distort the truth, nor imply that defense attorneys are prone to do so. The court properly overruled the objection. Burden Shifting. The State has the burden to prove every element of the crime beyond a reasonable doubt. The defendant has no obligation to present evidence, and it is improper for the State to comment on his failure to do so. However, "prosecutorial remarks, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel, are a pertinent reply to his or her arguments, and are not so prejudicial that a curative instructions [sic] would be ineffective."
See Warren, 165 Wn.2d at 29-30 (assertion that defense counsel's argument was "a classic example of what people go through in a criminal justice system when they deal with defense attorneys" and a "classic example of taking these facts and completely twisting them to their own benefit, and hoping that you are not smart enough to figure out what in fact they are doing," while improper, not reversible absent objection). See also Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983) (prosecutor's remarks improper where they suggest "that all defense counsel in criminal cases are retained solely to distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client's involvement with the alleged crimes"); Dickson v. State, 642 S.W.2d 185, 187 (Tex.Ct.App. 1982) (improper for prosecutor to suggest defense attorney was trying to "pull the wool" over jurors' eyes).
Escobedo-Flores contends that the court's failure to sustain his objection augmented its prejudicial impact by lending its imprimatur to the remarks. But the court's ruling, "Counsel, this is argument," seems more likely to have reminded the jury that counsel's argument is not evidence, as the court had already instructed, than to have suggested agreement with the prosecutor. RP (Oct. 2, 2007) at 102.
In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
State v. Cleveland, 58 Wn. App. 634, 647-48, 794 P.2d 546 (1990).
State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
Escobedo-Flores contends the State improperly shifted the burden of proof to the defense by making several references to his failure to present certain evidence. As with any instance of prosecutorial misconduct, Escobedo-Flores must demonstrate both that the prosecutor's conduct was improper and that there is a substantial likelihood that the misconduct affected the jury's verdict. Where he failed to object, the alleged misconduct will not be reviewed unless the comment is so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been remedied by a curative instruction. In analyzing prejudice, we consider the context of the total argument, the issues, the evidence and the instructions.
Hughes, 118 Wn. App. at 727; Pirtle, 127 Wn.2d at 672.
State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001); French, 101 Wn. App. at 386-88.
Warren, 165 Wn.2d at 28.
In this case, many of the challenged remarks were provoked by defense counsel's argument. In her closing, Escobedo-Flores's counsel improperly exploited the pretrial ruling limiting the hue and cry testimony to attack K.S.'s credibility. Emphasizing that the State had not provided the details of K.S.'s disclosures to Tiara McDougall and Jamie McMahan, defense counsel argued that K.S.'s reports were inconsistent and insufficiently detailed to believe. Counsel also encouraged the jury to draw negative inferences from the State's failure to call Escobedo-Flores's housemates as witnesses, asserting that they "never saw anything." Further, counsel argued the State failed to "potentially gather physical evidence, evidence that would tell us whether we believe [K.S.] or not, but it wasn't done."
RP (Oct. 2, 2007) at 83.
Id. at 86.
The prosecutor responded to these arguments directly. With regard to McDougall and McMahan, he accurately informed the jury that the defense could have elicited more details from the witnesses, and argued the jury should not infer that the absence of details suggested an inconsistency. This was an appropriate response to the improper defense argument; the objection was correctly overruled.
Nor was it improper for the prosecutor to respond to the argument about the State's failure to call Escobedo-Flores's housemates as witnesses. When it applies, the missing witness doctrine allows a party to argue that a missing witness's testimony would have been unfavorable to the other side. But the doctrine does not apply when the missing witness is equally available to both parties or when his or her potential testimony would be immaterial. Escobedo-Flores had equal or better access to these witnesses than did the State. And since "[i]t is common knowledge that sexual molestation of a child is not carried on in the presence of other witnesses," the testimony defense counsel suggested would be forthcoming, that they never saw anything, was hardly material.
State v. Montgomery, 163 Wn.2d 577, 598-99, 183 P.3d 267 (2008); French, 101 Wn. App. at 389.
Montgomery, 163 Wn.2d at 593-99.
Cleveland, 58 Wn. App. at 648.
The State argued, however, that Escobedo-Flores could have called these witnesses to tell the jury "about cocaine, or whether cocaine was being used." This arguably exceeded a pertinent reply to the defense argument. We believe, however, that any prejudice was cured when, after sidebar, the prosecutor emphasized that the defense had no burden to put on evidence.
RP (Oct. 2, 2007) at 107-08.
The prosecutor also responded to the argument that the State failed to collect physical evidence by saying that "if [the defense] wanted you to hear it, or if they had it, they could have brought it in. They don't have to, but when they put on a case, they could." As the trial court indicated when it overruled Escobedo-Flores's objection, the defense opened the door to this argument by asserting that the missing evidence was material, when in fact, Detective Stangeland testified that physical evidence would not have been probative. In this context, we do not believe the comment, even if improper, affected the verdict.
Id. at 107.
Other arguments made in rebuttal are more troubling. The State began by telling the jury that Escobedo-Flores had "been in jail for over a year," and "could send people far and wide to collect evidence and bring it in front of you to show that he's not guilty." This argument is not directly responsive to defense counsel's argument and blatantly shifts the burden to the defendant. But the court sustained the defense objection and stated, "You can comment on what they did present, but they don't have the burden, even once he takes the stand." Under the circumstances, this admonishment was sufficient to cure any prejudice.
Id. at 106.
Id. at 107.
The prosecutor also argued, "if he wanted you to know something else, he could have told you." This comment drew no objection. It is reversible only if it was so flagrant and ill intentioned that no instruction could have neutralized the prejudice.
Id. at 109-10.
Smith, 144 Wn.2d at 679.
Escobedo-Flores contends the repeated burden-shifting in this case was so flagrant that no instruction could cure it, and that the prosecutor's frequent reminders about the State's burden left the jury with the impression that even though the State technically bore the burden of proof, the jury should give substantial weight to the defendant's failure to present evidence. We agree that the prosecutor's reminders alone may not have dispelled all possible prejudice. But there is a difference between a party's remarks in argument and a definitive instruction by the court. Had such an instruction been sought and given, we believe it would have cured any prejudice.
The jury is presumed to follow the court's instructions. Id.
We do not condone the prosecutor's remarks here. But several of his comments were invited by improper defense argument, and others were cured by an admonishment by the court or could have been cured by an instruction the defense failed to request. Under the circumstances here, we do not believe the prosecutor's conduct deprived Escobedo-Flores of a fair trial.
Whether the constitutional harmless error standard ever applies in cases of prosecutorial misconduct is an open question under Warren, which did not apply that standard but "decline[d] to reach the issue of whether a constitutional error analysis might be appropriate if the prosecutorial misconduct directly violated a constitutional right." Warren, 165 Wn.2d at 26 n. 3. We agree with the State that the improper remarks were so unlikely to have affected the verdict that reversal is not required under any standard.
Because it was not error to admit the evidence of drug use, we do not consider Escobedo-Flores's argument that the evidentiary ruling together with the prosecutorial misconduct requires reversal under the doctrine of cumulative error.
WE CONCUR.