Opinion
No. 57272-5-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-05939-5, Laura Gene Middaugh, J., entered November 10, 2005.
Affirmed by unpublished per curiam opinion.
Absent an objection, prosecutorial misconduct is not reviewable unless it was so flagrant and ill-intentioned that it could not have been cured. Because the alleged misconduct in this case either fails this test or was not misconduct, and because we reject appellant's claims of ineffective assistance, improper joinder, and insufficient evidence, we affirm.
FACTS
After drinking heavily at a party in Auburn, Jeffery Forinash, Kevin Mitchell, and Shawn Urvina decided to drive to a store to buy more alcohol. On their way, they saw Luke Heglin and Joe Michael walking down the street. Forinash and Mitchell got out of their car and asked Heglin and Michael for 50 cents. When Heglin and Michael said they had no money, Forinash and Mitchell asked if they wanted to buy drugs. Heglin and Michael declined.
Forinash and Mitchell then extended their hands and introduced themselves. As Forinash shook Michael's hand, he pulled Michael toward him and hit him in the face with his other hand. Forinash and Mitchell then assaulted Heglin and Michael and ordered them to empty their pockets. Neither had any money.
Matthew Newman, a friend of Heglin and Michael, drove by during the scuffle and stopped to break it up. Forinash grabbed Newman's arm and demanded his wallet. Newman said "no" and ran away. Newman, Heglin and Michael then drove to a nearby 7-Eleven store and called 911. They last saw Forinash and Mitchell heading toward the baseball field at Mount Baker Middle School.
Several minutes later, Auburn Police Officers James Firth and Joshua Hostetter arrived at opposite sides of the baseball field. Officer Firth saw two people on the field and walked toward them. They immediately ran away. Officer Firth pursued and caught one of the men, later identified as Mitchell. Officer Hostetter caught the other man, later identified as Forinash.
Hostetter arrested Forinash, stood him up, and shined a flashlight on his face. A woman sitting nearby on the ground screamed "He raped me." She was naked, "curled up in a ball," and crying. Report of Proceedings (RP) (June 13, 2005) at 27. Directing her comments at Forinash, the woman, later identified as V.M., repeatedly said "he raped me." Forinash told Hostetter "It was two black guys. I was just trying to help." Id. at 28. Police found a lighter and electronic pet belonging to V.M. in Forinash's pockets.
At trial, V.M. and her friend Frank Marler testified that they had gone to the baseball field on the evening of the rape with Chris Tweed. After hearing loud boisterous voices in the distance, V.M. saw two men approach Marler and Tweed. They pushed Tweed and asked where he was from. According to Marler, a siren sounded in the distance and the men ran off.
At that point, another man claiming to be an undercover police officer walked up and told them not to worry and to get V.M. and sit down. The man left briefly and then returned with the two men who had pushed Tweed moments before. The three men then began beating Tweed and Marler and demanding that they empty their pockets. After taking several items from them, they turned their attention to V.M.
According to V.M., one of the two men who originally approached them asked her to give him everything she had. She identified Forinash in court as the man who made that demand. She testified that she emptied her pockets and gave Forinash her electronic pet and a lighter. He grabbed her by the shoulders and hit her in the side of the head while repeatedly demanding everything she had. He then forced her head to his crotch and put his penis in her mouth. Mitchell and Forinash then led V.M. a short distance away. Forinash proceeded to remove her clothes. The men then took turns having oral, vaginal and anal intercourse with her.
After a few minutes, V.M. heard shouting and the men ran off. She then saw flashlights, patrol car lights, and eventually police officers. V.M. saw the police catch Forinash, who was only 10 feet away. V.M. heard Forinash say "It wasn't me, it wasn't me, it was two other black guys that did it, tell them I was just trying to help you." RP (June 15, 2005) at 137. V.M. said nothing. A short time later, she positively identified Forinash and Mitchell as her assailants.
DISCUSSION Prosecutorial Misconduct
Forinash contends the prosecutor repeatedly committed misconduct during closing argument. A defendant claiming prosecutorial misconduct "bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Where the defense fails to object to an improper comment, the error will not be reviewed "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." Id. The absence of an objection "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Forinash contends misconduct occurred when the prosecutor, without objection, described the offenses as follows:
The defendant had no idea who [V.M.] was, but he didn't care. That night, the defendant did the most unspeakable crime, a crime often feared, one that people think about as they walk across a dark parking lot as they go back to their car, as they walk home, taking precautions, precautions against people like the defendant, all to be safe, all to be cautious, never to expect that in the blink of an eye something like that so horrible, so awful, could be perpetrated against her.
RP (June 20, 2005) at 41. Forinash claims this argument improperly appealed to jurors' "deep-held societal fears" and encouraged them to identify with V.M. App. Reply Br. at 2. But even assuming the remarks were improper, there was no objection and the isolated remarks were not so flagrant and ill-intentioned as to be incurable.
It is misconduct to appeal to jurors' fears and invite them to decide a case on a basis other than the evidence. State v. Echevarria, 71 Wn. App. 595, 860 P.2d 420 (1993); State v. Russell, 125 Wn.2d 24, 89, 882 P.2d 747 (1994).
Courts have found comparable remarks curable. See generally State v. Bautista-Caldera, 56 Wn. App. 186, 783 P.2d 116 (1989) (prosecutor exhorted jury to send a message to society about the general problem of child sexual abuse); State v. Jones, 71 Wn. App. 798, 806, 863 P.2d 85 (1993), (prosecutor applauded society's concern for children and criticized the fact that they are made to "to walk in through those two big doors as a very, very small person and walk up here in front of twelve people, twelve grownups whom they don't know, and sit in this chair in a courtroom such as this, with the defendant sitting right there, staring at them"); see also Adkins v. Aluminum Company of America, 110 Wn.2d 128, 141-42, 750 P.2d 1257, 756 P.2d 142 (1988) (holding that arguments asking jurors to put themselves in the defendant's shoes are generally curable). A case cited by Forinash, State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984), involved far more egregious comments and is inapposite here. Id. at 849-50 (prosecutor read poem describing emotional effect of rape on victims and containing numerous prejudicial allusions to matters outside the evidence).
Forinash next asserts that the following remarks amounted to an improper comment on his rights to confrontation and to be present at trial:
The defendant, you learned, you learned what he was capable of. You learned what he was on that night. . . . Much different than the young man sitting here in court in the suit, quiet, attentive, paying taken [sic] to testimony. He was a far different person that night who would stop at nothing.
. . . .
Now, what corroborates what [V.M.] told you? Well, first off, [there is] her demeanor. She's lying there naked, curled up in a ball, crying. . . . What further corroborates what she said? Well, you heard what she told the doctor, you heard what she told the nurse, you heard that she sat through a defense interview, and finally, you heard that she sat up here and told you what happened to her. Why on earth would she make any of this up? What reason does she have to say anything different than what happened to her that night? Can anyone imagine a situation worse than, one, what she went through, and then, two, having to come in here, sit in that chair, and tell you complete strangers what happened. And that wasn't bad enough, she has to do it with him sitting in court staring at her the entire time. Corroboration. She had the power to go through this entire process, to go to the hospital, to say what happened, to tell defense, and finally to tell each and every one of you.
RP (June 20, 2005) at 41, 44-45 (emphasis added).
Counsel's comment on the difference between Forinash's actions on the night in question and his in-court appearance was not improper. As the State points out, the prosecutor did not ask the jury to draw a negative inference from Forinash's presence in court; rather, he asked them to rely on the evidence of his actions on the night in question — not his benign appearance in court. This was proper argument. See State v. Gregory, 158 Wn.2d 759, 806-09, 147 P.3d 1201 (2006).
The prosecutor's comment that V.M. had to endure Forinash "staring at her the entire time" was also proper given the context in which it was made. It is well settled that the State may not argue in a manner that urges the jury to draw unfavorable inferences from the exercise of a defendant's constitutional right to confrontation. State v. Jones, 71 Wn. App. 798. 809-12, 863 P.2d 85 (1993). Such arguments are impermissible, however, only when it is clear that the prosecutor intended the remarks to be a comment on the defendant's constitutional rights. Gregory, 158 Wn.2d at 807.
Here, it is clear from the prosecutor's entire argument that the challenged comment was designed to bolster V.M.'s credibility, not to punish Forinash for exercising his constitutional rights. While the reference to Forinash staring at V.M. was certainly unnecessary, the gist of the argument was that V.M. had to tell her story in front of strangers and her assailant, and that V.M. would not likely put herself through such an ordeal unless she was telling the truth. This argument was proper. Id. at 808 (approving questioning and argument concerning victim's difficulty testifying in court because it "focused on the credibility of the victim" and "did not focus on [the defendant's] exercise of his constitutional rights").
Forinash's next misconduct claim rests on remarks that he claims shifted the burden of proof:
[PROSECUTOR]: It's amazing [defense counsel] can talk for 45 minutes and never mention the defendant, never talked about what the defendant did. No explanation as to why he ran away, no explanation for what he meant when he said what he said.
[DEFENSE COUNSEL]: Your Honor, I believe that kind of argument is shifting the burden.
THE COURT: I don't believe so, he can go ahead and argue.
RP (June 20, 2005) at 89. According to Forinash, "the prosecutor's contention that defense counsel had a duty to provide an `explanation' for what Forinash did and said was tantamount to arguing that Forinash himself had a duty to provide that `explanation' to the jury." App. Br. at 25. But the prosecutor spoke of no duty on anyone's part and never suggested the defense had a duty to produce evidence. Rather, he merely pointed out defense counsel's failure to address the State's evidence or counter the prosecutor's interpretation of that evidence. We see no impropriety in commenting on defense counsel's tactics or noting that certain evidence was undenied. State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987) (prosecutor may comment that evidence is undenied if he does not reference the person who could have denied it).
Forinash also assigns error to remarks that allegedly referenced facts not in evidence. But as the State correctly points out, he provided no argument or authority supporting that assignment of error in his opening brief. The error is therefore waived. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Forinash's argument in his reply brief comes too late. Id.
Ineffective Assistance
Alternatively, Forinash contends his trial counsel was ineffective for failing to object to the prosecutor's description of the offenses and his reference to V.M. having to endure Forinash's staring at her in court. We disagree.
To prove ineffective assistance, Forinash has the burden of demonstrating both deficient performance and resulting prejudice, i.e., a reasonable probability that the outcome would have been different but for counsel's omissions. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption of effective representation, and a claim of ineffective assistance cannot be based on conduct that can fairly be characterized as a legitimate trial strategy or tactics. Id. at 335-36. Defense counsel's failure to object will amount to ineffective assistance of counsel "[o]nly in egregious circumstances" where the improper conduct was central to the State's case. State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995).
Here, Forinash's ineffective assistance claim is based exclusively on trial counsel's failure to object during closing argument. The decision of when or whether to object is a classic example of trial strategy. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). For example, when the State veers into emotionalism in closing argument, "the absence of a defense objection may be the result of a deliberate defense strategy to let the State embarrass itself." Neidigh, 78 Wn. App. at 80. Defense counsel may have employed a similar strategy here in not objecting to the prosecutor's dramatic description of the offense. Thus, because counsel's conduct can fairly be characterized as tactical, Forinash cannot demonstrate deficient performance regarding that alleged instance of misconduct.
Counsel's failure to object to the comment on V.M. having to testify in front of the defendant was also not deficient performance. As noted above, the prosecutor's remarks were proper; accordingly, there was no basis to object and no deficient performance.
Joinder
Forinash contends the trial court erred in granting the State's motion to join all the charges against him for trial. There was no error.
Under CrR 4.3, offenses may be joined if they "[a]re of the same or similar character" or "[a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." See also State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994). This rule is construed expansively to promote the public policy of conserving judicial and prosecutorial resources. State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d 39 (1982), rev'd in part on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983). In this case, the offenses were similar in character and were a series of acts connected together in time, location, and purpose. Thus, joinder was warranted under CrR 4.3.
Forinash argues, however, that any justification for, or benefit from, joining the offenses was outweighed by the prejudice to his defense. We disagree.
Joinder may result in prejudice "if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition." Russell, 125 Wn.2d at 62-63. In considering whether a defendant has been prejudiced, we consider: (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) the court's instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial. Id. at 63.
Here, the record indicates that Forinash was not prejudiced. The State had a strong case on all counts and the defenses to each charge were clear and did not conflict. In closing, defense counsel essentially conceded Forinash's involvement in the various robberies and focused almost exclusively on the forcible compulsion element of the rape charge. The court also instructed the jury that it must consider each count separately and that its verdict on one count should not control its verdict on any other count. The fact that the jury acquitted Forinash on one count demonstrates that they were in fact able to compartmentalize the evidence on each count and followed the court's instructions
Instruction 5. This instruction has been held sufficient to protect against prejudice that may result from joinder of offenses. State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994).
Last, the evidence on each charge would have been cross-admissible in separate trials under the principle of res gestae. In any event, cross-admissibility of the evidence is not required for joinder to be proper. State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993). In sum, because the offenses qualified for joinder under CrR 4.3, and because joinder did not prejudice Forinash, the trial court did not err in joining the offenses in one trial.
Uder the res gestae rule, evidence of other crimes or misconduct is admissible to complete the story of the crime by establishing the immediate time and place of its occurrence. Where another offense constitutes a "link in the chain" of an unbroken sequence of events surrounding the charged offense, evidence of that offense is admissible "in order that a complete picture be depicted for the jury." State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997).
Sufficiency of the Evidence
Last, Forinash contends his conviction for the attempted robbery of Matthew Newman is not supported by sufficient evidence. Specifically, he contends there was insufficient evidence that he attempted to either use or threaten force to obtain Newman's property. But the evidence showed that Forinash grabbed Newman's arm and demanded his wallet. This amply established an attempted use or threatened use of force. To the extent Forinash contends the degree of force was insufficient, his contention is meritless. Even when the charge is for a completed, rather than an attempted robbery, "[a]ny force or threat, no matter how slight, which induces an owner to part with his property is sufficient." State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992).
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990).
Viewed in a light most favorable to the State, the evidence was sufficient to
support Forinash's conviction for attempted robbery.
Affirmed.