Opinion
No. 34115-8-II.
May 22, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 04-1-02230-4, John F. Nichols, J., entered November 4, 2005.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Kristal Diane Giovannoni appeals her conviction for second degree murder based on second degree assault of a child, arguing that (1) her counsel was ineffective for failing to object to the admission of Giovannoni's incriminating statements when the State failed to prove the corpus delicti and (2) the prosecutor committed acts of misconduct by asking Giovannoni and another witness whether police witnesses were untruthful. We conclude that Giovannoni's counsel provided effective assistance and that there was no prosecutorial misconduct. Thus, we affirm.
FACTS
On November 13, 2004, PXC left TCA, her 17-month old daughter, at an in-home daycare center run by Kristal Giovannoni and her partner Zara Soares in Vancouver, Washington. Before Soares left for work around 10:30 a.m., she placed TCA in bed with Giovannoni, the only other person at the house. Around 1:30 p.m., Giovannoni called Soares and told her that TCA had fallen off the couch and was not breathing. Paramedics arrived shortly after Giovannoni placed a 911 call.
We will use initials to identify the victim and her mother in this case under this Division's General Order 2006-1 which states "in all opinions, orders, and rulings this Court shall use initials or pseudonyms in place of the juveniles' names and in place of the juveniles' parents' names."
The paramedics found TCA unconscious on the living room floor, breathing irregularly, and presenting seizure type activity consistent with a neurological injury. Giovannoni told paramedic Robert McDonald that TCA fell off the couch. The only visible injury McDonald witnessed was a bump on the back of TCA's head. Despite the doctors' efforts, TCA died of severe head trauma.
Vancouver Police Detective Aaron Holladay and Sergeant Gary Spaulding interviewed Giovannoni after reading her Miranda rights to her. Giovannoni told Holladay that she left TCA sitting on the couch, while she stepped in the kitchen to wash her hands, and "then heard a thud and a cry." Report of Proceedings (RP) at 456. Giovannoni said that she found TCA on the floor and immediately picked her up. TCA struggled to cry, then went limp, and Giovannoni called 911. Giovannoni also told Holladay that she never shook TCA; she would not do so as she understood, after attending an infant cardiopulmonary resuscitation (CPR) class, to never shake a child.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After listening to Giovannoni, Holladay and Spaulding, who had spoken with medical personnel at the hospital, challenged her version of the story. Holladay told Giovannoni that her story was not consistent with TCA's injuries and, following a 20-second period of silence, she informed the officers that "she was not entirely truthful with . . . the medical personnel and the fire personnel that were at her house." RP at 474.
Giovannoni then told Holladay and Spaulding that about an hour before TCA fell from the couch, she had hit TCA in the head with a metal and wood drawer as she carried the drawer through the living room doorway. The blow knocked TCA down and she began to scream. Giovannoni said that she was feeling "somewhat frustrated" with TCA's continued screaming and that, rather than babysit, "she needed to get out of house to go to her mother's house, that the situation was upsetting her." RP at 476. She also commented that she was a little angry with TCA's mother because she was not current with her day care payments.
After making this statement, Giovannoni began to cry and said that she did not mean to hurt TCA. She then confessed that she stood TCA up in front of the living room doorway and pushed her backwards, causing TCA to hit the back of her head on the doorjamb between the living room and the bedroom. She also told the officers that she shook TCA approximately three or four times, but she did not remember the exact number of shakes because she was so frustrated and upset. Holladay asked Giovannoni whether anyone else at the house was responsible for TCA's injuries and she said no. Giovannoni agreed to provide a written statement but, before she began to write, she changed portions of her story. In particular, she said that she was lying about pushing TCA into the doorjamb.
Following the interview, Giovannoni asked about TCA's condition and Holladay informed her that TCA had died. Giovannoni started crying, saying "Oh, my God. Oh, my God. . . . I'm a murderer." RP at 492.
The State charged Giovannoni with second degree felony murder pursuant to RCW 9A.32.050(1)(b), with the predicate felony of second degree assault of a child. The State included two aggravating factors based on the particular vulnerability of the victim due to age and abuse of a position of trust. At a Criminal Rule (CrR) 3.5 hearing, without objection from Giovannoni, the trial court determined that her statements to the police were both voluntary and admissible.
At trial, Giovannoni testified that about an hour before TCA fell from the couch, she bumped into TCA with a drawer full of laundry, causing a bump on the back left of TCA's head. She stated that later TCA fell from the couch while she was in the kitchen washing her hands. Giovannoni also testified that she never pushed TCA into the doorjamb or told Holladay that she was a murderer.
Trial testimony included test results which revealed that TCA suffered from bilateral subdural hematomas, commonly referred to as coup-contracoupe injuries. These injuries can occur when something hard hits the back of the skull and after the skull stops traveling forward the brain continues, hitting the front of the skull, rebounding, and then hitting the back of the skull. The blow or the injury to TCA caused a large hematoma on the back of her skull. Dr. David Lloyd, the emergency physician who treated TCA when she arrived at the hospital, testified that a large force connected with the back of TCA's skull, causing a subdural hematoma (bleeding between the outer layers of the brain). He testified that the hospital often handles child fall cases and that a coup-contracoupe injury like TCA's was not consistent with a short fall from a couch.
Forensic pathologist Clifford Nelson, who performed TCA's autopsy, determined that TCA suffered a massive amount of retinal hemorrhaging (bleeding at the back of one or both eyes), indicating a specific pattern found most often in cases of abusive head trauma or severe head trauma. Nelson testified, based on his training, that the retinal injuries indicated that TCA suffered "either head trauma with a severe acceleration-deceleration injury like you would see in a car crash, . . . or a child who was being forcibly slammed into something." RP at 664.
Pediatrician John Stirling reviewed TCA's medical records and testified that retinal hemorrhages, such as those seen in TCA, are rare to see from a fall alone and are more frequently associated with a rotational injury where something whips the head around with great force. Pathologist Marjorie Grafe testified that TCA died from a blunt traumatic injury consistent with a single event consisting of either one single blow or multiple blows to the head.
The jury found Giovannoni guilty of second degree murder and found that TCA was a particularly vulnerable victim. The trial court sentenced Giovannoni to a standard range sentence. She appeals.
ANALYSIS
I. Ineffective Assistance of Counsel — Corpus Delicti
Giovannoni contends that she received ineffective assistance of counsel because her counsel failed to argue that the State did not prove corpus delicti without Giovannini's own incriminating statements. She asserts that, absent her own incriminating statements, the independent evidence in this case supports reasonable and logical inferences of both criminal and noncriminal causes of TCA's injuries. Giovannoni does not challenge that TCA's death establishes the first element of the corpus delicti. Instead she argues that without her statements to Soares, the 911 operator, the emergency medical technician (EMT) personnel, and the police, the State would have failed to present sufficient prima facie evidence that she intentionally assaulted and recklessly inflicted any injury on TCA. She contends that TCA "could have been unintentionally and accidentally struck on the head," which would provide reasonable and logical inferences of noncriminal conduct. Br. of Appellant at 18.
Effective assistance of counsel is guaranteed under the federal and state constitutions. We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995).
"In all criminal prosecutions, the accused shall enjoy the right to . . . have assistance of counsel in his defense." U.S. Const. amend. VI. "In criminal prosecutions, the accused shall have the right to appear and defend in person, or by counsel." Wash. Const. art. I, §§ 22.
To prove ineffective assistance appellant must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced the outcome. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. Hendrickson, 129 Wn.2d at 78. We do not address both prongs of the test "if the defendant makes an insufficient showing on one prong." State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986). If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the appellant received ineffective assistance of counsel. Hendrickson, 129 Wn.2d at 77-78.
A defendant's incriminating statement alone is not sufficient to establish that a crime took place. State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996). Corpus delicti means the "body of the crime" and requires proof by evidence sufficient to support the inference that there has been a criminal act. Aten, 130 Wn.2d at 655.
RCW 10.58.035 requires the State to furnish substantial evidence establishing the trustworthiness of a defendant's incriminating statement before the statement can be introduced as evidence that a crime has been committed. The requirements of this statute have been addressed in numerous cases.
RCW 10.58.035 provides:
(1) In criminal. . . .proceedings where independent proof of the corpus delicti is absent, and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise admissible confession, admission, or other statement of the defendant shall be admissible into evidence if there is substantial independent evidence that would tend to establish the trustworthiness of the confession, admission, or other statement of the defendant.
(2) In determining whether there is substantial independent evidence that the confession, admission, or other statement of the defendant is trustworthy, the court shall consider, but is not limited to:
(a) Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;
(b) The character of the witness reporting the statement and the number of witnesses to the statement;
(c) Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or
(d) The relationship between the witness and the defendant.
(3) Where the court finds that the confession, admission, or other statement of the defendant is sufficiently trustworthy to be admitted, the court shall issue a written order setting forth the rationale for admission.
(4) Nothing in this section may be construed to prevent the defendant from arguing to the jury or judge in a bench trial that the statement is not trustworthy or that the evidence is otherwise insufficient to convict.
The State's burden is to present other independent evidence to corroborate the defendant's incriminating statement. Aten, 130 Wn.2d at 655. "In other words, the State must present evidence[,] independent of the incriminating statement that the crime a defendant described in the statement[,] actually occurred." State v. Brockob, 159 Wn.2d 311, 328, 150 P.3d 59 (2006). In a homicide case, the corpus delicti rule requires the State to present evidence independent of the defendant's confession to prove "(1) the fact of death and (2) a causal connection between the death and a criminal act." Aten, 130 Wn.2d at 655.
"[T]he corpus delicti is not established when independent evidence supports reasonable and logical inferences of both criminal agency and noncriminal cause." Aten, 130 Wn.2d at 660. In order to determine whether there is sufficient independent evidence under the corpus delicti rule, we review the evidence in the light most favorable to the State. Aten, 130 Wn.2d at 658. The independent evidence does not need to be sufficient enough to support a conviction but must provide prima facie corroboration of the crime described in a defendant's incriminating statement. Aten, 130 Wn.2d at 656. Prima facie corroboration of a defendant's incriminating statement exists if the independent evidence provided by the State supports a "logical and reasonable inference" of the facts the State seeks to prove. State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995).
In order to introduce Giovannoni's statements, the State had to prove by independent evidence that a crime the defendant described occurred, here, TCA's death and a criminal act that resulted in her death. Neither party contests TCA's death. Second degree assault of a child occurs when a person "intentionally assaults another and thereby recklessly inflicts substantial bodily harm." RCW 9A.36.021(1)(a).
Giovannoni relies primarily on Aten, where an infant was found dead in the morning after being left in the defendant babysitter's care overnight. Aten, 130 Wn.2d at 644. Evidence showed that the babysitter woke the infant upon her arrival the night before and then put her back to bed. Aten, 130 Wn.2d at 644. The autopsy revealed that Sudden Infant Death Syndrome (SIDS) or acute respiratory failure caused the death. Aten, 130 Wn.2d at 646. Although manual interference by the defendant could have caused the acute respiratory failure, the pathologist was unable to make this determination from the autopsy. Aten, 130 Wn.2d at 646.
In Aten, the defendant first implicated her involvement with the infant's death when she admitted to suffocating him. Aten, 130 Wn.2d at 649. The jury convicted her of second degree manslaughter. Aten, 130 Wn.2d at 643. Noting that, without her confession, the only evidence of cause of death was the autopsy report that was consistent with both a natural death as well as one brought about by criminal conduct, we reversed the conviction and held that the State failed to establish the corpus delicti. State v. Aten, 79 Wn. App. 79, 91, 900 P.2d 579 (1995).
Our Supreme Court affirmed. Aten, 130 Wn.2d at 662. Giovannoni also relies on State v. Bernal, 109 Wn. App. 150, 154, 33 P.3d 1106 (2001), where we found insufficient evidence that a crime had been committed absent the defendant's incriminating statements. In Bernal, the defendant admitted selling heroin to the victim several nights before he died. 109 Wn. App. at 152. The State charged the defendant with controlled substances homicide and delivery of heroin to a minor. Bernal, 109 Wn. App. at 152. But the State presented no evidence about how the victim obtained the heroin other than the defendant's own statements. Bernal, 109 Wn. App. at 154. We affirmed the trial court's ruling that the State failed to prove corpus delicti without the defendant's confession. Bernal, 109 Wn. App. at 154. Giovannoni argues that the facts here are analogous to those in Aten and Bernal. Giovannoni is incorrect.
In Aten, the expert was unable to identify a potential criminal act. 130 Wn.2d at 646. In Bernal, the State failed to provide independent evidence about the source of the drugs that caused the victim's death. 109 Wn. App. at 154. But here, four physicians testified that, based on reasonable medical probabilities, a short fall from the couch could not have caused TCA's injuries or death and that the cause of injury and death was one or more severe traumatic blows to the head.
Here, the doctors' testimony provided prima facie corroboration of Giovannoni's incriminating statements sufficient to meet the corpus delicti requirements. They testified that the severity of TCA's injuries could not have come from a short fall from a couch but, rather, resulted from severe head trauma consistent with a child's head slamming into something or a rotational injury where something whips the child's head around with great force. This testimony provided a logical and reasonable inference that the crime of second degree assault of a child preceded TCA's death just as Giovannoni had described — pushing TCA backwards into the doorjamb between the living room and the bedroom and shaking TCA approximately three or four times.
Because Giovannoni is unable to show that the trial court would have sustained a corpus delicti objection by her counsel to the introduction of Giovannoni's statements, we conclude that Giovannoni's counsel provided effective assistance and we do not address the second prong of the analysis relating to prejudice arising from her counsel's conduct.
II. Prosecutorial Misconduct
Giovannoni next alleges that the prosecutor's questions during her cross-examination and during direct examination of Soares constituted prosecutorial misconduct. In particular, she claims that the prosecutor repeatedly asked her to testify that Holladay was untruthful by repeatedly asking her whether Holladay "was mistaken" in his testimony. Br. of Appellant at 18. Additionally, Giovannoni alleges that the prosecutor repeatedly asked Soares to comment on Holladay's truthfulness when the prosecutor offered to refresh Soares's memory with a transcript of her police interview. And, although Giovannoni did not object to the questions during trial, she argues that a curative instruction could not have cured any prejudice.
To establish prosecutorial misconduct, "the defendant bears the burden of establishing that the conduct complained of was both improper and prejudicial." Stenson, 132 Wn.2d at 718-19. If the defendant fails to object, the misconduct is only reversible if the conduct was so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). "Some of the factors considered in determining whether the misconduct likely affected the verdict are whether the prosecutor was able to provoke the defense witness to say that the State's witness must be lying, whether the State's witness's testimony was believable and/or corroborated, and whether the defense witness's testimony was believable and/or corroborated." State v. Padilla, 69 Wn. App. 295, 301, 846 P.2d 564 (1993).
Asking a witness to express an opinion about whether another witness is lying invades the province of the jury. State v. Casteneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74 (1990). "A stronger reason for barring such interrogation, however, is that it is misleading and unfair to make it appear that an acquittal requires the conclusion that the police officers are lying." Casteneda-Perez, 61 Wn. App. at 362-63. Although it is misconduct for a prosecutor to compel a defendant to say that another witness is lying, "questions about whether another witness was mistaken do not have the same potential to prejudice the defendant or show him or her in a bad light." State v. Wright, 76 Wn. App. 811, 822, 888 P.2d 1214 (1995). "Rather, such questions are merely objectionable to the extent that they are irrelevant and not helpful to the jury." Wright, 76 Wn. App. at 822.
Finally, "in determining whether prosecutorial misconduct warrants reversal, we consider its prejudicial nature and its cumulative effect." State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). Giovannoni claims that during cross-examination, the prosecutor repeatedly asked her to testify about whether Holladay's testimony was truthful. The prosecutor questioned Giovannoni about Holladay's testimony that she confessed to causing TCA's injuries but then changed several portions of her story before providing a written statement. Holladay also testified that Giovannoni stated she had not been entirely truthful with the medical and fire personnel at her house. The first instance of misconduct is alleged to have occurred as follows:
At trial, Giovannoni testified that she provided information about TCA to a fireman.
Prosecutor: So you never indicated that there were some things that you had left out of the information you gave to the paramedics. [sic]
Giovannoni: I never thought that that was appropriate at that time, that is not why I called 9-1-1. That is — so when the paramedics were there, more of the time when I was telling the firefighter —
Prosecutor: Uh-huh.
Giovannoni: — is the one that was taking the information, not the paramedic, we were looking for paperwork.
Prosecutor: So Detective Holladay is just mistaken or he's taken something out of context is that —
Giovannoni: That's his opinion on the way the interview went.
Prosecutor: Okay: So you don't recall that, though, so that's not how it happened. RP at 974.
Giovannoni does not deny that she told Holladay that she left out some information, rather she asserts that she left out information while talking to the fireman as opposed to the paramedic. This distinction is not material. Although defense counsel could have objected on relevancy grounds to the question of whether Holladay made a mistake or took something out of context, the prosecutor's question does not rise to the level of flagrant and ill-intentioned conduct, nor does it ask Giovannoni to opine that Holladay lied. Thus, Giovannoni has not established any prejudice. Furthermore, a curative jury instruction telling the jury to disregard the question and answer would have eliminated any potential prejudice.
The second alleged act of prosecutorial misconduct involves the prosecutor's questions about Holladay's challenge to Giovannoni's version of the incident. Holladay testified that after he and Spaulding gathered background information from Giovannoni, they began interrogating her by challenging her version of the story due to the improbability that a short fall from a couch could result in such severe head trauma. She testified that the officers told her "over and over again" that her story was implausible. RP at 956.
Prosecutor: So when [Holladay] testifies that he only mentioned [the improbability that a short fall from the couch caused the severe trauma] once and you became quiet, and you told him —
Giovannoni: I became quiet several times in the interview.
Prosecutor: So when he testifies that he only mentioned that once to you and you became quiet —
Giovannoni: What do — what —
Prosecutor: — that he's mistaken.
RP at 975.
While the prosecutor was mistaken that Holladay testified that he informed Giovannoni of the severity of TCA's injuries only once, the State may have asked these questions to emphasize Giovannoni's reaction when she heard about the severity of TCA's injuries. Giovannoni's counsel could have objected based on relevance or because the prosecutor misstated the evidence but, again, the question was not flagrant or ill-intentioned conduct. The prosecutor did not ask Giovannoni to testify that Holladay lied. Giovannoni does not show how these questions prejudiced her. Furthermore, Giovannoni does not show that a curative instruction requiring the jury to disregard the question and answer would not have alleviated any prejudice.
Giovannoni next contends that the prosecutor committed misconduct during her cross-examination about when Holladay told Giovannoni that TCA died. Holladay testified that he did not divulge any information about TCA's condition during the interview and that he told Giovannoni TCA had died after she had completed the interview and her written statement. Giovannoni testified that the officers told her repeatedly during the interview that TCA was alive and that they needed the information so that the doctors could help her. She testified that before drafting her written statement, she realized that TCA must be dead and that the officers were blaming her for TCA's injuries. She then told Holladay that she had lied to him about pushing TCA into the doorjamb. The prosecutor asked the following questions:
Prosecutor: Okay. And, now, you just said that he told you that . . . [TCA] was still alive.
Giovannoni: That is correct.
Prosecutor: So when [Holladay] testifies and indicates that that — he didn't tell you that, that he didn't talk about whether she was alive or dead until after you asked a question at the end —
Giovannoni: Uh-huh.
Prosecutor: — that again he's mistaken on that point?
Giovannoni: I would say yes on that one.
RP at 975-76.
The prosecutor clearly asked whether Holladay was mistaken, not if he was lying. The testimony was material to Giovannoni's defense that she only lied about pushing TCA because she thought TCA was still alive. It may have been an objectionable question, but it did not amount to prosecutorial misconduct. Wright, 76 Wn. App. at 822.
Giovannoni also challenges the prosecutor's questions to Soares during direct examination, because he repeatedly asked Soares whether reviewing a police officer's report would help her remember what she told the police. Giovannoni argues that the following questions constitute prosecutorial misconduct:
Prosecutor: So do you remember telling the police officers that you were told that [TCA] had fallen and hit her head —
Defense Counsel: Your Honor, I'm objecting to the leading questions.
The Court: Well, rephrase it.
Prosecutor: Okay. If I showed you the police report, would that help refresh your memory?
Soares: I remember what I — what I heard, what she told me over the phone.
Prosecutor: All right. But your conversation with the detective, okay, would that refresh your memory about what you told the detective? RP at 166.
Prosecutor: Okay. Did you talk about morning sickness issues?
Soares: I don't recall that either.
RP at 168.
Prosecutor: Okay. If the detectives said that you did talk about that, do you want to see the police report to refresh you memory, or — ?
Soares: Do I need to? I don't —
Prosecutor: Well, you don't seem to have —
Soares: I don't —
Prosecutor: — a memory of it, would it — would it potentially refresh your memory if I showed the police report to you?
Soares: Possibly
Prosecutor: Okay. (Pause; reviewing documents) Okay. In terms of [Giovannoni's] stress level that day, if you could read through here, that's and read that first paragraph, see if that refreshes your memory at all. . .
Prosecutor: Still don't recall.
Soares: Huh-uh.
Prosecutor: So if the detective says otherwise, you — you don't recall?
Soares: I just — I don't remember.
RP 169-70.
Giovannoni asserts that this line of questioning required Soares to opine about Halloway's truthfulness. This argument fails. These questions are framed to suggest that the police report could be used to refresh Soares' memory. Evidence Rule (ER) 612 specifically allows a witness to use a "writing" while testifying for the purpose of refreshing memory. Here the prosecutor properly attempted to lay a foundation for use of the police report to refresh Soares's memory.
ER 612 provides:
If a witness uses a writing to refresh memory for the purpose of testifying, either: while testifying, or before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Giovannoni equates the prosecutor's conduct with that of the prosecutor in State v. Suarez-Bravo, 72 Wn. App. 359, 864 P.2d 426 (1994). In particular, she relies on the statement of the Suarez-Bravo court that, "[c]ross examination intended to compel a defendant to call police liars constitutes prosecutorial misconduct." 72 Wn. App at 366.
In Suarez-Bravo, the defendant testified that police tricked him into driving to a parking lot where undercover officers had scheduled a controlled narcotics buy. 72 Wn. App at 362. When he arrived at the parking lot, one of the officers entered the car and asked him to hand over a bag from under the driver's seat. Suarez-Bravo, 72 Wn. App. at 361-62. At trial, the defendant argued that he did not know that there was cocaine in the bag when he handed it to the officer. Suarez-Bravo, 72 Wn. App. at 362. During cross-examination, the prosecutor repeatedly asked the defendant if the police witnesses were lying about certain aspects of the case and misrepresented certain facts from the officers' testimony. Suarez-Bravo, 72 Wn. App. at 362-64. The defendant failed to object to the questions, move for a mistrial, or request a curative instruction. Suarez-Bravo, 72 Wn. App. at 367. Division Three reversed the defendant's conviction, finding a substantial likelihood that the State's examination affected the jury's verdict. Suarez-Bravo, 72 Wn. App. at 368.
Suarez-Bravo is distinguishable. Although Giovannoni correctly asserts that in Suarez-Bravo the prosecutor attempted to induce the defendant to call the State's witnesses liars, there were several additional reasons for reversing his conviction. 72 Wn. App. at 367. In Suarez-Bravo, the prosecutor also asked the defendant whether he lived in a high-crime area, implied that Hispanic orchard workers deal in cocaine, asked about the defendant's fears of deportation, and asked about his status as a Hispanic non-citizen. Suarez-Bravo, 72 Wn. App. at 366-67. Division Three held that the cumulative effect of the prosecutor's questions warranted reversal of the defendant's conviction. Suarez-Bravo, 72 Wn. App. at 367-68.
The cumulative effect of the prosecutor's questions here does not rise to the level of flagrant and ill-intentioned conduct that Division Three identified. Suarez-Bravo, 72 Wn. App. at 366-67. Giovannoni has not shown that the prosecutor attempted to elicit an opinion about Halloway's truthfulness. Giovannoni has not shown a substantial likelihood that any misconduct affected the jury's verdict. Furthermore, a timely objection and request for a curative jury instruction could have alleviated any prejudice to Giovannoni.
We affirm.
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.
Houghton, C.J., Quinn-Brintnall, J., Concur