Opinion
65817-4-I
03-05-2012
STATE OF WASHINGTON, Respondent, v. ROBERT NATHAN GUERRERO, Appellant.
UNPUBLISHED OPINION
Dwyer, C. Judge.
Robert Guerrero was convicted of forgery and attempted theft in the first degree arising from an incident in which he presented a false court order that purported to dismiss several charges against him. Guerrero contends that the prosecutor committed reversible misconduct by noting during closing argument that Guerrero's former attorney—the person who Guerrero argued was actually responsible for the forgery—conveniently could not be found during the investigation of the incident. Because the prosecutor's remarks neither constituted misconduct nor resulted in prejudice, we affirm Guerrero's convictions.
I
In 1983, Guerrero pleaded guilty to two counts of rape in the first degree and one count of assault in the second degree. Guerrero was sentenced in February 1984 by the Honorable James McCutcheon. The judgment and sentence was signed by Judge McCutcheon, defense attorney Wes Hohlbein, and Deputy Prosecuting Attorney (DPA) Jeff Baird. Guerrero was granted a 10 year deferred sentence.
Guerrero complied with the conditions of his deferred sentence, and his supervision by the Department of Corrections was terminated on March 18, 1994. In 2004, however, Guerrero was charged with failing to register as a sex offender. Although Guerrero was acquitted of this charge, his offender level was changed, he lost his job, and he subsequently encountered significant difficulties obtaining new employment.
Guerrero was acquitted because the State was unable to prove that Guerrero was properly advised of his duty to register as a sex offender when the law changed to require registration in 1990. See Laws of 1990, ch. 3, § 401.
Guerrero thereafter petitioned the sentencing court for an order dismissing the 1983 charges and for relief from the requirement that he register as a sex offender. Guerrero argued that the 1994 order terminating supervision by the Department of Corrections effectively operated as an order of dismissal. The State opposed Guerrero's petition.
On September 21, 2005, just one day prior to a hearing on the petition, Guerrero's attorney faxed to the State a copy of a document purporting to be an "order of dismissal" that had been entered on February 27, 1994. The document was signed by Judge McCutcheon, Hohlbein, and DPA Baird, the same individuals who had signed the 1984 judgment and sentence. Although Guerrero had never before asserted that an order of dismissal had been entered in his case, he claimed that the order had been recently located in a box of documents stored at his father's house. Despite questions about the origin and authenticity of the order, the State did not contest the validity of the order. Accordingly, the court issued a new order of dismissal to give effect to the 1994 order.
Both Judge McCutcheon and Hohlbein were deceased at the time of Guerrero's petition. When questioned regarding the 1994 order of dismissal, DPA Baird could not remember signing it but did identify the signature as his own.
Guerrero's brother, John Guerrero, later testified that he was the person who first discovered the 1994 order of dismissal. However, John added that he found the documents in the top of a box in his father's closet shortly after Guerrero had been in the room with the door closed and locked. He further testified that there were other papers in the same box that appeared to be court documents that had been altered or tampered with.
Guerrero thereafter filed a lawsuit against King County, alleging that the court's failure to process the 1994 order of dismissal resulted in damages to him in the form of lost wages, mental anguish, emotional distress, and impairment of his reputation. While preparing the county's defense, the deputy prosecuting attorney assigned to the case noticed that the signatures on the 1994 order of dismissal closely resembled the signatures that appeared on the 1984 judgment and sentence in Guerrero's criminal case. Upon closer examination, it was determined that the signatures of Judge McCutcheon, Hohlbein, and DPA Baird on the 1994 order of dismissal were, in fact, identical to the signatures that appeared on the 1984 judgment and sentence.
When this information was conveyed to Guerrero's civil counsel, Guerrero dismissed his suit against the county.
This information was relayed to the King County Sherriff's Office. The 1994 order of dismissal, along with other documents from the case, was submitted for analysis to Brett Bishop, a forensic scientist at the Washington State Patrol Crime Lab. Based upon Bishop's examination of these materials, he concluded that the signatures of Judge McCutcheon, DPA Baird, and Hohlbein were "exact duplicates" of the signatures on the 1984 judgment and sentence. Bishop determined that the signatures on the dismissal document were "cut and pasted" from the 1984 judgment and sentence and that the 1994 order of dismissal was not authentic.
Guerrero was thereafter charged with one count of forgery and one count of attempted theft in the first degree. At trial, Guerrero did not dispute that the order was forged but denied that he was responsible. Instead, he argued to the jury that his former attorney, James McLees, had created the false order without Guerrero's knowledge.
McLees could not be located and did not testify at trial. Pursuant to the parties' agreement, the jury was informed that:
[I]t is unknown whether James McLees is alive or dead. Both the State and the Defendant have made diligent efforts to locate James McLees. These efforts have been unsuccessful.Report of Proceedings (RP) at 1094. Thereafter, during closing argument, the prosecutor told the jury that the "former attorney conveniently was not around . . . for [anyone] to find" during the investigation of the forgery incident. RP at 1354. Guerrero objected on the basis of burden shifting. The trial court overruled the objection. The prosecutor then explained that Guerrero had no burden to prove himself innocent, referencing the court's instructions on the matter which properly instructed the jury regarding the State's burden of proof.
The jury found Guerrero guilty as charged. The court imposed sentences within the standard range.
Guerrero appeals.
II
Guerrero contends that the prosecutor committed misconduct requiring reversal by remarking during closing argument that McLees—the person who Guerrero argued had forged the 1994 order of dismissal—"conveniently was not around" for questioning during the investigation of the forgery. We disagree.
"A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Miles, 139 Wn.App. 879, 885, 162 P.3d 1169 (2007) (emphasis added). Allegedly improper arguments by the prosecutor must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given. State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006); State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
Here, the prosecutor argued to the jury that it should reject Guerrero's "other suspect" theory of the case. The prosecutor argued at length that McLees had neither motive nor opportunity to forge the 1994 order of dismissal. Moreover, Guerrero had never mentioned McLees in any of the various hearings, trials, filings, or depositions associated with either the criminal proceedings against Guerrero or his litigation with King County. Indeed, the prosecutor noted, it was "not until Mr. Guerrero [was] charged with a crime and need[ed] a defense that we first start[ed] hearing about Mr. McLees." RP at 1355-56. During the course of this argument, the following exchange took place:
Prior to trial, the State moved to preclude Guerrero from arguing or introducing evidence of "other suspects." This issue was extensively briefed and litigated. The trial court eventually ruled that Guerrero could pursue an "other suspect" defense.
[PROSECUTOR]: The question I'd ask you to consider in deliberations is who else would have done this? . . . I suggest [to] you that there's no one who fits that description, other than Mr. Guerrero, himself. Now, [it became] clear through the course of this trial that the Defense has picked the person that they want you to pin the blame on. That person is James McLees, heard the name many times, this 81 year old disgraced former attorney conveniently was not around --[DEFENSE COUNSEL]: Objection. [PROSECUTOR]: -- for no one to find. [DEFENSE COUNSEL]: Burden shifting.RP at 1353-54.
Guerrero asserts that the prosecutor impermissibly invoked the "missing witness" doctrine by arguing that McLees was "conveniently was not around . . . for [anyone] to find." A prosecutor is generally not permitted to argue or imply that a defendant has failed to call a witness because the witness's testimony would be unfavorable to the defendant. State v. Montgomery, 163 Wn.2d 577, 597-98, 183 P.3d 267 (2008). However, pursuant to the "missing witness" doctrine, such argument is permissible where (1) the defendant was able to produce the witness and (2) the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003); State v. Contreras, 57 Wn.App. 471, 476, 788 P.2d 1114 (1990). Here, because the parties stipulated that both Guerrero and the State had made "diligent efforts" to locate McLees, Guerrero contends that the prosecutor was not permitted to argue that it was convenient for Guerrero that McLees could not be found to testify.
Where the missing witness doctrine applies, the jury is instructed that it may infer that the testimony of the missing witness would be unfavorable to the party that failed to call the witness. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003); see 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.20 (3d ed. 2008).
Guerrero misapprehends the prosecutor's argument. Because the prosecutor's remark did not, in fact, pertain to McLees' likely testimony as a witness, this statement does not implicate the "missing witness" doctrine. The prosecutor did not imply that Guerrero had failed to call McLees because his testimony would be unfavorable. Rather, when viewed in the context of the total argument, it is clear that the prosecutor's remarks were intended to cast doubt upon Guerrero's theory that McLees was the person who had actually committed the crime. It is, of course, not misconduct for a prosecutor to "argue that the evidence does not support the defense theory." Russell, 125 Wn.2d at 87. Nor is it impermissible for a prosecutor to challenge a defendant's credibility in closing argument. State v. Copeland, 130 Wn.2d 244, 290-01, 922 P.2d 1304 (1996). Here, the prosecutor merely pointed out that it was suspicious that Guerrero's accusation of McLees was not made until a time when neither the State nor the defense could locate him to investigate this claim. This argument was based on the evidence and was made in the context of a broader argument challenging the credibility of Guerrero's "other suspect" theory. Such an argument does not violate the "missing witness" doctrine.
Moreover, the prosecutor's comments regarding Guerrero's "other suspect" theory did not relieve the State of its burden to prove each element of the crime charged beyond a reasonable doubt. A prosecutor may not imply that a defendant has a duty to present exculpatory evidence. Cheatam, 150 Wn.2d at 652. However, where a defendant chooses to present such evidence, the defendant's theory of the case is not immunized from attack. Contreras, 57 Wn.App. at 476. Indeed, "the evidence supporting a defendant's theory of the case is subject to the same searching examination as the State's evidence." Contreras, 57 Wn.App. at 476. Where a defendant seeks to introduce evidence of other suspects, it is the defendant's burden to produce evidence tending to show "'a train of facts or circumstances'" that clearly indicates that someone other than the defendant is the guilty party. State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932) (quoting Greenfield v. People, 85 N.Y. 75, 89 (1881)). Accordingly, it shifts no burden for a prosecutor to comment on the quality of a defendant's evidence of other suspects. The prosecutor's remark was not improper.
The Downs approach for evaluating "other suspect evidence" remains the law of our state. See State v. Strizheus, 163 Wn.App. 820, 830, 262 P.3d 100 (2011). Moreover, this formulation satisfies the requirements of the Compulsory Process Clause of the Sixth Amendment. See Holmes v. South Carolina, 547 U.S. 319, 327-28, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (approving of "widely accepted" rule that before "'[other suspect] testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party'" (quoting State v. Gregory, 198 S.C. 98, 104-05, 16 S.E.2d 532 (1941))).
Furthermore, the prosecutor's remarks resulted in no prejudice to Guerrero. In order to prove that prosecutorial misconduct was prejudicial, the defendant must prove that there is a "substantial likelihood [that] the . . . misconduct affected the jury's verdict." State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). A prosecutor's misconduct is not prejudicial "'unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'" State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). This has long been the standard where allegations of prosecutorial misconduct are premised upon an impermissible application of the "missing witness" doctrine. See, e.g., State v. Dixon, 150 Wn.App. 46, 53, 207 P.3d 459 (2009); Contreras, 57 Wn.App. at 473-74.
As our Supreme Court has recently reiterated, in analyzing prejudice, we do not assess a prosecutor's remarks in isolation. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008). Here, the jury was properly instructed on the State's burden of proof. The trial court explained that the defendant "has no burden of proving that a reasonable doubt exists as to [the elements of the crime]." Clerk's Papers at 355. Moreover, the prosecutor himself reminded the jury of the State's burden:
[Defense counsel is] right about one very important thing, and I don't want this to get lost anywhere in the mix. As the defense, as the defendant, Mr. Guerrero bears no burden of proving himself innocent. The burden is on me to prove him guilty beyond a reasonable doubt. That is absolutely the truth and you should hold me to that burden.RP at 1379. Viewed as a whole, as we are required to do, Gregory, 158 Wn.2d at 810, the State's closing argument did not urge the jury to relieve the State of its burden of proof. Thus, the prosecutor's argument was neither improper nor prejudicial.
Finally, the jury was informed that both parties had made diligent efforts to locate McLees and that his absence at trial was beyond the control of both Guerrero and the State. Accordingly, no reasonable juror could have inferred that Guerrero had deliberately failed to call McLees because his testimony would be unfavorable to Guerrero—the jury was well aware that Guerrero had no ability to procure McLees' presence at trial, regardless of his expected testimony. Given these circumstances, and because we presume that the jury was able to follow its instructions, Warren, 165 Wn.2d at 28, Guerrero has failed to demonstrate that the prosecutor's remarks had a substantial likelihood of affecting the jury's verdict. There was no prejudice, there was no error, and reversal is unwarranted.
Affirmed.