Opinion
No. 25013-0-III
Filed: May 4, 2007
UNPUBLISHED OPINION
This appeal follows a conviction for attempted first degree murder. The question before us is whether a new trial should have been granted based on prosecutorial misconduct. Specifically, the issues are whether statements made by the prosecutor in the closing argument shifted the burden of proof and infringed upon Jeremy Hellums' right to remain silent. The prosecutor's comments did not constitute misconduct when placed in context. We affirm the conviction for attempted first degree murder.
FACTS
Jeremy Hellums, along with accomplices Bobby Gatlin and Donald Armstrong, tried to kill Joseph Metsker. They kidnapped him at gun point, bound his hands, sliced his throat, and stabbed him. The State charged Mr. Hellums with one count of attempted first degree murder while armed with a deadly weapon.
Mr. Metsker had accused Mr. Gatlin of robbing Jamie and Linda Cantu's home. The State's theory was that Mr. Hellums and Mr. Armstrong helped Mr. Gatlin try to kill Mr. Metsker for setting Mr. Gatlin up on the Cantu robbery. Clerk's Papers (CP) at 52; Report of Proceedings (RP) at 155, 126. The Cantu robbery and Mr. Metsker's role in that circumstance and the subsequent events were discussed in detail. During the rebuttal portion of the closing argument, the State responded that:
The defense lost focus during this trial. It all of the sudden became about the Cantus.
I would invite you to look at the second paragraph on page two of Jury Instruction No. 1. "The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court."
Did you hear from Jeremy Hicks? Did you hear from Mr. Cotton? Did you hear from the Cantus? Did you hear from any of those people? No. That's just coming from the defense. That's a classic —
RP at 538-39.
Defense counsel objected that the comment was a mischaracterization. The information about the Cantus did not come from the defense; it came from the State's witnesses. The judge responded by again reminding the jury that the remarks of counsel "are not to be considered as evidence." RP at 539. The prosecutor then continued:
That's the classic, look over here when the real action is right here.
And what's the real action of this case? This is the real action of the case. This is it. Did the defense ask many questions about this? Why not?
RP at 539.
Mr. Hellums again objected; this time on grounds that the prosecutor's remarks violated his client's right to remain silent. The court again overruled the objection. The prosecutor claimed that the defense was trying to distract the jury from the real issues at trial, attempted first degree murder.
The jury found Mr. Hellums guilty of attempted first degree murder with a deadly weapon. Mr. Hellums moved for a new trial based on prosecutorial misconduct. The court denied the motion.
DISCUSSION
Mr. Hellums argues that the court should have given him a new trial because of the prosecutor's misconduct. He complains that the State effectively shifted a burden to him that he did not have — to show his innocence. The State responds that Mr. Hellums took its remarks out of context. They were intended to shift the jury's attention to the attempted murder Mr. Hellums was charged with rather than to the Cantu robbery and the victim's role in the circumstances that arose from the robbery. We review a trial judge's decision to grant a new trial for abuse of discretion. State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967).
The standard for a new trial is rigorous. The court should not grant a new trial unless the defendant "`has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)); State v. Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 (1968) ("Something more than a possibility of prejudice must be shown to warrant a new trial.").
Here, the grounds for a new trial were the State's comments during the closing argument. We review the remarks in "`the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.'" State v. French, 101 Wn. App. 380, 385, 4 P.3d 857 (2000) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
First, the comments in context of the whole argument invite the jury to focus on the case before it, not a previous crime. The Cantu robbery and the circumstances arising from it had been discussed in detail. The State responded that this case is not about the previous robbery of the Cantu residence or Mr. Metsker. So the remarks by the prosecutor were merely her attempt to get the jury focused on why it was there and the case before them. The prosecutor was pointing out that the case is about the attempted murder of Mr. Metsker and not about the Cantus or anyone else. RP at 538-41.
The State's remarks also cannot be characterized as a comment on Mr. Hellums' right to remain silent for the same reasons. The prosecutor commented on the defense's failure to ask many questions about the attempted murder of Mr. Metsker. This was not a reflection of whether Mr. Hellums exercised his Fifth Amendment right to remain silent. The prosecutor's remarks were not of a character that the jury would naturally or necessarily accept as a reflection of Mr. Hellums' failure to testify. State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978). There is no reasonable direct or indirect inference from the prosecutor's comment that would lead a jury to believe that Mr. Hellums remained silent because he was guilty.
The court did not abuse its discretion by denying Mr. Hellums' motion for a new trial.
Pro se Mr. Hellums also argues that the court abused its discretion by admitting evidence of the Cantu home robbery. He argues that the court should have conducted a ER 404(b) analysis before admitting evidence of the robbery.
There are several problems with Mr. Hellums' argument. First, a defense attorney introduced the evidence and told the jury that "Mr. Metsker accused Mr. Gatlin of being at that robbery with him. That case was tried to a jury in this county, in this courtroom." RP at 74. Second, Mr. Hellums did not raise an objection at trial. Third, under ER 404(b) evidence of prior bad acts may be admissible for a purpose such as motive for a crime. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). That was the case here. The Cantu robbery provided a motive for this crime.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Brown, J.
Kato, J. Pro Tem.