Opinion
No. 26462-9-III.
March 10, 2009.
Appeal from a judgment of the Superior Court for Columbia County, No. 02-1-00022-9, William D. Acey, J., entered August 30, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Sweeney, J.
Daniel Ross Huwe appeals his convictions for second degree murder and first degree assault-domestic violence, contending (1) the trial court erred in failing to disqualify the prosecutor; (2) the trial court judge erred by failing to recuse himself from the case; and (3) the evidence was insufficient for the jury to find the intent elements of both crimes. We reject these contentions and Mr. Huwe's additional grounds for review. Accordingly, we affirm.
FACTS
Because of the evidence sufficiency challenge we state the facts in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
On June 12, 2002, Captain Mark Franklin of the Columbia County Sheriff's Office responded to a 911 call at Ms. Donohue's residence in Dayton. He found Lenor L. Lawrence and Cathlin Donohue lying on the floor suffering from gunshot wounds. Ms. Donohue named Mr. Huwe, whom she previously dated, as her assailant. The pair were taken to the hospital, where Ms. Lawrence died from her wounds. Mr. Huwe was arrested near the shooting scene that same day with the gun on his person.
The State charged Mr. Huwe with first degree premeditated murder and first degree assault. In a prior trial, he was found guilty of second degree murder and first degree assault. We granted Mr. Huwe's personal restraint petition, vacated his convictions, and ordered a new trial. See In re Pers. Restraint of Huwe, 136 Wn. App. 1005 (2006) (unpublished). On remand, Mr. Huwe was charged with one count of second degree murder against Ms. Lawrence, and one count of first degree assault-domestic violence against Ms. Donohue. Both charges included a firearm enhancement allegation and aggravating circumstance allegations.
Before trial, the court granted the State's motion to exclude certain character evidence about Ms. Donohue. Mr. Huwe unsuccessfully moved to appoint a new prosecutor who did not have a professional relationship with Ms. Donohue. Before the second trial, Ms. Donohue, an attorney, contracted with Columbia County to provide public defense services and often appeared in court against Rea Culwell, the prosecutor here. The court ruled the professional relationship between Ms. Donohue and the Columbia County Prosecutor's Office was not grounds for Ms. Culwell's disqualification without "show[ing] some actual harm or prejudice to [Mr. Huwe] by virtue of that relationship." E Report of Proceedings (RP) (Aug. 17, 2007) at 35.
Mr. Huwe asked the trial judge to recuse himself in view of his professional contacts with Ms. Donohue. The judge noted she was a contract defense attorney and earlier was a pro bono defense attorney. The judge observed outside the courtroom:
I have only seen [Ms.] Donohue at some function other than this courtroom once, and that was at the annual Bar Association meeting . . . I saw her there once last year. . . . I said hello and that was about it.
E RP (Aug. 17, 2007) at 35. The judge denied Mr. Huwe's request for a new judge, ruling his disqualification was unnecessary "absent a showing of some sort of actual prejudice or harm to [Mr. Huwe]." E RP (Aug. 17, 2007) at 37.
Ms. Donohue testified that on the event day, Mr. Huwe called her for a ride. She picked him up near a baseball field where he was talking with his former teacher, David Spray. While driving, Mr. Huwe assaulted her and insisted she take him to her house. There, Mr. Huwe continued to assault her before taking a gun from Ms. Donohue's bedroom and placing it under a couch cushion. Eventually, Mr. Huwe fired a blank round at her foot: "the first round was always a blank, just for safety purposes." 1 RP (Aug. 21, 2007) at 40.
According to Ms. Donohue, when Ms. Lawrence came to the house and confronted Mr. Huwe, he pulled out the gun and pointed it at Ms. Lawrence. When Ms. Lawrence started running toward the bathroom, Mr. Huwe shot her in the leg and then in the back. When Ms. Donohue tried to call 911, Mr. Huwe shot her in her thigh. After Ms. Donohue begged Mr. Huwe to call 911, he called twice and hung up, but when "[h]e looked and saw [Ms. Lawrence] . . . he gasped, and then he came back and he put in the phone call to 911." 1 RP (Aug. 21, 2007) at 40. Mr. Huwe reported two persons down, hung up the phone without identifying himself, took the gun, and left the house.
Dr. John Shannon testified regarding his hospital examination of Ms. Donohue. He testified she had a gunshot wound that went through her left thigh. Dr. Daniel Selove testified about his autopsy of Ms. Lawrence. He opined that she had two gunshot wounds causing her death, one that entered through her back, and one that entered near her right hip.
Relevant to Mr. Huwe's intoxication claims, Ms. Donohue related when she picked up Mr. Huwe, he was "[v]ery intoxicated." 1 RP (Aug. 21, 2007) at 70. Mr. Spray testified he spoke to Mr. Huwe for 15 to 20 minutes before Ms. Donohue arrived:
[W]hen [Mr. Huwe] came up to me . . . there was smell [sic] of alcohol on him, and I'd asked him if he had a couple of beers after work? And he said, "More like a couple of fifths." And I could smell it on him.
2 RP (Aug. 21, 2007) at 107-08. According to Mr. Spray, Mr. Huwe acted intoxicated, and "a little goofy." 2 RP (Aug. 21, 2007) at 109. On the other hand, Gerald Pulliam testified he saw Mr. Huwe walking normally just before his arrest. Columbia County Sheriff Walter Hessler related Mr. Huwe responded to his commands. Columbia County Deputy Sheriff Jeff Jenkins testified he did not remember seeing Mr. Huwe trip, stumble, or stagger or have difficulty communicating. The court ultimately gave the standard intoxication instruction for the jury to consider on the issue of intent.
The jury found Mr. Huwe guilty as charged, found the existence of the firearm enhancements on both counts, and found one aggravating circumstance on the count of first degree assault — domestic violence. The trial court consecutively sentenced Mr. Huwe within the standard range to 280 months for the second degree murder, and 183 months for the first degree assault-domestic violence. Mr. Huwe appealed.
ANALYSIS A. Prosecutor Disqualification
The issue is whether the trial court erred in refusing to disqualify the Columbia County Prosecutor, Ms. Culwell. Mr. Huwe contends Ms. Culwell's professional relationship with Ms. Donohue gave her a personal interest in this case.
When reviewing a decision not to disqualify a prosecutor, we apply an abuse of discretion standard. State v. Orozco, 144 Wn. App. 17, 19, 186 P.3d 1078, review denied, 165 Wn.2d 1005 (2008) (citing State v. Schmitt, 124 Wn. App. 662, 666, 102 P.3d 856 (2004)). "When a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons, an abuse of discretion exists." State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
A prosecutor is a quasi-judicial officer required to act impartially. State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968). "If a prosecutor's interest in a criminal defendant or in the subject matter of the defendant's case materially limits his or her ability to prosecute a matter impartially, then the prosecutor is disqualified from litigating the matter, and the prosecutor's staff may be disqualified as well." State v. Ladenburg, 67 Wn. App. 749, 751, 840 P.2d 228 (1992), abrogated on other grounds by State v. Finch, 137 Wn.2d 792, 808-10, 975 P.2d 967 (1999). Prosecutors are not subject to the appearance of fairness doctrine. See Finch, 137 Wn.2d at 810. Thus, a defendant must show an actual lack of impartiality to disqualify a prosecutor.
Mr. Huwe cites State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988). In Stenger, a death penalty case, the court found the prosecutor should be disqualified from handling the case, where he previously represented the defendant in an unrelated criminal case. Id. at 518, 521-22. The disqualification was not based upon the fact of the prior representation alone. Id. at 521. Notably, the court reasoned "privileged information" in the prosecutor's hands "could well work to the accused's disadvantage." Id. at 522. Here, unlike Stenger, nothing shows Ms. Culwell ever represented Mr. Huwe or had access to privileged information.
Next, Mr. Huwe urges us to adopt the reasoning of People v. Superior Court of Contra Costa County, 19 Cal.3d 255, 561 P.2d 1164 (1977), superseded by statute as stated in People v. Conner, 34 Cal.3d 141, 147, 666 P.2d 5 (1983). There, the court upheld the trial court's disqualification of the prosecutor in a homicide case, where the victim's mother was an employee of the prosecutor's office who worked in the very office in which the prosecution was being prepared. Id. at 269-70. Here, unlike Superior Court of Contra Costa County, Ms. Donohue did not work in the same office as Ms. Culwell, nor is there any indication in the record that she exerted any influence in the case. Accordingly, Superior Court of Contra Costa County is distinguishable.
Finally, Mr. Huwe cites to State v. Cox, 246 La. 748, 167 So.2d 352 (1964). There, the defendant was charged with defaming a judge and the prosecutor. Id. at 757-58. The prosecutor recused himself from the case, but continued to represent the State in the case alleging defamation of the judge. Id. at 758-59. The court found the trial court judge had the mandatory duty to order the prosecutor to recuse himself, "when it was disclosed to him that [the prosecutor] was, in effect, an injured party in both cases and had a personal interest in securing the conviction." Id. at 764. Here, unlike Cox, Ms. Culwell is not a victim of nor did she have any involvement in the charged crimes other than as the prosecuting attorney. Thus, Cox is distinguishable.
Given merely professional relationships, Mr. Huwe fails to show an actual lack of prosecutor impartiality. Moving to exclude character evidence and alleging aggravating factors are routine prosecutorial activities. In sum, we cannot say the trial court abused its discretion in refusing to disqualify Ms. Culwell.
B. Judge Recusal
The issue is whether, considering the appearance of fairness doctrine, the trial court judge erred in not recusing himself. Mr. Huwe argues the judge had a personal conflict of interest because Ms. Donohue regularly appeared before him.
We review recusal decisions for an abuse of discretion. State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006). Due process, the appearance of fairness doctrine, and the Code of Judicial Conduct require a judge's disqualification if the judge is biased against a party or if impartiality reasonably may be questioned. In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992); CJC 3(D)(1). The test is objective: whether a reasonable person with knowledge of the relevant facts would question the judge's impartiality. Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995). "Prejudice is not presumed." State v. Dominguez, 81 Wn. App. 325, 328, 329, 914 P.2d 141 (1996). "Evidence of a judge's actual or potential bias is required before the appearance of fairness doctrine will be applied." Id. at 329 (citing Post, 118 Wn.2d at 618-19, n. 9).
Mr. Huwe does not show evidence of the trial judge's actual bias to raise the appearance of fairness doctrine, and no potential bias evidence. Ms. Donohue appeared before the judge on multiple occasions in her capacity as an attorney and the judge greeted her once outside the courtroom at a bar association meeting. Recusal was not required. See, e.g., Leon, 133 Wn. App. at 812-13 (recusal not required where prosecution witness had regularly appeared before the presiding judge).
C. Evidence Sufficiency — Intent
The issue is whether, considering the intent requirements and Mr. Huwe's intoxication claims, the evidence presented at trial was sufficient to support Mr. Huwe's convictions.
The evidence sufficiency test is whether, after viewing the evidence and all reasonable inferences most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Further, "this court will defer to the trier of fact to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences therefrom." State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)). Both direct and circumstantial evidence may sustain a guilty verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
"A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). "Specific intent cannot be presumed, but it can be inferred as a logical probability from all the facts and circumstances." State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). And "a trier of fact may infer that a defendant intends the natural and probable consequences of his or her acts." State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983).
1. Second Degree Murder. Mr. Huwe first contends insufficient evidence shows he acted with the intent to cause Ms. Lawrence's death. A conviction for second degree murder requires the jury to find that a defendant "[w]ith intent to cause the death of another person but without premeditation . . . causes the death of such person." RCW 9A.32.050(1)(a). Further, "[p]roof that a defendant fired a weapon at a victim is, of course, sufficient to justify a finding of intent to kill." State v. Hoffman, 116 Wn.2d 51, 84-85, 804 P.2d 577 (1991).
Here, Ms. Donohue testified Mr. Huwe pointed the gun at Ms. Lawrence, and shot her in the leg and back. Viewed in the light most favorable to the State, this evidence is sufficient for the jury to infer Mr. Huwe's intent to cause the death of Ms. Lawrence. See Hoffman, 116 Wn.2d at 84-85. While Mr. Huwe argues the jury could have found he thought the gun was loaded with blanks and he merely intended to scare Ms. Lawrence, the jury was in the best position to resolve competing inferences from the evidence. See Bryant, 89 Wn. App. at 869 (citing Hayes, 81 Wn. App. at 425). Similarly, that Mr. Huwe gasped when he saw Ms. Lawrence and called 911 provided facts for the jury to draw inferences.
2. First Degree Assault — Domestic Violence. A conviction for first degree assault, as alleged here, requires the jury to find that a defendant, "with the intent to inflict great bodily harm . . . [a]ssaults another with a firearm." RCW 9A.36.011(1)(a). Thus, the requisite intent for the crime is "intent to inflict great bodily harm." See, e.g., Wilson, 125 Wn.2d at 218 (stating the mens rea for first degree assault is "intent to inflict great bodily harm"). "Great bodily harm" is defined as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ." RCW 9A.04.110(4)(c).
Pointing a gun at a person and then firing is sufficient to establish intent to inflict great bodily harm. See Hoffman, 116 Wn.2d at 84-85 (jury was entitled to find intent to kill from the fact that the defendant shot at the victims). If a jury could infer intent to kill from the firing of a weapon at victims, they could certainly find intent to inflict great bodily harm. Here, Ms. Donohue testified that as she tried to get to the phone to call 911, Mr. Huwe shot her in her thigh. Viewed in the light most favorable to the State, this evidence is sufficient for the jury to infer Mr. Huwe's intent to inflict great bodily injury and sustain Mr. Huwe's conviction for first degree assault-domestic violence.
3. Voluntary Intoxication. Finally, Mr. Huwe argues the jury should have found he was voluntarily intoxicated at the time of the crimes, and therefore, unable to form the requisite intent. The voluntary intoxication statute provides:
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.
Voluntary intoxication is not an affirmative defense. State v. Coates, 107 Wn.2d 882, 889, 735 P.2d 64 (1987). Rather, "[t]he voluntary intoxication statute allows the trier of fact to consider the defendant's intoxication in assessing his mental state; the statute does not require that consideration to lead to any particular result." Id. at 889-90. Accordingly, the question of the effect of a defendant's intoxication upon the formation of the required mental state is a jury question. See, e.g., State v. Mitchell, 65 Wn.2d 373, 374, 397 P.2d 417 (1964) (jury decides if voluntary intoxication negates the defendant's ability to form the intent to kill).
Here, in accordance with the voluntary intoxication statute, the jury was instructed "evidence of intoxication may be considered in determining whether the defendant acted with a specific intent." CP at 323. Although Mr. Huwe points to facts in our record suggesting his intoxication state, the jury heard sufficient contrary facts suggesting his ability to form the requisite intent. Mr. Pulliam testified Mr. Huwe was walking normally; Sheriff Hessler testified Mr. Huwe followed his instructions; and Deputy Jenkins testified he did not observe Mr. Huwe trip, stumble, or stagger and communicated with him without a problem or slurred speech. In sum, resolving the competing inferences was for the jury and did not require a particular result. See Coates, 107 Wn.2d at 889-90.
D. Additional Grounds for Review
1. Change of Venue. Mr. Huwe contends by seating jurors from Walla Walla County, the trial court denied him his constitutional right to be tried by a jury of the county where the alleged offenses were committed. Under the Washington Constitution, "[i]n criminal prosecutions, the accused shall have the right . . . to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed." Const. art. 1, § 22.
The record shows the trial court judge, on his own, moved venue from Columbia County, where the charged offenses occurred, to Walla Walla County. The trial was held in Columbia County, but the jurors were bused from Walla Walla County. When given the opportunity, Mr. Huwe did not object to the trial being conducted in this manner. By not objecting, Mr. Huwe waived any venue issue. See State v. McCorkell, 63 Wn. App. 798, 801, 822 P.2d 795 (1992) (in the context of proof of venue, holding "a criminal defendant waives any challenge to venue by failing to present it by the time jeopardy attaches").
To raise a constitutional error for the first time on appeal, "[t]he defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995); see also RAP 2.5(a)(3). "Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Here, Mr. Huwe does not show how being tried by jurors from Walla Walla County had such an effect.
2. Transport to Trial. Mr. Huwe contends the trial court erred in not ordering him to be held in the Columbia County Jail during the trial. He argues this error led to a juror seeing him as he was being transported to the trial, violating his constitutional rights to a presumption of innocence, an impartial jury, and due process. The trial court had no objection to Mr. Huwe's request to be held in the Columbia County jail, but deferred to the Columbia County Sheriff's decision. Mr. Huwe was held in Walla Walla, and transported to Columbia County each day for trial. The jurors were bused from Walla Walla to Columbia County each day. One juror, who lived in Dixie, was allowed to catch the bus in Dixie rather than in Walla Walla.
On the second trial day, outside the jury's presence, defense counsel stated:
I talked with Mr. Huwe this morning and was advised . . . on the way through Dixie . . . coming here in the morning, he was seen by one of the jurors. He was standing on the side of the road. Is [sic] not sure to what extent the juror saw him. The person with whom he saw him gestured as if he recognized Mr. Huwe going by; had a discussion after that.
And we don't have any more information than that, but I wanted to express my concern to the court.
3 RP (Aug. 22, 2007) at 144. The trial court asked defense counsel if the juror made any negative gestures toward Mr. Huwe; defense counsel responded, "[o]ther than looking . . . at him, I don't think he made any gestures towards him." 3 RP (Aug. 22, 2007) at 145. The trial court learned Mr. Huwe was transported in "[a] van with a light on the top. The windows are kind of barred." 3 RP (Aug. 22, 2007) at 145. The trial court ordered the Department of Corrections (DOC) to transport Mr. Huwe to court via a different route, to avoid the juror seeing Mr. Huwe again. Defense counsel made no further requests of the court.
The federal and state constitutions entitle a criminal defendant to a fair trial by an impartial jury. U.S. Const. amends. VI, XIV § 1; Const. art. 1, § 3, 21, 22. "The right to a fair trial includes the right to the presumption of innocence." State v. Gonzalez, 129 Wn. App. 895, 900, 120 P.3d 645 (2005). "[T]he appearance of shackles or other restraints may reverse the presumption of innocence by causing jury prejudice, and thus denying due process." Id. at 901 (internal quotation marks omitted) (quoting State v. Hutchinson, 135 Wn.2d 863, 887, 959 P.2d 1061 (1998)). "We review alleged violations of the right to an impartial jury and the presumption of innocence de novo." Id. at 900.
"It is not reversible error simply because jurors see a defendant wearing shackles." State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982). In Gosser, the defendant moved for a mistrial on the basis that his shackles were removed in the corridor outside the courtroom, "presumably in the presence of at least some of the jurors." Id. His request for a mistrial was denied. Id. On appeal, the court affirmed the denial, reasoning "beyond [the] defendant's bare allegation, there is no indication in the record that the incident prejudiced the minds of the jurors against [the] defendant." Id. at 435-36. Additionally, the court noted, "the trial court did not nor did [the] defendant request it to admonish or instruct the jury to disregard the incident." Id. at 436.
Here, nothing in the record suggests the incident prejudiced the juror against Mr. Huwe. See Gosser, 33 Wn. App. at 435-36. Further, even assuming the juror saw Mr. Huwe in the DOC vehicle, defense counsel did not request the trial court to instruct the jury regarding the incident. Accordingly, any error was waived. See State v. Bonner, 21 Wn. App. 783, 792-93, 587 P.2d 580 (1978) (shackling issue waived where no admonishment or jury instruction requested).
Mr. Huwe argues the trial court ordered the DOC transport officers to be in plain clothes, but never enforced this ruling. In the Hartzog hearing held prior to trial, the trial court ordered the transport officers to "wear plain clothes instead of a whole uniform." E RP (Aug. 17, 2007) at 20-21. However, during the incident involving the juror from Dixie, the trial court stated:
State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981).
And I have got two uniformed officers in court with white "DOC" written right across their chest. The cat is out of [the] bag, as far as where Mr. Huwe might be spending his evening, I think, during this trial.
3 RP (Aug. 22, 2007) at 145.
Defense counsel did not take issue with this statement, nor does the record show any objection to the transport officer's dress. Accordingly, any error was waived. Bonner, 21 Wn. App. at 792-93. Further, the record does not show prejudice, as the extent to which the jury saw the uniformed officers is unclear. See Gosser, 33 Wn. App. at 435-36.
3. Jury Instructions. Mr. Huwe contends the trial court erred in giving jury instructions on two of the aggravating circumstances alleged by the State. But because the sentencing court elected not to impose an exceptional sentence, we need not address this contention further. The same reasoning applies to Mr. Huwe's contention that the trial court erred in asking the jury to determine whether the first degree assault offense involved an invasion of Ms. Donohue's privacy. While the jury answered the zone of privacy question in the affirmative, Mr. Huwe was sentenced within the standard ranges for his crimes and cannot appeal his standard range sentence.
4. Prosecutorial Misconduct. Mr. Huwe contends prosecutorial misconduct occurred in several instances. "To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct by the prosecutor and prejudicial effect." State v. O'Donnell, 142 Wn. App. 314, 327, 174 P.3d 1205 (2007) (quoting State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001)). "[T]he defendant bears the burden of proof on both issues." Id. at 328 (citing Munguia, 107 Wn. App. at 336). Further, "'[a]bsent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered.'" Id. (quoting Munguia, 107 Wn. App. at 336).
Mr. Huwe first argues prosecutorial misconduct occurred when the prosecutor, in her closing argument, suggested the jury ignore the lesser-included offense instructions. With respect to the second degree murder charge, the jury was instructed on the crimes of first and second degree manslaughter. With respect to the first degree assault charge, the jury was instructed on the crimes of second and third degree assault. In her closing argument, the prosecutor stated:
The judge rightfully has told you of a series of crimes that are under murder in the second degree, and under assault in the first degree.
But . . . I am going to ask you — I am going to suggest to you that it would make more sense for you to just let the defendant go than to compromise. It would make more sense to either find him guilty of murder in the second degree, and assault in the first degree, or none of it. Because if there was one whit of evidence, one suggestion from anybody that the defendant was acting recklessly, or acting negligently, you know, then you might have a case for manslaughter.
8 RP (Aug. 24, 2007) at 573.
The prosecutor continued, arguing the facts did not support the lesser crimes. Mr. Huwe did not object.
It is not misconduct to argue inferences from the trial evidence as shown in this record. "The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). Even if the prosecutor engaged in misconduct, Mr. Huwe has not met the showing required for prosecutorial misconduct raised for the first time on appeal, that "'the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered.'" O'Donnell, 142 Wn. App. at 328 (quoting Munguia, 107 Wn. App. at 336).
Second, Mr. Huwe argues prosecutorial misconduct occurred when the prosecutor elicited testimony regarding his veracity and Ms. Donohue's veracity. "Generally, no witness may offer testimony in the form of an opinion regarding the veracity of the defendant." State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). Further, "[a] witness may not give an opinion as to another witness's credibility." State v. O'Neal, 126 Wn. App. 395, 409, 109 P.3d 429 (2005), aff'd, 159 Wn.2d 500, 150 P.3d 1121 (2007).
Mr. Huwe points to the State's questioning of Mr. Spray:
[The State:] Did [Mr. Huwe] say anything else?
. . . .
[Mr. Spray:] . . . He made a reference to, "I'm going to end this tonight."
[The State:] Was [Mr. Huwe] smiling, when he said that?
[Mr. Spray:] No, ma'am.
[The State:] Did you think [Mr. Huwe] was joking, when he said that?
2 RP (Aug. 21, 2007) at 107. Mr. Huwe did not object to these questions.
Second, Mr. Huwe points to the State's questioning of Mr. Spray:
[The State:] Beside [sic] idle chitchat, did [Mr. Huwe] tell you anything else?
[Mr. Spray:] Yes. She said that she was back in Dayton because of her boyfriend's suicide.
2 RP (Aug. 21, 2007) at 106. Mr. Huwe did not object to this question.
Third, Mr. Huwe points to the State's questioning of Captain Franklin:
[The State:] Did you ask [Ms. Donohue] what her address was?
[Captain Franklin:] Yes, I did.
. . . .
. . . [s]he said, "St. Mary's."
[The State:] . . . And technically, she was at St. Mary's?
[Captain Franklin:] Yes, she was.
[The State:] And, so, in the letter of your question to her, she right then was residing at St. Mary's. So, technically that was correct.
4 RP (Aug. 22, 2007) at 242. Mr. Huwe did not object to this questioning.
Assuming prosecutorial misconduct occurred, for argument's sake, Mr. Huwe has not met the showing required for prosecutorial misconduct raised for the first time on appeal. See O'Donnell, 142 Wn. App. at 328 (quoting Munguia, 107 Wn. App. at 336). The challenged questions are a small portion of the testimony which occurred within four days of testimony. A "curative instruction would have obviated the prejudice it engendered." O'Donnell, 142 Wn. App. at 328 (quoting Munguia, 107 Wn. App. at 336).
Further, Mr. Huwe challenges the following question posed by the prosecutor to Mr. Spray: "[w]ithout talking about any response or any further comment . . . did [Mr. Huwe] say anything else to you about any plans he had, perhaps?" 2 RP (Aug. 21, 2007) at 106. Mr. Huwe argues this question was prejudicial, because it allowed the jury to consider other acts in deciding the case against Mr. Huwe. However, no other acts were elicited by the prosecutor. Mr. Spray did not answer the question; Mr. Huwe's objection to the question was sustained. Hence, no misconduct occurred. Cf. State v. Boehning, 127 Wn. App. 511, 519-23, 111 P.3d 899 (2005) (prosecutorial misconduct occurred, where, in closing argument, the prosecutor argued regarding uncharged crimes).
Third, Mr. Huwe argues prosecutorial misconduct occurred in a statement in an objection made by the prosecutor. However, a curative instruction would have eliminated any prejudice the statement created. See O'Donnell, 142 Wn. App. at 328. Accordingly, no misconduct occurred.
Fourth, Mr. Huwe argues the State in rebuttal closing argument improperly commented on his pretrial silence; "what kind of person calls for an ambulance? . . . it's the kind that won't give his name, will say it doesn't matter who did this." 8 RP (Aug. 24, 2007) at 614-15. Mr. Huwe did not object. "The State may not elicit comments from witnesses or make closing arguments relating to a defendant's silence to infer guilt from such silence." State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996).
Even assuming this statement was misconduct, Mr. Huwe cannot raise the issue for the first time on appeal; a "'curative instruction would have obviated the prejudice it engendered.'" O'Donnell, 142 Wn. App. at 328 (quoting Munguia, 107 Wn. App. at 336).
Finally, Mr. Huwe argues the prosecutor elicited testimony in violation of the trial court's pretrial rulings. First, Mr. Huwe points to the following questioning of Ms. Donohue by the prosecutor, referring to the gun used in the crimes:
[The State:] What .38 Special?
[Ms. Donohue:] The .38 Special that I had, ah, borrowed from Mr. Dean Krouse.
[The State:] When did you borrow the .38 Special?
[Ms. Donohue:] Ah, probably a month before this incident occurred.
. . . .
[The State:] And, ah, why did you borrow it?
[Ms. Donohue:] I was afraid for my safety.
[The State:] Who were you afraid of?
[Ms. Donohue:] Mr. Huwe.
. . . .
[The State:] And is this the gun you referred to that you borrowed for protection from [Mr. Huwe]?
[Ms. Donohue:] That's correct.
1 RP (Aug. 21, 2007) at 25-27. Mr. Huwe did not object. The prosecutor did, however, prior to trial, seek to admit evidence of Ms. Donohue borrowing the gun, and the trial court excluded the evidence.
Even assuming prosecutorial misconduct, it does not rise to the level of being reviewable on appeal. It cannot be said that "'the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered.'" O'Donnell, 142 Wn. App. at 328 (quoting Munguia, 107 Wn. App. at 336). Any prejudice would have been eliminated by instructing the jury not to consider the evidence in support of the charged crimes.
In addition, prior to trial, the trial court excluded explicit mention of the first trial. Mr. Huwe argues the prosecutor committed misconduct when she asked Ms. Donohue if she recalled when pictures of her bullet wound were taken, and Ms. Donohue responded, "[t]hose were taken prior to the first trial." 1 RP (Aug. 21, 2007) at 37. Mr. Huwe did not object to this question. This was not misconduct; the prosecutor did not mention the first trial, or elicit such a response from Ms. Donohue. Regardless, a curative instruction would have eliminated any prejudice created. See O'Donnell, 142 Wn. App. at 328.
5. Ineffective Assistance. Mr. Huwe contends defense counsel was ineffective on two grounds: first, eliciting testimony in violation of the trial court's pretrial rulings; and second, failing to object to the admission of booking room photographs.
To establish ineffective assistance of counsel, Mr. Huwe must show his attorney's performance fell below an objective standard of reasonableness and that the deficiency prejudiced him. McFarland, 127 Wn.2d at 334-35. Prejudice requires a showing that "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 335.
Mr. Huwe first points to questioning by defense counsel of Ms. Donohue regarding how she obtained the gun used in the crimes. On cross-examination, defense counsel asked Ms. Donohue when she borrowed the gun, and if she told Mr. Krouse why she wanted a gun. Thus, this questioning addressed evidence excluded by the trial court.
Assuming this line of questioning was deficient performance, Mr. Huwe cannot establish prejudice. Given the ample evidence implicating Mr. Huwe, it cannot be said that the outcome would have been different but for this questioning. See McFarland, 127 Wn.2d at 335. Accordingly, defense counsel was not ineffective.
Next, Mr. Huwe argues defense counsel was ineffective for failing to object to admission of booking room photographs. Specifically, he argues defense counsel should have objected to a photograph of him where he was handcuffed to a chair. He also argues ineffective assistance from defense counsel pointing out this fact, by asking, "[b]ut in this picture he is apparently wearing handcuffs; is he chained to the chair?" 4 RP (Aug. 22, 2007) at 292.
Again, assuming the failure to object to this photograph, and questioning the witness regarding the restraints was deficient performance, Mr. Huwe cannot establish prejudice. Given the evidence presented, it cannot be said the outcome would have been different had the jury not been exposed to this evidence. See McFarland, 127 Wn.2d at 335. Accordingly, Mr. Huwe cannot establish ineffective assistance of counsel.
6. Cumulative Error. Mr. Huwe contends the doctrine of cumulative error requires reversal. The cumulative error doctrine applies where "there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). However, when no prejudicial error is shown, as here, cumulative error could not have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990).
Affirmed.
A majority of the panel has determined 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.
SCHULTHEIS, C.J. and SWEENEY, J., concur.