Opinion
No. 36586-3-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00136-5, H. John Hall, J., entered July 16, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
Joseph Frederick LaChance, Jr. appeals his jury convictions for third-degree rape of a child (counts I and III) and distribution of a controlled substance to a person under 18-years-old with sexual motivation (counts II, IV, V, and VI). LaChance argues that (1) multiple instances of prosecutorial misconduct violated his right to a fair trial; (2) his defense counsel rendered ineffective assistance in failing to object to improper propensity evidence under ER 404(b) and in asking the court, during a sentencing-amendment hearing in LaChance's absence, to order the county auditor to pay LaChance's attorney fees; (3) his Amended Judgment and Sentence require vacation because he was not present for the amendment; (4) the trial court erred in ordering the Department of Corrections (DOC) to give LaChance less credit for time served than was actually due; and (5) the trial court erred in denying defense counsel's motion for mistrial based on prosecutorial misconduct. We affirm.
FACTS I. Crimes and Investigation
In January 2006, 15-year old MM and 13-year old MD spent the night at their friend JL's house. After JL fell asleep, MM and MD went to a nearby bedroom to smoke methamphetamine with JL's 44-year old father, Joseph Frederick LaChance Jr. According to MM and MD, LaChance gave them methamphetamine, showed them how to smoke it, and smoked it with them while they all watched a pornographic movie and engaged in sexual activity; this sexual activity included LaChance's having sexual intercourse with MM. The girls were inconsistent as to whether LaChance also had sexual intercourse with MD that night.
Deputy Sheriff Susan Kathleen Shannon responded to a call from the White Pass Coalition Counseling Center to investigate a report that MM, one of the Center's patients, had been smoking methamphetamine and having sexual intercourse with an adult male. After interviewing MM, Shannon learned about MM's and MD's drug use and sexual activity with LaChance.
Shannon served a search warrant on LaChance and searched his residence and car. During her search of LaChance's bedroom, Shannon found methamphetamine and related paraphernalia in a small blue zipper bag. The items in the bag included methamphetamine, a glass pipe coated in white residue, small baggies, and scales. In addition to the drug paraphernalia, Shannon found pornographic materials in LaChance's bedroom. These materials included DVDs, entitled "Tasty Teens," "Barely Legal Horny Girls," and "Sweet Young Girls"; and various pornographic magazines.
After giving LaChance his Miranda warnings, Shannon interviewed LaChance. He admitted to having shared methamphetamine with MM on numerous occasions. When Shannon asked about his having had sex with MM, he at first denied it, stating that he knew she was under 18 years old. After Shannon told LaChance that the age of consent was 16, however, LaChance admitted to having had sex with MM on numerous occasions after she had turned 16-years-old, but not before her 16th birthday. LaChance also admitted that he knew MM's age because the two shared the same birthday and he had attended MM's 15th and 16th birthday parties.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Shannon asked LaChance about specific instances when he had smoked methamphetamine and had sex with MM after she had reached the age of 16. LaChance admitted to (1) sneaking MM into his house when his brother was home (so the brother would not see MM); (2) then smoking methamphetamine with MM and having sex with her in his (LaChance's) bedroom; and (3) picking up MM at school in February 2007 and taking her to a logging road/campsite area on more than one occasion to have sex and smoke methamphetamine.
When Shannon asked LaChance specifically about the January 2006 incident, he admitted that (1) MM and MD had come into his bedroom; (2) the three of them had smoked marijuana (rather than methamphetamine); (3) they had watched a Disney movie (rather than a pornographic movie); and (4) he had given the girls each a "second hit" of the "marijuana," which is like a mouth-to-mouth kiss during which LaChance blew smoke into their mouths after taking a hit himself. When Shannon asked LaChance if he had sex with the girls during that incident (when MD was 13 and MM was 15), he denied it.
II. Procedure
The State charged LaChance with two counts of third degree child rape (counts I and III), three counts of distribution of a controlled substance to someone under 18 years old with sexual motivation (counts II, IV, and V), and one count of possession of a controlled substance with intent to deliver with sexual motivation (count VI).
A. Pretrial
During a pretrial motion in limine, LaChance's counsel argued that evidence about MM and LaChance's having had sex and smoking methamphetamine on a logging road was inadmissible under ER 404(b). The trial court denied the motion, advising LaChance's counsel, however, that it was not foreclosing him from making specific objections under ER 404(b) during trial.
B. Trial
During trial, the trial court admitted 21 pornographic DVDs into evidence as exhibit 10. Defense counsel did not object.
1. MM's testimony
At trial, MM testified about the January 2006 incident, stating that, for the first time, she had smoked methamphetamine that night with LaChance, who had provided and identified the substance as "methamphetamine." MM testified that she and MD had gotten "high" with LaChance and that they then "all ended up messing around," which involved LaChance's inserting his fingers and dildos into the girls' vaginas. When the State showed MM a 10-inch dildo (exhibit 13), MM identified it as the same dildo that LaChance had used on her. MM further testified that while she was high, LaChance played a pornographic movie and had sex with her, but, to her knowledge, MD did not have sex with LaChance.
MM also testified that (1) she smoked methamphetamine and had sex with LaChance "a lot," during a nine-month period; and (2) LaChance routinely got her high, used the dildo on her, and had sex with her. When the State asked why she had sex with a man who was over 40 years old, MM responded, "I was gone, out of my mind, I was high all the time." Report of Proceedings (RP) (May 24, 2007) at 19.
2. MD's testimony
After MM finished testifying, the State attempted to call MD, but she did not appear. According to the record, a delay in the proceedings followed. Apparently Michael L. Golden, the elected county prosecutor, then loudly told the deputy prosecutor that MD was very nervous about testifying, prompting the trial court to call a recess.
After the jury had left the room, the trial court stated:
Mr. Golden has left the courtroom again. He's not an attorney of record for the trial. He's prohibited by bar rules of decorum from stepping in front of the bar if he's not an attorney of record, number one. Number two, he loudly announced what the problem is. I heard it, I'm sure the jurors heard it. And if you have got a problem with the witness, get it straightened out.
RP (May 24, 2007) at 37-38. The deputy prosecutor assigned to the case responded, "Yes, sir." Shortly thereafter, the trial court announced that it would reconvene. The jury reentered the courtroom, trial resumed, and the State called MD to the witness stand.
MD testified about the January 2006 incident, mostly consistent with MM's testimony. MD testified that she and MM had smoked methamphetamine, watched pornography, and used dildos with LaChance, and that LaChance had had sex with her (MD) during the January 2006 incident.
3. Motion for Mistrial
After MD finished testifying, defense counsel moved for a mistrial based Golden's prosecutorial misconduct. LaChance's counsel argued that Golden's inappropriate interruption, which the jury had heard, unduly prejudiced LaChance.
The trial court denied the motion, reasoning that Golden's inappropriate conduct did not prejudice LaChance because the jury had an opportunity to see MD on the witness stand, to hear her testimony, and to determine for themselves whether she was nervous about testifying.
4. LaChance's testimony
LaChance testified that (1) he did not deliver methamphetamine to MM and MD during the January 2006 incident; (2) MD had provided the methamphetamine for the January 2006 incident and the three of them had smoked it together; (3) he did not have sexual contact with MM or MD in January 2006; and (4) he did not watch a pornographic movie with them.
For the most part, LaChance's trial testimony was consistent with what he had told Shannon during her investigation interview.
5. Jury instructions
The jury instructions contained the following directions: "The only evidence you are to consider consists of the testimony of the witnesses and the exhibits admitted into evidence." Clerk's Papers (CP) at 39. "You will disregard any evidence that was not admitted or that was stricken by me." CP at 40. Additionally, the jury instructions provided:
The attorneys' remarks, statements and arguments are 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.
CP at 40.
6. Verdict
The jury found LaChance guilty of: distributing a controlled substance to a person under 18 years old (counts II, IV, V); third degree child rape (counts I, III); and the lesser included offense of simple possession of a controlled substance (count VI). The jury also returned special verdicts, finding sexual motivation on counts II, IV, and V. The trial court dismissed the special allegation connected with count II — that distribution of a controlled substance occurred within 1000 feet of a school bus route stop.
C. Sentencing
The trial court imposed a standard range sentence of 120 months confinement on counts II, IV, and V; 60 months on counts I and III; and 18 months on count VI. Two weeks later, LaChance's appointed trial counsel moved for payment of attorney fees and submitted an amended order to LaChance's Judgment and Sentence. LaChance was not present when the trial court signed the Amended Judgment and Sentence, ordering the County Auditor to pay $3,432 to LaChance's counsel to cover the cost of his attorney fees.
LaChance appeals his convictions and the amended sentencing order that the County pay his public defender's attorney fees.
ANALYSIS I. Prosecutorial Misconduct
LaChance argues that multiple instances of prosecutorial misconduct violated his right to a fair trial. We disagree.
A. Standard of Review
"Every prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that an accused receives a fair trial." State v. Jones, 144 Wn. App. 284, 290, 183 P.3d 307 (2008) (citing State v. Hudson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968)). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the subsequent jury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
Although a prosecutor has wide latitude to draw reasonable inferences from the evidence and to express those inferences to the jury, a prosecutor may not make statements that the evidence does not support. Id. Nor may a prosecutor "clear[ly] and unmistakabl[y]" express personal beliefs about a defendant's guilt or credibility. State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006) (citing State v. Case, 49 Wn.2d 66, 68, 298 P.2d 500 (1956)).
LaChance bears the burden of (1) establishing prosecutorial misconduct and (2) demonstrating that the conduct prejudiced his defense in that there is a substantial likelihood that that the improper argument affected the verdict. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003) (citing State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999)). In deciding whether the misconduct warrants reversal, we consider its prejudicial nature and cumulative effect. Boehning, 127 Wn. App. at 518.
A defendant's failure to object to an improper remark at trial generally waives his right to argue prosecutorial misconduct on appeal unless the remark was so "flagrant and ill-intentioned" that it caused enduring and resulting prejudice that a curative instruction could not have remedied. Id. See also Case, 49 Wn.2d at 68. LaChance cannot show that a timely instruction would not have cured the prosecutorial remarks to which he objects for the first time on appeal. Accordingly, LaChance fails to meet his burden to show prosecutorial misconduct warranting reversal of his convictions.
B. Prosecutor's Remark that Defendant's Version of Meth Source Was "Asinine"
LaChance contends that the prosecutor committed misconduct by improperly expressing his personal opinion about his (LaChance's) credibility, in the following portion of the State's closing argument:
The State counters that the prosecutor did not commit misconduct, when viewed in the context of the total argument, because defense counsel did not object at trial and the prosecutor's characterization of LaChance's testimony did not amount to actually calling LaChance a "liar."
You also have as your evidence testimony of Mr.
LaChance. Your job is to weigh that testimony. Which one are you going to believe, that's how you use your common sense. What kind of things did Mr. LaChance say, in my opinion is just asinine, the whole idea of, gee, they brought their own meth, we did it together, I didn't give them any. Where are these girls going to get this stuff[?]
RP (May 25, 2007) at 41 (emphasis added).
The jury alone determines issues of witness credibility. State v. Jungers, 125 Wn. App. 895, 901, 106 P.3d 827 (2005). Whether an opinion of guilt is expressed directly or through inference, such opinion is equally improper and equally inadmissible because it invades the jury's province. Id. It is improper for the prosecution personally to vouch for a witness's credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). We hold that under all of the circumstances here, the prosecutor did not vouch for a witness's credibility and his comment does not require reversal.
First, in spite of the prosecutor's unfortunate use of the word "asinine," the substance of the State's argument as a whole (1) can be characterized as legitimate closing, comparing the State's theory that LaChance supplied the methamphetamine with the defense theory that the girls supplied it; and (2) was not an improper personal opinion of LaChance's credibility or guilt. LaChance testified that he did not supply methamphetamine to MM and MD. Instead, LaChance claimed that the girls had obtained the drug elsewhere and supplied it to him and that he had merely smoked it with them. Thus, it was legitimate closing argument for the prosecutor to invite the jury to compare LaChance's unlikely version with his victim's; such assessing and comparing of witnesses' credibility and weighing the evidence is, after all, a key jury function.
As our Supreme Court noted in McKenzie, although a prosecutor may not properly express an independent, personal opinion about the defendant's guilt, a distinction remains between " the individual opinion of the prosecuting attorney, as an independent fact, and an opinion based upon or deduced from the testimony in the case." 157 Wn.2d at 53 (quoting State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). To determine whether the prosecutor is expressing a personal opinion of the defendant's guilt, independent of the evidence, a reviewing court views the challenged comments in context. "Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion." McKenzie, 157 Wn.2d. at 54, (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (emphasis added), review denied, 100 Wash.2d 1003 (1983). Furthermore, the remarks to which LaChance now objects rise nowhere near the level of blatancy or cumulative prejudice of the remarks in Boehning, especially where the State here, unlike in Boehning, did not refer to highly prejudicial dismissed and uncharged other rapes totally outside the record.
Second, and more importantly, even if we were to characterize the prosecutor's "asinine" characterization as an improper comment on LaChance's credibility, as we note above, LaChance failed to object and failed to request a curative instruction at trial. Thus, LaChance cannot now claim reversible prejudice for the first time on appeal because it appears that an immediate curative instruction from the trial court instructing the jury to disregard the prosecutor's comments would have cured any prejudice.
Morevoer, LaChance does not show that the prosecutor's comment was either so "flagrant and ill-intentioned" that a curative instruction would have been futile. Boehning.
We reversed Boehning's child molestation convictions and remanded for a new trial, in spite of his failure to object to prosecutorial misconduct below, because the cumulative effect of the prosecutor's multiple acts of misconduct (1) "appealed to the passion and prejudice of the jury, was flagrant, and called on the jury to determine guilt on improper grounds," Boehning, 127 Wn. App. at 513; and (2) could not have been remedied by a curative instruction. The prosecutor in Boehning not only improperly called on Boehning to comment on the victim's credibility but also blatantly referred to three dismissed rape charges and the victim's inadmissible out-of-court statements to others, none of which the evidence presented at trial supported.
Moreover, in raising this improper "evidence" during closing argument, the Boehning prosecutor flagrantly announced to the jury, for example, that:
There were some other charges, those charges aren't present anymore because she didn't want to talk about this as much as she was willing to talk about it before. . . . .
The State can't bring up hearsay, but he can bring up any inconsistent statements, and there were no inconsistent statements, and that's why you didn't hear them. So she has been very consistent.
[T]he State submits that [the victim] has not been inconsistent. [The victim] certainly has not been inconsistent about what happened to her. You know, as I indicated earlier, the only thing you can infer from what's been brought up in terms of what happened to her, what this man did to her, is that when she talked to people one-on-one many months ago, people who had gained some trust with her, there's an inference that she must have said something a little bit more, because you heard about some other charges. But when talking to this group of strangers, she wasn't comfortable enough going that far.
. . . .
And there wasn't anything brought up that she told a different story to Diana Tomlinson. If she had told a different story to Diana Tomlinson about the touching, you would have heard about it, because Defense counsel would bring up something if it was different. So the reasonable inference, when she spoke to Diana Tomlinson, she told her the same thing she told you.
Boehning, 127 Wn. App. at 519-21 (emphasis in original; citations omitted). The prosecutor also made other improper remarks that contributed to denying Boehning a fair trial. Id. at 519. As we noted in Boehning: (1) "These remarks were highly prejudicial and constitute flagrant misconduct," Id. at 521; and (2) the State's closing argument reference to these unsupported other crimes outside the record "improperly appealed to the passion and prejudice of the jury and invited the jury to determine guilt based on improper grounds. This error alone compels reversal." Id. at 522.
Webster's Dictionary defines "asinine" as "unintelligent, stupid, silly, obstinate." Webster's Third New International Edition 128 (2002). We see no qualitative difference between the prosecutor's use of the word "asinine" here and the the prosecutor's use of the word "ludicrous" to describe Brown's claim that his murder victim had been asleep in his motel room when he placed telephone calls. State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997), cert denied, 523 U.S. 1007 (1998). In Brown, our Supreme Court noted:
The defense made the claim in response to the State's theory that Appellant killed Ms. Washa to prevent her from informing the police of his future plans and whereabouts. The defense argued it was not necessary for Appellant to eliminate Ms. Washa as a witness because she was asleep during the telephone calls and was thus not aware of his plans. The remark by the prosecuting attorney was not improper. " It is not misconduct . . . for a prosecutor to argue that the evidence does not support the defense theory." As an advocate, the prosecuting attorney is entitled to make a fair response to the arguments of defense counsel. The prosecutor's characterization of the defense theory as "ludicrous" was reasonable in light of the evidence. Appellant admitted raping and torturing Ms. Washa over a prolonged period of time. It was the prosecution's contention that, under those circumstances, she was not likely asleep while Appellant was anywhere nearby. The use of the word "ludicrous" was simply editorial comment by the prosecuting attorney which was a strong, but fair, response to the argument made by the defense.
Brown, 132 Wn.2d at 566 (citing State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994) (emphasis added; footnotes omitted).
Here, the prosecutor's use of the word "asinine" was similarly an "editorial comment" that was, in substance, though perhaps not in word choice, "a strong, but fair, response to the argument made by the defense" that it was the child victims, not the defendant, who had supplied the methamphetamine, which LaChance admitted he had smoked with them. Brown, 132 Wn.2d at 566. Here, there was evidence from the girls that LaChance had supplied the methamphetamine; thus, here, as in Brown, it was "not misconduct" for the "prosecutor to argue that the evidence does not support the defense theory." Id.
Although, at trial, LaChance admitted to smoking methamphetamine with the girls, he originally told Shannon that he and the girls had smoked "marijuana" — not methamphetamine during the January 2006 incident.
Moreover, in contrast to LaChance, who did not object below, Brown preserved the issue of prosecutorial misconduct for appeal by objecting at trial. On appeal, he argued that the trial court erred in denying his motion for a mistrial based on this alleged prosecutorial misconduct. Nevertheless, the Supreme Court held that the argument was not misconduct and rejected Brown's argument that reversal of his convictions was required. But unlike Brown, LaChance did not object to the alleged prosecutorial misconduct below; thus, in order to prevail on appeal he must meet the higher burden set forth above — "flagrant and ill-intentioned" misconduct creating prejudice that a curative instruction could not have remedied. If the prosecutor's characterization of the defense version of the evidence as "ludicrous" in Brown was inadequate to merit reversal even where the defendant objected at trial, then clearly the prosecutor's characterization of the defense version of the evidence as "asinine" here does not warrant reversal where LaChance failed to object below. In both instances, however, the prosecutors were making legitimate, though strong, arguments to the jury about the evidence and the defense's claims.
Thus, even if arguably demonstrating his personal belief that LaChance was lying, the prosecutor's characterization of the defense contention that the child victims supplied the methamphetamine as "asinine" does not constitute reversible prosecutorial misconduct under this heightened standard of review.
We hold, therefore, that LaChance has failed to demonstrate that the prosecutor's characterization of his (LaChance's) claim that the girls had supplied the methamphetamine as "asinine" was (1) improper argument, or (2) alternatively, prosecutorial misconduct so flagrant and ill intentioned that a curative instruction could not have remedied any undue prejudice.
C. Rebuttal Argument
LaChance next argues that the prosecutor improperly bolstered MM's and MD's credibility and encouraged the jury to render a verdict based on facts not in evidence when he argued in rebuttal that MM and MD testified because they "want some kind of redemption." The State counters that the prosecutor was merely drawing permissible reasonable inferences from the record and, also, responding to defense counsel's provocation. We agree with the State.
In closing argument, the State's theme was that LaChance's denial of providing methamphetamine to the girls and having sex with them in January 2006 "doesn't make any sense."
The State subpoenaed MM and MD to testify against LaChance at trial. During closing argument, the prosecutor compared the girls' testimonies with LaChance's testimony, urging the jury that the girls were more credible. Defense counsel argued in closing that (1) the girls' testimony was not credible; (2) the State's evidence was too weak to prove guilt beyond a reasonable doubt; and (3) MM's and MD's motivation in testifying was to blame their own drug use and addiction on LaChance. More specifically, defense counsel argued:
There is something else that I just see as kind of a subtext of this case. And, again, on one level I feel — I do feel sorry for these two girls. You have to wonder what — where their past has come from and more sadly what their future might be. I mean that I think there is — they have really gotten themselves into some trouble. However, my sense is that there is this kind of underlying theme of perhaps these girls they want some kind of redemption, this is a way to redeem themselves, this is a way to improve their lots as to the way they look to their parents or to their community.
RP (May 25, 2007) at 30-31.
The prosecutor then rebutted the defense closing argument as follows:
Well, what are the motivations[?] I thought [defense counsel] mentioned redemption. These girls are up here today because they feel guilt themselves. These two young ladies, they looked to me to be scared to death. They looked to me to not want to be here on some kind of redemptive quest, but they're here giving testimony on crimes they were victims of because they had to be here. They're not here to atone for anything they've done.
RP (May 25, 2007) at 42 (emphasis added).
1. Vouching
With these words, the prosecutor personally vouched for the credibility of both MM and MD, describing how he personally perceived their motivation for testifying. But this rebuttal argument does not rise to the level of reversible prosecutorial misconduct.
Relying on State v. Carver, the State argues that the prosecutor's remarks are not grounds for reversal when defense counsel provokes the remarks, as here. 122 Wn. App. 300, 306, 93 P.3d 947 (2004). We agree with the State that the prosecutor's rebuttal remarks were a proper response to defense counsel's provocation that MM and MD had testified for the purpose of redemption. Here, LaChance's counsel opened the door to the prosecutor's remarks about the girls' credibility during his closing argument by arguing that MM and MD wanted to get themselves out of trouble and to seek redemption for their decisions. Because this argument clearly opened the door to the prosecutor's rebuttal argument about the girls' motivation for testifying, the prosecutor's rebuttal was not improper.
In Carver, we analyzed whether the prosecutor's rebuttal argument to the jury to ignore defense counsel's closing argument suggested that only the State had accurately conveyed the law and the facts. Carver, 122 Wn. App. at 306. Unlike here, Carver did not argue that the prosecutor referred to facts not on record. After considering the prosecutor's statements in the context of the total argument, the issues in the case, the evidence the prosecutor addressed, and the jury instructions, we concluded that the prosecutor's remarks were neither improper nor prejudicial because the prosecutor made his remarks in response to defense counsel's closing argument misstatement of the law. Carver, 122 Wn. App. at 307 ( citing Russell, 125 Wn.2d at 87) (a prosecutor is "entitled to make a fair response to the arguments of defense counsel.")).
2. Facts allegedly not in evidence
LaChance next argues that the prosecutor's statement in closing argument, that both MM and MD "had to be here," referred to the fact that he had subpoenaed them to testify at trial to secure their testimony. LaChance contends that this remark was an attempt by the prosecutor to admit facts not in evidence because the State had presented no evidence that it had subpoenaed MM and MD to ensure their testimony at the trial. This argument also fails.
LaChance cites State v. O'Neal for the general proposition that a prosecutor commits misconduct by encouraging a jury to render a verdict based on facts not in evidence. State v. O'Neal, 126 Wn. App. 395, 109 P.3d 429 (2005). But O'Neal supports the State's argument here, not LaChance's.
In O'Neal, we analyzed whether a prosecutor's reference to night scopes and other equipment, which were not in evidence, was substantially likely to prejudice the defense. Id. at 421. Noting that at trial, the State had produced evidence of numerous weapons in O'Neal's home, we held that the night scope reference was unlikely to have prejudiced him. Id.
Applying O'Neal here, we hold that the prosecutor's remark (that MM and MD "had to be here") was not substantially likely to have prejudiced the jury against LaChance. The State had already presented evidence of LaChance's numerous sexual contacts and drug use with the two girls. Furthermore, the jury instructions explicitly directed the jury to consider evidence only from witnesses' testimony and admitted exhibits and to "[d]isregard any remark, statement or argument that is not supported by the evidence or the law." CP at 40.
We hold, therefore, that the prosecutor's alleged vouching for the victims' credibility during rebuttal argument was a fair response to points LaChance had raised in his closing argument; moreover, these remarks were not substantially likely to have prejudiced the outcome of the case under the circumstances.
D. Prosecutor's Expression of Personal Discomfort
Next, LaChance argues that the prosecutor's expression of "personal discomfort" in handling the dildo that LaChance had used on the girls invited the jury to convict on the basis of emotion rather than reason, which resulted in incurable prejudice. We disagree.
MM and MD both testified that they had watched a pornographic movie with LaChance while engaging in sexual activity with him during the January 2006 incident. This sexual activity included LaChance's having used a dildo on both girls during the January 2006 incident and on MM at other times. The prosecutor used gloves to handle the dildo while showing it to the jury.
During closing argument, the prosecutor stated, "It's difficult for me to handle some of the items in evidence and as difficult as it was, however, it is not going to be difficult for you to decide on each of the charges in this case." RP (May 25, 2007) at 2. The prosecutor also prefaced his closing argument explanation of "sexual motivation" by stating:
This last thing I would like you to consider, quite frankly, the hardest thing for me to explain just in terms of the way I feel about it, but let me try to go through it. Sexual motivation means that one of the purposes for which the defendant commits the crime was for the purposes of sexual gratification.
RP (May 25, 2007) at 18-19.
LaChance's trial counsel raised no objections to this statement. Citing Belgarde, LaChance now argues for the first time, however, that the prosecutor's expression of personal discomfort with the elements of the sex crimes was improper because it appealed to the jury's passions, causing them to render a verdict based on emotion rather than reason. State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988). The facts here, however, are not "flagrant and ill-intentioned" like those in Belgarde: The Washington State Supreme Court concluded that, in likening the American Indian movement to a terrorist organization, the prosecutor's misconduct in Belgarde was "so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." Id. at 507.
Here, in contrast, the prosecutor's expression of discomfort and expression of difficulty in handling the dildo was not so "flagrant and ill-intentioned" that no curative instruction could have obviated any prejudice it might have created. Nor did the prosecutor's expressions of difficulty in handling the dildo and addressing the elements of the crimes rise to the level of passion that would have persuaded the jury to render its verdict based on emotion rather than reason. Accordingly, we hold that the prosecutor's expression of personal discomfort here does not constitute reversible error, either taken alone or cumulatively with LaChance's other claimed errors.
E. Missing Witness
LaChance next argues that the prosecutor committed misconduct by improperly invoking the missing witness doctrine against LaChance. The State counters that these remarks were not improper because the prosecutor was responding to LaChance's testimony that other individuals provided the methamphetamine to the girls. Again, LaChance's argument fails.
During direct examination, LaChance denied ever supplying methamphetamine to the girls. He testified that (1) MD had received the methamphetamine from a person named "Tolton," who was then in jail; and (2) the methamphetamine and related paraphernalia found in his (LaChance's) bedroom belonged to his brother's girlfriend, Myra Story.
Addressing count VI (distribution) in closing argument, the prosecutor stated:
I know when he testified the defendant raised a couple of other names, I heard it for the first time, a Mr. Tolton in jail. Do you think if Mr. Tolton had anything positive to say regarding this case they wouldn't have brought him up from jail and had him testify, no. There was a Myra Story, parents, his brother. None of these people are here either. I submit that's just Mr. La Chance trying once against to deflect attention from the facts of the case.
RP (May 25, 2007) at 16.
We acknowledge that "[g]enerally, a prosecutor cannot comment on the lack of defense evidence because the defense has no duty to present evidence." Cheatam, 150 Wn.2d at 652. But, under the missing witness doctrine, when a party fails to call a witness to provide testimony that would properly be part of the case and is within the control of the party, the jury may draw an inference that the testimony would have been unfavorable to that party. Id. at 652. LaChance argues that this doctrine is inapplicable, however, if the missing witness could aid the defendant only by incriminating himself. State v. Blair, 117 Wn.2d 479, 489-90, 816 P.2d 718 (1991) ( citing United States v. Pitts, 918 F.2d 197, 200-01 (D.C. Cir. 1990)).
LaChance makes a compelling argument that asking Tolton, Story, or any of his family members to testify about their ownership of the methamphetamine and related paraphernalia would incriminate them. But the State counters that even if the prosecutor's remarks were improper, any error was harmless. We agree with the State.
Harmless error occurs when the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Such is the case here. As the State notes in its brief, the record contains "overwhelming evidence" of LaChance's guilt. Even if not "overwhelming," as the State asserts, this evidence is certainly persuasive because it includes the testimonies of MM, MD, Shannon, and LaChance's own admissions that he engaged in sexual conduct and used drugs with MM on multiple occasions and that he also used drugs with MM and MD on the January 2006 incident.
Thus, the prosecutor's allusion to a "missing" defense witness was not flagrant and ill-intentioned; nor was it likely to have affected the outcome of the case. Accordingly, we find no reversible error in this comment.
F. Innuendo
Lastly, LaChance argues that the prosecutor committed misconduct by inciting the jury to convict LaChance by means of "innuendo." Specifically, LaChance argues that the prosecutor committed "flagrant misconduct" by questioning him (LaChance) about giving methamphetamine to his daughter, without providing extrinsic evidence to support this fact. LaChance's argument fails because he mischaracterizes what actually occurred during trial.
A prosecutor who asks questions that imply the existence of a prejudicial fact must be prepared to prove that fact. State v. Miles, 139 Wn. App. 879, 886, 162 P.3d 1169 (2007).
LaChance contends that the prosecution failed to elicit testimony from Detective Shannon about LaChance's giving methamphetamine to his daughter. LaChance is incorrect: The record shows that the State properly elicited this testimony by re-calling Shannon to address this point on rebuttal, and she then testified, "I specifically asked Mr. LaChance, have you given your daughter methamphetamine, and he responded, quote, yes, I have, unquote." RP (May 24, 2007) at 101. Thus, as the State accurately notes, LaChance's argument that "the State presented no extrinsic evidence that LaChance had given meth to his daughter" lacks merit.
II. Ineffective Assistance of Counsel
LaChance cites several instances where he contends his defense counsel at trial rendered ineffective assistance. He fails to meet his burden to establish ineffective assistance of counsel.
A. Standard of Review
To determine whether counsel's assistance was ineffective, the defendant must show that counsel's representation fell below an objective standard of reasonableness based on consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) ( citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceedings would have differed. See Thomas, 109 Wn.2d at 226. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Reversal is required when a defense counsel fails to object to prosecutorial misconduct and there is a reasonable probability that the failure to object affected the outcome. State v. Horton, 116 Wn. App. 909, 921-22, 68 P.3d 1145 (2003).
B. Failure to Object to Prosecutorial Misconduct and to Request Curative Jury Instruction
LaChance argues that we must reverse his convictions because defense counsel was ineffective in failing to object to prosecutorial misconduct and in failing to request a curative instruction. Specifically, LaChance contends that defense counsel had no legitimate or tactical reason not to object to the prosecutor's improper remarks because LaChance derived no conceivable benefit from letting the jury consider them. Having already held that the prosecutor's remarks were either not prosecutorial misconduct or not prejudicial, we have, thus, already resolved the first prong of the ineffective assistance of counsel test contrary to LaChance's contentions. Accordingly, we do not further consider this argument.
C. Failure to Object to Pornography Evidence Under ER 404(b)
Next, LaChance argues that (1) defense counsel was ineffective in failing to object to the admission of the pornography evidence that Shannon seized when she executed the search warrant at LaChance's home; and (2) this evidence was inadmissible under ER 404(b) because it showed LaChance's propensity to possess pornography. The State counters that defense counsel was not ineffective because his failure to object at trial was a tactical decision. LaChance fails to establish ineffective assistance of counsel on this ground.
ER 404(b) prohibits admission of evidence of any act, regardless of whether it is a bad act, used to show the character of a person in conformity with his character on a particular occasion. State v. Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002) (citing State v. Halstein, 122 Wn.2d 109, 126, 857 P.2d 270 (1993). ER 404(b) forbids evidence of prior acts that tend to prove a defendant's propensity to commit a crime.
Nevertheless, the ER 404(b) allows admission of prior acts for other limited purposes. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999). ER 404(b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Without objection by the defense, the the trial court received into evidence the following items that Shannon had seized during her warrant-based search of LaChance's home: a pornographic DVD entitled "Tasty Teens"; three pornographic magazines found between the mattresses on LaChance's bed; and 21 pornographic DVDs from his closet. The DVD titles included "Barely Legal Horny Girls" and "Sweet Young Girls." LaChance argues that this pornography evidence is impermissible propensity evidence because it invited the jury to infer that his possession of pornography showed that LaChance had sex with the girls.
The State did not show that MM and MD ever saw these specific pornographic DVDs and magazines.
MM and MD testified that they watched a pornographic movie with LaChance during the January 2006 incident and that they smoked methamphetamine, used sex toys, and had sex with him at that time. During LaChance's cross examination, the State asked if he had lured the girls into his room because "they were young girls just like you'd seen [in] the pornography." RP (May 24, 2007) at 96. LaChance denied this. He also denied that the pornography found in his bedroom belonged to him. In closing, the prosecutor argued to the jury that the pornographic materials "show that Mr. LaChance has an interest in younger women." RP (May 24, 2007) at 19.
1. Lustful disposition exception
Showing lustful disposition is a permissible purpose of evidence admitted under ER 404(b). State v. Medcalf, 58 Wn. App. 817, 823, 795 P.2d 158 (1990). Evidence is admissible for the purpose of showing the lustful disposition toward the offended female, which in turn makes it more probable that the defendant committed the offense. State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983) (citing State v. Thorne, 43 Wn.2d 47, 60-61, 260 P.2d 331 (1953)). The important factor is whether the evidence demonstrates a desire for the particular female. Id.
LaChance argues that evidence that he possessed pornographic materials was inadmissible to show his lustful disposition toward MM under the lustful disposition exception to ER 404(b) because there was no evidence that MM watched the same pornography admitted into evidence at trial. LaChance contends that the record shows, at most, that MM watched a pornographic movie with him in January 2006, but the record does not show what title she watched or whether it was the same movie that was admitted into evidence.
LaChance cites Medcalf to support his argument that the pornography in evidence at trial had no connection to MM. This argument fails because Medcalf is easily distinguishable from the instant case. We affirmed the trial court's ruling that Medcalf's possession of X-rated videos was inadmissible propensity evidence under ER 404(b). The State had argued that the pornography was admissible because it served as a unique device for Medcalf to use to entice children and to show them how to perform sexual acts. Medcalf, 58 Wn. App. at 823. We rejected the State's argument because the pornography had no connection to the victim: The victim testified that she had never been to Medcalf's home to watch these movies and there was no evidence that she had watched any movies with Medcalf, pornographic or otherwise.
Here, unlike in Medcalf, there was a direct connection between LaChance's pornographic materials and the victims. MM and MD both testified that (1) they had watched pornographic movies with LaChance in his bedroom during the January 2006 incident, and (2) they and LaChance had been "messing around" on his bed with the dildo while they watched a pornographic movie. Detective Shannon found the pornographic materials in LaChance's bedroom and in his bedding. This direct connection between LaChance's pornographic materials in his bedroom and the January 2006 incident, during which he had sexual contact with the victims while watching a pornographic movie in this same bedroom, render the evidence admissible under the lustful disposition exception to ER 404(b).
Having held the pornography evidence admissible to support the remaining rape counts under the "lustful disposition" exception to ER 404(b), we need not address LaChance's other arguments about why other exceptions do not apply.
2. Probative value outweighed prejudicial effect
LaChance argues that, even if the pornography evidence were used for a permissible purpose, it would still be inadmissible because the danger of unfair prejudice substantially outweighed its probative value. This argument also fails.
We reiterate that LaChance raises this argument for the first time on appeal in the context of his ineffective assistance of counsel argument, rather than in the context of a properly preserved challenge to the trial court's discretionary evidentiary ruling. Thus, LaChance must show not only that his counsel's performance was deficient but also that this deficient performance prejudiced the trial's outcome. Strickland, 466 U.S. 668. LaChance fails to establish resulting prejudice.
We hold that the pornography evidence was highly probative because (1) both MM and MD testified about having watched a pornographic movie with LaChance while they were "high" on drugs and engaging in sexual activity during the January 2006 incident, which was the subject of counts I and III; and (2) there was ample other evidence, including LaChance's own admissions, that he had watched a movie with MM and MD during the January 2006 incident and had engaged in an ongoing sexual relationship with MM. Moreover, as the State argues, the pornography evidence is relevant because it corroborates MM's and MD's testimony about the January 2006 incident and demonstrates that LaChance's possession and viewing of pornography "was inextricably intertwined with his sexual contact" with the girls.
For these reasons, we hold that the pornography evidence was admissible and does not require reversal of the rape counts.
D. Failure to Request Limiting Instruction
LaChance also argues that defense counsel was deficient for failing to propose a limiting instruction that would have prevented the jury from considering his possession of pornography as evidence of his propensity to distribute methamphetamine to the girls and to engage in sexual activity with them. He also argues that the trial court erred in failing to include such an instruction. He does not, however, meet the test for establishing ineffective assistance of counsel on this ground.
We acknowledge that a defendant has a right to have a limiting instruction to minimize the damaging effect of properly admitted evidence by explaining the limited purpose of that evidence to the jury. State v. Donald, 68 Wn. App. 543, 547, 844 P.2d 447 (1993) (citing ER 105). But LaChance does not show here that his counsel's failure to request a limiting instruction, under the circumstances, fell below an objective standard of reasonableness under Strickland. LaChance fails to show prejudice because he fails to demonstrate a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceedings would have differed. See Thomas, 109 Wn.2d at 226. Here, MM and MD testified that LaChance provided methamphetamine and smoked it with them while watching pornographic movies. Additionally, MM testified that, on numerous occasions, she and LaChance would smoke methamphetamine and then have sex. Given the graphic and consistent testimony from MM and MD and Shannon's testimonies about LaChance's admissions, there is no reasonable probability that defense counsel's failure to object affected the trial's outcome.
We further note that in light of our holding that the pornography was admissible to show lustful disposition, a form of intent, and was not unduly prejudicial, LaChance cannot meet either prong of the ineffective assistance of counsel test for this argument for the rape counts.
III. Motion for Mistrial
In his Statement of Additional Grounds (SAG), LaChance appears to argue that the trial court erred in failing to declare a mistrial after Prosecutor Golden loudly announced that MD was "very nervous" about testifying. We disagree.
A. Standard of Review
We review a trial court's denial of a defendant's motion for mistrial for an abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). We find abuse only when no reasonable judge could have reached the same conclusion. Id. The trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that he will be tried fairly; only errors affecting the trial's outcome are deemed prejudicial. Id. In determining the effect of an irregularity, we examine its seriousness, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it. Id. at 284 ( citing State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986).
B. Denial of Motion for Mistrial Not Error
We note at the outset that Golden's outburst was inexcusable and totally inappropriate. Nevertheless, the trial court did not abuse its discretion in denying LaChance's motion for mistrial because this conduct was not so "flagrant" and "ill-intentioned" as to prejudice LaChance.
The irregularity of Golden's announcement that MD was nervous did not affect the trial's outcome because soon thereafter, as the trial court concluded, the jurors had the opportunity to see MD on the stand and to gauge her nervousness for themselves. Thus, the jurors' viewing and listening to MD on the witness stand likely overrode any effect that Golden's comment might have had on their perception of MD's nervousness or lack of nervousness, among other manifestations.
Furthermore, Golden's mention of MD's nervousness did not prejudice LaChance in light of ample evidence from MM, MD, Shannon, and LaChance's own testimony. Under these circumstances, although the trial court failed to instruct the jury to disregard the prosecution's interruption, the improper statements did not affect the outcome of the trial. Because no prejudice resulted to LaChance, we hold that the trial court did not abuse its discretion in denying LaChance's motion for mistrial.
IV. Amended Judgment and Sentence
LaChance argues that the attorney fee payment amendment to his sentence is invalid for three reasons: First, he argues that a "breakdown in the adversarial process" requires reversal of the amended sentence because his trial counsel was per se ineffective when he moved the trial court to order the County to pay LaChance's attorney fees. Second, LaChance argues that the trial court "had the statutory duty to ascertain LaChance's ability to pay those costs prior to imposing them." Finally, LaChance argues that the trial court violated his due process right to be present at a "critical stage of the proceeding" because the trial court amended the judgment and sentence in his absence.
These arguments fail.
A. Standard of Review
A criminal defendant has a constitutional right under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to be present during all "critical stages" of the criminal proceedings. State v. Berrysmith, 87 Wn. App. 268, 273, 944 P.2d 397 (1997) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)), review denied, 134 Wn.2d 1008 (1998). A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome of the defendant's presence would contribute to the fairness of the procedure. Berrysmith, 87 Wn. App. at 273 (citing Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)).
The right to effective assistance of counsel exists, "not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). Under very rare circumstances, defense counsel's actions render the process unreliable and no specific showing of prejudice is required — prejudice is presumed. State v. Webbe, 122 Wn. App. 683, 694, 94 P.3d 994 (2004). A presumption of prejudice arises when the adversarial process breaks down. Cronic, 466 U.S. at 656-57. When a defense attorney violates his duty of loyalty, prejudice is presumed. In Re Pers. Restraint of Davis, 152 Wn.2d 647, 675, 101 P.3d 1 (2004). Such is not the case here, however.
B. Court-appointed Attorney Fees
LaChance first contends that defense counsel was ineffective because he moved the trial court to add court-appointed attorney fees to LaChance's sentence. LaChance does not argue that his counsel prejudiced him under the Strickland test; instead LaChance argues that defense counsel's asking for attorney fees was a total breakdown of the adversarial process, which justifies a presumption of ineffective assistance of counsel under Cronic, 466 U.S. 648. We disagree.
Two weeks after the trial court sentenced LaChance, his trial counsel moved for payment of his appointed attorney fees, and submitted an amended order to LaChance's judgment and sentence. LaChance was not present when the trial court signed this amended order, requiring the County Auditor to pay defense counsel's fees of $3,432.
LaChance provides no case law to support his proposition that a court-appointed defense counsel's motion for attorney fees violates a defendant's right to effective assistance of counsel. Moreover, this ministerial act of adding attorney fees to his judgment and sentence did not destroy the adversarial nature of his trial or sentence. State v. Davenport, 140 Wn. App. 925, 932, 167 P.3d 1221 (2007) (a defendant does not have constitutionally protected right to be present at a proceeding that does not amount to more than a ministerial act), review denied, 163 Wn.2d 1041 (2008). It does not rise to the level where we presume prejudice in the trial process; nor does LaChance demonstrate any undue prejudice.
Second, LaChance argues that the trial court was required to ascertain his ability to pay these costs, citing RCW 10.01.160(3), which provides: "The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them." We note initially that the amended sentence ordered the county, not LaChance, to pay the attorney fees owed to LaChance's attorney for providing his defense at trial. Moreover, even assuming that LaChance might eventually be responsible for these fees, because it is difficult to know whether a defendant will be able to pay additional costs, formal finding of facts on the defendant's ability to pay are not required at sentencing. State v. Blank, 131 Wn.2d 230, 242, 930 P.2d 1213 (1997). Furthermore, he will have the right to petition for remission at any time under RCW 10.01.160. Accordingly, LaChance's argument fails.
C. Right to be Present at a Critical Stage in the Proceeding
Last, LaChance argues that, because he was not present when the trial court amended his judgment and sentence to add the attorney fee provision, the trial court violated his right to due process. LaChance relies on Davenport, 140 Wn. App. at 932-33, in which we held that a defendant has the right to be present at his sentencing on remand. LaChance is correct that a defendant has a due process right to be present at a critical stage in which the trial court will exercise its discretion. Id.
But if the defendant's presence is useless or provides "but a shadow" of a benefit, and the discretionary act of the court is ministerial, then the defendant's absence does not violate his due process rights. (Citing Synder v. Massachusetts, 291 U.S. 97, 106-07, 54 S. Ct. 330, 78 L. Ed. 674 (1934), (overruled on other grounds)). Here, LaChance's due process rights were not violated because the trial court's amended order was ministerial, not a discretionary act. Furthermore, as we note above, the trial court amended the judgment and sentence to order the county, not LaChance, to pay his appointed defense attorney fees.
Furthermore, the trial court court does not consider a defendant's indigency until the RCW 10.01.160 hearing, prompted by the defendant's has petition to the court. The record before us does not show that LaChance had petitioned for such relief at the time the trial court issued the amended order. Nor does it appear that LaChance had filed such a petition as of the time he filed this appeal.
V. Credit for Time Served
Finally, LaChance argues that the trial court incorrectly ordered the Department of Corrections (DOC) to give him less credit for time served than was actually due. More specifically, LaChance contends that the trial court's warrant of commitment specifies two days credit for time served, rather than 139 days, which appears in the trial court's Judgment and Sentence, making it uncertain whether he actually received full credit for time served. The State counters that (1) LaChance's credit for 143 days served was properly calculated and certified to the DOC; and (2) LaChance received credit for time served because the correct number of days served appears on the Judgment and Sentence, which is the controlling document that certifies the number of days served to the DOC.
These arguments are ones that LaChance must raise in a personal restraint petition, RAP 16.4 after first pursuing the DOC's internal grievance procedures, not on direct appeal. Thus, we do not further consider these sentencing credit issues here.
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.
I concur:
VAN DEREN, C.J.
I concur in the result only.
HOUGHTON, J.