Opinion
No. 36960-5-II.
September 22, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-02110-0, Kathryn J. Nelson, J., entered November 2, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Timothy Shelby Langford appeals his convictions for first degree assault, first degree unlawful possession of a firearm, and first degree burglary, based on alleged prosecutorial misconduct and ineffective assistance of counsel. We affirm.
FACTS
On April 16, 2007, Erin Finney and Derrick Cleary were in bed in their Tacoma, Washington home when Finney heard repeated knocking at the front door. When she went downstairs and answered the door, Finney did not recognize the man at the door, who was wearing a tight knit cap. The man asked, "Is D there?" 4 VRP at 127. Finney closed the door, locked it, went upstairs, and told Cleary that a man was at the door asking for him.
Cleary opened the door and recognized the man as ATL, an acquaintance from a night club. Cleary identified Langford as ATL in court. Cleary acknowledged that Langford had spent the night at his house on at least one occasion after they had been drinking.
Cleary invited Langford inside, but when Cleary turned back toward him, Langford threw something, possibly salt and pepper, into Cleary's eyes that made them burn and caused his vision to blur. Langford pushed Cleary back into the couch. Cleary heard "Click, click, click, click" and, when his vision cleared, he saw Langford standing over him with a gun. 4 VRP at 177. Cleary immediately began wrestling and fighting with Langford and was able to knock the gun to the floor.
Finney was upstairs when Cleary opened the front door. She heard Cleary cry "Ah" and mumble something, followed by wrestling and commotion. 4 VRP at 131. When ATL's cap came off, Finney recognized ATL from his dreadlocks. Cleary appeared desperate and told Finney that Langford had brought a gun with him and was trying to kill Cleary. Finney picked up the gun from the floor so that Langford could not get to it. Finney and Cleary managed to open the door, and Cleary wrestled Langford outside.
Finney called 911 and walked from the kitchen to the living room, still holding the handgun. Langford walked back inside and attempted to take the gun back from Finney. Cleary entered the house and pulled Langford back outside where they continued to fight.
Langford pleaded with Cleary, "Please let me go, please let me go." 4 VRP at 182. Cleary released Langford and went back inside to check on Finney and to get the handgun so that he could make Langford stay and wait for the police. Langford fled on foot and Cleary attempted to pursue him. When the police arrived at the scene, Cleary immediately told them that he was not the guy they were looking for and that he had the handgun in his pocket.
A K-9 unit tracked Langford to a nearby yard, where officers took him into custody. Langford provided a statement to the police, asserting that he had gone to Cleary's home to retrieve some clothes and that there was another gun at the residence. The police searched the home with both Finney's and Cleary's permission, but did not uncover any evidence of weapons, guns, ammunition, or anything related to firearms. The police also found clothing similar to what Langford described, but the investigating officer testified that Cleary told him that the clothes were his. Langford described size 11 shoes, but the officer did not find any footwear smaller than a size 11 1/2 or 12.
Cleary could not possess firearms based on a previous conviction for first degree robbery.
The State charged Langford with first degree assault, second degree assault, first degree unlawful possession of a firearm, and first degree burglary. The State voluntarily dismissed the second degree assault charge. The State added firearm enhancements to the assault and burglary allegations. The jury found Langford guilty of first degree assault, first degree unlawful possession of a firearm, and first degree burglary, but did not find either firearm enhancement.
ANALYSIS
I. Prosecutorial Misconduct
Langford asserts that the State committed prosecutorial misconduct by misstating its burden of proof and by inviting the jury to find guilt based on Langford's silence. We review allegations of prosecutorial misconduct to determine whether improper conduct prejudiced the defendant. State v. Thomas, 142 Wn. App. 589, 593, 174 P.3d 1264, review denied, 164 Wn.2d 1026 (2008). Prejudice occurs where there is "a substantial likelihood that the misconduct affected the jury's verdict." Thomas, 142 Wn. App. at 593. We measure possible prejudice by weighing the strength of the State's case and reverse only if there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Avendano-Lopez, 79 Wn. App. 706, 712, 904 P.2d 324 (1995), review denied, 129 Wn.2d 1007 (1996). Finally, where a defendant fails to object, he waives the issue unless the misconduct was "so flagrant and ill-intentioned" that it caused prejudice that could not be cured by the trial court's admonishment. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
A. Misstatement of the State's Burden
Langford contends that the State's argument misstated the jury's role and the State's own burden of proof because the State presented the jury with a "false choice" of either convicting Langford or finding that the State's witnesses were lying and attempting to set up an innocent man. Br. of Appellant at 12. It is generally error for the State to tell the jury that it must determine who is telling the truth and who is lying in order to decide a case. State v. Wright, 76 Wn. App. 811, 824-26, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995), superceded by statute on other grounds, RCW 9.94A.360 (1995). Langford asserts that this happened here. Br. of Appellant at 12.
The challenged interaction occurred during the State's closing rebuttal argument:
[THE STATE]: Now, what you need to ask yourself in this case, I would ask you to just apply your common sense. I think you all have common sense. When you sit back there, ask yourself a simple question. Is this a case of Mr. Langford committing a number of very serious crimes and then subsequently being caught? Or is this a situation of Derrick Cleary and Erin Finney somehow having a bone to pick with Mr. Langford and trying to set him up? Is this some kind of conspiracy? Well, let's think about the lengths that Derrick and Erin would have to go to try to set Mr. Langford up.
[DEFENSE COUNSEL]: Your Honor, I object. I didn't argue conspiracy. This is not proper rebuttal.
[THE STATE]: Your Honor, this is argument.
[TRIAL COURT]: I'll give you a little more leeway.
[THE STATE]: Thank you, Your Honor. Think about the 911 tape. Is [Cleary] going to go to the lengths of huffing and puffing and saying stuff on the tape like he had a gun and so on and so forth? Is [Finney] going to be able to conjure up so much emotion on that 911 tape that she's screaming, that she's out of breath. That is not stuff that can be made up, and it sure is not stuff that can be made up on the spur of the moment. This is not a situation of two people trying to set up someone else. This is a situation of Mr. Langford committing a number of serious crimes and getting caught and trying to run from the police.
5 VRP at 318-19.
Langford cites Wright in support of his argument, but the Wright court actually affirmed conduct similar to what occurred here. The Wright court addressed a closing argument in which the State argued that "in order to believe [the defendant], the jury would have to believe that the officers `got it wrong.'" Wright, 76 Wn. App. at 823. The Wright court distinguished the question before it from the question addressed in State v. Barrow, 60 Wn. App. 869, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991). In Barrow, the court held improper an argument in which the State argued during closing rebuttal that in order to find the defendant not guilty, the jury would have to believe his testimony and believe that the police were lying. Barrow, 60 Wn. App. at 874-75. Unlike the argument in Barrow, the Wright court held:
Here the prosecutor argued that, to believe (as opposed to acquit) [the defendant], the jury would need to believe that the State's witnesses were mistaken (as opposed to lying). We conclude that this kind of argument is not objectionable and does not constitute misconduct. . . . The argument made here did not present the jury with a false choice between believing the State's witnesses or acquitting [the defendant]. . . .
Furthermore, the argument here did not misstate the jury's duty to return a verdict, as was the case in Barrow. As we observed in that case, a jury need only find that the State has not proven its case beyond a reasonable doubt in order to acquit a defendant. A jury does not necessarily need to resolve which, if any, of the witnesses is telling the truth in order to conclude that one version is more credible or accurate than another. Barrow, 60 Wn. App. at 876. The argument here did not present the danger that the jury would be misled in believing that it had to determine if witnesses were lying in order to render a verdict.
Where, as here, the parties present the jury with conflicting versions of the facts and the credibility of witnesses is a central issue, there is nothing misleading or unfair in stating the obvious: that if the jury accepts one version of the facts, it must necessarily reject the other. This argument is well within the "wide latitude" afforded to the prosecutor "in drawing and expressing reasonable inferences from the evidence." State v. Hoffman, 116 Wn.2d 51, 95, 804 P.2d 577 (1991).
Wright, 76 Wn. App. at 824-25 (footnote omitted).
Here, the State did not allege that the jury must determine that Cleary and Finney were lying in order to acquit Langford. The State reminded the jury that the State's burden was to prove each element beyond a reasonable doubt. 5 VRP at 290. In fact, immediately following the alleged misstatement of the State's burden, the State provided:
Ladies and gentlemen, when you use your common sense and you apply beyond a reasonable doubt standard, the State is confident that you will return verdicts of guilty.
5 VRP at 319. This case involved Cleary and Finney giving a different account of the events than did Langford. In his own closing argument, Langford attacked the State's witnesses' testimony and the State's evidence, arguing that it did not make sense. The State did not misstate the burden in this case.
B. Guilt Based on Silence
Langford next asserts that the State committed prosecutorial misconduct by inviting the jury to find him guilty based on his silence. The State can take no action that will unnecessarily chill or penalize a defendant's exercise of a constitutional right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984). Both the federal and the Washington State constitution guarantee the accused the right to be free from self-incrimination and the right to silence. State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285 (1996).
The challenged argument here occurred during the State's closing argument:
Now, if Mr. Langford had been the victim in this case and he had been the one who had been assaulted, why does Mr. Langford flee the scene? Why does Mr. Langford hide from the police?. . . .
Now, if [Langford] had been the victim, if he had the dog right there, nipping at his heels, he would have essentially done what [Cleary] did that day when [Cleary] was confronted by [the police], when [Cleary] went out to try to locate Mr. Langford. He immediately, immediately, makes it known that, hey, I've got a gun. But no. Mr. Langford takes off, he runs. Why? Mr. Langford is not a victim. Mr. Langford was the perpetrator.
5 VRP at 302-03.
Essentially, Langford is arguing that he had a constitutional right to pre-arrest silence. But the "pre-arrest" silence case that Langford cites, Easter, 130 Wn.2d at 243, is easily distinguishable. Br. of Appellant at 14. The Easter court addressed the right to pre-arrest silence when a police officer questioned a party to an automobile accident regarding what happened and whether he had been drinking. Easter, 130 Wn.2d at 230. The man did not respond to the officer and the trial court allowed the officer to testify as such during trial. Easter, 130 Wn.2d at 230.
Here, unlike Easter, Langford was not subject to custodial interrogation or questioning by police, in which case he could exercise his right to remain silent. Easter, 130 Wn.2d at 243. Instead, he fled before the police arrived and the police located him only by using a K-9 unit to track him. Langford provides no authority holding that he had a right to remain silent while he was fleeing from authorities. Accordingly, the State's argument here did not implicate Langford's right to remain silent. Further, the State may properly argue that the evidence of flight following the commission of a crime is evidence of consciousness of guilt. State v. Porter, 58 Wn. App. 57, 62, 791 P.2d 905 (1990).
As we discussed above, this case turned on the jury's credibility determination between two conflicting versions of the incident. The State has "wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Hoffman, 116 Wn.2d 51, 95, 804 P.2d 577 (1991). As such, the State could properly contrast its witnesses' behaviors with Langford's behaviors and argue reasonable inferences from them. We hold that the State's argument did not invite the jury to find guilt based on Langford's constitutional right to remain silent. Langford's prosecutorial misconduct allegations fail.
Since Langford's claim of ineffective assistance of counsel is premised on his counsel's failure to propose a curative instruction or object to the alleged prosecutorial misconduct above, this claim is also meritless.
II. Character Evidence
Langford next claims that the trial court erred by admitting irrelevant evidence that "unfairly bolstered the character and credibility of the prosecutor's main witnesses." Br. of Appellant at 26. We review the trial court's decision to admit evidence for abuse of discretion. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Neal, 144 Wn.2d at 609. Where a court erroneously admits improper evidence, the error is not harmless unless we can find within reasonable probability that the trial's outcome would have been the same had the error not occurred. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without it. ER 401. Evidence that is not relevant is not admissible. ER 402. ER 403 provides that the trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, the risk of misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Under ER 404(a), character evidence is not admissible to prove action that conforms with it on a particular occasion, except in very limited circumstances. These circumstances include good character evidence of the victim if it is in rebuttal to evidence asserted by the accused under ER 404(a)(2), or evidence of the character of a witness as provided in ER 607, 608, or 609. ER 404(a)(3). ER 607 provides that any party can attack a witness's credibility. ER 608 provides that reputation evidence may be presented if it involves character for truthfulness or untruthfulness or as response if the other party has already attacked the witness by reputation evidence. ER 609 involves impeachment evidence regarding previous convictions regarding dishonesty or false statements.
The alleged irrelevant testimony here involved the State asking Finney why she did not allow firearms in her house:
[FINNEY]: I don't like guns. I have two small children, and I just believe they're not safe. It's not the gun itself but what can happen with guns in the house.
4 VRP at 156.
The State addressed the issue again during closing argument:
Now, remember that both [Finney] and [Cleary] told you under oath there are no guns in that house. They don't keep any guns in that house. [Finney] told you the reason that they don't keep guns in that house. She doesn't approve of them. She thinks they're a safety hazard, and she has young children. So when [Cleary] quickly gets dressed, it's not like [Cleary] has gone to bed with a gun under his pillow or anything of that nature. He doesn't arm himself as he's going downstairs. He simply throws on a T-shirt and some shorts and heads downstairs.
5 VRP at 300.
Langford cites State v. Jones, 144 Wn. App. 284, 291, 183 P.3d 307 (2008), where we held that the prosecutor's cumulative errors by bolstering the credibility of a police officer and a confidential informant required reversal. In Jones, the prosecutor elicited bolstering testimony both in its case-in-chief and during closing arguments, using facts not in evidence to argue the informant's reliability based on evidence that police use the same informants repeatedly because they are reliable and can be trusted, because when officers instruct informants to do something, they do it, and because informants do not steal money from police or hide funds from police. Jones, 144 Wn. App. at 293-94, 295-97. We held that there was a substantial likelihood that the prosecutor's cumulative errors affected the verdict. Jones, 144 Wn. App. at 300.
Langford also cites State v. Smith, 67 Wn. App. 838, 844, 841 P.2d 76 (1992), arguing that it is misconduct for a prosecutor to elicit improper good character evidence and to rely on such evidence to argue guilt. But it appears that Smith is limited to the proposition that prosecutors "should not bolster a police witness' good character." Smith, 67 Wn. App. at 844.
The State contends that it did not offer the evidence to bolster Finney's good character but, instead, as evidence that the gun did not originate from within the house. It appears obvious that Finney's testimony was relevant under ER 401 because the parties contested where the gun came from.
Langford's position is that Finney's testimony regarding her desire to have a safe house and protect her children constituted improper good character evidence, designed to bolster her credibility. But Finney had already testified that she did not allow guns in her house. While it is true that allowing Finney's rationale would prevent the jury from having to speculate as to the reasons for no firearms in the house, the jury already knew that Cleary could not possess a firearm. We hold that the trial court did not admit bolstering testimony and therefore did not err.
Even if the trial court erred, the error was harmless because, within reasonable probability, the trial's outcome would have been the same had the error not occurred. Jackson, 102 Wn.2d at 695. Langford argues that the good character evidence affected the verdict because the jury's crucial determination was whether Langford brought the gun with him. The jury's crucial determination was whether the State proved all elements of each charge beyond a reasonable doubt. Langford does not argue that the State failed to do so.
Ample evidence supported that Langford brought the gun. In addition to the alleged improper good character evidence, Finney testified that she did not allow guns in her house. She also testified that her two children lived in the house with her. Cleary testified that he did not have any firearms in the house and that he could not possess firearms due to his earlier conviction. The police searched the house and did not uncover any evidence of weapons, guns, ammunition, or anything related to firearms. Langford's counsel cross-examined Cleary regarding his allegedly shady past and current business dealings. Langford's counsel argued before the jury that it was unreasonable to believe that Cleary would not carry a firearm while engaged in his high-cash business ventures. The jury clearly was not convinced. This court will not review credibility determinations on appeal. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Based on the remaining evidence, there is a reasonable probability that the trial's outcome would have been the same had the trial court not admitted the alleged good character evidence. Jackson, 102 Wn.2d at 695.
Langford's claim of cumulative error fails because there was no error.
Affirmed.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.