Opinion
Nos. 59628-4-I; 59629-2-I.
August 4, 2008.
Appeals from a judgment of the Superior Court for Snohomish County, No. 01-1-00229-0, Thomas J. Wynne, J., entered February 15, 2007.
Affirmed by unpublished per curiam opinion.
Daniel K. Larson appeals his conviction for premeditated murder in the first degree. Through his attorney, he argues that he was prejudiced by prosecutorial misconduct when the prosecutor, during closing argument, appealed to the passion of the jury by speculating as to what the deceased victim might have said if she had lived long enough to attend her 50th college reunion and by using appellant's prior felony conviction to show that he had a propensity to commit crime. Larson makes several more arguments for reversal in a statement of additional grounds. We affirm.
BACKGROUND
Larson was charged with premeditated first degree murder for his part in the death of Anastasia King. The State alleged that on September 22, 2000, Larson and his landlord, Indle King, carried out a plot to kill King's wife, Anastasia, and dispose of her body. After a week long jury trial, Larson was convicted as charged and sentenced within the standard range to 384 months.
The key evidence against Larson was the testimony he gave in the first degree murder trial of Indle King, where Larson admitted to strangling Anastasia to death with a necktie while King held her down. Larson had rented a room in the Kings' home for several months leading up to the murder. In the days just before the murder, Anastasia and Indle King had been visiting Anastasia's parents in Kyrgyzstan. The night they returned to SeaTac Airport, King called Larson from the airport and told him that he was on his way home with his wife and that he was going to kill her and wanted Larson to help him.
King gave Larson instructions to tie up the phone line by logging on to the Internet, so Anastasia could not use the phone when she got home. Larson complied, but by the time they arrived, the computer had logged off due to inactivity. Anastasia made a phone call, and King reprimanded Larson for not tying up the phones. He then told Larson to hide in the garage with a necktie, wait for him to lure Anastasia into the garage, and then strangle her with the necktie. Larson followed King's instructions. After they had killed her, Larson and King carried Anastasia's body to King's car and also put a pickax and two shovels in the car. Larson rode in the passenger seat while King drove to a remote area on the Tulalip Reservation where they buried Anastasia in a shallow grave. After both King and Larson were arrested, Larson showed police where Anastasia was buried. The defense did not deny Larson's involvement in Anastasia's death. Rather, Larson's defense theory was that he was not guilty of first degree murder because he did not premeditate killing her.
In closing argument, the prosecuting attorney told a story about a man she knew named Marty, who was an immigrant to the United States. She described milestones in Marty's life and then relayed the speech he gave to his college classmates at his 50th reunion. She told them that Marty said,
In no other country have so many people . . . shared the good things of life. No other country has been so generous to the rest of the world. No other country could have encouraged us so much to dream big dreams. No other country could have given us so much opportunity to make those dreams come true.
She then told the jury, "Those were the words that Anastasia King might have said in 2054 at her reunion at the University of Washington if not for Daniel Larson."
The defense, in its closing argument, focused on the argument that Larson had not premeditated the murder and that he was under the coercion and control of King. Larson's counsel discussed his personal difficulties, such as homelessness, that made him vulnerable to King's control. In her rebuttal argument, the prosecutor said, "We'll never know what Daniel Larson's past was except that he was already a convicted felon at the age of 19."
DISCUSSION
A prosecutor may not appeal to the jury's passion and prejudice or call to its attention matters the jurors have no right to consider. Where a defendant fails to object to alleged prosecutorial misconduct, this court must determine whether "the prosecutorial misconduct is so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." We will reverse a conviction "only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict."
State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988).
Belgarde, 110 Wn.2d at 507.
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
The State argues that the prosecuting attorney did not commit misconduct because the argument was not comparable to those that courts have held to be improper. We hold that the prosecutor's argument was improper but that the error was harmless.
In order for prosecutorial misconduct to warrant reversal, the prejudice must be so severe that a curative instruction could not obviate it. In State v. Claflin, the defendant had allegedly engaged in a pattern of repulsive sexual and physical abuse of young girls over a long period of time. During closing argument, the prosecutor read a poem written by an anonymous rape victim, which "utiliz[ed] vivid and highly inflammatory imagery in describing rape's emotional effect on its victims." Because the poem was "nothing but an appeal to the jury's passion and prejudice" and "contained many prejudicial allusions to matters outside the actual evidence against Claflin," the court held that it "was so prejudicial that no curative instruction would have sufficed to erase the prejudice it was bound to engender in the minds of the jurors." In a murder trial, State v. Belgarde, the prosecutor characterized the defendant as belonging to "a deadly group of madmen" who were "butchers that kill indiscriminately," comparing them to well-known terrorist groups. Additionally, the prosecutor drew the jury's attention to facts that were not in evidence. Our Supreme Court reversed the conviction for first degree murder and ordered a retrial, holding that the misconduct was so flagrant and ill-intentioned that no instruction could cure it.
Belgarde, 110 Wn.2d at 507.
38 Wn. App. 847, 690 P.2d 1186 (1984).
Claflin, 38 Wn. App. at 850.
Claflin, 38 Wn. App. at 850-51.
110 Wn.2d 504, 755 P.2d 174 (1988).
Belgarde, 110 Wn.2d at 508.
Belgarde, 110 Wn.2d at 508.
Belgarde, 110 Wn.2d at 508, 510.
Other prosecutorial misconduct, while inappropriate, does not rise to the level requiring reversal of a conviction. Our Supreme Court in State v. Russell held that the prosecutor in a murder trial committed egregious misconduct by arguing that the defendant would go to another community and begin killing again, if acquitted. However, the Court held it was not so flagrant as to warrant a new trial because Russell had not objected to the argument, the argument did not engender repulsion, and the defense incorporated the statement into its own argument. In State v. Moran, the defendant and others had allegedly beaten the victim unconscious, left, and then returned to beat him again until he died. At the beginning of closing argument, the prosecutor told the jury to imagine the victim waiting alive under a tree for his killers to come back and finish him off. At the end of closing argument, the prosecutor argued:
125 Wn.2d 24, 882 P.2d 747 (1994).
Russell, 125 Wn.2d at 89.
119 Wn. App. 197, 81 P.3d 122 (2003).
Moran, 119 Wn. App. at 219.
So Stephen Camero waits. I don't know, and I submit that we will never know, what we do here will quiet his spirit, will be an end of this for him, but what Stephen Camero waits for now, I submit, is for this case to be done, what happened in April of 1998 to be over with. He waits for your verdict.
Moran, 119 Wn. App. at 219-20.
This court held that, while the argument was an appeal to the jury's emotion, it was not so flagrant and ill-intentioned that any prejudice from the argument could not have been cured with an objection and jury instruction. Similarly, in State v. Klok, the prosecutor referred to the defendant as "`the guy who has been laughing through about half of this trial.'" This court held that it was improper for the prosecutor to comment on the defendant's demeanor and invite the jury to draw from it a negative inference about his character, but that the comment was not grounds for reversal because the prejudice it caused could have been cured by an instruction.
Moran, 119 Wn. App. at 220.
99 Wn. App. 81, 992 P.2d 1039 (2000).
Klok, 99 Wn. App. at 82.
Klok, 99 Wn. App. at 85.
Here, the prosecutor's surmise about what Anastasia might have said at her 50th college reunion was a deliberate appeal to jurors' emotions and therefore inappropriate. However, unlike in Belgarde and Claflin, the prosecutor here did not bring in evidence not introduced at trial or attempt to create a sense of revulsion by comparing "Marty" with the person Anastasia could have become had she not been murdered. In closing argument, the defense stated,
The prosecutor talked to you about the speech this man gave about his country and how this is a country of opportunity and a country where we can all make our lives better. Unfortunately, that's not the country, that's not the part of the country that Daniel Larson has seen. . . . Larson is someone that [sic] by 19 years of age has been homeless, still had a difficult time finding a place to live. Daniel was willing to put up with or feels [sic] like he has no choice but to put up with Indle King belittling him, threatening to kick him out, threatening to kill him.
As in Russell, the incorporation of the allegedly prejudicial statement into the defense argument weakens the contention that it denied Larson a fair trial. We hold that any prejudice from the inappropriate argument could have been obviated with an objection and curative instruction.
See Russell, 125 Wn.2d at 89.
Similarly, it was improper for the prosecutor to draw the jury's attention to Larson's previous felony during its closing argument. The prosecutor argued, "[w]e'll never know what Daniel Larson's past was except that he was already a convicted felon at the age of 19. He is not a robot and he has choices. He made those choices every day." The State argues that the statement
was not made in order to implore the jury to convict the defendant by drawing the inference that if he had the propensity to commit crimes. The argument was a direct response to the suggestion that the defendant did not have the advantages that Ms. King had, and was not as smart as she was so that he became subject to Mr. King's control.
But, as the State so clearly outlines in its brief, there was ample evidence to show that Larson was capable of making choices without discussing Larson's previous conviction. The argument was designed to encourage the jury to conclude that because Larson committed a felony in the past, he must also have committed the crime alleged in this trial. Thus, the prosecutor encouraged the jury to make an improper inference.
However, this error is harmless. The jury was already aware of Larson's felony conviction because Larson agreed to its admission for the purpose of showing that he had a difficult time securing housing. Again, the prosecutor's comment could have been cured by an objection and curative instruction. The misconduct was not so flagrant as to merit reversal.
ADDITIONAL GROUNDS
First, Larson argues that he was paralyzed by a "Hobson's choice" because he wanted to testify, but could not testify without having his criminal history come before the jury. Our Supreme Court has recognized that the risks and benefits that a defendant must weigh before deciding whether to testify present a difficult decision. "However, as hard as this choice may be for a defendant, requiring such choices is not inconsistent with the criminal process." We therefore find no ground for reversal.
State v. Brown, 113 Wn.2d 520, 553, 782 P.2d 1013, 787 P.2d 906 (1989).
Brown, 113 Wn.2d at 553.
In additional grounds 2 and 3, Larson argues that the State committed prosecutorial misconduct when it argued that he was Anastasia's primary killer because the State argued in King's trial that King was primarily responsible for her death. He contends that only one person, either he or King, but not both, should be charged with first degree murder and that the other person should only be charged with second degree murder. However, in order to prove first degree murder, the State was not required to prove whether it was King or Larson who was primarily responsible for killing Anastasia. The State had to prove that Larson committed all of the elements of first degree murder. The key evidence relied on by the State in both trials was the same and showed that Larson and King simultaneously participated in killing Anastasia. Under these facts, it was not inconsistent that Larson and King both were found guilty of first degree murder.
Fourth, Larson argues that he was provided ineffective assistance of counsel because his attorney failed to call an expert witness who could testify that Anastasia died from being crushed by King's body weight rather than from strangulation. He also argues that his counsel should have called a witness who could have demonstrated how a person can suffocate if great weight is placed on his or her chest and abdomen. To show that his counsel was ineffective, Larson must show (1) considering all the circumstances, his counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by the deficient representation. The decision whether to call a witness is generally a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. Although she did not call the witnesses requested by Larson, trial counsel did argue that Anastasia could have died from being suffocated by King's body weight based on the medical examiner's testimony. We hold that counsel's decision not to call an expert on this subject was a legitimate tactical decision.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).
Finally, Larson argues that it was improper for the trial court to allow the State to use statements and testimony he gave "under the auspices of immunity" and that this trial violated double jeopardy because he was already convicted of killing Anastasia King. Larson was initially charged with first degree murder for killing Anastasia but entered a plea agreement with the State. The State agreed to drop the charge to second degree murder if Larson would plead guilty and testify truthfully against Indle King. Larson testified and was sentenced to 240 months under the agreement. However, he withdrew his guilty plea in breach of the plea agreement, and the State reinstated the first degree murder charge against him. As articulated in greater detail in our decision in Larson's previous appeal, the reinstatement of those charges was within the plea agreement and did not violate double jeopardy. Likewise, Larson's testimony from King's trial and the transcripts of his custodial statements were admissible as party admissions because Larson knowingly waived his rights before giving those statements.
State v. Larson, noted at 128 Wn. App. at 1071 (2005).
State v. Larson, noted at 128 Wn. App. at 1071 (2005).
We find no reversible error.
Affirmed.