Opinion
No. 61409-6-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10024-3, Mary E. Roberts, J., entered March 5, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Lau, J.
Dustin Larue contends prosecutorial misconduct deprived him of a fair trial and that the court's decision to give a corrected jury instruction violated the appearance of fairness and law of the case doctrines. We disagree and affirm.
BACKGROUND
Dustin Larue was charged with two counts of rape of a child in the first degree (domestic violence) and one count of rape of a child in the second degree (domestic violence). The State alleged Larue sexually assaulted his half-sister, E.J., when she was between 7 and 12 years old and Larue was between 15 and 20 years old.
E.J. testified that Larue began touching her vagina with his fingers and tongue when she was 8 years old and had her touch his penis with her hand and mouth. E.J. testified this continued "[e]very other day" while she and Larue lived with their mother in a trailer in Sea-Tac. The abuse continued, though less frequently, after they moved into an apartment when E.J. was about 10 years old. E.J. left that apartment and moved in with her aunt when she was 11. She no longer had contact with Larue and the abuse ceased. But when she visited her mother during spring break when she was 12, Larue once again had her perform oral sex on him.
Report of Proceedings (RP) (Jan. 29, 2008) at 41.
The jury convicted Larue as charged, and he appeals.
DISCUSSION Prosecutorial Misconduct
E.J. was 16 at the time of trial. The record indicates she had considerable difficulty speaking loud enough for the jury, the court, and counsel to hear. After several questions about Larue's conduct, the prosecutor asked if E.J. needed a break. The court granted a short recess. When court reconvened, the prosecutor asked the following questions:
Q: So [E.J.], over the break, we talked; is that right?
A: Yes.
Q: And did I ask you what I could do that would make it easier for you to talk about stuff?
A: Yes.
Q: And what did you tell me might make it easier?
DEFENSE: I'm going to object to hearsay and relevance.
THE COURT: Sustained.
Q: [E.J.], I'm going to stand over here, okay?
A: Okay.
Q: What did I make you promise to do?
A: Tell the truth.
Q: What else did I make you promise to do if I sit over here?
A: Speak louder.
Q: Thank you. So I want to talk a little bit more about when you lived in the trailer park.
Id. at 30-31.
Larue contends the prosecutor improperly elicited E.J.'s promise to tell the truth.
To prevail on a claim of prosecutorial misconduct, Larue must show that the conduct "was both improper and prejudicial in the context of the entire record and circumstances at trial."
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 618 (2003).
Here, the prosecutor committed no misconduct. She did not express an opinion about E.J.'s truthfulness or credibility, did not solicit such an opinion from any other witness, and did not suggest she had information not presented to the jury that corroborated E.J.'s testimony. It is not even clear the prosecutor intended E.J. to repeat her promise to tell the truth. Rather, it appears she wanted E.J. to repeat her promise to speak louder if the prosecutor would "stand over here" in order to "make it easier for [E.J.] to talk about stuff." There was no misconduct.
See State v. Copeland, 130 Wn.2d 244, 289-90, 922 P.2d 1304 (1996) (prosecutor commits prejudicial misconduct by expressing a personal opinion on the credibility of a witness).
See Hughes, 118 Wn. App. at 725-26 ("A prosecutor commits misconduct when his or her examination seeks to compel a witness to give an opinion on whether another witness is telling the truth."); State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995).
See United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (improper vouching may occur when the prosecutor "`indicate[s] that information not presented to the jury supports the witness's testimony'") (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).
RP (Jan. 29, 2008) at 30-31.
Larue argues this issue merits review as "manifest constitutional error." Appellant's Brief at 6-7. We have already declined to analyze prosecutorial misconduct under that standard: "We see no need to replace the `flagrant and ill-intentioned' test for misconduct with the test for manifest constitutional error." Neidigh, 78 Wn. App. at 78. The Supreme Court declined to reach the same issue in State v. Warren, 165 Wn.2d 17, 26 n. 3, 195 P.3d 940 (2008). Because there was no misconduct here, we need not decide whether the constitutional error standard is ever appropriate for claims of prosecutorial misconduct.
Supplemental Instructions
The certification for determination of probable cause alleged oral sex and sexual touching but not penetration. Although the State at all times pursued its theory that Larue committed rape of a child by engaging in oral sex with E.J., its proposed jury instruction did not define "sexual intercourse" to encompass that conduct. Instead, the instruction required proof of penetration. The instruction thus omitted the relevant part of the statutory definition concerning "any act of sexual contact between persons involving the sex organs of one person and the mouth . . . of another."
The State's proposed instruction defined the term as follows: "Sexual intercourse means that the sexual organ of the male entered and penetrated the sexual organ of the female and occurs upon any penetration, however slight or any penetration of the vagina or anus, however slight by an object, including a body part, when committed on one person by another, whether such persons are of the same or opposite sex." Clerk's Papers at 127.
"`Sexual intercourse' (a) has its ordinary meaning and occurs upon any penetration, however slight, and (b) [a]lso means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and (c) [a]lso means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex." RCW 9A.44.010(1) (emphasis added).
The court read this instruction to the jury, and the parties made their closing arguments. Consistent with its original allegations and the evidence in the case, the State argued that sexual intercourse occurred "in two different ways. Dustin Larue would lick [E.J.]'s vaginal area with his tongue [and] would also force her to suck on his penis and perform fellatio."
RP (Jan. 31, 2008) at 17.
In his closing argument, Larue's counsel pointed out that the definition of sexual intercourse contained in the instructions "requires proof of penetration." Defense counsel acknowledged E.J.'s testimony about the oral-genital contact, but argued the conduct did not constitute intercourse.
Id. at 27.
Larue's counsel argued: "All of the things she described, if true, are wrong. Many could be described as crimes, but none of them are the crime that the State has chosen to charge Dustin with, because none of them involved penetration. The State could have charged Dustin with charges that fit these facts, but they didn't. That was their decision, and what follows from that decision is their responsibility, not yours. Your obligation is to follow the law. Even if you believe [E.J.]'s testimony, it does not prove Dustin guilty of the crimes charged." Id. at 28.
After the arguments, the court sent the jury to the jury room but instructed them not to begin deliberations. The court then advised counsel that it intended to provide a replacement instruction containing the omitted language: "I believe that that is the appropriate thing to do and that it would not be appropriate for me to let an instruction that I knew was incomplete go back to the jury when, in fact, it is the court's instructions." Over Larue's objection, the court read the new instruction to the jury, replaced it in their packets, and instructed the jury to begin deliberations.
Id. at 33.
Less than 15 minutes later, the court conferred with the parties again. The prosecutor informed the court that "technically, because there has been a change in the court's instructions, counsel needs to have the opportunity to add onto or submit additional closing argument, if he would like." The court immediately sent the jury to lunch and instructed them "very clearly that you are not to deliberate until you come back."
Id. at 38-39. The prosecutor also requested the court give WPIC 4.68.01, which instructs the jury to adhere to the replacement instruction, to give no consideration to the old instruction, and to "not attach special importance to the fact that this instruction was substituted for the previous one or that it was read separately to you." There is no issue pertaining to this instruction on appeal.
Id. at 41.
Defense counsel elected not to make additional arguments. The jury returned guilty verdicts on all charges.
Larue challenges the court's decision to provide the corrected instruction on two grounds: that the court violated the appearance of fairness doctrine by correcting the prosecutor's "strategic miscalculation" and that the court violated the law of the case doctrine by supplementing the original instructions.
"A trial court has discretion in deciding whether to give additional instructions." A court abuses its discretion only where the court's decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."
Hue v. Farmboy Spray Co., Inc., 127 Wn.2d 67, 93, 896 P.2d 682 (1995); State v. Langdon, 42 Wn. App. 715, 718, 713 P.2d 120 (1986). See also CrR 6.15(f)(1) (During deliberations, "[a]ny additional instruction upon any point of law shall be given in writing"); CrR 6.15(f)(2) ("After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.").
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Appearance of Fairness
Larue contends the court's decision to give the replacement instruction violated the appearance of fairness doctrine by suggesting an alignment with or partiality toward the State. "Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing."
State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992).
Larue cites Baker v. Peterson, a Sixth Circuit case holding that a district court violated the appearance of fairness doctrine when it "pursue[d] theories of his own," and argues the court in this case did the same. But in Baker, the court decided which witnesses would be called, interrupted proceedings to question the witnesses at length, and actively sought to establish its theory that the plaintiff had lied during her deposition and that her attorney violated ethical rules by failing to correct the falsehoods.
67 Fed. Appx. 308, 310 (6th Cir. 2003).
Id.
This case is not like Baker. The court had no theory of its own and its replacement instruction did not introduce a novel theory. Larue contends "it was not for the court to remedy the prosecutor's strategic miscalculation," and implies the State originally alleged penetration had occurred. This is incorrect. The State at all times pursued the same theory: that Larue engaged in sexual intercourse with E.J. by performing and receiving oral sex. The omission of the relevant portion of the sexual intercourse instruction was not a "strategic miscalculation" but an oversight, which the court had discretion to correct.
Appellant's Brief at 17 n. 4 ("Although the affidavit of probable cause and the State's trial brief described a number of different sexual allegations, it was at trial that E.J. actually testified that the defendant had wanted to insert his fingers into her vagina, but that she had not allowed him to do so.").
See State v. Linden, 171 Wash. 92, 108-11, 17 P.2d 635 (1932) (court did not abuse its discretion by recalling the jury, sua sponte, to give a supplemental instruction).
Larue also argues the court suggested an alignment or partiality towards the State by "advocat[ing] that a theory of guilt based upon the third and less commonly instructed definition of sexual intercourse should be argued." But the court advocated nothing other than accurate instructions for the jury. The State had already argued that theory. As the court indicated, it would have been inappropriate to leave the jury with instructions the court knew were incomplete.
Br. of Appellant at 17.
Law of the Case
Under the law of the case doctrine, "jury instructions not objected to become the law of the case." Because the State did not object to the incomplete sexual intercourse instruction before it was given, Larue contends it became the law of the case.
State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
Larue's argument assumes that jury instructions become the law of the case immediately upon being uttered by the court, but that cannot be so. Criminal Rule 6.15 clearly contemplates additional instructions, and numerous cases have held that the court has discretion to give supplemental instructions.
In response to jury questions, the court may give additional instructions in writing on "any point of law," but "shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time the jury will be required to deliberate." CrR 6.15(f)(1), (2).
See, e.g., State v. Frandsen, 176 Wash. 558, 563-64, 30 P.2d 371 (1934) (court did not abuse discretion by further instructing the jury after it had been deliberating for two days); State v. Linden, 171 Wash. 92, 108, 17 P.2d 635 (1932) (same); State v. Miller, 78 Wash. 268, 276, 138 P. 896 (1914) ("It was the duty of the court to fully instruct the jury as to the law of the case, and, if in the opinion of the court he had omitted anything which in his judgment would be of value to the jury in reaching a conclusion, we see no error in calling them from the jury room, and so instructing them"); State v. Frederick, 32 Wn. App. 624, 626, 648 P.2d 925 (1982) ("the trial judge may give additional written instruction to a deliberating jury on any point of law in the presence or after notice to the parties or their counsel") (citing CrR 6.15(f)(1)).
Larue attempts to draw an analogy to cases in which the State was bound on appeal by instructions that added superfluous elements to the to convict instruction. He relies on State v. Hickman, where the State failed to object to instructions that added venue as an element of the crime. When the defendant challenged the sufficiency of the evidence of venue on appeal, the law of the case doctrine defeated the State's argument that it was not required to prove the element. Finding insufficient evidence of venue, the court reversed Hickman's conviction.
135 Wn.2d 97, 954 P.2d 900 (1998).
Id. at 102.
Hickman is no help here. This is not a case where the State undertook but failed to prove an unnecessary element of the charged crime. And Hickman did not involve supplemental instructions given before the jury began deliberating.
The only issue is whether the court abused its discretion by providing the corrected instruction. On this issue, Larue relies on State v. Ransom. In Ransom, the State charged the defendant with possession of cocaine with intent to deliver based upon a theory of direct liability. In response to a jury question, and over the defendant's objection, the court gave an instruction on accomplice liability. Division Two of this court reversed, holding the court erred by giving the instruction after deliberations had begun. Ransom is inapposite. First, there is no mention of the law of the case doctrine in that opinion. Second, the supplemental instruction in that case reflected a theory the State had not advanced at trial. Since accomplice liability is a distinct theory of criminal culpability, the State "has an obligation to offer timely and appropriate instructions" and the "defendant has a right to rely on the fact that the State has elected not to pursue that theory." Here, the State had at all times prosecuted Larue based upon the oral-genital definition of sexual intercourse. Finally, in Ransom, defense counsel had no opportunity to argue against the accomplice liability theory. Larue was offered the chance to make additional arguments under the corrected instruction and elected not to do so.
56 Wn. App. 712, 713, 785 P.2d 469 (1990).
Id.
Id. at 714.
Id.
Larue also cites State v. Hobbs for the proposition that the "original jury instructions constituted the law of the case." There, we held the trial court abused its discretion by changing the to convict instruction to eliminate an extraneous element after the jury had been deliberating for two days. Despite a reference to the "law of the case," the decision relied not on that doctrine but on Ransom. Further, the Hobbs court acknowledged that supplemental instructions are appropriate in some instances:
71 Wn. App. 419, 859 P.2d 73 (1993).
Br. of Appellant at 21.
Hobbs, 71 Wn. App. at 424-25.
"Supplemental instructions `should not go beyond matters that either had been, or could have been, argued to the jury.'" In this case, the corrected instruction reflected the State's argument and the evidence of the case, which Larue twice had the opportunity to address.
Id. at 424 (quoting Ransom, 56 Wn. App. at 714).
In some cases, the opportunity to reargue the case is not dispositive. In Hobbs, the State's error appeared in both the information and the original instructions, and although the defense was given an opportunity to reargue its case, "there was no opportunity, here, to re-think its cross examination strategy, a strategy based on the State's earlier error." Id. at 425. Here the information and accompanying affidavit of probable cause clearly indicated the State's theory.
The court did not violate the law of the case doctrine and was well within its discretion to supplement the instructions with a corrected definition before the jury began deliberating.
Affirmed.
We concur.