Opinion
No. 50925-0-I.
Filed: April 12, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 01-1-01174-4. Judgment or order under review. Date filed: 07/26/2002. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
S Lemery — Informational Only (Appearing Pro Se), Doc # 843038, 9601 Bujacich Rd. NW, P.O.BOX 17, Gig Harbor, WA 98335-0017.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Susan Lemery appeals her convictions on three counts of third degree child rape and two counts of third degree child molestation. She contends that the counts against the two victims should have been severed from each other, that hearsay evidence was improperly admitted, and that the prosecutor committed misconduct by violating the trial court's in limine rulings and making improper closing argument. She also argues that her trial attorney inadequately investigated evidence related to DNA (deoxyribonucleic acid) samples and failed to object when inadmissible evidence was mentioned at trial. We find no error and affirm.
FACTS
K and T, both 14 years old, were on sports teams and were friends with Susan Lemery's son, J. Frequently, Lemery drove the boys to and from school and sports events. The boys attended middle school together. Lemery was a second grade teacher at an elementary school.
After suspicions arose about the close relationship between Lemery and T, middle school personnel interviewed T on May 15 and 29, 2001, and K on June 12, 2001. T disclosed that he had had sexual contact and intercourse with Lemery in March and April 2001; K disclosed that he had had sexual contact with Lemery in October 2000. Testimony regarding the boys' disclosures was admitted to evidence under the `fact of complaint' doctrine to establish that each alleged victim made a timely complaint of sexual abuse.
At trial, K testified that his sexual contact with Lemery occurred on the night of October 14, 2000. During the fall of 2000, K and T were frequent visitors at the Lemery house after school and at overnight sleepovers. On October 14, K drank beer and smoked marijuana with Chad, a friend with whom he was to spend the night. K testified that he and Chad met Lemery at a Thriftway supermarket that evening and Lemery gave K a ride back to her house. Because K was intoxicated, he did not want to go home or to Chad's house. Chad decided not to go with them. Lemery's son and husband were out of town on a hunting trip. Chad testified that the Thriftway encounter never happened.
K testified that during the night at Lemery's house, Lemery climbed into the bed where he was asleep. She kissed him and put her hand into his pants to touch his penis. K testified that he rolled over and Lemery left the room.
T testified that he had sexual contact and sexual intercourse with Lemery at her house during March and April 2001. In mid-March 2001, around 7 a.m. during a sleepover, T and Lemery wound up on a living room sofa lying face to face. Other boys were asleep on the living room floor. Lemery placed her hand on T's penis over his pants for approximately 10 seconds. T testified that the same thing happened on the following weekend, although this time he placed his hand on her breast under her shirt and she touched his penis under his pants for approximately 10 seconds. Lemery denied that either incident occurred.
T testified that he had sexual intercourse with Lemery three times during school vacation week, which was April 9-13, 2001. On the Saturday night before break, T spent the night at the Lemery house. Lemery's son and husband were preparing to leave on Sunday morning for a hunting trip in Eastern Washington. T testified that during the night, Lemery led him to her daughter's bedroom. She carried her daughter out of her room and placed her in another room. Lemery and T then had sexual intercourse in the daughter's bedroom. T testified that on the following Monday evening, he had sexual intercourse with Lemery in the master bedroom and again in the master bedroom during a Tuesday night sleepover. T said that he initially fell asleep on the sofa, but that around 4 a.m. he went to Lemery's room where they had sex and he slept until morning. Lemery denied having sex with T. A babysitter, April, supported Lemery's account. April had spent the night at the Lemery house on Tuesday and testified that Lemery's daughter was put to bed in the master bedroom where she slept until the morning and that T had slept on the living room sofa the entire night.
After T and K disclosed sexual abuse to the school staff and the police, Lemery was arrested and charged with two counts of third degree child molestation against T, three counts of third degree child rape against T, and one count of third degree child molestation against K. The quilt from the master bedroom was seized as evidence, and DNA experts testified at trial that it contained a stain consisting of T's semen and Lemery's DNA. A jury convicted Lemery on the five counts related to T. It did not reach a verdict on the count related to K. DISCUSSION
The first question raised on appeal is whether the trial court abused its discretion by declining to sever the count related to K from the counts related to T. `Defendants seeking severance have the burden of demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.' State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). When two or more offenses of similar character are otherwise properly joined under CrR 4.3(a)(1), a trial court's decision not to sever the charges is reviewed for manifest abuse of discretion. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
Lemery argues that severance should have been granted due to the lack of cross-admissible evidence between the counts related to each boy and due to the risk of prejudice from the inference that she had a propensity to commit sexual offenses against 14-year-old boys. She relies on State v. Harris, 36 Wn. App. 746, 749, 677 P.2d 202 (1984) and State v. Ramirez, 46 Wn. App. 223, 730 P.2d 98 (1986), both of which held that it was an abuse of discretion not to sever counts alleging sexual offenses where the incidents were not related and the evidence was not cross-admissible. In State v. Warren, 55 Wn. App. 645, 779 P.2d 1159 (1989), however, this court rejected the argument that severance is automatic when multiple counts involve evidence that is not cross admissible. Warren noted that `subsequent cases have declined to follow Ramirez to the extent it holds that a failure to grant severance when the evidence of multiple counts would not be cross admissible at separate trials requires automatic reversal.' Warren, 55 Wn. App. at 654 (citing State v. Watkins, 53 Wn. App. 264, 766 P.2d 484 (1989); State v. Standifer, 48 Wn. App. 121, 737 P.2d 1308 (1987); cf. State v. Gatalski, 40 Wn. App. 601, 699 P.2d 804 (1985)). More recently, the Supreme Court in State v. Kalakosky, 121 Wn.2d 525, 852 P.2d 1064 (1993) held that cross admissibility is simply one factor to be considered, stating `[t]he fact that separate counts would not be cross admissible in separate proceedings does not necessarily represent a sufficient ground to sever as a matter of law.' Kalakosky, 121 Wn.2d at 538. Thus, recent case law does not support Lemery's contention that severance is automatic when evidence on multiple counts is not cross admissible.
Lemery attempts to distinguish Kalakosky on its facts by arguing that much of the evidence in Kalakosky was cross admissible as part of a common scheme or plan, whereas such evidence is absent here. But Lemery's argument addresses only the weight to be given when evaluating the potential economy of joint trials. The holding in Kalakosky controls. Severance is not automatic when separate counts rely on evidence that is not cross admissible.
In addition, the record shows that the trial court weighed all of the appropriate factors when considering Lemery's motion to sever. The factors to consider in determining prejudice to a defendant are whether the defendant may become embarrassed or confounded in presenting separate defenses or if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition. Bythrow, 114 Wn.2d at 718; State v. Watkins, 53 Wn. App. 264, 766 P.2d 484 (1989). Here, Lemery's defense was a general denial on all counts, so her defense was not confounded by joinder of the counts. And the lack of a conviction on the count related to K reflects the jury's ability to assess each count separately without inferring a criminal disposition.
Prejudice mitigating factors include the jury's ability to compartmentalize the evidence, the strength of the State's evidence on each count, the admissibility of the evidence for the various counts, whether the judge instructed the jury to decide each count separately, and the concern for judicial economy. Kalakosky, 121 Wn.2d at 537.
The trial court found that while not all of the evidence was cross admissible, there was enough cross admissible evidence to weigh in favor of joinder. The evidence relating to each boy's allegations was not difficult to compartmentalize, given the differences between each count and the time and place that the alleged offenses took place. As shown by the lack of unanimity on the count related to K, there was minimal risk of confusion by the jury. Clearly, the jury was instructed to, and did, consider the evidence on each count separately. It cannot be said under these circumstances that the trial court abused its discretion in declining to sever the counts.
Lemery next argues that the court abused its discretion in admitting inadmissible hearsay as a result of its misapplication of the fact of complaint rule. The fact of complaint doctrine is a hearsay exception that permits hearsay evidence of a timely complaint of sexual abuse to be presented to support the inference that the complainant is testifying truthfully. State v. Ackerman, 90 Wn. App. 477, 481, 953 P.2d 816 (1998). The State argues that the trial court properly admitted the evidence because it did not consist of verbal or nonverbal assertions and therefore was not hearsay. The trial court's decision on the admissibility of evidence may be reversed only on a showing of manifest abuse of discretion. State v. Quigg, 72 Wn. App. 828, 835, 866 P.2d 655 (1994).
Hearsay statements can consist of written or verbal assertions or nonverbal conduct intended to be an assertion and are inadmissible when offered in evidence to prove the truth of the matter asserted. ER 801(a), (c). On the other hand, `[n]onverbal conduct that is not intentionally being used as a substitute for words to express a fact or opinion is not hearsay.' In re Dependency of Penelope B., 104 Wn.2d 643, 652, 709 P.2d 1185 (1985). Thus, such evidence is not hearsay. `The admissibility of nonassertive verbal or nonverbal conduct as circumstantial evidence of a fact in issue is governed by principles of relevance, not by hearsay principles.' Penelope B, 104 Wn.2d at 652-53. We begin our analysis by reviewing the challenged evidence.
In her pro se brief, Lemery argues that the trial court should not have admitted any details regarding T's nonverbal reactions to statements made during his May 29, 2001 interview with a school counselor, a school physical education teacher, and a Snohomish County Sheriff officer. But because this testimony was not hearsay, it is not subject to the restrictions on admitting hearsay evidence. Penelope B's distinction between inadmissible nonverbal assertions and nonverbal conduct applies. We therefore reject her argument.
Lemery also argues that under State v. Alexander, 64 Wn. App. 147, 151, 822 P.2d 1250 (1992), she is entitled to a new trial because details of T's fact of complaint were revealed to the jury when witnesses were asked to describe the statements that immediately preceded T's disclosure of abuse. The challenged evidence is as follows:
Q: (By Ms. Paul) What did you hear Deputy Siegel say to [T], then?
A: [K. Hull] He said, `We've already talked to Mrs. Lemery.'
Q: And what did you observe after that?
A: [T] looked down. And Officer Siegel followed that question by saying, `How many times did you have sex with Mrs. Lemery?'
. . . .
Q: Okay. You've talked about [T] hanging his head, and at some point did he disclose sexual abuse?
A: He said one time.
[DEFENSE COUNSEL]: Your Honor, objection. It's a yes or no answer. Ask that it be stricken.
THE COURT: Sustained.
Q: (By Ms. Paul) Yes, did he, did [T] disclose sexual abuse?
[DEFENSE COUNSEL]: I'm going to ask her to answer yes or no.
A: Yes.
Q: (By Ms. Paul) At what point did he do that? After what happened?
A: After Officer Siegel said, `How many times?'
Lemery's argument fails with respect to T's `one time' response because the trial court sustained defense counsel's objection. The court had just a few questions earlier reminded the jury to disregard stricken testimony, and the jury is presumed to follow the court's instructions to disregard evidence. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991). Furthermore, the prosecutor's reference to the police officer asking how many times T had sex with Lemery was admitted by the trial court as foundational statements to the demeanor testimony, not to prove the truth of the matter asserted. When statements are admitted for a purpose other than to prove the truth of the matter asserted, they are not hearsay. ER 801(c). If the prosecutor's question had been deemed objectionable at the time, a timely objection should have been raised, as was done frequently by defense counsel during this series of questions. In any event, no prejudice could result from the prosecutor's statement because T himself testified at trial that he had sexual intercourse with Lemery and T was subject to cross-examination.
Lemery also argues that K's disclosure of abuse was improperly admitted under the fact of complaint doctrine because it was not timely. Lemery relies upon State v. Griffin, 43 Wn. 591, 599, 86 P. 951 (1906), in which the Supreme Court reversed a rape conviction where the complainant disclosed her allegations for the first time eight to nine months after the alleged incident. K's disclosure regarding an October 14, 2000 incident was not made until June 12, 2001. But even assuming that K's complaint was not timely, Lemery was not convicted on the count that the fact of complaint was admitted to prove. Accordingly, there was no prejudice and it is not reversible error.
We next address Lemery's contention that the prosecutor committed misconduct by eliciting evidence that the trial court had excluded in pretrial rulings. Washington courts have held that dismissal can be an appropriate remedy for a prosecutor's violation of an in limine order limiting admission of prejudicial evidence. State v. Ransom, 56 Wn. App. 712, 713 n. 1, 785 P.2d 469 (1990). In State v. Stith, 71 Wn. App. 14, 22, 856 P.2d 415 (1993), this court reversed a conviction for delivery of cocaine in part because a prosecutor referred in his rebuttal closing argument to the defendant's recent release from jail for a previous drug dealing conviction. The trial court had expressly excluded all evidence of the defendant's prior conviction.
There is no similarity between Stith and the case at bar. Lemery contends that the prosecutor violated the trial court's in limine orders, which limited admissible evidence to testimony regarding T's fact of complaint of sexual abuse and T's demeanor (i.e., nonassertive conduct) when complaining of sexual abuse. But the record does not support Lemery's contentions. Here, the prosecutor incorporated the trial court's evidentiary limitations into her questions. For example, in addition to the above cited excerpts in which the prosecutor asked the witness to describe T's demeanor and asked if T disclosed sexual abuse, the prosecutor also asked, `And without telling us what [T] said, what did you observe about [T] when he was talking to the officer?' Although at one point the witness testifying to the fact of complaint went beyond the order's scope and revealed T's response, `One time,' this response was not the result of misconduct and the trial court sustained defense counsel's objection. This is in sharp contrast to the prosecutor's direct references to prohibited evidence in Stith.
Lemery also challenges the prosecutor's questioning of T regarding a conversation he had with Lemery's husband, Dan. The prosecutor attempted to impeach T by asking if there were ever conversations in which Dan was not joking about T's relationship with Lemery. T responded yes, stating that there was such as conversation, `After he found out we had sex, yes.' The prosecutor then asked whether Dan `found out' before or after T spoke with the police, and T answered that it was after.
At trial, the court deferred its evidentiary ruling regarding this conversation due to concerns regarding its relevance. But even if we assume that the matter should have been raised outside the jury's presence, these questions did not amount to prosecutorial misconduct. Contrary to Lemery's assertions, nothing in this exchange demonstrated an opinion by Dan on Lemery's guilt. Moreover, this series of questions and answers tends to dispel Lemery's concern that the jury would infer from this that Dan learned of the relationship from Lemery. Rather than suggesting that Lemery had `confessed' to Dan, T's statement that the tone of his conversations with Dan changed after T had spoken with police suggests that Dan learned of the relationship from persons other than Lemery. It would not be a surprise to any juror that Dan would have knowledge of T's allegations after T disclosed sexual abuse to the police. We find no prejudice.
Lemery also claims that prosecutorial misconduct occurred during closing arguments. Allegedly improper comments are reviewed `in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given.' State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). When improper argument is charged, the defendant bears the burden of establishing the impropriety of the prosecutor's argument as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995). Reversal is required only if there is a substantial likelihood that the misconduct affected the verdict. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
Lemery challenges as improper the prosecutor's argument that K's mother had `what we call mother's intuition. She knew her son. She knew that her son was spending time with the defendant, and she knew there was something that was not right about that relationship.' She asserts that this argument was an improper inference of opinion as to Lemery's guilt.
We disagree. The prosecutor's statement did not invite the jury to conclude that K's mother knew of or even suspected a sexual relationship. The only evidence presented was that K's mother had concerns about Lemery's influence on her son. K's mother testified during trial that she had caught K sneaking out of the house late at night, she had seen K get into and out of Lemery's car late at night, and that K and Lemery had late night phone calls and computer chat sessions. For these reasons, in December 2000, she attempted to limit K's contact with Lemery. The only reasonable inference the prosecutor drew from this evidence is that K's mother did not want him to have further contact with someone who she believed was not encouraging responsible behavior. This was not improper argument.
Lemery next contends that her attorney's deficient performance deprived her of effective assistance of counsel. During trial, her attorney requested a continuance to conduct additional discovery when he became aware that State DNA expert witnesses were prepared to offer more incriminating expert opinions than he had anticipated.
A party asserting ineffective assistance of counsel has the burden of showing that counsel's performance was deficient, that is, that it fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). In reviewing such a claim, we bear in mind that there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Sherwood, 71 Wn. App. at 483 (citing State v. Visitacion, 55 Wn. App. 166, 173, 776 P.2d 986 (1989)). `Failure to investigate or interview witnesses, or to properly inform the court of the substance of their testimony, is a recognized basis upon which a claim of ineffective assistance of counsel may rest.' State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991).
The State presented two expert witnesses to testify regarding the DNA evidence found on Lemery's quilt. Lemery's attorney requested a brief continuance during trial on the grounds that he had failed to anticipate and adequately prepare for these witnesses' opinions that, based upon the quantity of sperm in relation to Lemery's DNA material in the DNA sample, the presence of T's sperm on the Lemery quilt was more probably seepage from intercourse than a semen stain deposited directly on the quilt.
While a failure to investigate can be the basis of an ineffective assistance claim, the facts do not support Lemery's argument. By comparison, in State v. Jury, 19 Wn. App. 256, 264, 576 P.2d 1302 (1978), an inexperienced attorney's complete failure to investigate the nature of the case against his client or interview any witnesses was deemed deficient representation. That attorney's conduct fell well below the minimum necessary to provide effective assistance to his client. Here, Lemery presents no evidence showing that her attorney's failure to interview an expert witness at an earlier stage of the case was beyond what a reasonable attorney would do or was prejudicial. See also Visitacion, 55 Wn. App. at 174 (relying in part upon an affidavit from an experienced criminal defense attorney stating that the trial attorney's conduct fell below prevailing professional norms).
In addition, defense counsel was able to effectively cross-examine the State's witnesses and elicit significant concessions from them that there was no test or method that could conclusively prove how the DNA material was left on the quilt. Lemery's own expert testified favorably to Lemery on these topics. In light of this testimony, it is unlikely that obtaining a continuance to locate and consult with another expert would have provided additional rebuttal evidence that was not already available. In any event, Lemery has not shown how she was prejudiced by her attorney's conduct.
Lastly, Lemery challenges her attorney's failure to object to the detail of T's complaint and Dan's statement to T, both of which confirmed sexual contact. As discussed above, admission of T's nonassertive conduct and the foundational statements preceding that conduct was not improper. Additionally, Lemery has not shown that she was prejudiced by T's responses revealing Dan's statement. She therefore has failed to satisfy her burden of showing that she received ineffective assistance of counsel. Since Lemery has failed to show any material errors, her cumulative error argument need not be addressed.
We affirm.
ELLINGTON, and APPELWICK, JJ., concur.