Opinion
No. 64533-1-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01912-6, Gerald L. Knight, J., entered November 20, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Leach, A.C.J., and Spearman, J.
Rafael Leyva appeals his conviction for rape in the second degree. He contends the State impermissibly commented on his prearrest silence. He further alleges prosecutorial misconduct and argues that his trial counsel was ineffective for failing to object to the misconduct. Finding no error, we affirm.
FACTS
On May 19, 2006, 13-year-old J.L. spent the night at an apartment shared by her adult cousin, Anna Resendez; Anna's husband, Tino Resendez; and their children. Twenty-two year-old Rafael Leyva, a friend of Tino Resendez's since childhood, was visiting and also stayed overnight. Leyva and J.L. ended up sharing an air mattress in the living room.
According to J.L., in the middle of the night, she awoke to tickling on her arm then fell back asleep. Later, she woke up to find that Leyva was straddling her, had her arms pinned over her head and a pillow over her face. J.L. moved to free her face and one of her hands. She punched Leyva repeatedly on the shoulder while he continued to restrain her other arm with one of his hands and pull down her pajama bottoms with the other. Leyva penetrated J.L.'s vagina with his finger and then unzipped his pants and tried to have vaginal intercourse with her. J.L. twisted and moved her body so that he was not able to do so. J.L. said that although she wanted to cry out, she was "so scared, nothing would come out." Report of Proceedings (RP) (Sept. 28, 2009) at 56. Leyva then stopped, moved off of J.L., and went to the bathroom. When he returned, Leyva repeatedly asked J.L. not to tell anyone what happened. She agreed. J.L. wrapped herself tightly in a blanket and moved to the far edge of mattress.
Several days later, J.L. reported the incident and provided a statement to the police. After obtaining Leyva's full name, the detective assigned to the case tried to contact Leyva by telephone without success. The detective believed Leyva had no permanent address and later heard that he had moved to California.
The State filed charges of rape in the second degree and rape of a child in the second degree. Three years later, in 2009, a police officer stopped Leyva because the vehicle he was driving had a cracked windshield. Leyva gave his brother's name and information to the police officer. Upon discovering that Leyva had provided false information, the police officer arrested Leyva. Leyva then gave the officer his true identity and said he had lied about who he was because he knew there was a warrant for his arrest. According to the officer, Leyva also said he knew the police wanted to question him in connection with a rape case.
Apparently, neither the police department nor the prosecutor's office maintained contact with J.L. after she reported the incident and she was unaware that charges had been filed. During the intervening three years between the sexual assault and Leyva's arrest, J.L. saw Leyva on a few occasions, but she did not report it to the police, whom she believed were not pursuing the case.
At trial, Leyva testified that on the night in question, he awoke to a tickling sensation on his arm, but went back to sleep and nothing else occurred.
The jury convicted Leyva on both counts. At sentencing, both parties agreed to dismiss the rape of child count to avoid double jeopardy. The trial court imposed a standard range sentence of 90 months.
DISCUSSION
Comment on the Right to Silence
Leyva asserts that the State committed constitutional error by eliciting testimony that he failed to respond to the detective's attempts to contact him and then inviting the jury to conclude he was "probably guilty" because he did not take the opportunity to tell his side of the story. Our review of the record, however, leads us to conclude that the State did not elicit such testimony. Nor did the State improperly emphasize Leyva's prearrest silence or urge the jury to use that silence as substantive evidence of guilt.
Pretrial, the trial court ruled that the investigating detective could testify that she attempted to discuss J.L.'s allegations with Levya for the purpose of explaining the course of her investigation and so the jury would not assume that the State filed charges without attempting to corroborate the allegations or bothering to talk to both sides. In accordance with that ruling, the detective testified only that she attempted to contact Levya, but was not successful. The detective did not say that she left messages for Leyva, that he failed to respond to her inquires, or otherwise suggest that Leyva knew she was trying to contact him.
The detective did, in fact, talk to Leyva and scheduled an appointment to talk with him, but he did not show up. The defense successfully moved to exclude this evidence.
It was Leyva who, during his testimony, told the jury that he knew the police were trying to contact him. Leyva explained that he had prior negative experiences with law enforcement and, for that reason, was afraid to contact the police. During cross-examination, the State explored this explanation and during closing argument, argued it was not reasonable.
The State may not comment on a defendant's Fifth Amendment right to remain silent, including a defendant's prearrest silence. State v. Gregory, 158 Wn.2d 759, 839, 147 P.3d 1201 (2006); State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996). "A comment on an accused's silence occurs when used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt." Lewis, 130 Wn.2d at 707. But a prosecutor may touch upon a defendant's exercise of a constitutional right, provided the prosecutor does not "`manifestly intend [] the remarks to be a comment on that right.'" Gregory, 158 Wn.2d at 807 (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)). We do not consider a prosecutor's statement a comment on a constitutional right to remain silent if the remark was so subtle and so brief that it did not "`naturally and necessarily'" emphasize defendant's testimonial silence. State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008) (quoting Crane, 116 Wn.2d at 331). Further, even if improper, a prosecutor's remarks do not require reversal when "they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective." State v. Gentry, 125 Wn.2d 570, 643-44, 888 P.2d 1105 (1995).
Leyva analogizes the facts here to those in Burke. In that case, the defendant was charged with rape of a child in the third degree. Burke, 163 Wn.2d at 206. During a prearrest interview, Burke said he had consensual sexual intercourse with a high school girl, but he did not know her age. Burke, 163 Wn.2d at 206. At that point, Burke's father advised his son not to talk to the police until consulting with counsel. Burke, 163 Wn.2d at 208. At trial, the defendant argued that he reasonably believed the alleged victim to be 16 years old. Burke, 163 Wn.2d at 208. During its opening statement, case in chief, cross of the defendant, and closing argument, the State emphasized the termination of the interview and the fact that Burke failed to report his belief about the victim's age to the police. Burke, 163 Wn.2d at 209. The court held that the State impermissibly commented on the defendant's right to silence by inviting the jury to infer guilt from Burke's termination of the interview. Burke, 163 Wn.2d 222.
The facts and arguments here are more similar to those in Gregory. In the closing argument in Gregory's trial, the prosecutor referred to the defendant's failure to contact the police investigator for three days. Gregory, 158 Wn.2d at 840. Our Supreme Court held that the prosecutor's reference did not amount to a comment on the defendant's prearrest silence because the State had used the investigator's testimony to explain the investigative process, not to comment on the defendant's delay in contacting the police. Gregory, 158 Wn.2d at 840. The court concluded that the prosecutor's reference was "`so subtle and so brief that [it] did not "naturally and necessarily" emphasize [any] testimonial silence.'" Gregory, 158 Wn.2d at 840 (quoting Crane, 116 Wn.2d at 131 (first alteration in original).
Likewise, here, the detective testified about her efforts to contact Leyva in the course of describing the investigation and the State did not exploit that testimony to comment on Leyva's failure to contact the police. The State's only reference in closing argument to Leyva's failure to contact the police was limited to responding to his own explanation. And in responding, the State did no more than suggest that Leyva's testimony on this point was not credible. It did not go further and imply that Leyva would have contacted the police if he were innocent. We conclude that the State did not "manifestly intend[]" the remark to be a comment on Leyva's right to silence. See Gregory, 158 Wn.2d at 840.
In his reply brief, Leyva asserts that the course of the police investigation was not relevant. But Levya assigns error, not to the trial court's pretrial evidentiary ruling, but to the State's use of prearrest silence to draw an inference of guilt in violation of his constitutional rights.
Prosecutorial Misconduct
Leyva contends that the prosecutor engaged in misconduct both in cross-examination and closing argument. While cross-examining Leyva, the prosecutor focused on discrepancies between Leyva's testimony and the testimony of State witnesses. The prosecutor repeatedly asked Leyva whether the State witnesses "got it wrong." See RP (Sept. 30, 2009) at 296, 301-02, 304, 316-17, 323. During closing argument, the prosecutor returned to this theme, stating, "[R]emember all the people . . . he said got it wrong." RP (Sept. 30, 2009) at 380. The prosecutor then recounted several specific instances wherein Leyva said the State witness "got it wrong" and offered arguments as to each discrepancy about why the version testified to by the State's witness was more credible than Leyva's version. There was no objection to this line of questioning or closing argument.
Prosecutorial misconduct requires a showing that (1) the prosecutor's conduct was improper and (2) it was prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). 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 jury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
A prosecutor may properly draw inferences "from the evidence as to why the jury would want to believe one witness over another." State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995); see also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Asking a witness whether another witness was mistaken or "got it wrong" is not improper or objectionable as long as such questions are relevant and probative. State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995). And where the jury is presented with conflicting versions of the facts and the credibility of witnesses is critical, "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." Wright, 76 Wn. App. at 825. Here, the State's cross-examination asking if State witnesses "got it wrong" on several points was not misconduct. The closing argument reminding the jury of those discrepancies was likewise not improper.
Nevertheless, Leyva argues that the State's cross examination and closing argument improperly "urg[ed] the jurors to conclude that in order to acquit, they had to conclude that the State's witnesses were lying." Br. of Appellant, at 21. In other words, Leyva maintains that questions about whether other witnesses are mistaken are equivalent to questions asking whether other witnesses are lying. Leyva relies on State v. Walden, 69 Wn. App. 183, 847 P.2d 956 (1993), decided before Wright. In that case, a panel of this court observed there was no significant difference between asking the defendant if a witness was lying and asking if the witness was merely mistaken. But we later questioned the wisdom of this proposition in Wright, explaining:
Unlike questions about whether someone is lying which are unfair to the witness because there may be other explanations for discrepancies in the testimony, questions about whether another witness was mistaken do not have the same potential to prejudice the defendant or show him or her in a bad light. In addition, questions about whether another witness is mistaken may, under certain circumstances, be relevant and probative.
Wright, 76 Wn. App. 822 (internal citation omitted). We find the reasoning of Wright persuasive.
There may be some question here as to whether some of the differences highlighted in the State's cross-examination required clarification and, thus, whether the entire cross-examination was probative and helpful to the jury. Nevertheless, Leyva did not object below on the basis of relevance or otherwise, nor does he challenge the relevance of the cross-examination on appeal.
For example, the State asked Leyva to clarify whether Anna "got it wrong" about whether he arrived at the apartment before J.L. and her sister and about whether he played any video games that evening.
Contrary to Leyva's argument, this case is not like State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996). In that case, the prosecutor told the jury it could acquit only if it found the complaining witness had lied or was confused. The prosecutor further argued there was no reasonable doubt because there was no evidence the witness was lying or confused and, if there had been such evidence, the defendants (who did not testify) would have presented it. Fleming, 83 Wn. App. at 214-16.
Here, the State made no arguments that shifted the burden or truth or violated Leyva's right to a fair trial. And asking Leyva during cross-examination whether State witnesses were mistaken did not amount to misconduct. Because Leyva has not established misconduct, his ineffective assistance of counsel argument based upon the failure to object to misconduct also fails. We affirm.
The one instance of improper cross examination was the State's question to Leyva as to whether J.L.'s testimony was "made up." RP (Sept. 30, 2009) at 331. Although the State concedes misconduct, Leyva does not identify or specifically challenge this question. Nonetheless, while improper, we have no doubt that the prejudice of the question could have neutralized with a prompt objection and motion to strike the question. And even assuming that the failure to object to the question amounted to deficient performance, we are convinced that based on the isolated incident, there is no reasonable likelihood the outcome would have been different if counsel had objected. See State v. McFarland, 127 Wn.2d 322, 335-35, 899 P.2d 1251 (1995).