Opinion
No. 55891-9-I.
May 1, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-06086-7, John P. Erlick, J., entered March 11, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D. Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Ronald Eu Lindsey — Info only (Appearing Pro Se), 4035 Cascadia So, Seattle, WA 98118.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Baker, JJ.
Ronald Lindsey contends his conviction for first degree child rape was obtained by improper argument. Lindsey's failure to object below waives appellate review. Viewed in context of the prosecutor's entire argument, the references to the child as the "only" witness who testified about what happened in the bedroom, and the request to give the child the justice he deserved, were not flagrantly and incurably prejudicial.
At the time of the alleged rape, Lindsey was living at the home of his sister, Delores Simpson. One evening, Lindsey was babysitting his nephew, DT, at Simpson's home. DT was seven or eight years old at the time. According to DT's testimony at trial, Lindsey told him to bend over, then engaged in anal intercourse with him. DT testified that after the incident Lindsey brandished a kitchen knife and threatened to kill him if he told any one.
DT did not report the rape until he was 11 years old. In the interim, DT lived with his father in another state. Then he returned to this state and began living at his grandmother's home. One day in May 2003, DT called 911 and reported that he had just been raped. Seattle Police responded to the 911 call, and arrested Lindsey.
At trial, DT acknowledged that the rape had occurred years earlier. He said he waited for three years before calling the police because he was "ashamed and embarrassed." The State also presented testimony by several individuals who had investigated the case or had examined DT. Lindsey did not testify at trial. Several of his relatives testified as defense witnesses.
The jury convicted Lindsey of first degree child rape. The trial court imposed a standard range sentence of 184 months and ordered him to provide a DNA sample. Lindsey appeals.
Lindsey contends that the prosecutor's closing argument improperly commented on his right to remain silent, and shifted the burden of proof, by referring to DT as the "only" witness to testify to the alleged rape: And in the end, you have to judge the testimony and judge the credibility of the witnesses. You're the sole judges of that question, and these are the factors that are laid out in Instruction No. 1, I believe it's on page 2 of Instruction No. 1, these are the factors you're allowed to consider in judging the credibility of those witnesses that you've heard.
What was the opportunity and ability of a witness to observe? What was the witness's memory and manner while testifying? What interest, bias, or prejudice could the witness have? What's the reasonableness of the testimony of the witness considered in light of all the other evidence? What's important about that?
Well, what's the reasonableness of one witness's testimony in light of other witness's testimony? I mean, you heard a lot of witnesses up there talking back and forth about what happened. You only heard one witness talk about what happened in that bedroom and the actual rape itself, those elements, and that was DT
Any other factors that bear on believability and weight. Again, we talked about this. We talked about it in terms of children, adults, back in voir dire. What factors, what characteristics, what actions by someone will you consider in judging the credibility of a witness?
Lindsey did not object to these remarks below. Failure to object to an allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
In context, the obvious point of the prosecutor's comment was to remind the jurors that one of the factors they could properly weigh in assessing DT's credibility as compared to the credibility of the defense witnesses was his opportunity to observe the criminal act. The trial court instructed the jury not to infer guilt from Lindsey's silence. The court also instructed the jury on the burden of proof: "The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists."
Counsel for both the State and Lindsey repeatedly said in closing arguments that the State bore the burden.
We conclude the challenged remark — "You only heard one witness talk about what happened in that bedroom" — was not a flagrantly and incurably prejudicial reference to the fact that Lindsey did not testify. Nor did it invite the jury to require Lindsey to prove his innocence. Lindsey's failure to object waives his claim of error.
Lindsey also challenges, as an improper appeal to passion and prejudice, a portion of the argument in which the prosecutor requested that the jury give DT "the justice that he deserves":
Now, like I said, I have a chance to respond in rebuttal, so I just want to close my initial closing by saying this: DT waited to tell us what happened to him. He waited for years, and that, as I said from the 911 tape, he told us why he finally decided to tell. And this happened a long time, I'm sorry that I just called, but I couldn't — I just couldn't take it no more. Don't let the fact that DT waited to tell us what happened to him let the defendant get away with what he did.
Give DT the justice that he deserves because he was raped by his uncle. I'm confident that if you look at all the evidence, if you look at the corroborative factors that support DT's testimony, you will find the defendant guilty of Rape of a Child in the First Degree. Thank you.
The request to "Give DT the justice that he deserves" was not an incurably prejudicial appeal to passion. It did come close to the line of what we have characterized as an improper "send a message" argument. Cf. State v. Bautista-Caldera, 56 Wn. App. 186, 195, 783 P.2d 116 (1989), rev. denied, 114 Wn.2d 1011, 790 P.2d 169 (1990) (in statutory rape case, prosecutor's argument, "Let her and children know that you're ready to believe them and enforce the law on their behalf" was improper because it "exhorts the jury to send a message to society about the general problem of child sexual abuse.") Here, however, the prosecutor went on to summarize the boy's testimony and then asked the jury to convict Lindsey on the basis of the evidence presented at trial. As in Bautista-Caldera, we do not find any prejudice such as could not have been neutralized with a curative instruction.
Lindsey assigns error to the sentencing condition that requires him to provide a biological sample for DNA identification analysis. As Lindsey acknowledges, the arguments he makes on this point were rejected by this court in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004), rev. granted, 153 Wn.2d 1008 (2005).
Following Surge, we affirm the sentencing condition.
GROSSE and BAKER, JJ., concur.