Opinion
40837-6-II
01-10-2012
STATE OF WASHINGTON, Respondent, v. FREYA ARYANNA-SATIVA MARCONNETTE, Appellant.
UNPUBLISHED OPINION
Hunt, J.
Freya Aryanna-Sativa Marconnette appeals her jury trial conviction for third degree assault of a law enforcement officer. She argues that (1) the trial court erred in refusing to give her proposed "lawful force" jury instruction based on Washington Pattern Jury Instruction: Criminal (WPIC) 17.02.01; (2) the prosecutor committed misconduct in closing argument; and (3) the trial court improperly commented on the evidence when it overruled Marconnette's objection to the State's closing argument. We affirm.
11 Washington Pattern Jury Instruction: Criminal 17.02.01, at 257 (3d ed. 2008).
FACTS
I. Assault
Shortly after 1:00 pm, on February 13, 2010, 18-year-old Freya Marconnette called 911 to report a "domestic dispute" between a man and a woman at her friend Connie Durga's apartment. Verbatim Report of Proceedings (VRP) (May 12, 2010) at 22. As responding Chehalis Police Officer Bruce E. Thompson approached Durga's apartment building, Thompson saw a man, later identified as Durga's boyfriend, Matt Reisman, outside the building; Reisman ran away when he noticed Thompson. Thompson advised other responding officers that Reisman was running from the apartment building.
Thompson approached Durga's second floor apartment and knocked on the door. Marconnette opened the door just wide enough to pass through it, stepped out onto the "four foot square landing, " and closed the door behind her. VRP (May 12, 2010) at 84. Marconnette told Thompson that (1) she had placed the 911 call; (2) she was not the woman involved in the dispute; and (3) the woman involved, Durga, was inside the apartment. Thompson directed Marconnette to tell Durga that he needed to speak with her.
Marconnette went back inside, returned, and told Thompson that Durga did not want to talk to him, that Durga had told her (Marconnette) to call the police because Durga wanted Reisman to leave her apartment, and that Reisman had left the apartment when Marconnette made the call. Marconnette did not mention any physical assault. Thompson again told Marconnette that he needed to talk to Durga.
Marconnette again went back inside the apartment, returned to the landing, and reiterated that Durga did not want to talk to him. Marconnette then went back inside the apartment and shut the door. As he was leaving, however, Thompson encountered another officer, who told him that Reisman had asserted that Durga had "slapped [him] in the face." VRP (May 12, 2010) at 27. Thompson and Chehalis Police Officer Monte S. Henderson returned to the apartment and knocked on the door.
Marconnette answered the door, came outside, and closed the door behind her. The officers told Marconnette that they needed to talk to Durga because of Reisman's accusation. Marconnette reentered the apartment several times; each time she returned and told the officers that Durga did not want to talk to them. When Marconnette eventually told the officers that they could not enter the apartment without a warrant, they told her that if she continued to block their access, she would be obstructing their investigation.
Eventually Henderson told Marconnette that she was under arrest for obstruction; Marconnette "quickly turned and darted into the door" and tried to close the door. VRP (May 12, 2010) at 28. Henderson blocked the door with his foot and grabbed Marconnette's arm. Marconnette started yelling and "cussing" at the officers, broke free from Henderson's grasp, and started to push against the door. VRP (May 12, 2010) at 29. The officers pushed back. Henderson was able to reach inside the door and to grab Marconnette by the hair as Thompson grabbed her arm. According to the officers, Marconnette "actively began resisting, flailing her arms, kicking, " and continued to "curse" at them. VRP (May 12, 2010) at 29.
The officers pulled Marconnette out of the apartment onto the small landing area and tried to "get her arms behind her back and control her to apply the handcuffs." VRP (May 12, 2010) at 30. As they struggled with Marconnette, she was "actively twisting her body, flailing her arms, and kicking, " and she bit the back of Henderson's leg. The officers forced her to the ground and handcuffed her. Marconnette continued to "yell profanities" at them. VRP (May 12, 2010) at 32.
The struggle lasted about two minutes.
VRP (May 12, 2010) at 30.
II. Procedure
The State charged Marconnette with third degree assault. At her jury trial, the officers testified as described above. Thompson also testified that, although the top part of Marconnette's body had been over the stairs and off of the landing when they handcuffed her, at no point was Marconnette in danger of falling off the landing area. Henderson testified that, during the struggle, (1) Marconnette's feet had been hanging over the top step as Thompson tried to control them, (2) Marconnette had never been in any danger of falling off the balcony, and (3) Marconnette had bitten him when she was on the ground with her head pointed towards the apartment's door.
The State also charged Marconnette with resisting arrest, which charge the trial court later dismissed.
Marconnette testified that when the officers came to the apartment the second time, the contact escalated, there was yelling, and she "used profanities." VRP (May 12, 2010) at 102. She admitted that she was becoming "irritated by the repetitiveness of the situation" and that she had told the officers they could not enter the apartment without "without a f[]ing warrant." VRP (May 12, 2010) at 102, 116. She testified that when the officers threatened to arrest her for obstruction if Durga did not come out and talk to them, she told them "f[]ing fine, " "held up [a] finger, " and turned to go inside to persuade Durga to talk to the officers; but the officers then grabbed her by the hair and pulled her out onto the landing, banging her head against the door on the opposite side of the landing. VRP (May 12, 2010) at 103. She asserted that during the struggle, she had yelled, "[O]w, " and had told the officers to let her go and that they were "hurting" her. VRP (May 12, 2010) at 108.
Marconnette described the officers' taking her to the ground twice during the ensuing struggle. The first time, her head was towards the apartment door; the second time, when they handcuffing her, she was "hanging over the stairs" from her "waist up." VRP (May 12, 2010) at 108. During the struggle, she thought "that their throwing [her] around would cause [her] to fall down the stairs" and she "felt like [she] was going to be injured seriously." VRP (May 12, 2010) at 110. The trial court admitted photographs showing bruising on Marconnette's knee and marks on her wrists from the handcuffs.
VRP (May 12, 2010) at 109.
Marconnette did not "dispute" having bitten Henderson's leg; but she testified that she did not remember biting him and that if she had, it was not intentional. VRP (May 12, 2010) at 113. She also testified that she had not otherwise assaulted the officers. She admitted to having flailed around when the officers were attempting to restrain her, but she asserted she had done so because she was afraid that "their actions" would cause her to fall down the stairs and that she had not intended to hit the officers. VRP (May 12, 2010) at 123. She admitted, however, that she did not think that the officers intended to throw her down the stairs when Henderson grabbed her by the hair and pulled her out the door.
Marconnette took exception to the trial court's refusal to instruct the jury on the lawful use of force as set out in WPIC 17.02.01, an instruction she asserted that both Marconnette and the State had proposed. The trial court responded:
WPIC 17.02.01 provides:
Well, you both proposed it, but [the State] made clear he proposed it only as the proper instruction to be given if in fact I determined that it was the way to go, which I determined it was not.VRP (May 12, 2010) at 125.
Marconnette objected to beginning of the State's closing argument:
. . . You've heard the evidence and after applying the evidence to the law, the facts, you decide the facts. After applying the facts to the law that the judge gave you, you should find the defendant guilty as charged.
We have certain systems in this country for dispensing justice and different people play different roles. The judge rules on the law, he makes rulings whether officers do the right thing, whether-
[DEFENSE COUNSEL]: Object to that, your Honor.
THE COURT: Bases for your objection?
[DEFENSE COUNSEL]: He's not arguing the evidence.
THE COURT: Overruled.RP (May 24, 2010) at 126 (emphasis added).
The jury found Marconnette guilty of third degree assault. She appeals.
ANALYSIS
I. "Lawful Force" Instruction
Marconnette first argues that the trial court erred in refusing to instruct the jury on the lawful use of force. We disagree.
Marconnette also argues that if defense counsel failed to preserve this issue, such failure amounted to ineffective assistance of counsel. Because defense counsel preserved this issue, we do not reach Marconnette's ineffective assistance of counsel claim.
A party "is entitled to have the jury instructed on its theory of the case if there is evidence to support that theory." State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997) (citing State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986)). We review a trial court's refusal to give a requested instruction, based on lack of factual support, for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997). "A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds." State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003) (citing State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998)). The trial court determined that the evidence did not support this instruction, and we agree.
To be entitled to a jury instruction based on WPIC 17.02.01, Marconnette had to show that there was evidence that she was "in actual and imminent danger of serious injury from an officer's use of excessive force." WPIC 17.02.01 (emphasis added). A reasonable but mistaken belief of imminent injury is not sufficient. State v. Holeman, 103 Wn.2d 426, 430, 693 P.2d 89 (1985); State v. Ross, 71 Wn.App. 837. 842, 863 P.2d 102 (1993). Although Marconnette struggled with the officers on a small landing area next to the stairs and at one time her head and torso may extended over the edge of the stairway, the record does not show that she was in actual or imminent danger of serious injury because of the officers' use of force. Any risk of injury was created by the Marconnette's own actions, which necessitated the officers' need to use force to restrain her.
In her reply brief, Marconnette repeatedly asserts that the officers "suspended her head-first over [the] staircase." Reply Br. at 1. This characterization overstates the record. Marconnette herself testified that she was on the ground with her head and chest protruding over the staircase, not that the officers "suspended" her over the staircase.
The officers were, at most, attempting to restrain Marconnette; and it was her own actions that put her at risk of harm. Furthermore, there was no evidence that the force the officers used to restrain Marconnette was excessive. We hold, therefore, that the trial court did not err in refusing to give the proposed "lawful force" instruction.
II. No Prejudicial Prosecutorial Misconduct
Marconnette next argues that the prosecutor committed prejudicial misconduct in closing argument when he "referred to matters not in evidence and made legal arguments not supported by the instructions when he told the jury that 'the judge rules on the law, he makes rulings whether officers do the right thing.'" Br. of Appellant at 17-18 (quoting VRP (May 12, 2010) at 126) (emphasis added). Again, we disagree.
Presuming, but not deciding, that defense counsel's objection below was sufficient to alert the trial court to both grounds that Marconnette now asserts as error on appeal, Marconnette bears the burden of showing that the prosecuting attorney's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (citing State v. Gregory, 158 Wn.2d 759, 858, 147 P.3d 1201 (2006)); State v. Hughes, 118 Wn.App. 713, 727, 77 P.3d 681 (2003) (citing Stenson, 132 Wn.2d at 718), review denied, 151 Wn.2d 1039 (2004). Prejudice occurs where there is a "substantial likelihood that the misconduct affected the jury's verdict." State v. Thomas, 142 Wn.App. 589, 593, 174 P.3d 1264, review denied, 164 Wn.2d 1026 (2008).
Taken in context with the evidence and the State's argument as a whole, we cannot say that the State's brief comment, that the trial court "makes rulings whether officers do the right thing, " was prejudicial. VRP (May 12, 2010) at 126. Although this statement is arguably a misstatement of the trial court's role in a jury trial, the State made this comment after specifically advising the jury that it was the jury's responsibility to apply the law to the facts to determine Marconnette's guilt. Thus, we hold that Marconnette has failed to show reversible prosecutorial misconduct.
III. No Comment on the Evidence
Finally, Marconnette argues that the trial court's overruling her objection to the prosecutor's closing argument was an improper comment on the evidence. This argument also fails.
"To fall within the constitutional ban of a comment on the evidence, a judge's statement must suggest his or her personal opinion or view as to credibility, weight or sufficiency of the evidence." State v. Pastrana, 94 Wn.App. 463, 480, 972 P.2d 557 (1999) (citing State v. Galbreath, 69 Wn.2d 664, 671, 419 P.2d 800 (1966)), review denied, 138 Wn.2d 1007 (1999). "A trial court has the right to give reasons for ruling on objections made at trial and such comments are not an unconstitutional comment on the evidence." Pastrana, 94 Wn.App. at 480 (citing State v. Nesteby, 17 Wn.App. 18, 22, 560 P.2d 364 (1977)). Here, the trial court made no comment; it simply asked for the basis of Marconnette's objection and overruled the objection. Merely ruling on an objection does not suggest a trial court's personal opinion or view about credibility, weight, or sufficiency of evidence. We hold, therefore, that the trial court did not comment on the evidence.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: Armstrong, P.J. Quinn-Brintnall, J.
It is a defense to a charge of _______________ that force [used][attempted][offered to be used] was lawful as defined in this instruction.
A person may [use][attempt to use][offer to use] force [to resist][to aid another in resisting] an arrest [by someone known by the person to be a [police][correctional] officer] (sic) only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The person may employ such force and means as a reasonably prudent person would use under the same or similar circumstances.
The [State][City][County] has the burden of proving beyond a reasonable doubt that the force [used][attempted][offered to be used] by the defendant was not lawful. If you find that the [State][City][County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty [as to this charge].(Emphasis added).