Opinion
No. 45359-9-I.
Filed: November 13, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 99-1-02480-6, Hon. Sharon Armstrong, October 11, 1999, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Catherine E. Glinski, Attorney At Law, P.O. Box 761, Manchester, WA 98353.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
William M. Berg, King Co Prosecutors Ofc, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
The evidence on the charges of first degree rape, second degree promoting prostitution, and unlawful imprisonment against Lawrence Martin was overwhelming. Therefore, even if the trial court erred when it admitted evidence of Martin's prior bad acts under ER 404(b), there is no reasonable probability that the outcome would have been different but for the error. Nor has Martin shown that he was prejudiced by his counsel's deficient performance in regard to the jury instructions or that the trial court made an improper comment on the evidence. Therefore, Martin's judgment and sentence is affirmed.
Facts
S.F. was leaving a `prosperity' meeting at her church one night when she was approached by Lawrence Martin. Martin told S.F. she looked good and asked if she wanted to go with him. S.F. agreed to get in a car with Martin and his companions because she did not have much going on in her life and thought it would be an adventure.
Soon after getting in the car with the men, S.F. agreed to prostitute herself and give the money she earned to Martin. She also gave Martin all the money she had on her, which was more than $100. Martin told S.F. the rules about how they were going to make money together. One of Martin's rules was that she was not to talk to other black men.
When S.F. spoke to the other men in the car, Martin slapped her. After that, S.F. had consensual oral sex with Martin. S.F. and Martin and the others in the car then went to Parker's Casino so that S.F. could make some money. The men dropped her off and said they would come back to get her in an hour. S.F. did not earn any money while she was at Parker's or at another restaurant, so she and Martin went to the Aloha Motel on Aurora Avenue. Martin got a room and told S.F. to flag someone down, give him a blow job, and get money. At first, S.F. did not have any luck, so she went back to the motel room. Martin would not let her in until she came back with some money. She eventually earned some money that night, and she continued to work for Martin for the next three days.
At some point during that time, S.F. decided she did not want to work. She picked up her bag and tried to leave. Martin told her she could not leave with her bag or the clothes he had bought her and blocked her exit. S.F. did not want to leave without her belongings, so she continued to work for Martin. On the last day that S.F. worked for Martin, he bought a Cadillac with the money she had earned. That night, when they were driving in the car with Martin's friend, Michael Johnson, Martin became angry because S.F. had not earned as much as he had expected.
Martin slapped S.F., and she kicked him. He then drove to a secluded area, ordered her out of the car, and told her to get in the trunk. She did, and Martin closed it. Later, when they arrived at Johnson's apartment, Martin let S.F. out of the trunk and led her inside to the bathroom, where he told her to remove her clothes and get on her knees. He said, `I'm going to fuck you in the ass.' S.F. did not want to have sex with him, but did not think she had any choice. When Martin entered her anally, she screamed, and he became angry and punched her in the nose.
Then, he penetrated her vaginally. When he finished, he gave her some towels to clean up the blood from her nose and led her to a garbage chute to throw away the towels. After that, Martin took S.F. back to the motel and told her to go out and work and bring back $300. After doing that, she went out again to earn more money. When she came back, Martin was sleeping.
She took her belongings, walked to a nearby 7-11 store, and called the police. She was taken to Harborview Hospital, where doctors discovered she had a broken nose. Martin was arrested and charged by information with promoting prostitution in the second degree, first degree rape, and first degree kidnapping. He admitted having sexual relations with S.F., but he claimed it was consensual.
At trial, the State moved to have evidence of prior bad acts introduced under ER 404(b). The State offered the testimony of N.H., who had worked as a prostitute for Martin a couple of years before he met S.F. The court agreed with the State that N.H.'s association was sufficiently similar to be admitted as evidence of a common scheme or plan and that the evidence was more probative than prejudicial. N.H., therefore, was allowed to testify. N.H. testified that she met Martin when he and she both worked at concession stands at the Kingdome. Martin struck up a conversation with her and asked for her phone number. A couple of days later, he called and asked if she wanted to get together. She agreed, and they began a sexual relationship. Martin told N.H. he was not meant to work and indicated that if she wanted to be with him, he needed money fast. He indicated he earned money from promoting prostitution and asked N.H. to work for him. Although she had previously worked as a prostitute, she had never mentioned that to Martin.
A day or two later, N.H. met Martin downtown, and they took a bus to Aurora Avenue. She was supposed to `get a date' so she and Martin could get a motel room and she could go out and earn some money. N.H. did earn money, and they rented a room. But Martin was angry that N.H. was not making enough money, and he shoved her around. He also threatened her by telling her that wherever she went, he would find her because he had her belongings, including her identification. One night, a man who picked up N.H. choked and sodomized her and left her behind a church. She found a phone booth and called Martin and told him what happened. He said didn't care and told her she had better find a way back and get some money. N.H. called a friend who took her back to the motel. Martin asked N.H. if she had any money, and she said no and tried to take her belongings. Martin grabbed her stuff, pushed N.H. around, and told her to get out and make some money. N.H. instead went back to her home.
A couple of days later, Martin showed up at N.H.'s house and told her he was sorry and asked her to come back. She refused, and he grabbed her by the hair, threw her down, and put a knife to her throat. N.H. was frightened, so she pretended she was getting dressed. When Martin went to use the bathroom, she ran out and called the police. N.H.'s testimony was followed by that of S.F. and Martin's friend, Michael Johnson. Martin himself did not testify. The jury found him guilty of the promoting prostitution and rape charges, but not guilty of first degree kidnapping. He was found guilty of the lesser offense of unlawful imprisonment.
Admission Of N.H.'s Testimony, If Error, Was Harmless
Martin argues on appeal that the trial court abused its discretion when it allowed N.H. to testify. But even assuming that N.H.'s testimony should not have been admitted, its admission was harmless error.
An error in admitting evidence is not grounds for reversal unless the error prejudiced the defendant. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). If the error resulted from the violation of an evidentiary rule, not a constitutional mandate, an error is not considered prejudicial unless there was a reasonable probability that the error materially affected the outcome. Bourgeois, 133 Wn.2d at 403. Thus, the improper admission of evidence constitutes harmless error if the improperly admitted evidence is of minor significance compared to the evidence as a whole. Bourgeois, 133 Wn.2d at 403.
Even without N.H.'s testimony, the evidence against Martin was overwhelming. The State's case was strong largely because of the testimony provided by Martin's friend, Michael Johnson. Johnson testified that Martin earned his money by promoting prostitution. He confirmed S.F.'s claim that Martin bought his Cadillac with money earned by pimping. Johnson said that when he, Martin, and S.F. were riding around the night before S.F. called the police, Martin was displeased when S.F. gave him the money she had earned that night. Martin told Johnson he was `going to show this bitch he doesn't play.' Then Martin drove to a dark, secluded area. S.F. and Martin got out of the car. Johnson heard the trunk open, then close, and Martin got back in the car. Johnson asked where S.F. was and Martin said, `{h}er ass is in the trunk.' Thus, Johnson's testimony supported S.F.'s evidence that Martin was guilty of promoting prostitution and unlawful imprisonment.
S.F.'s testimony was believable because she did not present herself as being without faults. She admitted she engaged in sexual activity with Martin and agreed to prostitute herself for him within minutes after meeting him. She also admitted that she had worked as a topless dancer and performed sexual acts for customers before she met Martin. S.F.'s testimony was also supported by physical evidence. She indicated her nose was bleeding after Martin punched and raped her in Johnson's bathroom. Martin had her clean up the blood and throw the bloody towels into a garbage chute. The police found the towels in the dumpster at the bottom of the chute, and an expert confirmed that the blood on them came from her. A security camera at Johnson's building videotaped Johnson, Martin, and S.F. when they arrived at Johnson's apartment. The tape showed Martin holding S.F. by the arm.
Johnson's testimony did not help to prove that S.F. was raped, but it did not refute that claim either. Johnson acknowledged that Martin and S.F. went into the bathroom of his apartment that night, but he said he had headphones on and could not hear anything going on. Johnson also claimed that S.F. did not look hurt when she came out of the bathroom. But he confirmed that Martin threw something down the garbage chute before the three of them left the apartment building.
Pictures taken at the hospital the next morning showed that her face did not look as bad that day as it did a few days after the incident.
The clerk at the store where S.F. called the police also testified for the State. He said that S.F. was pale, and her nose was swollen. She was wearing jeans and a t-shirt, but no shoes or coat even though it was cold out. The clerk said she seemed terrified. She kept low and hid behind the shelves until the police arrived.
When officers went to the motel to arrest Martin, they found S.F.'s tote bag in the room. They also found a set of S.F.'s keys in the trunk of the Cadillac. Martin told officers how he met S.F. He said while he and S.F. stayed at the motel room, she was always going out onto the streets, but he claimed he did not know what she was doing out there. He said he bought the Cadillac with money given to him by his family. Martin said at first that he had sexual relations with S.F. only once. But when a detective told Martin that the victim would be examined at Harborview Hospital and that swabbings would be taken from him as well, Martin changed his story and admitted he had had sexual intercourse with S.F. in Johnson's bathroom.
Doctors at Harborview could not confirm that S.F. had been raped, but they noted that she complained of rectal pain. S.F.'s testimony was consistent with the physical evidence and with her statements before trial. Johnson's testimony supported both the promoting prostitution and unlawful imprisonment charges. Martin's story, which was presented through officers' testimony from a statement Martin gave the police, was not credible because it was entirely self-serving and changed over time. Thus, Martin's promoting prostitution and unlawful imprisonment convictions were strongly supported without N.H.'s testimony.
Therefore, her testimony was of minor significance compared to the evidence as a whole. Furthermore, the jury was instructed that N.H.'s testimony could be used only `for the limited purpose of determining whether the State {proved} each element of the charge of promoting prostitution . . . and each element of kidnapping in the first degree.' Therefore, even though N.H.'s testimony may have bolstered the assertion that Martin used violence to keep S.F. in line, her testimony did not likely affect the outcome of the rape charge, particularly when N.H. did not testify that Martin raped her. Thus, even if admitting N.H.'s testimony was error, it is unlikely that Martin was prejudiced by the error. There is no reasonable probability that the error materially affected the outcome of the trial.
Ineffective Assistance Of Counsel
Martin next contends that he received ineffective assistance of counsel because counsel did not propose a limiting instruction before N.H. testified. Additionally, Martin complains that the instruction given at the close of the case did not properly limit how N.H.'s testimony was to be used. The jury was instructed that N.H.'s evidence could be used for the limited purpose of determining whether the State had proved the elements of promoting prostitution and first degree kidnapping and could not be considered for any other purpose.
According to an affidavit submitted by the deputy prosecuting attorney, the State proposed an instruction that advised the jury it could consider N.H.'s testimony only for the limited purpose of proving the defendant engaged in a common scheme or plan. Martin's counsel objected to the use of the phrase `common scheme or plan' because he felt it would constitute a comment on the evidence that would prejudice Martin's defense. The trial judge, therefore, drafted a substitute instruction that did not contain that phrase.
We agree that the jury should have been instructed that N.H.'s testimony was not to be considered to prove that Martin was a person of bad character or that he had a propensity to commit crimes. Rather, the instruction should have indicated the evidence was admitted and could be considered only to determine if Martin knowingly profited from or advanced prostitution or that he intentionally abducted S.F. to facilitate the crime of promoting prostitution.
However, to prove a claim of ineffective assistance of counsel the defendant must show that (1) defense counsel's representation was deficient and (2) he was prejudiced by that deficient performance. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The test is not satisfied if either one of the prongs is not met. State v. King, 130 Wn.2d 517, 531, 925 P.2d 606 (1996). The defendant was prejudiced if there is a reasonable probability that the outcome of the trial would have been different but for counsel's unprofessional errors. McFarland, 127 Wn.2d at 335.
There is no reasonable probability that the outcome of the trial would have been different but for Martin's counsel's errors in relation to the instructions. As discussed above, the proof of the promoting prostitution and unlawful imprisonment charges against Martin was overwhelming even without N.H.'s testimony, and the jury was instructed that N.H.'s evidence could be used only in relation to those two charges. Juries are presumed to follow the court's instructions. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995). Thus, Martin has failed to show that he was prejudiced by counsel's errors. Improper Comment On The Evidence
Martin next contends that the instruction regarding N.H.'s testimony constituted an improper comment on the evidence by the trial judge. He claims the instruction informed the jury that the judge believed N.H.'s testimony. The entire content of the instruction follows:
Evidence has been introduced in this case on the subject of prior acts of promoting prostitution of {N.H.} for the limited purpose of determining whether the State has proven each element of the charge of promoting prostitution as to {S.F.} as charged in count I and each element of kidnapping in the first degree (only as to abducting {S.F.} with intent to promote prostitution of {S.F.}) as charged in count III. You must not consider this evidence for any other purpose.
The instruction was based upon WPIC 5.30, which is the instruction given when evidence is to be used for a limited purpose. WPIC 5.30 states:
`Evidence has been introduced in this case on the subject of for the limited purpose of. You must not consider this evidence {for any other purpose} {for the purpose of }.
Martin's argument that the instruction given in his case constituted an improper comment on the evidence is based upon State v. Dewey, 93 Wn. App. 50, 966 P.2d 414 (1998), review denied, 137 Wn.2d 1024 (1999). Dewey was charged with the third degree rape of K.B. K.B. alleged that Dewey raped her after the two had been out for the evening. The court admitted the testimony of another woman, A.N.R., who claimed she was raped under similar circumstances.
Before A.N.R. testified, the court instructed the jury that it would hear evidence concerning an `incident.' But the final written instruction indicated that evidence had been introduced on the subject of `the rape' of A.N.R. Division II agreed that the use of the term `rape' conveyed that the judge believed A.N.R. was telling the truth. The appellate court reasoned that the `incident' the jury heard about became a rape only if A.N.R.'s testimony was believed. Thus, the court held that the trial court erred in giving the instruction as worded.
We do not agree that the instruction given in Martin's case constituted a comment on the evidence like the one in Dewey. In Dewey, the jury was told it would hear testimony about `an incident,' but at the end of the case, the jury was instructed that evidence had been introduced on the subject of `the rape.' That change allowed the jury to infer that the judge accepted A.N.R.'s testimony as true.
The instruction given in Martin's case did not suggest that the judge believed N.H.'s testimony was true. It merely indicated that evidence of prior acts of promoting prostitution had been introduced. The fact that defense counsel did not object to the instruction as a comment on the truth of N.H.'s testimony supports our conclusion that it did not convey that meaning.
Conclusion
Even if the trial court should not have allowed N.H. to testify about her experience with Martin, the error was harmless. N.H.'s testimony was minor in comparison to the overwhelming evidence against him. Martin has not shown that he was prejudiced by his counsel's arguably defective performance, or that the judge improperly commented on the evidence. His convictions are affirmed.