Opinion
No. 62479-2-I.
September 21, 2009.
Appeal from the Superior Court, Whatcom County, No. 08-1-00195-7, Ira Uhrig, J., entered September 24, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Ellington and Leach, JJ.
Gabriel Nightingale appeals his conviction for felony harassment, arguing that prosecutorial vindictiveness and misconduct, as well as ineffective assistance of counsel, require reversal. In particular, he claims that the prosecutor's amendment of the information following a mistrial gives rise to a presumption of vindictiveness. He also contends that the prosecutor's improper rebuttal argument regarding missing defense witnesses prejudiced him. Nightingale also faults his attorney for failing to request a voluntary intoxication instruction, and failing to object to the prosecutor's argument and the amendment of the information. Because the record does not support Nightingale's arguments, we affirm.
FACTS
After an altercation at a grocery store, the State charged Gabriel Nightingale with two counts of fourth degree assault and one count of felony harassment. At trial, the State presented evidence and argued that Nightingale threatened to kill both Paul Shepard and Barry Whipple. The trial court instructed the jury that in order to convict Nightingale of harassment, it must find that he "knowingly threatened to kill Paul Shepard or Barry Whipple." The jury acquitted Nightingale of the assault charges and could not reach a verdict on the harassment charge. The trial court ordered a mistrial.
The State filed an amended information charging Nightingale with two counts of felony harassment. At trial, Shepard, the manager of the Bellingham Food Pavilion, testified that on February 8, 2008, around 8:15 a.m., Nightingale came to the produce department and asked for plantain bananas. Shepard smelled alcohol on Nightingale's breath and noticed that he slurred his words a little. A short time later, Shepard responded to a checker's call and found Nightingale at the check stand with the bananas and beer. The checker refused to sell the beer to Nightingale. Shepard observed that Nightingale was agitated. When Shepard agreed with the checker and refused to sell the beer, Nightingale began shouting and swearing.
Shepard called an emergency code to bring available store personnel to the front. Barry Whipple, a manager from another store, and Joe Eickstadt, the district manager, came to assist. Shepard told Nightingale to leave the store. When Nightingale continued to shout and swear, Shepard asked an employee to call 911. Nightingale started toward the door and then turned and bumped his chest against Eickstadt. Shepard put his arm between Nightingale and Eickstadt. Nightingale ripped Shepard's shirt. Shepard grabbed Nightingale, and, with assistance from Whipple and Eickstadt, took him down to the floor and held him there until police arrived. Shepard, Whipple and Eickstadt testified that Nightingale repeatedly threatened to kill Whipple and Shepard and Shepard's family and that they feared Nightingale would attempt to carry out his threats.
The jury found Nightingale guilty as charged and the trial court imposed a standard range sentence. Nightingale appeals. Prosecutorial Vindictiveness
Nightingale claims that his conviction should be reversed based on prosecutorial vindictiveness. "Prosecutorial vindictiveness occurs when `the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245-46 (D.C. Cir. 1987)). An action is vindictive "`only if designed to penalize a defendant for invoking legally protected rights.'" Prosecutorial vindictiveness may be actual or presumptive. Korum, 157 Wn.2d at 627. "A presumption of vindictiveness arises when a defendant can prove that `all of the circumstances, when taken together, support a realistic likelihood of vindictiveness.'" Id. (quoting Meyer, 810 F.2d at 1246).
Nightingale contends that the circumstances here give rise to a presumption of vindictiveness because the State added an additional harassment charge after the mistrial in order to penalize him for exercising his constitutional right to a jury trial. We disagree. At the first trial, the court and the parties addressed the question of unanimity when preparing jury instructions for the single count of harassment based on separate threats to two different victims. The trial court noted on the record that they were "dealing with something that could have been charged in two separate counts." When discussing the jury instructions for the second trial, the prosecutor referred to the unanimity problem in the first trial and stated, "And that was the reason I charged two counts. I tried to simplify it." At sentencing, the prosecutor also stated, "[W]hen I amended the information I indicated to [defense counsel] I was doing that to make it easier for purposes of trial. I didn't intend to ask for if convicted the score[s] to count against each other. So I have checked the box that says same course of conduct." Because these circumstances do not support a realistic likelihood of vindictiveness, Nightingale's claim fails. Prosecutorial Misconduct
Nightingale claims that the prosecutor committed prejudicial misconduct by arguing in rebuttal that he should have presented evidence to support his claim of mental illness, thereby improperly shifting the burden of proof, and that the trial court erred by denying his motion for a mistrial on that basis. To prevail on a claim of prosecutorial misconduct, Nightingale bears the burden of establishing both improper conduct and resulting prejudice. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). Allegedly improper remarks must be reviewed in "the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Even improper remarks are not grounds for reversal if they are a pertinent response to a defense argument and not so prejudicial as to be incurable by an instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Improper argument that amounts to prosecutorial misconduct requires reversal if there is a substantial likelihood that the misconduct affected the verdict. State v. Stenson, 137 Wn.2d 701, 718, 940 P.2d 1239 (1997). We review trial court rulings on prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999).
In closing, defense counsel argued that Nightingale's irrational behavior was best explained as a result of "intoxication and/or mental illness," and contended that the State had not proved that he knowingly threatened Shepard and Whipple. In rebuttal, the prosecutor pointed out that the only reference to mental illness during the trial was made by a police officer who testified that Nightingale shouted about mental health issues at the time of his arrest. The prosecutor stated that the defense did not ask any of the witnesses at trial whether they observed any evidence of mental health issues and did not present a doctor to testify about his mental health. The prosecutor also stated that "People go through mental health evaluations . . . So those opportunities are there. That wasn't presented." Defense counsel did not object during the argument but requested a mistrial after the jury had been excused to deliberate. The trial court continued the matter for the next day.
After the verdict, but before sentencing, the trial court considered counsels' arguments regarding the motion for a mistrial, analyzed the comments on the record, and acknowledged that during a discussion with the attorneys after the verdict, a juror asked about the lack of testimony regarding mental health. Although the trial court stated that the prosecutor's remarks about bringing a doctor to testify was "probably improper unless it's a missing witness situation and it's sort of on the edge of that," the court ultimately denied the motion for a mistrial because Nightingale failed to establish a substantial likelihood that the remark affected the verdict.
Here, Nightingale presents extensive argument regarding the impropriety of the remark, but as to prejudice, states only that the record shows that the improper argument made an impact on the jury's deliberations, referring to trial counsel's report of the juror's comment after the verdict. But the trial court specifically considered this incident and stated that it appeared that the "crux of the juror's concern" was that there was some other evidence that was not presented to the jury. The trial court then determined that Nightingale had not established prejudice. Generally, the trial court is in the best position to decide whether prejudice results in the context of trial. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). Because Nightingale fails to argue or demonstrate that the trial court abused its discretion in denying the motion for a mistrial based on prosecutorial misconduct, he cannot establish grounds for relief. Ineffective Assistance of Counsel
Nightingale contends that his attorney provided ineffective assistance of counsel by 1) failing to request a jury instruction on voluntary intoxication; 2) failing to object to the prosecutor's improper rebuttal argument; and 3) failing to make a mandatory joinder objection to the amendment of the information adding the second harassment charge.
To prevail on a claim of ineffective assistance of counsel, Nightingale must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If he fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Nightingale has the heavy burden of showing that his attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). Because we strongly presume that counsel provided effective representation, Nightingale must show that there were no legitimate strategic or tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 335-36. Prejudice is established if it is reasonably probable that, if not for counsel's deficient performance, the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
First, Nightingale has not established that his defense counsel's performance was deficient because the record does not support a voluntary intoxication instruction. A jury may be instructed on voluntary intoxication only if there is substantial evidence that the defendant's drinking affected his ability to form the necessary mental state to commit the charged crime. State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996). By itself, evidence of drinking is not enough to warrant the instruction; there must be substantial evidence that the alcohol affected the defendant's mind or body. Gabryschak, 83 Wn. App. at 253. Although there was evidence that Nightingale had alcohol on his breath and slurred his words, there was no evidence showing that his mind or body was so affected by alcohol that he could not form the intent to threaten Shepard and Whipple. There was no evidence that he stumbled or appeared confused, was disoriented as to time and place, or otherwise exhibited signs of intoxication sufficient to conclude that he could not form the requisite intent of the charged crime. See, Gabryschak, 83 Wn. App. at 253-55 (despite testimony that defendant was intoxicated, trial court did not err by rejecting voluntary intoxication instruction because evidence was insufficient to show he was too intoxicated to form the required level of culpability to commit the charged crimes).
On the contrary, the evidence showed that Nightingale "was walking fine," coherently asked for plantains and then followed the directions to obtain them, went to the check stand to purchase the items he selected, comprehended the clerk's refusal to sell alcohol to him, responded with anger when he was denied service, aggressively bumped Eickstadt, responded to Shepard's physical intervention by ripping his shirt, and specifically and individually threatened to kill Whipple, Shepard, and Shepard's family members. Given these facts, Nightingale cannot establish deficient performance on the part of his attorney for failing to request a voluntary intoxication instruction.
Second, Nightingale cannot establish that his counsel was ineffective in failing to object to the prosecutor's rebuttal argument. As a matter of legitimate strategic considerations, defense counsel waited until the jury was excused to request a mistrial based on the comment rather than bring undue attention to it by objecting during the prosecutor's argument. Moreover, as discussed above, the trial court determined that Nightingale was not prejudiced by the comment.
Third, Nightingale cannot show deficient performance for counsel's failure to object to the amendment of the information based on the mandatory joinder rule. Mandatory joinder is required where the offenses are "related offenses," in that "they are within the jurisdiction and venue of the same court and are based on the same conduct." CrR 4.3.1(b)(1). Permissive joinder is authorized where the offenses are based "on a series of acts connected together or constituting parts of a single scheme or plan." CrR 4.3(a)(2); State v. Lee, 132 Wn.2d 498, 501, 939 P.2d 1223 (1997). Although the exact boundaries of "same conduct" have not been defined, it would include "offenses based upon the same physical act or omission or same series of physical acts." Lee, 132 Wn.2d at 503-04 (citing examples such as a single gunshot hitting two victims and a series of physical acts generating charges of resisting arrest and assault.) Cases involving separate acts against different victims are not subject to mandatory joinder. See, e.g., Lee, 132 Wn.2d at 504-05 (taking rent money from numerous different victims and failing to return it was not the same conduct as trespass and theft of rent from the homeowner).
Here, Nightingale made separate, specific and individual threats to kill two victims. Shepard testified that Nightingale looked him in the face and said he was going to find him and kill him. Nightingale also looked at his name tag and asked him for his last name. Detective English testified that Nightingale made eye contact specifically with Shepard while stating that he would kill Shepard. Eickstadt testified that Nightingale told Shepard that he would kill Shepard's family to teach him a lesson. The testimony established that Nightingale made other separate and specific threats to kill Whipple. Whipple testified that Nightingale looked directly at him and told him he would kill him and leave his bloody body in a ditch. Eickstadt also testified that Nightingale directly said to Whipple that he was going to kill Whipple and leave him in a ditch. Although Nightingale's separate and distinct threats to kill two separate victims during the altercation at the grocery store would certainly be subject to permissive joinder as "a series of acts connected together," Nightingale fails to cite any authority for his claim that mandatory joinder applies to these facts. Under these circumstances, Nightingale has not established deficient performance.
Because Nightingale cannot demonstrate error, we also conclude that he was not denied a fair trial based on cumulative error.
Affirmed.
WE CONCUR.