Opinion
No. 57569-4-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-1-07782-6, Helen Halpert, J., entered November 8, 2005.
Affirmed by unpublished per curiam opinion.
Neelesh Phadnis appeals his conviction for aggravated first degree murder, contending that prosecutorial misconduct and the trial court's failure to preserve the appearance of impartiality require reversal. Because Phadnis fails to establish prejudice or demonstrate any appearance of unfairness, we affirm.
FACTS
Sometime before August 2002, Roger Fualaau took Neelesh Phadnis's gun away from him and refused to return it despite Phadnis's repeated requests and demands. Twice over the next weeks, someone set fire to the home where Fualaau was staying. Fualaau believed Phadnis set the fires because he refused to return the gun.
In August 2002, Fualaau's friends found Phadnis looking into the window of Stefanie Marinoff's home, where Fualaau was visiting. Fualaau instructed his friends to bring Phadnis into Marinoff's house, where he began a "sasa," a Samoan form of discipline involving physical force. Fualaau used his fists and an extendable baton to beat Phadnis repeatedly about the head, shoulders and legs. Fualaau later testified that he continued beating Phadnis because Phadnis asked Fualaau to help him kill his parents for their money. Marinoff also testified that Phadnis spoke of killing his parents or paying someone to kill them. According to Fualaau, after completing the sasa, Phadnis voluntarily stayed with Fualaau at his home for three days until leaving on August 24.
On August 24, Phadnis called 911 requesting a police response to "foul play" at his parents' home. Police arrived to find Phadnis's parents, Ravindra and Surehka Phadnis, dead from gunshot wounds. The State charged Phadnis with two counts of first degree aggravated murder. Phadnis represented himself at trial.
Phadnis testified that Fualaau and a gang of Samoans and others kidnapped him, beat him, and held him against his will for three days. Phadnis said they threatened to kill him but then released him based on his promise to return with $5,000 within 48 hours. According to Phadnis, when he arrived at his parents' house on August 24, he spoke to his father, who agreed to give him $5,000 the next day. Phadnis then left to drink beer. When he returned, the kidnappers followed him into the house, demanded money, and killed his parents. Phadnis testified that he managed to run outside and hide until they left.
Neighbors, the 911 operator, and several police officers, testified that Phadnis was extremely calm when he called 911 and later when he answered questions on the night of the murders. During the 911 call and questioning, Phadnis did not say that he witnessed the murders and he did not mention Fualaau, the sasa, or that Samoans or anyone else had come into the house.
The jury found Phadnis guilty of two counts of first degree murder. And by special verdict the jury found as an aggravating factor that more than one person was murdered as part of a common scheme or plan or the result of a single act. The trial court sentenced Phadnis to life in prison without parole. Phadnis appeals.
Analysis
Phadnis first contends that four instances of prosecutorial misconduct deprived him of a fair trial. To prevail on a claim of prosecutorial misconduct, Phadnis must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). 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), cert. denied, 514 U.S. 1129, 115 S. Ct. 2004, 131 L. Ed. 2d 1005, (1995). Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury's verdict. Roberts, 142 Wn.2d at 533.
Phadnis identifies two incidents during cross-examination as misconduct.
First, the prosecutor began his cross-examination of Phadnis as follows:
Q. Good morning, Mr. Phadnis.
A. Uh-huh.
Q. Yesterday, when we took our afternoon break and the jurors had turned toward the jury room door, could you tell me why you had a smirk on your face?
A. Smirk?
Q. Yeah, kind of a, you know, a strange, little grin?
A. In the evening?
Q. No, this was at the afternoon break. The jurors had stood up to go back to the jury room, they were all facing that way.
A.I was crying.
Q. No, not when you stood up.
A.I was crying.
Q. All right.
A. Are you talking about when I was talking about the kidnapping and —
Q. No, specifically at the afternoon break. Your testimony had just finished, the jurors had just stood up and turned, and you stood up —
A. And my face was?
Q. In a smirk.
A.I was crying at that time.
Q. All right.
For the first time on appeal, Phadnis contends that the prosecutor improperly appealed to the passion and prejudice of the jury and improperly interjected himself as a witness in the proceedings by accusing Phadnis of having a "smirk" on his face in an effort to alienate the jury by suggesting that he held the jury in contempt. But Phadnis denied that he had a smirk on his face and the prosecutor did not return to the issue in cross-examination or closing argument. And even if the prosecutor's questions were objectionable as argumentative, his failure to object constitutes a waiver. Given the lack of objection, as well as the court's instructions, the jurors must judge credibility of the witnesses and disregard any statement by the attorneys that is not supported by the evidence. Here, Phadnis fails to establish any prejudice that could not have been neutralized by an admonition to the jury. State v. Rice, 120 Wn.2d 549, 573, 844 P.2d 416 (1993).
Second, Phadnis admitted during cross examination that he purposely did not reveal that he was present at the time of the murders or identify the killers at any time during the police investigation, stating, "I did not think that was the safest thing for me to do." The prosecutor concluded his lengthy cross-examination with the following exchange:
Q. Now, Mr. Phadnis, you were first — you were accused of the murder of your mother and your father more than three years ago?
A. Yeah.
Q. All right. And you would agree that three years is a long time to consider the State's case and the State's evidence against you?
A. Uh-huh.
Q. So would you agree that your testimony concerning the murders of your parents is a sorry attempt to explain away all the evidence against you?
A. I would — that's your own opinion, I guess, as a prosecutor, and it's your job to say something like that.
Q. Would you agree?
A. No. I got kidnapped by some gangsters and those people killed my parents, and I almost died from it and I got stab wounds to my heart, practically.
Q. Would you agree with my observation?
A. I said no. You're incorrect. I would say there's a sorry attempt to hide your faulty investigation, whereas you guys knew that I had been ruthlessly assaulted and you guys — and you guys, what? You guys did not offer me protective custody? You guys didn't offer me who assaulted me? You didn't even ask me a question. You guys accused me immediately. You said, oh, your parents did this to you. I said, no, my parents did not do this to me. You guys thought my parents did it to me. Then the — then you guys found out that it was this group of gangsters, Roger and his thugs, that are the ones that did it to me, but then — and then what? I'm the easy one to —
Q. Are you saying that the police did not ask you about the circumstances surrounding this crime?
A. They did, and I told them, I said, "Listen, I can't talk about it with you." And I notified them.
Q. You told this to who, detectives?
A. Yes, I told this to the detective. I said, I cannot —
[Prosecutor]: Thank you, sir. I have no other questions.
Relying on State v. Boehning, 127 Wn. App. 511, 111 P.3d 899 (2005), Phadnis now claims that by repeatedly asking him to comment on his own veracity, the prosecutor committed flagrant misconduct. We disagree. Boehning involved a prosecutor's repeated and highly prejudicial attempt to compel the defendant to comment on the veracity of the 11-year-old complaining witness in a trial on three counts of first degree child molestation where the evidence arguably supported either party's version of events. Boehning, 127 Wn. App. at 523-25. Here, to the extent the prosecutor's questions to Phadnis about his own credibility were argumentative or otherwise objectionable, any possible prejudice could have been neutralized by a curative instruction.
Phadnis also contends that the prosecutor improperly expressed his own opinion of the evidence and misstated the law in closing argument. We review the prosecutor's comments "in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given." State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998).
The prosecutor began his closing argument as follows:
Thank you, Your Honor. Good morning. . . . [T]his is the moment when I stand up and I try to say something dramatic to grab your attention. But after the defendant's performance yesterday and the day before, and I'd like to emphasize the word, "performance." I find myself at a loss for words. How can anyone compete with that yarn.
Last night I went through the defendant's testimony looking for a shred of truth, any shred of truth on an issue of consequence, and I believe I found one. I believe that truth was in his statement that he was present in his family home when his parents were killed. He, however, was the man at the end of the gun.
Phadnis claims that by referring to his testimony as a "performance" and a "yarn," and by speaking of his personal search for "a shred of truth," the prosecutor improperly and prejudicially expressed his personal opinion of Phadnis's credibility. But "[p]rejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990). Our review of the entire argument reveals that the prosecutor specifically reviewed the evidence and argued that Phadnis's testimony was not credible in light of the physical evidence, the testimony of other witnesses, and the circumstances of the case. Phadnis fails to demonstrate flagrant or ill-intentioned misconduct or resulting prejudice.
Next, Phadnis contends that the prosecutor misstated the law regarding the State's burden of proof for the aggravating factor. Consistent with the aggravating factor provided by RCW 10.95.020(10), the court instructed the jury to answer the following question with regard to each count, "[w]as there more than one person murdered and were the murders part of a common scheme or plan or the result of a single act of a person?"
The prosecutor argued:
[T]he aggravating factor is a question that is posed to you should you find the defendant guilty of murder in the first degree, and then find him also guilty of at least murder in the first degree or murder in the second degree. And that question then posed to you, was there more than one person murdered? And clearly there was. And were the murders part of a common scheme or plan or the result of a single act of the person?
Well, the elimination of both of your parents, under the circumstances, occurring in the same house, certainly show that the plan was to get rid of these two individuals. I mean, it clearly was done pursuant to a plan.
Phadnis claims that the prosecutor said that the State need only prove that two people were killed at the same time and place to find the aggravating factor, thereby failing to acknowledge the required nexus between the killings. But in addition to arguing that Phadnis murdered more than one person, the prosecutor also argued that it was Phadnis's plan to eliminate both his parents that established the aggravating factor. The prosecutor did not misstate the law.
Finally, Phadnis contends that the trial court failed to maintain the appearance of fairness and impartiality by repeatedly correcting him for testifying while questioning witnesses and by interrupting his closing argument in the absence of any objection by the State. He claims that the trial court's interruptions and several "objections on the State's behalf" created the appearance of unfairness, especially in light of the fact that trial court did not interrupt the prosecutor when he made potentially objectionable comments. Based on our review of the entire record, we disagree.
Despite the trial court's careful instructions and warnings outside the presence of the jury, Phadnis repeatedly made statements of fact during his examination of witnesses. He neglected or refused to consult with his stand-by counsel on matters of procedure and asked the court and the prosecutor for help in presenting evidence or examining witnesses. Phadnis also repeatedly referred to excluded evidence or matters resolved by motions in limine without first asking to have the jury taken out as instructed by the trial court. And during closing argument, Phadnis repeatedly referred to matters that he "was not allowed to go into details about," in spite of the trial court's repeated warnings and explanations regarding excluded evidence. Nothing in the record supports Phadnis's claim that the trial court's actions created an appearance of partiality or held him to a higher standard. Instead, the record shows the trial judge exercised admirable restraint to ensure that Phadnis received a fair trial.
Affirmed.