Opinion
67634-2-I
05-29-2012
STATE OF WASHINGTON, Respondent, v. NATALIE INEZ RAY, Respondent.
UNPUBLISHED OPINION
Ellington, J.
Natalie Ray was convicted of first degree assault of a child. She raises numerous arguments, including admission of a statement without Miranda warnings, failure to ensure jury unanimity, double jeopardy, prosecutorial misconduct and ineffective assistance of counsel. We affirm.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
BACKGROUND
In 2004, when N.D. was about three years old, Child Protective Services (CPS) removed him from the care of his mother, Jennifer Dwyer. He was placed with his step-grandfather, Terry Dwyer (Dwyer) and Dwyer's girlfriend, Lisa Mundt. Dwyer's adult son Chris lived with Dwyer and Mundt, and became N.D.'s primary caregiver. Sometime during the next two years, Chris moved in with Natalie Ray. N.D. spent much of his time at their home.
On October 22, 2007, when N.D. was five years old, Ray telephoned N.D.'s school and reported that he had been hit in the back with a jump rope by another child. School officials found an X-shaped mark and several other bruises. After caseworkers from CPS examined N.D.'s injuries, police were called.
Tacoma Police Department Officer O'Keefe responded. He noted that, in addition to the injuries observed by school officials and CPS workers, N.D. had a bruise on his forehead and a swollen jaw. He took N.D. into protective custody.
Dr. Yolanda Duralde examined N.D. She observed the bruise on his forehead, extensive bruising on his back, and "loop-marks" on both his thighs and buttocks. N.D. had an X-shaped lesion on his back, apparently from a rope or belt. He had bruises across his upper shoulder and "grab-mark" bruising on his left arm. In Duralde's opinion, the injuries probably could not have been inflicted by a child N.D.'s age, and most of the injuries had probably been inflicted within the previous week. The loop mark bruises were better healed and probably older. Duralde testified that bruises typically last no more than three weeks.
X-rays revealed healing fractures on each of N.D.'s arms. Duralde estimated that the older of the two fractures had occurred in August 2007.
Ray was charged with assault of a child in the first degree for incidents occurring between October 19, 2005 and October 18, 2007.
At trial, five witnesses, including N.D., testified that N.D. lived with Ray during the charging period. N.D. testified that Ray bent his fingers back, hit him on the back with a coat hanger and belt on more than one occasion, and twisted his arm back until it hurt.
DISCUSSION
Miranda Warnings
Officer Ellis and three other officers arrested Ray at her home. Ellis explained to Ray she was being arrested for child abuse and that her three children would be placed in protective custody. Ray was immediately handcuffed. Before she was advised of her rights, she told the officers "she did not hit her kids" and that Ellis could talk to them and look at them to confirm this.
Report of Proceedings (RP) (Jan. 12, 2009) at 30.
At trial, Ray sought to suppress this statement, contending it was incriminating because she denied hitting her kids before knowing that hitting was the nature of the alleged abuse. The motion was denied. Ray contends this was error.
Miranda warnings must be given before a suspect in custody is interrogated.Statements made in violation of this rule are inadmissible. A practice that police should know is reasonably likely to evoke an incriminating response amounts to an interrogation.The determination that a statement was not the product of custodial interrogation is reviewed under a "clearly erroneous standard, " which means we reverse only if we are "'left with a definite and firm conviction that a mistake has been committed.'"
Miranda, 384 U.S. at 444.
Id.
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
State v. Walton, 64 Wn.App. 410, 414, 824 P.2d 533 (1992). Ray argues the clearly erroneous standard under Walton is no longer good law because the Ninth Circuit case upon which it relies, United States v. Booth, 669 F.2d 1231 (9th Cir. 1981), was overruled by United States v. Poole, 794 F.2d 462 (9th Cir. 1986). But no Washington case has overruled Walton, and Washington appellate courts still apply the clearly erroneous standard. See State v. Denney, 152 Wn.App. 665, 671, 218 P.3d 633 (2009). Ray points the court to State v. Solomon, 114 Wn.App. 781, 60 P.3d 1215 (2002), in which the court applied de novo review. But Solomon addressed the issue of custody.Here, the parties do not disagree that Ray, who was handcuffed in her home and in the presence of three police officers, was in custody. The question is solely whether the officers' actions constituted an interrogation.
Denney, 152 Wn.App. at 671 (quoting State v. Handley, 54 Wn.App. 377, 380, 773 P.2d 879 (1989)).
The question here is whether the statement resulted from a custodial interrogation. Ray contends her statement was "the logical response any reasonable officer should have expected after handcuffing someone, telling them their kids were being taken away and that they were being arrested for and had been accused of child abuse." The trial court reasoned that Ray's statement was "of a spontaneous nature" and "did not appear to be given in response to any questioning by the officer."
Appellant's Br. at 45.
RP (Jan. 13, 2009) at 177-78.
We agree. Neither Ellis nor any other officer asked Ray any questions or made any statements that could be characterized as likely to produce an incriminating response. The officers did no more than take Ray into custody and state the crime charged. The act of arrest is not a custodial interrogation. Nor is it a practice likely to invoke an incriminating statement. The court's determination was not error.
Prosecutorial Misconduct
Ray argues the prosecutor committed prejudicial misconduct in several ways. To prevail, she must demonstrate the remark or conduct was both improper and prejudicial.To establish prejudice where an objection was lodged, the defendant must show a substantial likelihood that the misconduct affected the jury. Failure to object constitutes a waiver unless the misconduct is "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."
State v. Carver, 122 Wn.App. 300, 306, 93 P.3d 947 (2004); see also State v. Stith, 71 Wn.App. 14, 19, 856 P.2d 415 (1993) (prosecutorial misconduct requires new trial only if it was prejudicial).
State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
Statements Regarding "Truth."
During closing argument, the prosecutor told the jury that the case "comes down to do you believe the defendant or do you believe [N.D.]?" He later argued that certain evidence raised questions about what really happened and that when N.D.'s injuries were discovered, nobody knew "what the real truth is, " but that the truth was exposed when N.D. gave his first statement. The prosecutor also argued that the jurors' role was to "seek the truth" and reach "[a] just verdict."
RP (Jan. 29, 2009) at 1532.
Id. at 1531.
Id. at 1532, 1555.
Ray asserts it was misconduct for the prosecutor to argue that N.D. was telling the truth because prosecutors may not argue that to acquit a defendant, the jury must conclude the State's witnesses testified falsely. Ray asserts that statements supporting the veracity of N.D.'s testimony "made it absolutely clear that the jurors were required to find [N.D.] was lying in order to acquit."
State v. Casteneda-Perez, 61 Wn.App. 354, 362-63, 810 P.2d 74 (1991); see also State v. Barrow, 60 Wn.App. 869, 875-76, 809 P.2d 209 (1991) ("liar arguments" misstate the jury's role because the jury need not determine who is telling the truth and who is lying in order acquit or convict based on a reasonable doubt).
Appellant's Br. at 53.
A prosecutor enjoys reasonable latitude in arguing inferences from the evidence, including inferences as to witness credibility. Here, the prosecutor never told the jury it had to find that N.D. had lied in order to acquit. Ray failed to object below, and she presents no argument that the alleged misconduct was so flagrant and ill-intentioned that resulting prejudice could not have been cured by a limiting instruction.
State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006); State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (prosecutor may argue an inference of credibility if it is based on the evidence).
Statements Regarding Evidence Not Admitted.
It is misconduct for a prosecutor to imply that if there were any question of the defendant's guilt, the defendant would not even be in court. But a prosecutor may reply to defense arguments. As long as remarks do not go beyond what is necessary for that purpose and do not bring before the jury matters that are not in the record, they are not grounds for reversal.
See Stith, 71 Wn.App. at 21-23.
State v. Dykstra, 127 Wn.App. 1, 8, 110 P.3d 758 (2005).
Id.
During closing argument, defense counsel was critical of the State's investigation, claiming it was incomplete because the interviewer from the prosecutor's office did not thoroughly question N.D., there was no forensic evidence, and police stopped investigating once they arrested Ray and failed to investigate Dwyer or Tulio.
In rebuttal, the prosecutor said the investigating officers continued to talk to other family members after Ray was arrested, including a witness the jury "didn't get to meet or hear from." He said the officers interviewed Dwyer despite having learned that N.D. did not live with him, and that after that interview, "[t]hey were satisfied." He argued the investigation continued after Ray's arrest, and "as it turns out, based on that information, Terry Dwyer isn't charged with these crimes." Ray did not object.
RP (Jan. 29, 2009) at 1617.
Id.
Id. at 1618.
Ray now contends the prosecutor's response was excessive because it referred to a witness interview not on the record and because it implied Ray's guilt was predetermined because Dwyer was not charged. We disagree.
As noted above, the prosecutor may respond to the defense arguments and has wide latitude in arguing reasonable inferences from the evidence. The fact that Dwyer was interviewed after Ray was arrested was a fact before the jury. Assuming the prosecutor's reference to a witness the jury "didn't get to hear from" and his statement that officers "were satisfied" were improper, Ray does not explain why any resulting prejudice could not have been cured by admonition to the jury.
Gregory, 158 Wn.2d at 860; Dykstra, 127 Wn.App. at 8. A prosecutor must be careful to advance arguments that are based only on the evidence before the jury, but cannot be held to the most careful and precise use of words in the excitement of argument. State v. Susan, 152 Wash. 365, 380, 278 P.149 (1929).
See Stenson, 132 Wn.2d at 719.
Comments About Ray's Demeanor.
A prosecutor may not express a personal opinion about the accused or attempt to persuade the jury to decide a case based upon emotion instead of evidence.
State v. McKenzie, 157 Wn.2d 44, 53-54, 134 P.3d 221 (2006) (quoting State v. Papadopoulos, 34 Wn.App. 397, 400, 662 P.2d 59 (1983)); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Ray asserts the prosecutor improperly expressed his personal opinions about Ray's demeanor throughout trial. She points to his cross-examination questions about whether she was trying to elicit sympathy by describing injuries from a car accident and whether she felt victimized by her arrest. She also challenges as flagrant and prejudicial his closing argument that "from the State's perspective, [Ray's] weeping isn't for [N.D.]; it's for [herself]." The court overruled Ray's objection to this statement.
RP (Jan. 29, 2009) at 1539.
The prosecutor may draw attention to the witness's demeanor in arguing credibility, and the jury was properly instructed that it was permitted to consider "the manner of the witness while testifying." However, the prosecutor indicated a personal belief ("from the State's perspective"). This was improper, and the objection should have been sustained. But we see no substantial likelihood that, given the general propriety of comments about demeanor, this statement influenced the jury to decide based upon emotion or upon the prosecutor's personal opinion rather than the evidence. Rather, it was a clumsy way of positing the State's theory that Ray's emotionalism during trial was not that of the wrongly accused. It is not grounds for reversal.
State v. Johnson, 113 Wn.App. 482, 492, 54 P.3d 155 (2002)
Clerk's Papers at 96.
RP (Jan. 29, 2009) at 1539.
Comments About Defense Strategy.
Ray next asserts the prosecutor made improper comments by suggesting that the defense strategy was to incite sympathy for Ray and to shift the blame for the crime to other people. The prosecutor argued, "This case is also about denial. And I hope at the end of this trial, that there will also be some measure of accountability." He referred to the defense strategy as "desperate."
Id. at 1524.
Id. at 1545.
Defense counsel did not object.
Ray contends these comments denigrated counsel and the defendant and were "'intend[ed] to promote a sense of partisanship with the jury that is incompatible with the jury's function' of deciding based on the facts of the case, rather than emotion." But Ray cites no authority holding such comments are improper, and does not persuade us the remarks exceeded the bounds of proper argument. In any event, they were not so flagrant and ill-intentioned as to warrant reversal.
Appellant's Br. at 64 (quoting State v. Neal, 361 N.J.Super. 522, 537, 826 A.2d 723 (2003)).
See Stenson, 132 Wn.2d at 719.
Failure To Prepare Witness For Trial.
The court excluded evidence that Ray had outstanding warrants at the time of her arrest. Officer Ellis testified, however, that one reason for having a patrol unit present when she arrested Ray was that "we knew Natalie had some warrants." Defense counsel objected and moved to strike. The court sustained the objection and struck the last response.
RP (Jan. 20, 2009) at 611.
During closing argument, the prosecutor indirectly referred to Ray's prior legal troubles, saying, "They knew they would get in trouble for what they were doing. Natalie [Ray] had already been in trouble." Upon defense objection, the court instructed the jury not to consider any evidence that was not admitted.
RP (Jan. 29, 2009) at 1528.
It is every attorney's duty to prepare witnesses for trial, including advising them of any orders excluding evidence. Ray contends the prosecutor committed prejudicial misconduct by failing to advise Officer Ellis of the order suppressing evidence of Ray's prior warrants and that the prosecutor exacerbated that prejudice when, during closing, he referred to Ray having "already been in trouble, " implying that Ray had been in the same kind of trouble before.
State v. Montgomery, 163 Wn.2d 577, 592, 183 P.3d 267 (2008).
RP (Jan. 29, 2009) at 1528.
We disagree. We presume the jury followed the court's instructions to disregard improper testimony and to consider only admitted evidence.
See State v. Warren, 165 Wn.2d 17, 29, 195 P.3d 940 (2008).
Refusal to Grant Mistrial
Based on Officer Ellis's testimony about Ray's prior warrants, defense counsel moved for a mistrial, or in the alternative, a limiting instruction. The court denied a mistrial, but, as noted above, instructed the jury not to consider evidence that was not admitted. Ray contends the testimony and prosecutor's comment were so inherently prejudicial that the court's offer of a curative instruction was illusory.
A mistrial is a matter for the court's discretion and is appropriate only when a trial irregularity denies the defendant a fair trial. Whether an error is prejudicial enough to warrant a mistrial depends upon the seriousness of the irregularity, whether it involved cumulative evidence, and whether the trial court took steps to avoid prejudice. A curative instruction is insufficient when irregular evidence is inherently prejudicial and likely to "impress itself upon the minds of the jurors."
State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000); State v. Whitney, 78 Wn.App. 506, 515, 897 P.2d 374 (1995); see also State v. Bluehorse, 159 Wn.App. 410, 435, 248 P.3d 537 (2011) (an appellate court upholds trial court's decision to deny a mistrial motion unless the irregularities so tainted the proceeding that the defendant was denied a fair trial).
Greiff, 141 Wn.2d at 921.
State v. Escalona, 49 Wn.App. 251, 255, 74 P.2d 190 (1987).
The stricken testimony and comment were improper, but were not so prejudicial as to require a mistrial. The court gave a curative instruction and the defense did not again request a mistrial. There was no abuse of discretion.
The parties agree Ray may raise this issue for the first time on appeal as manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988); State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (criminal defendants have constitutional right to unanimous jury verdict).
A criminal defendant has the right to a unanimous jury verdict. When the State presents evidence of multiple acts of misconduct, any one of which could form the basis of a count charged, and the State does not elect which of such acts it relies upon for a conviction, then the court must instruct the jury to agree on a specific criminal act.
State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).
Id.; State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
To show assault of a child in the first degree, the State had to prove Ray committed an intentional assault against N.D. causing substantial bodily harm, and that Ray had previously engaged in a pattern or practice of assaulting N.D. resulting in bodily harm greater than transient physical pain or minor temporary marks. Ray points out that both she and Chris testified that in July and/or August of 2007, they saw N.D.'s father Tulio assault him and yank him up by his arms. Ray contends the evidence thus indicates different episodes of assault by different people. She challenges the court's failure to provide a unanimity instruction.
The statute reads, "A person eighteen years of age or older is guilty of the crime of assault of a child in the first degree if the child is under the age of thirteen and the person . . . [i]ntentionally assaults the child and . . . [c]auses substantial bodily harm, and the person has previously engaged in a pattern or practice . . . [of] assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks." RCW 9A.36.120(1)(b)(ii)(A).
In State v. Kiser, we held that a unanimity instruction may be required in child assault cases when the defendant may have different defenses to different episodes of assault:
A potential problem for juror unanimity arises under this statute if the evidence discloses more than one distinct episode of assaultive conduct during an extended charging period. For example, the evidence may disclose one series of assaults on the child at one time, then another series weeks or months later, perhaps in a different location where different people had access to the child. The defendant may have different defenses as to these different episodes. If so, it is possible some jurors will believe a defendant is accountable for only the first series of assaults, while other jurors will believe the defendant is accountable for only the second series of assaults. When such circumstances are present, the court should give a unanimity instruction or require the State to elect.
State v. Kiser, 87 Wn.App. 126, 130, 940 P.2d 308 (1997) (unanimity instruction not required because evidence did not disclose more than one count of first degree assault of a child and there was nothing to suggest defenses were different with respect to any particular segment of the charging period).
Here, the State presented evidence of injuries inflicted in the weeks immediately before the disclosures in October 2007, including the X-shaped mark on N.D.'s back and the bruises on N.D.'s back, bottom, and forehead. There is no evidence that Tulio had the opportunity to inflict injuries during that time. But the State also presented evidence of healing fractures to both N.D.'s arms, thought to have occurred as early as August 2007 when Tulio could have had contact with ND. Given this evidence, the court should have provided a unanimity instruction.
The State argues, however, that omission of such an instruction was harmless because no rational juror could have a reasonable doubt that Ray committed an assault on N.D. and engaged in a previous pattern or practice of assaulting him. We agree. The jurors need not have been unanimous about which of two or more injuries evidenced a "principal assault" versus the preceding "pattern or practice" of assault, but they must have unanimously agreed on which injuries or incidents they relied upon to convict.
See generally Coleman, 159 Wn.2d at 512; Kiser, 87 Wn.App. at 130. Failure to give a unanimity instruction is subject to a harmless error analysis. Kitchen, 110 Wn.2d at 405-06.
As described above, overwhelming evidence established that Ray repeatedly assaulted N.D. in the weeks leading up to discovery of his injuries. The only injuries possibly inflicted by Tulio occurred in July or August, whereas all the bruising observed by Dr. Duralde had been inflicted during the month of October. No rational juror could have had a reasonable doubt that Ray inflicted injuries upon N.D. during the week they were discovered and also within the previous three weeks. Under these circumstances, the court's failure to provide a unanimity instruction was harmless beyond a reasonable doubt.
Ineffective Assistance of Counsel
Ray argues she was deprived of a fair trial because of ineffective assistance of counsel at various points during trial. The only meaningful argument she presents is her attorney's failure to propose a unanimity instruction.
As discussed above, even if counsel had requested a unanimity instruction and the court had given that instruction, it would not have changed the outcome. Ray thus fails to show she was prejudiced by her attorney's failure to request that instruction.
The parties agree Ray may raise this issue for the first time on appeal as it implicates a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Carter, 156 Wn.App. 561, 565, 234 P.3d 275 (2010).
Defendants are entitled to be free from double jeopardy, including multiple convictions for the same conduct. Ray assigns error to the court's failure to instruct the jury that it had to rely on separate, distinct acts in finding the principal assault and the evidence of a pattern or practice of assaultive behavior. She contends this violates her right to be free from double jeopardy.
In re Personal Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
Ray is incorrect. She was charged with one count of first degree assault of a child; there were not multiple counts to which the same incident of assault could have been attributed. The instructions clearly directed the jury that, to convict Ray, it must find that (1) "the defendant intentionally assaulted N.D." and (2) "the defendant had previously engaged in a pattern or practice of assaulting N.D." The word "previously" is not unclear. The jury was plainly advised that the principal assault and the previous assaultive behavior must be separate acts.
Clerk's Papers at 109 (emphasis added).
Affirmed.