Opinion
No. 60904-1-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-09335-2, Julie A. Spector, J., entered October 16, 2007.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Appelwick and Leach, JJ.
UNPUBLISHED OPINION
Hector Louie Ressy appeals from his misdemeanor conviction for violating a domestic violence no-contact order. He contends that the trial court abridged his right to confront adverse witnesses by barring him from delving into the details of a collateral child custody dispute to illustrate the bias of the complaining witness. A defendant has the right to introduce specific reasons for witness bias but not necessarily specific facts. Because Ressy was able to elicit testimony that he was engaged in a custody dispute, if not specific details thereof, the trial court's ruling did not infringe his confrontation rights. Ressy also contends that the prosecuting attorney engaged in prejudicial misconduct during her closing argument. Finding no such misconduct, we affirm.
On August 3, 2006, Antonia Thomas dialed 911 and reported that Ressy was outside her Issaquah townhouse, in violation of a domestic violence no-contact order issued earlier that spring. Ressy and Thomas had been embroiled in a child custody dispute over their daughter, who was 14 years of age at the time and at home with her mother. King County Sheriff deputies responded to the call. When they arrived Ressy was not in the vicinity. The lead investigator remained at Thomas's home for approximately one hour and took a statement from Thomas. After he finished interviewing Thomas, the investigating deputy also spoke to Ressy on the phone. Ressy was subsequently charged with violating RCW 26.50.110(1).
RCW 26.50.110 provides, in relevant part:
(1)(a) Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a gross misdemeanor.
Before Ressy's trial, the trial court ruled in limine that Ressy could raise the issue that Thomas and he were involved in an underlying child custody dispute. But it prohibited Ressy from introducing evidence that he had filed a complaint against Thomas with Child Protective Services that CPS later determined to be unfounded. The trial court ruled that although the CPS report might be marginally relevant on the issue of whether Thomas was biased, its probative value was outweighed by the risk of unfair prejudice to both parties and the risk of confusing the issues before the jury.
At Ressy's trial, his daughter, who had since turned 15 years of age, testified that she had clearly seen Ressy outside the front door of her and her mother's residence, looking through the front window on the afternoon in question. She testified that she wanted to make sure her mother was not "hallucinating" that Ressy had come to their home, and so she looked out of an upstairs window to see for herself whether her father was at their home. Thomas likewise testified that Ressy had appeared outside her townhouse. Thomas confirmed that Ressy and she were engaged in a custody dispute. When defense counsel attempted to delve deeper into the details of the dispute, the trial court sustained the prosecuting attorney's objections to that line of questioning.
The State also called King County Sheriff's Deputy Stephen Bookin, the lead investigator who took Thomas's statement and spoke to Ressy on the phone. According to Deputy Bookin's testimony, Ressy "denied pounding on the door" and stated that he had "only wanted to contact" his daughter. Based on this conversation, Deputy Bookin noted in his report that Ressy confirmed that he had been at Thomas's house. Deputy Bookin further testified that Ressy did not deny visiting Thomas's home and that if Ressy had mentioned that anyone else had gone to Thomas's house, then he would have included such a statement in his report. No such information was in his report.
In his defense, Ressy called his girlfriend, Laurie Lush. Lush testified that during her lunch break on August 3, she traveled with Ressy from her place of employment in Puyallup to Thomas's residence so that she could deliver legal papers. Lush testified that she had delivered legal papers to Thomas for Ressy a few times before and, as she had done previously, she dropped Ressy off at a nearby grocery store and then drove herself to Thomas's apartment. She testified that when she arrived at the apartment she saw another man knocking on the door of Thomas's residence and waited until he left before taping the legal papers to Thomas's door. When the prosecuting attorney confronted Lush with her work time card that showed she had punched out for a time period that would have made it impossible for her to travel to and from Thomas's apartment, Lush testified that she had simply forgotten to punch out and later reconciled the time discrepancy with her manager.
Ressy also testified in his defense. At trial, he denied having gone to Thomas's residence on August 3 and testified that Lush delivered papers on his behalf while he waited at a grocery store. However, he also testified that he told Deputy Bookin on the telephone that he "was there earlier with my girlfriend," and further testified that he had not explained the details of Lush's involvement or mentioned her by name.
In her closing argument, the prosecutor observed that Ressy had failed to mention Lush during his conversation with Deputy Bookin or that he was waiting at a nearby grocery store while she delivered papers to Thomas's residence. In response, defense counsel emphasized that police did not attempt to obtain a written statement from Ressy. The prosecutor offered the following riposte:
There's an interesting statement that was made a moment ago about the defendant, he wasn't given an opportunity to give a written statement, but he was given an opportunity to speak to Deputy Bookin. He knew what was going on, he knew what he was being accused of, he talked to the officer, he had ample opportunity then to talk to the officer and explain the situation. He had ample opportunity to call Laurie Lush and say, "Honey, I know we just came back from there, I need you to call this number," because he testified he called the officer right back, so of course he had the phone number. Please call the officer and tell the officer what happened. Didn't do it. He had ample opportunity to go with Ms. Lush to the police and say, she will tell you what happened. Please, please take a written statement. I didn't do anything wrong. None of that happened. And as he said to you, when the police call, you know it's serious, so you're going to handle it in a serious manner, if you haven't done anything wrong, if you hadn't actually done which you admitted that you did, but that didn't happen in this case.
The prosecutor also argued that the jury would have to ignore the testimony of the State's witnesses in order to acquit Ressy. And she characterized Thomas's and her daughter's testimony as truthful and sincere, while at the same time positing that it would be easy for Lush to lie about what happened because she had delivered papers previously. She closed by stating, "This is the truth, this is the reality, and I ask that you find that [Ressy] is, in fact, guilty." Defense counsel did not object to any of these portions of the prosecutor's closing argument. The jury subsequently convicted Ressy. He now appeals.
II
Ressy contends that the trial court abridged his right to confront adverse witnesses by barring him from raising the CPS investigation. We disagree.
The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution grant a criminal defendant the right to present evidence in his defense and the right to confront adverse witnesses. State v. Fisher, ___ Wn.2d ___, 202 P.3d 937, 949 (2009) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)); State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). "A defendant has a right to confront the witnesses against him with bias evidence so long as the evidence is at least minimally relevant." Fisher, 202 P.3d at 950 (citing Hudlow, 99 Wn.2d at 16). "`Bias includes that which exists at the time of trial, for the very purpose of impeachment is to provide information that the jury can use, during deliberations, to test the witness's accuracy while the witness was testifying.'" Fisher, 202 P.3d at 950 (quoting State v. Dolan, 118 Wn. App. 323, 327-28, 73 P.3d 1011 (2003)). A defendant enjoys more latitude to expose the bias of a key witness. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). But "[t]he trial court retains the authority to set boundaries regarding the extent to which defense counsel may delve into the witness' alleged bias `based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Fisher, 202 P.3d at 950 (quoting Van Arsdall, 475 U.S. at 679).
We find no error in the trial court's ruling that evidence about the CPS complaint was only marginally relevant and that its probative value was outweighed by the risk of unfair prejudice and the risk of confusing the issues before the jury. Ressy does not dispute that CPS found his complaints unfounded. There was no pending investigation during the trial. Thus, evidence of his complaint would not serve to show Thomas's bias at the time of her testimony. See Dolan, 118 Wn. App. at 327-28. Nor did the trial court impermissibly limit Ressy's defense strategy by barring him from raising the issue of Thomas's and his child custody dispute to demonstrate her bias against him. "[A] defendant has a right to put specific reasons motivating the witness' bias before the jury, not specific facts." Fisher, 202 P.3d at 950 (citing State v. Brooks, 25 Wn. App. 550, 551-52, 611 P.2d 1274 (1980)). Although the trial court barred Ressy from delving into the factual details of his dispute with Thomas, it permitted him to raise the fact that they were involved in a child custody dispute. Therefore, Ressy was able to put for the specific reasons for Thomas's bias before the jury. The cases on which Ressy relies all involve situations in which trial courts prohibited criminal defendants from addressing potential witness bias altogether. In contrast, Ressy was able to bring to light the reason for Thomas's potential bias.
III
Ressy also contends that the prosecutor engaged in various forms of misconduct during her closing argument requiring reversal. Again, we disagree.
A prosecutor has "`wide latitude'" during closing argument to draw reasonable inferences from the evidence and may freely comment on a witness's credibility based on the evidence. Fisher, 202 P.3d at 947 (quoting State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006)). A defendant alleging prosecutorial misconduct during closing argument "must establish both the impropriety and the prejudicial effect of the argument." State v. Perez-Mejia, 134 Wn. App. 907, 916, 143 P.3d 838 (2006) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). Comments are prejudicial only if there is a "substantial likelihood that the misconduct affected the jury's verdict." Perez-Mejia, 134 Wn. App. at 916 (citing State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984)). We review the allegedly improper arguments in the context of "(1) the total argument; (2) the issues in the case; (3) the instructions, if any, given by the trial court; and (4) the evidence addressed in the argument." Perez-Mejia, 134 Wn. App. at 916-17 (citing Russell, 125 Wn.2d at 85-86). Where, as here, a defendant does not object or request a curative instruction, he has waived the error unless we find the remark "`so flagrant and ill-intentioned'" that no instruction could have cured the resulting prejudice. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Relying on State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996), Ressy first argues that the prosecutor impermissibly shifted the burden of proof by telling the jury that, in order to acquit Ressy, it would have to "ignore" the testimony of the State's witnesses. A prosecutor engages in misconduct by arguing that the jury must conclude that the State's witnesses are either lying or mistaken to return a not guilty verdict. Fleming, 83 Wn. App. at 213 (citing State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991)). Such a statement misstates the jury's role and the prosecution's burden. The jury need not find that a witness was mistaken or lying in order to acquit; instead, it is required to acquit unless it has an abiding conviction in the truth of the testimony. Fleming, 83 Wn. App. at 213. Although Ressy acknowledges that the prosecutor did not use the term "lying," he asserts that the prosecutor's comment about ignoring witness testimony was nonetheless equivalent to an argument that the jury had to find that the State's witnesses were lying in order to acquit him.
Ressy is mistaken. The prosecutor's argument that the jury would have had to ignore the testimony of the State's witnesses in order to find Ressy not guilty was not tantamount to an instruction that it had to conclude that the State's witnesses were lying. Not considering evidence is different from affirmatively concluding that evidence is fabricated. Ressy cites no authority to the contrary. Moreover, the prosecutor explicitly stated in her closing remarks that she had the burden of proving "beyond a reasonable doubt" the elements of the charged offense. And she reminded the members of the jury to "fully fairly, and carefully consider[] all the evidence or lack of evidence" and that only if they had "an abiding belief in the truth of the charge" after such consideration could the reasonable doubt standard be satisfied. Upon reviewing her argument in context, we conclude that the prosecutor did not impermissibly shift the burden of proof.
Second, Ressy argues that the prosecutor improperly vouched for the credibility of the State's witnesses. "It is improper for a prosecutor to vouch for the credibility of a witness." State v. Warren, 134 Wn. App. 44, 68, 138 P.3d 1081 (2006), aff'd, 165 Wn.2d 17, 195 P.3d 940 (2008) (citing State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003)). In particular, a prosecutor may not place the integrity or prestige of her office on the side of a witness's credibility. State v. Sargent, 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985), rev'd on other grounds, 111 Wn.2d 641, 762 P.2d 1127 (1988). A prosecutor may, however, "argue an inference from the evidence, and prejudicial error will not be found unless it is `clear and unmistakable' that counsel is expressing a personal opinion." State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting Sargent, 40 Wn. App. at 344).
Contrary to Ressy's assertions, nothing indicates that the prosecutor impermissibly expressed a personal opinion about witnesses' credibility. In arguing that Ressy's daughter had testified truthfully, the prosecutor noted her age, that she was unequivocal in her testimony, and that Ressy had not contested the verity of her statements. The prosecutor described Thomas's testimony as sincere on the basis of Thomas's in-court demeanor and because she did not "tell the police a whopper." And with respect to the credibility of Lush's testimony, the prosecutor attempted to explain away Lush's testimony on the ground that she had delivered papers to Thomas's house on prior occasions and was therefore in a position to make believable her claims about doing the same on the date in question. When viewed in context, these statements leading up to the prosecutor's final remarks about "truth" and "reality" were not expressions of her personal belief but rather were attempts to call the jury's attention to the facts and circumstances in evidence tending to support or undermine witnesses' credibility. In making these statements, the prosecutor did not impermissibly rely on the prestige and integrity of her office for support.
Finally, Ressy contends that the prosecutor impermissibly invited the jury to infer his guilt because he failed to allege during his initial telephone conversation with Deputy Bookin that he waited in a parking lot while Lush, not he, went to Thomas's house. Both the Fifth Amendment of the United States Constitution and article I, section 9 of the Washington Constitution guarantee a criminal defendant the right to be free from self-incrimination, which includes the right to remain silent in the face of police questioning. The State is prohibited from using a defendant's silence as substantive evidence of guilt. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). "However, no constitutional protection is violated if a defendant testifies at trial and is impeached for remaining silent before arrest and before the State's issuance of Miranda warnings." State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008) (citing Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980)).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Here, Deputy Bookin and Ressy offered conflicting testimony about the conversation that they had on the telephone on the day in question. Deputy Bookin testified that Ressy did not deny being at Thomas's residence, only that he had not aggressively pounded on her door and just wanted to speak to his daughter. He further testified that Ressy gave the impression that he had in fact been at Thomas's residence. In addition, Deputy Bookin testified that had Ressy mentioned that anyone else having gone to Thomas's house, then he would have included that statement in his report. He testified that no such information was in his report, thus raising the inference that Ressy had not mentioned anyone else. Ressy confirmed that he vaguely told Deputy Bookin that he had been "there," meaning Thomas's residence. Indeed, according to his trial testimony, Ressy did not represent to Deputy Bookin that he had not been physically present at Thomas's residence. But he also insisted that he explained to Deputy Bookin that his "girlfriend" when to Thomas's house, although he confirmed he neither mentioned Lush by name nor explained at the time of his telephone interview that he had waited at the grocery store. In her closing argument, defense counsel emphasized that police did not attempt to obtain a written statement from Ressy stating his version of the events. Directly referencing defense counsel's comments, the prosecutor argued during rebuttal that Ressy failed to explain Lush's involvement and to ask Lush to provide a written statement, despite having the opportunity to do so.
We conclude that the prosecutor properly used this conflicting testimony to impeach Ressy's credibility. "Impeachment is evidence, usually prior inconsistent statements, offered solely to show the witness is not truthful." Burke, 163 Wn.2d at 219 (citing State v. Thorne, 43 Wn.2d 47, 53, 260 P.2d 331 (1953)). Deputy Bookin's recollection of what Ressy told him directly conflicted with Ressy's account. Thus, the prosecutor properly used Ressy's shifting account to impeach his credibility. Her closing argument constituted a comment on the circumstances of the evidence and the credibility of Ressy's testimony and was not an invitation to treat Ressy's failure to detail Lush's alleged involvement as a tacit admission of guilt. Although "[a]n accused's failure to disclose every detail of an event when first contacted by law enforcement officials is not per se an inconsistency," Burke, 163 Wn.2d at 219, the situation here did not involve complete silence on a factual issue critical to an affirmative defense, as was the case in Burke. Between his initial telephone conversation with Deputy Bookin and his trial testimony, Ressy provided shifting accounts of his whereabouts. Thus, it was proper for the prosecutor to highlight the absence of a statement at the time of Ressy's initial police interview that was consistent with his trial testimony.
Accordingly, we affirm.
WE CONCUR: