Opinion
No. 35820-4-II.
January 21, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-01781-5, Serjio Armijo, J., entered January 19, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
Donald Schneider appeals his convictions for first degree rape and unlawful imprisonment, arguing that the prosecutor committed misconduct when she told jurors that Schneider "violated the people of the State of Washington" and asked them to decide whether the victim was "entitled to" the protections of the laws. Schneider also asserts that the evidence against him was insufficient to prove that he had raped the victim; rather, the evidence merely showed that he had sex with her. We affirm.
FACTS
Matilda Laythe worked as a prostitute in Tacoma, Washington, averaging four to five customers per day. On the day she was raped, Laythe smoked four to five rocks of cocaine. She met her last customer around midnight in front of the La Quinta Hotel. The customer picked Laythe up in a small white car and drove her to Upper Park. There he pulled a knife with a two-and-a-half inch blade and threatened Laythe's life. He ordered Laythe to get on her knees on a cloth, wrapped her mouth, and tied her hands behind her back with duct tape. He then inserted various objects and liquids in Laythe's rectum and engaged in vaginal, rectal, and oral sex with her. The customer also forced Laythe to ingest Seroquel pills he said he had obtained from Greater Lakes Mental Health. He also gave her Scope mouthwash to swallow. Following the rape, Laythe could not find her bra or her shorts.
The next day, Laythe reported the rape to the police. At the crime scene, police discovered torn clothing, used duct tape, a bottle of Oxy Clean, Vaseline, a white bra cut in half, a pair of shorts, an empty bottle of Scope mouthwash, and a cloth. In addition, foliage surrounding the crime scene was trampled. Investigators recovered Laythe's DNA (deoxyribonucleic acid) on the cloth and the duct tape.
Lynne Berthiaume, a forensic nurse examiner, found semen in Laythe's vagina and on the cloth found at the crime scene; the DNA in the semen matched Schneider's. Berthiaume testified that the DNA could have been deposited in Laythe's vagina up to 92 hours before the forensic collection. She also testified that Laythe's anal region had had bleeding and smoothing indicating sexual penetration, and that one of the injuries was caused by a foreign object, not a penis. Berthiaume photographed Laythe's injured back, arm, knees, shoulder and other injuries.
A few days later, Tacoma police showed Laythe a photographic montage of six men, including Schneider. Laythe identified one of the other men as the rapist based on the color of his shirt and his hairstyle.
The State charged Schneider with two counts of first degree rape, one count of first degree assault, and one count of first degree kidnapping. At trial, Schneider's ex-wife testified that Schneider frequently carried pocket knives and duct tape and that he received mental health counseling from Greater Lakes Mental Health. She also testified that Schneider took the prescription drug Seroquel and drove his mother's small white car on occasion.
During the State's rebuttal closing argument, Schneider's counsel objected to and moved to strike the following statements by the prosecutor:
[PROSECUTOR]: Each and every one of you . . . come from a different background, different life experience. And each one of you have different beliefs, opinions. But the 12 of you have been chosen to represent the people of Washington.
[DEFENSE]: Your Honor, I'm going to object to that. They have been chosen to decide this case. They don't represent anyone.
THE COURT: Sustained.
[DEFENSE]: Move to strike.
THE COURT: Let's move on.
[PROSECUTOR]: Ladies and Gentlemen, you have to decide what he did to Matilda Laythe. Was that a violation of Matilda Laythe? You have to decide whether someone, as sad and as pathetic as Matilda Laythe, is entitled to the protection of our laws.
[DEFENSE]: Objection. That's not what they are to decide. They are to decide whether the State proved it beyond a reasonable doubt.
[PROSECUTOR]: This is closing argument, Your Honor.
THE COURT: I'm going to sustain.
[DEFENSE]: Move to strike.
[PROSECUTOR]: . . . And when [Schneider] violated Matilda Laythe, he violated the laws of this State that says every person, regardless of wealth, education, status, color, gender, every person has a right to be free from harm. When he violated Matilda Laythe, he violated the peace and dignity of this state. And when he violated Matilda Laythe, he violated the people of the state of Washington.
[DEFENSE]: Objection, Your Honor, this is emotion, passion, prejudice. It's prohibited.
THE COURT: I'm going to deny the objection. . . . [C]ontinue.
[PROSECUTOR]: Violated the people of this state, to which she is a member of. . . . Your verdict will, however, define what he did. Your verdict will define what justice means and what the law represents.
[DEFENSE]: Objection, Your Honor, the verdict is limited to proof beyond a reasonable doubt.
THE COURT: I'll sustain.
13 Report of Proceedings (RP) at 1242-44 (emphasis added).
The jury found Schneider guilty of two counts of first degree rape and one count of unlawful imprisonment.
ANALYSIS I. Prosecutorial Misconduct
Schneider asserts that the prosecutor improperly appealed to the jury's passions and prejudices when she asked it to send a message to society and improperly framed the issue.
We review trial court rulings on alleged prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). An objection or requested instruction preserves such error for appeal. See State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
We review the challenged statements in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the trial court's instructions. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007), cert. denied, 128 S. Ct 2964 (2008). To prevail on appeal, the defendant must establish that the prosecutor's conduct was both improper and prejudicial. Yates, 161 Wn.2d at 774. A prosecutor's comments are prejudicial only if there is a substantial likelihood that the comments affected the jury's verdict. Yates, 161 Wn.2d at 774. If the defendant does not also move for a mistrial at the time of the challenged conduct, we may assume that the argument or comment did not appear prejudicial at the time. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
A. Impropriety of Comment
Prosecutors have a duty to seek verdicts free from appeals to passion or prejudice. See State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991); Belgarde, 110 Wn.2d at 507. Accordingly, a prosecutor engages in misconduct by appealing to jurors' fears of criminal groups or invoking racial, ethnic, or religious prejudice. State v. Perez-Mejia, 134 Wn. App. 907, 916, 143 P.3d 838 (2006) (citing Belgarde, 110 Wn.2d 504). Furthermore, a prosecutor cannot inject her own beliefs in a closing argument. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986); see State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984). As a quasi-judicial officer of the court, a prosecutor is presumed to work "impartially in the interest only of justice." Reed, 102 Wn.2d at 147 (quoting State v. Case, 49 Wn.2d 66, 70, 298 P.2d 500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899))). When a prosecutor appeals to prejudice and abandons impartiality, that prosecutor "ceases to properly represent the public interest." Reed, 102 Wn.2d at 147 (quotations omitted).
The prosecutor's statement that Schneider "violated the people of the state of Washington" is particularly questionable. 13 RP at 1244. The prosecutor had already told the jurors they had been "chosen to represent the people of Washington." 13 RP at 1243. To the extent this statement merely reminded the jury that it had been chosen as 12 citizens of the state to decide the case, the statement was not improper. See Finch, 137 Wn.2d at 842 (appeals for jury to act as a conscience of the community are generally not impermissible). But by connecting the two statements, the prosecutor cast Schneider as a violent criminal who had violated not only Laythe, but the jury as representatives of the people. This was clearly a call for the jurors to react emotionally to the evidence rather than with a reasoned analysis. Furthermore, the judge had already sustained two objections to the prosecutor's statements that the jury represented the State of Washington and had to decide whether the victim was entitled to the protections of the laws. We find the statement improper.
The State argues that the prosecutor's statements were in response to the defense argument that the jury should not convict Schneider because the victim was a prostitute who had "no regard for the law." 13 RP at 1168. We have reviewed the defense argument and find that, on the whole, it properly focused on the State's problems in proving the charges because of Laythe's occupation and drug use. For example, Laythe stated that cocaine use worsens her auditory and visual hallucinations when not taking medication, and to having serious short and long term memory problems. She also identified a different rapist from the police photomontage. The prosecutor's comment was not a fair response to this argument and was improper.
B. Prejudice
Nonetheless, Schneider's claim fails because the comments did not cause irreparable prejudice. First, the objectionable statements were not an overarching theme of the State's case; rather, they were relatively isolated in the context of the overall trial. See Yates, 161 Wn.2d at 781; State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993). Second, the trial court sustained three objections to the challenged portions of the prosecutor's argument. Yet Schneider did not request a curative instruction or move for a mistrial, which suggests that the comments did not appear unduly prejudicial at the time. See Swan, 114 Wn.2d at 661; Negrete, 72 Wn. App. at 67. Third, the trial court properly instructed the jury that the lawyers' statements were not evidence. See State v. Rice, 120 Wn.2d 549, 573, 844 P.2d 416 (1993); Negrete 72 Wn. App at 67. And finally, the evidence against Schneider was strong: the victim identified the same prescription drug that Schneider had been taking and a car similar to the one he drove; the State proved that Schneider got the drug from the same facility the rapist used; the rapist used a knife and duct tape on the victim, and Schneider carried a knife and duct tape. See Negrete, 72 Wn. App. at 67. We are satisfied that there is no substantial likelihood the jury would have acquitted Schneider but for the prosecutor's inappropriate statements.
Schneider relies on Perez-Mejia, where Division One reversed for prosecutorial misconduct during closing argument. Perez-Mejia, 134 Wn. App. at 915. Perez-Mejia is distinguishable. There, the prosecutor alluded to defendant's ethnicity, gang membership, and gang behavior. Perez-Mejia, 134 Wn. App. at 917-18. The court explained that "the prosecutor's closing argument put before the jurors several of the most problematic types of prejudice . . . — including nationality, ethnicity, patriotism, and fear of crime — and invited a verdict based on passion or prejudice rather than on proper evidence." Perez-Mejia, 134 Wn. App. at 919. Here, the prosecutor's comments were more limited in scope, and did not exploit the range of prejudice described in Perez-Mejia. Second, in Perez-Mejia, there was eyewitness testimony tending to exculpate the defendant. Perez-Mejia, 134 Wn. App. at 918-19. The misconduct was thus more likely to affect the verdict than here, where the evidence of guilt is strong. We conclude that the statements at issue do not warrant a new trial.
II. Sufficiency of the Evidence
Schneider next asserts that the evidence against him was insufficient to prove that he raped Laythe because (1) the DNA evidence shows that he only had sexual intercourse with her, not that he raped her, (2) Laythe had initially identified a different man in a photomontage, (3) the white car he drove was different from the one Laythe described to the police, and (4) his Seroquel prescription and treatment at Greater Lakes Mental Health in the past "do nothing to show that he was a rapist." Br. of Appellant at 15.
We review a challenge to the sufficiency of the evidence by asking whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). We draw all reasonable inferences in favor of the State and against the defendant. Brown, 162 Wn.2d at 428. A claim of insufficiency admits the truth of the State's evidence. Brown, 162 Wn.2d at 428 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
Here, the evidence against Schneider was sufficient to establish that he raped and restrained Laythe. Laythe testified that her assailant had picked her up in a small white car, threatened her life with a knife, tied her arms behind her back with duct tape, and forced her to ingest Seroquel that he said he had obtained from Greater Lakes Mental Health. Schneider's ex-wife testified that Schneider drove his mother's small white car, often carried pocket knives and duct tape, took the drug Seroquel, and was a patient at Greater Lakes Mental Health. Schneider challenges the credibility of Laythe's testimony on appeal, but we do not review the jury's decision as to a witness's credibility. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Finally, the evidence at the scene supports that Laythe was raped there and the police found Schneider's DNA on clothing found at the scene. This evidence was sufficient for the jury to convict Schneider.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, P.J., Hunt, J. Concur.