Opinion
No. 61244-1-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-01580-1, Steven J. Mura, J., entered January 14, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
A no-contact order prohibited Jared Spiller from contacting Nikki Brown. Spiller was charged with one count of felony violation of the no-contact order after Brown claimed that Spiller entered her home and assaulted her. The jury found Spiller guilty of one count of violating a no-contact order and returned a special verdict that he assaulted Brown during the course of violating the order. On appeal, Spiller argues that reversal is required because prosecutorial misconduct, ineffective assistance of counsel, and cumulative error deprived him of a fair trial. We conclude that the prosecutor did not commit misconduct and Spiller did not receive ineffective assistance of counsel. We affirm.
FACTS
Jared Spiller was prohibited by a no-contact order from contacting his former girl friend Nikki Brown. On October 28, 2007, Brown called 911 to report that Spiller had entered her home and assaulted her. Spiller was charged with one count of felony violation of a no-contact order. At trial, Brown testified to the following events.
The special verdict elevated the no-contact violation from a misdemeanor to a felony.
Brown went to a party on the evening of October 27, 2007. She decided to spend the night at a girl friend's house because Spiller was "being threatening" and telling her that he was going to come to her house. Verbatim Report of Proceedings (VRP) (Dec. 17, 2007) at 26. The next day, Spiller called Brown and said he was waiting for her at her house. He said that he got into her house through an unlocked door, but Brown did not believe him. Brown told Spiller to leave, but when she returned home at 6 p.m., he was still there. Spiller was "extremely intoxicated" and there were beer cans lying around. Id. at 27.
Brown became upset and told Spiller to leave. She was concerned because "when he drinks he can be a little out of control." Id. at 27-28. Spiller told her to look in the bedroom. She found blood splattered on her bed, walls, and window blinds. She pulled up the blinds and saw a broken window that had been covered with plastic wrap. Brown noticed dried blood and cuts on Spiller's knuckles. Spiller denied punching the window. He claimed that he had leaned against the window, and then cut his hand when he reached through the blinds to find out if the window was broken. Brown got mad and told Spiller to get out. He grabbed her by the arms and shook her, demanding to know where she had been and who she was with. Brown again told him to leave, and a few minutes later he did.
Spiller then called Brown and asked to come back so he could talk to her and help her clean up the mess. She eventually agreed to let him return because he seemed calmer. After cleaning up, he again grabbed her and demanded to know where she was, what she was doing, and who she was with the night before. She said it was none of his business. Brown testified that Spiller grabbed her by the throat, pushed her down on the bed, choked her with both hands, and told her "he was going to kill me and he should have killed me a long time ago." Id. at 32. She cried and screamed, and he finally got off and left. Brown called 911.
Spiller also testified at trial, but his version of events differed significantly from Brown's. He said that Brown wanted him to come to her house, so he let himself in through an unlocked door and waited for her. He acknowledged that he became frustrated and angry when she failed to come home on time. While waiting for Brown, he accidentally broke her bedroom window by leaning against it. He cut his hand when he reached through the blinds to check what happened, and scattered drops of blood around the bedroom when he shook his injured hand.
When Brown came home and saw the broken window and blood, she became angry. They argued, and Brown became hysterical. Spiller left, but Brown called him and insisted that he return to fix the window and clean up the mess. Spiller offered to repair the window the next day. But Brown told Spiller, "I had 15 minutes to get back to her house or else" and "I would be in big trouble if I didn't come back." Id. at 65-66. Brown knew it would be a felony if she claimed that he assaulted her while violating the no-contact order. Spiller understood the threats to mean that she would call the police and "say whatever she had to say to make sure . . . I would pay." Id. at 67. Brown regularly left similar threats on Spiller's answering machine and cell phone.
Spiller returned to clean up the mess. Brown yelled at him and accused him of intentionally breaking the window. Spiller became angry and frustrated because she would not tell him what she had been doing or who she was with the night before. Spiller then left Brown's house. He denied choking or threatening to kill Brown. He said he never touched her. He admitted drinking a can of malt liquor at his own house earlier in the day, but denied drinking any alcohol at Brown's house.
Officers Bill Medlen and Daniel Kelsh also testified at trial. They responded separately to Brown's 911 call. Officer Medlen spotted Spiller driving away from Brown's house at a high rate of speed and pulled him over. Officer Medlen told Spiller why he was being stopped. Spiller looked nervous. Officer Medlen smelled a slight odor of alcohol on Spiller, but did not conduct a DUI investigation because Spiller had no other signs of impairment. Officer Medlen determined that there was an active no-contact order between Spiller and Brown. Spiller admitted that he knew about the order and that he should not have been at Brown's house. Officer Medlen arrested Spiller and gave him an opportunity to provide a written statement. Spiller did so.
After assisting Officer Medlen with the arrest, Officer Kelsh went to Brown's house. He testified that Brown was calm and did not have marks on her neck area. Officer Kelsh said the absence of marks did not surprise him because Brown said that Spiller applied moderate pressure when choking her.
The jury convicted Spiller and found by special verdict that Spiller assaulted Brown while violating the no-contact order. Spiller appealed.
The jury, however, answered "no" to the special verdict asking whether Spiller's conduct was reckless and created a substantial risk of death or serious physical injury to another person.
ANALYSIS
Impeachment By Innuendo
Spiller argues that the prosecutor committed misconduct by asking questions that implied the existence of a prejudicial fact without proving that fact by extrinsic evidence. On cross-examination, the prosecutor asked Spiller to review the written statement he gave to Officer Medlen. The prosecutor then questioned Spiller without objection from defense counsel.
Spiller's written statement was not admitted into evidence and is not part of the record on appeal.
Q: Is there any place in this statement that you say I didn't touch her?
A: No.
Q: Well, wasn't that pretty important at that point?
A: I didn't know that she was going to claim that I had touched her.
Q: Well, Officer Medlen had already told you that?
A: He was asking me questions.
Q: But he had already told you that. He was saying she was saying you assaulted her while you were there, right?
A: I don't believe so.
Q: You don't believe so?
A: I'm sure I would have wrote more in the statement referring to an assault or saying that I didn't.
Q. You didn't say anything about that in this statement, did you?
A: No.
Q: Or about threats or anything?
A: No. I didn't know I was accused of making threats.
VRP (Dec. 19, 2007) at 97-98.
Criminal defendants have a constitutional right to confront and cross-examine adverse witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). "A person being tried on a criminal charge can be convicted only by evidence, not by innuendo." State v. Yoakum, 37 Wn.2d 137, 144, 222 P.2d 181 (1950). "`A prosecutor may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.'" State v. Babich, 68 Wn. App. 438, 444, 842 P.2d 1053 (1993) (quoting United States v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984)). "[A] prosecutor's impeachment of witnesses by referring to extrinsic evidence never introduced may rise to a violation of the right to confrontation." State v. Lopez, 95 Wn. App. 842, 855, 980 P.2d 224 (1999). "Deciding if the questions are inappropriate requires examining whether the focus of the questioning is to impart evidence within the prosecutor's personal knowledge without the prosecutor formally testifying as a witness." Id. (citing 5A Karl B. Tegland, Washington Practice: Evidence, § 258 at 125 (3d. Supp. 1998-99).
"A defendant claiming prosecutorial misconduct must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Miles, 139 Wn. App. 879, 885, 162 P.3d 1169 (2007). Where the defendant fails to object to an improper comment, the error is waived "unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." 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)).
Spiller argues that the prosecutor's misconduct was constitutional error that is presumed prejudicial, with the State bearing the burden of showing the error was harmless beyond a reasonable doubt. State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997). The State argues that prejudice is only established where there is a substantial likelihood the misconduct affected the jury's verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Because we conclude that the prosecutor did not commit misconduct, we need not address this issue.
Spiller argues that the prosecutor committed misconduct by insinuating that Officer Medlen had in fact informed Spiller of Brown's assault accusation, then failing to produce extrinsic evidence to back up the claim. We disagree. Officer Medlen had previously testified that he was dispatched to Brown's house because "[a] female had called 911 and said her boyfriend was trying to choke her." VRP (Dec. 17, 2007) at 4. Dispatch advised Officer Medlen that Spiller was leaving the scene in a white Mazda. When Officer Medlen saw a white Mazda approaching at a high rate of speed, he ran the license plate and it came back registered to Spiller. Officer Medlen then initiated a traffic stop and "explain[ed] the stop to him, why I stopped him." Id. at 6. The only logical inference from this testimony is that Officer Medlen informed Spiller that he was being stopped because Brown had accused him of choking her. Accordingly, the prosecutor's questions related back to Officer Medlen's testimony and did not imply the existence of a prejudicial fact for which there was no extrinsic evidence.
Spiller relies on Yoakum, Babich, and Miles to support his claim that reversal is required because the prosecutor committed prejudicial misconduct. But those cases involved prosecutors who plainly erred by placing evidence before the jury that they ultimately failed to prove. Yoakum, 37 Wn.2d at 143-44; Babich, 68 Wn. App. at 444-46; Miles, 139 Wn. App. at 887. Accordingly, they are factually distinguishable.
Exculpatory Evidence
Spiller argues that the prosecutor committed further misconduct by arguing that Spiller's failure to produce evidence demonstrated his lack of credibility. On direct examination, Spiller testified that Brown threatened to get him in "big trouble" if he did not return to her house. Id. at 66. Defense counsel asked Spiller what he understood her threat to mean and Spiller replied,
That she would call the police and get me in trouble, say whatever she had to say to make sure that, in her words many times including that night, that I would pay. And many of the answering machine, the cell phone messages that I got from her and direct phone calls from her or to her in conversations and in person she would often tell me that, for instance, if I broke up with her, that no one breaks up with me, you will be sorry you were ever born. Unfortunately I don't have the recordings anymore. They were lost while I was in custody.
Id. at 67. The prosecutor objected to the last part of Spiller's answer as unresponsive to the question and moved that it be stricken after "unfortunately." The court sustained the objection and granted the prosecutor's motion to strike.
During cross-examination, the prosecutor questioned whether Spiller really felt threatened by Brown. Spiller replied that Brown had physically attacked him many times, but acknowledged that he never went to the hospital for his injuries. The prosecutor then questioned Spiller about Brown's cell phone threats.
Prosecutor: But we don't have any evidence of that, do we?
Spiller: No, we don't.
Prosecutor: Because they were lost, right? If they're in a certain amount of time in your cell phone they get recycled?
Spiller: Correct.
Prosecutor: And you could have given that cell phone to someone to copy?
Defense counsel: Objection, calls for speculation.
Court: Overruled.
Prosecutor: You could have given your cell phone to someone and they could have made the recordings off your cell phone before they were lost, right?
Spiller: I tried to do this.
Id. at 77. During rebuttal, the prosecutor argued that Spiller's explanation for losing the threatening messages was unreasonable and showed that he was not telling the truth. Defense counsel did not object to the prosecutor's questioning or arguments regarding Spiller's failure to preserve the threats as evidence.
"Generally, a prosecutor cannot comment on the lack of defense evidence because the defendant has no duty to present evidence." State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). But a prosecutor may argue reasonable inferences from the evidence presented and may attack a defendant's exculpatory theory. State v. Davis, 133 Wn. App. 415, 422, 138 P.3d 132 (2006), vacated on other grounds, 163 Wn.2d 606 (2008). And the prosecutor's remarks, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel, are in pertinent reply to his or her arguments, and are not so prejudicial that a curative instruction would have been ineffective. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Spiller argues that the prosecutor's cross-examination and argument on his failure to produce evidence of Brown's threats constituted reversible misconduct. We disagree. Spiller opened the door to the prosecutor's questions regarding the cell phone recordings by testifying on direct examination regarding Brown's alleged threats. The prosecutor's questions and arguments in rebuttal were invited by Spiller and served as a pertinent reply to his arguments. Spiller contends that he did not open the door to the prosecutor's improper cross-examination and argument because his direct testimony on this issue was stricken at the prosecutor's request. But the court did not strike all of Spiller's testimony on this issue — only the portion where he claimed that he did not have the recordings because they were lost. The allegation that Brown left threatening messages on Spiller's answering machine and cell phone was still before the jury, and the prosecutor was free to respond to it.
Ineffective Assistance of Counsel
Spiller asserts that his trial counsel was ineffective in (1) failing to object to the prosecutorial misconduct and (2) allowing the jury to consider improper propensity evidence.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 1052, 80 L. Ed. 2d 674 (1984). To demonstrate ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland, at 687; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If a defendant 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). Deficient performance is representation that falls below an objective standard of reasonableness based on consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). To establish prejudice, "`[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177, 870 P.2d 964 (1991) (quoting Strickland at 694). There is a strong presumption that counsel's representation was effective and competent. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Legitimate trial strategy or tactics cannot be the basis for an ineffective assistance of counsel claim. Id.
Prosecutorial Misconduct.
Spiller asserts that his attorney was ineffective for failing to object to the prosecutor's alleged misconduct or request a curative instruction. Because we conclude that the prosecutor did not commit misconduct, defense counsel was not deficient for failing to object.
Improper Propensity Evidence.
Under ER 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." This rule "is intended to prevent application by jurors of the common assumption that `since he did it once, he did it again.'" State v. Bacotgarcia, 59 Wn. App. 815, 822, 801 P.2d 993 (1990) (quoting ER 404). But ER 404(b) evidence may be admissible for other purposes if relevant to prove an essential element of the crime charged. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990). "To be relevant, the purpose for admitting the evidence must be of consequence to the outcome of the action and must make the existence of the identified fact more probable." Id. Improper evidence that the defendant committed crimes similar or identical to the one charged can be extremely prejudicial because it is likely jurors will conclude that the defendant had a propensity for committing that type of crime. State v. Condon, 72 Wn. App. 638, 649, 865 P.2d 521 (1993).
On direct examination, Brown testified that Spiller had been "threatening" and that "he's gotten out of control with me before." VRP (Dec. 17, 2007) at 26, 35. Later, during direct examination, the prosecutor elicited Spiller's testimony that he had violated the no-contact order many times and that his drinking on the day in question violated a rule that prohibited him from drinking alcohol. In closing, the prosecutor argued,
He's not suppose to be drinking at all but consistent with he is not suppose to have contact with her at all. He doesn't seem to want to follow that restriction. Mr. Spiller, that's the point, he doesn't follow restrictions. The judge gives it to him, he's not going to follow it.
Id. at 163. The prosecutor also questioned Spiller's assertion that he was nervous when pulled over by Officer Medlen, noting that Spiller admitted having violated the no-contact order "a bunch of times." Id. at 168.
Spiller correctly acknowledges that evidence that he previously threatened Brown, repeatedly violated the no-contact order by going to her house, and consuming alcohol on the day in question was admissible for a permissible purpose. But Spiller argues that defense counsel was ineffective in failing to object to evidence that his alcohol consumption violated a court order because the fact of violation had no bearing on whether he contacted and assaulted Brown. Rather, the only purpose for this evidence was to portray Spiller as a person who refuses to follow restrictions. Spiller further argues that defense counsel was ineffective in failing to request a limiting instruction informing the jury it could only consider Spiller's previous threats towards Brown and multiple violations of the no-contact order for the purpose of assessing Brown's credibility. He contends that there is a reasonable probability counsel's deficient performance materially affected the verdict, because it allowed the jury to consider the evidence for improper propensity purposes in a case that turned on credibility.
Evidence that Spiller repeatedly violated the no-contact order by going to Brown's house on previous occasions and consuming alcohol on the day in question bolstered the defense theory that Brown was exaggerating Spiller's drinking and falsely alleging an assault to get him in big trouble. It also allowed defense counsel to undermine Brown's credibility while demonstrating that Spiller was being honest about violating the no-contact order and about consuming alcohol.
We conclude that Spiller has not met his burden of demonstrating that counsel was ineffective. Evidence that Spiller repeatedly violated the no-contact order by going to Brown's house on previous occasions and consuming alcohol on the day in question bolstered the defense theory that Brown was exaggerating Spiller's drinking and falsely alleging an assault to get him in big trouble. It also allowed defense counsel to undermine Brown's credibility while demonstrating that Spiller was being honest about violating the no-contact order and about consuming alcohol. "[W]e can presume counsel decided not to request a limiting instruction because to do so would reemphasize this damaging evidence." State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000). And given Spiller's defense theory and admission that he and Brown were carrying on as if the no-contact order did not exist, the additional fact that he violated the order by consuming alcohol was not prejudicial to the fairness of his trial.
Cumulative Error
Spiller argues that cumulative error deprived him of a fair trial. The cumulative error doctrine applies "when there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Grieff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). We conclude that the cumulative error doctrine does not warrant reversal in this case.
In sum, the prosecutor did not commit misconduct and Spiller did not receive ineffective assistance of counsel. We affirm.