Opinion
No. 56007-7-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-1-01240-2, George N. Bowden, J., entered March 7,2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Donald W. Wright/Doc#265472 (Appearing Pro Se), Clallam Bay Correction Ctr., 1830 Eagle Crest Way, Clallam Bay, WA 98326.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave,
Everett, WA 98201-4061.
Affirmed by unpublished per curiam opinion.
Donald Wright appeals his rape of a child convictions on the grounds of prosecutorial and juror misconduct. In a pro se statement, Wright additionally claims that he received ineffective assistance of counsel, that the prosecutor committed misconduct, and that the trial court and jurors were biased against him. Because Wright has not shown that he was prejudiced by any prosecutorial misconduct or that his counsel's representation was deficient and has merely speculated that juror or court bias existed, we affirm.
FACTS
Donald Wright is married to Debbie Wright, and they have three sons and a daughter, K.W. Before Donald and Debbie Wright were married, Donald Wright had a son David with Debbie Coty. While Donald and Debbie Wright were married, Donald Wright had another child with Debbie Coty, A.C. Debbie Coty died when A.C. was 2, and David and A.C. lived with Donald and Debbie Wright thereafter.
According to A.C.'s testimony, Donald Wright began sexually abusing her when she was between five and eight years old, forcing her to perform oral sex on him. As A.C. got older, Wright continued to have oral and vaginal sex with her, and the abuse continued until she was 15. A.C. testified that she had told her stepmother about the abuse, but A.C. was threatened with beatings if she repeated the allegations; Debbie Wright denies A.C. ever reported any abuse.
Donald Wright once threatened to whip A.C. if she was found outside after he had told her to stay inside. When he saw her outside, she ran away but Wright eventually caught up with her and grabbed her by her hair. A.C. fell and hit her head on a log, and Wright hit A.C. in the head with a closed fist, causing her to hit her head on the log again.
After A.C. had been sexually abused for the last time, she went to her aunt's home and told her she was being physically abused. A.C. did not disclose the sexual abuse and denied it when her aunt asked her about it. The Wrights brought A.C.'s clothes, including a red shirt that A.C. had been wearing when Donald Wright last abused her, to the aunt's home. Afterward, A.C. disclosed the sexual abuse to her aunt.
Donald Wright was charged with one count of first degree rape of a child and two counts of third degree rape of a child. He was also charged with fourth degree assault for the log incident. Wright testified on his own behalf, claiming he had never raped or assaulted A.C. Wright was convicted on the three rape of a child charges, but acquitted of the assault charge.
After the verdict was announced, defense counsel and the judge spoke informally with the jurors. Defense counsel questioned one of the jurors regarding her knowledge of the Wright family, and the juror admitted that after she saw K.W. (A.C.'s half-sister) testify, she recognized her from school. The juror had worked at K.W.'s school, where Child Protective Services (CPS) had conducted many investigations as to the Wright family, and all references to CPS investigations had been precluded at trial by a motion in limine. Defense counsel and Donald Wright pro se filed a motion for a new trial in part on the ground that the juror committed misconduct in failing to reveal she knew K.W. The trial court denied the motion for a new trial, reasoning that because the juror had not realized her connection to K.W. until her testimony, there was no evidence of misconduct.
This appeal timely followed.
ANALYSIS
Prosecutorial Misconduct
Wright alleges two arguments made by the prosecutor one during closing argument and one during rebuttal argument were misconduct.
`Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request.' State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994) (citations omitted). If the defendant timely objects, reversal is required only if there is a substantial likelihood that the argument affected the jury's verdict. State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993).
Closing Argument
The State concedes that the prosecutor's closing argument contained improper argument because one sentence of it was not supported by evidence in the record. Near the end of closing argument, the prosecutor commented on A.C.'s credibility:
[A.C.] has nothing to gain by her testimony. She's turning 18 in three months and going to be an adult and is going to be an independent adult. She's never wanted to get her dad in trouble. She loved her dad then; she still loves her dad. And now she has this side of the courtroom here for her dad, used to be part of her family, and they're gone. There's nobody here supporting [A.C.] besides the police and people from my office.
5 Verbatim Report of Proceedings (VRP) (Feb. 4, 2005) at 23. The State concedes that to the extent the last sentence quoted was not supported by the record, it is improper. We accept the State's concession, and must now determine whether Wright was prejudiced by this statement.
After the prosecutor made the comment, defense counsel objected and the court sustained the objection. The prosecutor did not continue that line of argument, and instead ended her closing argument after a few more sentences. The comment was isolated and likely did not affect the jury's verdict, in light of the court's instructions that the jury consider as evidence only the testimony of witnesses and admitted exhibits. Defense counsel's failure to move for a curative instruction demonstrates that the comment did not appear prejudicial in the context of the trial. Wright has not established a substantial likelihood that the prosecutor's comment affected the jury's verdict. We conclude that the prosecutor's argument did not deprive Wright of a fair trial.
Rebuttal Argument
On rebuttal, the prosecutor addressed the assault charge against the defendant:
[Prosecutor]: I want to respond briefly to what [defense counsel] said about the physical assault. Any way you slice it, and you can look in those instructions all day long, hitting your child in the head with your fist when you're mad like he was is not reasonable, parental discipline. It's not. It's an assault. It doesn't matter that you're the dad doing it. It's an assault all the same. Good defense attorneys, and [defense counsel] is an excellent defense attorney
[Defense counsel]: And, Your Honor, I'm going to object to this.
The Court: Sustained.
[Prosecutor]: When you don't want someone to focus on the heart of the matter and you don't want someone to focus on the evidence that is damaging to your client, you try and focus their attention away. Focus their attention away from the heart of the matter, focus their attention away so they don't focus on the evidence they heard that's going to get their client convicted.
5 VRP (Feb. 4, 2005) at 41-42. Wright argues that the first paragraph of argument quoted was improper because it disparaged defense counsel. He further contends that there is a substantial likelihood the second paragraph quoted from the prosecutor's argument affected the jury's verdict because the ultimate issue at trial was credibility and this comment distracted the jury from considering Wright's credibility.
The initial comment was not disparaging to defense counsel, but even if it could be so construed, the court sustained defense counsel's objection as to that statement. The remainder of the argument was not objected to, and Wright has not established that he was irreparably prejudiced by it. In Negrete, the prosecutor stated in rebuttal that defense counsel was "being paid to twist the words of the witnesses by Mr. Negrete," and the court concluded that although the comment was improper it was not irreparably prejudicial. Negrete, 72 Wn. App. at 66 (italics omitted). The argument here does not compare to the statements made in Negrete, and, moreover, any potential prejudice could have been cured by an instruction. Especially considering that Wright was acquitted on the assault charge the subject of this comment we conclude that there is not a substantial likelihood that Wright was prejudiced by either comment.
Juror Misconduct
Wright argues that because he made a prima facie case of juror bias as to the juror who recognized K.W., the trial court should have conducted an evidentiary hearing to determine whether juror misconduct violated his right to a fair trial.
Under the federal and state constitutions, a defendant has the right to a trial by an impartial jury. U.S. Const. amend. VI; Wash. Const. art. $b/b$, sec. 22 (amend. 10). Minimal standards of due process are violated by the failure to provide a defendant with a fair hearing. State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994). `In general, it is preferable to resolve the question of juror bias during voir dire rather than through a postverdict motion for a new trial. When, however, this type of issue is raised postverdict and the moving party has made a prima facie showing of bias, an evidentiary hearing is always the preferred course of action.' Jackson, 75 Wn. App. at 543-44.
Wright contends that he established that it was likely that the juror was biased against Wright and brought extraneous evidence into jury deliberations. While Wright relies on Jackson to argue that the trial court should have held an evidentiary hearing, the facts of his case differ from Jackson in that Wright did not make a prima facie showing of bias. He did not submit affidavits to the court demonstrating the juror's bias or that the juror discussed extraneous information during jury deliberations. He presented only speculation that the juror's previous experience with the defendant's family may have biased her against the defendant. Because Wright did not make a prima facie showing of bias, it was not error for the trial court to deny Wright's motion for a new trial without holding an evidentiary hearing.
Ineffective Assistance of Counsel
In a pro se statement of additional grounds, Wright argues that he received ineffective assistance of counsel for various tactics employed and decisions made by counsel during trial.
To establish that Wright received ineffective assistance of counsel, he must demonstrate that his attorney's representation was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). In determining whether an attorney's representation was deficient, `scrutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness.' Thomas, 109 Wn.2d at 226. `[T]he defendant must show in the record the absence of a legitimate strategic or tactical reason supporting the challenged conduct by counsel.' State v. Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).
To establish deficient representation, Wright points to counsel's decision to wait to disclose potential juror bias until after an unfavorable verdict was returned, counsel's decision to not call certain witnesses to rebut a State witness's testimony, counsel's failure to object to the prosecutor's mentioning to the jury that A.C. was a child produced by Wright's adulterous affair, counsel's failure to argue certain motions aggressively, and counsel's decision to allow A.C.'s red shirt to be admitted into evidence even though there was no biological material on the shirt. While Wright has made these general allegations, he has not, however, established that his counsel was deficient or how the deficiency prejudiced his defense. Wright has failed to overcome the strong presumption that his counsel's performance was reasonable, and thus, his claim fails.
Trial Court Bias
Wright argues that the trial court permitted a `circus like' atmosphere to exist in the courtroom, because the court informed the jurors that during their lunch break the court would be dealing with unrelated matters and the jurors could feel free to enter and exit the courtroom without fear of disrupting these matters. Wright also alleges the trial court was biased against him because the court encouraged the prosecutor and defense counsel to finish their closing arguments before the end of the week to avoid having to return the following week. Wright also points to the trial court's refusal to grant his motion for a new trial. None of these allegations suggest that the trial court was biased against Wright, and because Wright has only unpersuasively speculated that bias existed, his claim of court bias fails.
Prosecutorial Misconduct
Wright argues that the prosecutor's questioning of A.C. demonstrates that A.C.'s testimony was rehearsed. He argues that it was also prosecutorial misconduct for his trial to be scheduled for the same time in the same courthouse as the trial of an alleged sexual predator, and for the jury to include government employees. Wright also alleges that it was prosecutorial misconduct for the trial transcripts to contain errors and that he was not provided with all transcripts. None of these allegations amount to improper conduct; therefore, Wright's claim of prosecutorial misconduct fails.
Juror Bias
In addition to the juror bias claim discussed above, Wright argues that two other jurors were biased against him. One juror was dismissed from the jury because he was viewing other trials during recesses, and Wright argues that this juror would have been able to discuss other trials with his jury before he was dismissed.
Another juror gave a book to A.C. shortly after the verdict was announced, and Wright argues that this gift demonstrates that the juror was biased against Wright because the juror would have had to bring the book to the courthouse before the verdict was decided. Wright made this same claim in a motion for a new trial, but the court denied his motion because jurors are encouraged to bring reading material to use during recesses and Wright did not establish that the juror brought the book beforehand to give to A.C.
Because Wright only speculates as to possible juror bias in both of these instances and the record does not contain any affidavits or other documents establishing bias, his claim of juror bias fails.
For the foregoing reasons, we affirm.
COLEMAN, SCHINDLER and BECKER, JJ.