STATE v. ROOTH

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Court of Appeals of Washington,Division 2.

STATE of Washington, Respondent, v. Lorne Kenneth ROOTH, Appellant.

No. 31657-9-II.

    Decided: September 27, 2005

Kathryn A. Russell Selk, Seattle, WA, for Appellant. Donna Yumiko Masumoto, Attorney at Law, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

 ¶ 1 Lorne Kenneth Rooth appeals his convictions for first degree unlawful possession of a firearm, attempting to elude with a firearm enhancement, unlawful possession of a controlled substance-marijuana, and third degree driving while license suspended or revoked.   We reverse the conviction for unlawful possession of a firearm because the State conceded, and we agree, that there was  insufficient evidence to support a conviction concerning possession of the .22 caliber handgun.

¶ 2 The State urges us to hold that there was a clerical error in the instructions to the jury that incorrectly referred to the .22 caliber count as count I of the information, when it was charged as count II. The jury returned a verdict of guilty to count II, as charged in the information.   The jury found Rooth not guilty of count I as charged in the information;  that count concerned the 9 mm handgun, for which there was sufficient evidence of possession.   Neither verdict identified the weapon that was charged in the information.   The trial court's judgment and sentence may not stand because it sentenced on a conviction of count II. The error was not clerical, but judicial, and cannot be corrected under CrR 7.8.   And any attempt to review the intentions of the jury to ascertain if they thought they were acquitting the defendant of unlawful possession of the .22 caliber handgun, not the 9 mm handgun, would be improper because the jury's thought process necessarily inheres in the verdict.   We cannot impeach the jury's verdicts and alter either the verdict in count I to guilty or change the verdict in count II to not guilty.

¶ 3 We hold that there was sufficient evidence for the firearm enhancement to the attempting to elude conviction in that Rooth had actual possession of the firearm during the crime of attempting to elude.   We reverse the conviction for unlawful possession of a firearm as charged in count II, we affirm the conviction and firearm enhancement for count III and counts IV and V, and remand for resentencing.

FACTS

¶ 4 On July 9, 2003, Officer Travis Kenyon of the Fife Police Department observed a full-size van traveling in the 2500 block of Pacific Highway with a defective license plate light.   Officer Kenyon kept pace with the car, eventually activating his emergency lights and attempting to stop the vehicle.   The van started to slow but did not immediately stop.

 ¶ 5 The van continued on Pacific Highway, approaching the Port of Tacoma.   The light was red as the van approached the intersection but the vehicle failed to slow down.   The van proceeded through the intersection, cutting off a semi-truck that was halfway through the intersection.   At that point, Officer Kenyon turned on his spotlight in addition to his overhead lights and his siren.

¶ 6 The van then proceeded on to the southbound on-ramp of Interstate 5. The van remained 50 to 75 yards in front of Officer Kenyon.   While on the freeway, the van achieved speeds of 60 to 80 miles per hour.   The van continued on southbound Interstate 5, not using its signals or making safe lane changes.   It also cut off other vehicles that it passed.   At times, the van even drove onto the shoulder of the freeway.   The van exited the freeway and sped at 50 mph on the city street.   The van stopped in an apartment complex and the driver fled while the pursing officer and other officers followed him on foot.   Rooth was then apprehended.

¶ 7 In the area where the officers caught Rooth, they recovered a black compact disc case.   The case contained a large amount of money and a baggie of marijuana.   After detaining Rooth, the officers searched the van.   The van contained a number of miscellaneous items, including a type of bed stuffed in the back, boxes, clothes, toys and garbage.   There was no open space on the floor.   The officers found a black bag filled with clothing located two to three feet behind the driver's seat.   The bag was open, and the police located a .22 caliber handgun in the bag.

¶ 8 Sergeant David Woods of the Fife Police Department was also involved with the pursuit of Rooth.   After the pursuit ended, Sgt. Woods spoke with the female passenger from the van.   She told the officers about a weapon that the driver tossed out of the van during the pursuit.   She identified a person other than Rooth as the driver but the officer identified Rooth as the driver.   Officers located a 9 mm handgun on the street near where Rooth exited the freeway.

 TRIAL

¶ 9 The State charged Rooth with five separate counts:  first degree unlawful possession of a firearm (9 mm handgun), count I;  first degree unlawful possession of a firearm (.22 caliber handgun), count II;  attempting to elude a pursuing police vehicle while armed with a firearm, count III;  third degree driving while license suspended or revoked, count IV;  and unlawful possession of a controlled substance-marijuana, count V.

¶ 10 Before trial, the State moved to exclude Shannon King from testifying.   King was a defense witness who had received a telephone call on July 9, 2003, to meet an individual at a local motel.   King arrived at the motel and was told by Kevin Grice that he was expecting a phone call.   After Grice went to take a shower, the phone rang and King answered it.   The person on the phone identified himself as Casper, the individual the woman passenger had said was the driver of the van.   King and Casper talked briefly and then she handed the phone to Rooth.

¶ 11 The State argued that King's testimony was hearsay under ER 801.   The court excluded any hearsay testimony that King might offer but ruled that she could testify to the things she had personal knowledge of regarding July 9.

¶ 12 The State's first witness was Officer Travis Kenyon.   The officer discussed his pursuit of Rooth.   He related Rooth's driving as he initially entered southbound Interstate 5. As Rooth drove down the acceleration lane, he “recklessly” went around the left side of vehicles in front of him.   1 Report of Proceedings (RP) at 25.   That action caused the driver's side wheel and the driver's side back wheel to hit the dirt, and the vehicle started to fishtail, nearly losing control.

¶ 13 Officer Kenyon further testified that the van was never out of his sight.   He stated that he observed the van driving recklessly through traffic and making erratic lane changes.   The van did not make careful or safe lane changes and would drive onto the shoulder and then back into the  lanes.   The officer described Rooth's driving as “something that nobody would normally do.”   1 RP at 30.   Officer Kenyon stated that he decided to pull the van over for a traffic infraction but the driver then turned the offense into reckless driving, which was why he decided to pursue the van.   He further noted his belief that Rooth was attempting to lose him.

¶ 14 Additionally, Officer Kenyon testified that the view from his patrol car to the van was unobstructed at the time the van stopped in the apartment complex.   He positioned his spotlight in the area of the driver's side mirror and saw Rooth exit the vehicle.   He stated he was able to get a good look at Rooth and was able to describe him to his dispatcher.   Officer Kenyon also stated that he never witnessed another person coming out of the driver's door nor did he see a passenger exit the van.

¶ 15 On the second day of trial before the court brought in the jury, the court asked defense counsel whether he was chewing tobacco.   Defense counsel responded that he was.   The court then stated that a juror had asked whether defense counsel was chewing.   Defense counsel told the court that if he did not chew, the jury would be unable to understand what he was saying.   The court instructed counsel to remove the tobacco but permitted him to explain his habit to the jury.

¶ 16 The court then called in the jury.   Defense counsel apologized and explained to the jury that he had started chewing tobacco at a young age and that the juices helped to relax his tongue.   The court then told the jury that if any juror had a problem understanding a witness or an attorney to raise their hand.

¶ 17 Ashley Rousey, the passenger in the van, also testified.   Rousey did not remember many details from the incident on July 9. She testified she thought it was July 7th when the incident had occurred but she was not sure.   Rooth had come over to a mutual friend's apartment.   Before Rooth arrived, the group had consumed alcohol and smoked methamphetamine.

 ¶ 18 Rousey testified that she left the apartment about an hour after Rooth arrived.   She, Rooth, and Casper (another male) left the residence in a van.   When questioned, Rousey could not remember what Casper had worn or any details about the inside of the van.   Rousey stated that Casper had driven the van.

¶ 19 Once the group left the apartment, they headed toward Fife. The van stopped at a motel parking lot about 20 minutes later.   Seconds after the group left the parking lot, Rousey noticed there was a police officer behind them.   Rousey testified that the van quickly entered the freeway after the driver noticed the police officer.

¶ 20 Rousey stated that the van headed toward Lakewood.   She further testified that while driving to Lakewood, Casper handed her a firearm.   She held onto the gun until the van reached the 84th Street exit.   At that time, Casper asked her to throw the firearm out the window.   Rousey stated she refused to throw the firearm out and she handed it back to Casper.   She testified that she saw the gun go out her window in the area of 84th and Hosmer on the right side of the street.

¶ 21 When the van reached 96th and the apartment complex, Rousey testified the van started to stop.   Casper opened his door and ran, and Rooth followed him.   Casper and Rooth ran through the apartments.   Rousey testified that she had wanted to run but could not get her door open.

¶ 22 The State asked Rousey if she recognized her written statement from that night.   Rousey replied that she did.   The State then asked if she had included in her statement that Casper had asked her to throw the gun out the window.   Rousey responded that her statement did not include that information.   On cross-examination, Rooth asked Rousey to read her handwritten statement.   Although her statement did not name Casper, it did state that the driver had told her to roll down her window and throw a gun out of the window.

 ANALYSIS

I. Verdict/Judgment and Sentence

¶ 23 The State charged Rooth with two counts of first degree unlawful possession of a firearm.   Count I charged possession of the 9 mm handgun.   Count II charged possession of the .22 caliber handgun.   During closing arguments, both the State and Rooth switched the guns, referring to the .22 caliber as charged in count I and the 9 mm as charged in count II. Further, the State conceded in closing argument that it had not presented sufficient evidence for the jury to convict Rooth of possession of the .22 caliber and asked the jury to acquit regarding the .22 caliber.   Jury instruction 13, one of the “to-convict” instructions, stated in part:

To convict the defendant of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count One, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 9th day of July, 2003, the defendant knowingly had a firearm, to-wit:  a .22 caliber revolver in his possession or control.

Clerk's Papers (CP) at 27.

¶ 24 Jury Instruction 14 stated in relevant part:

To convict the defendant of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count Two, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 9th day of July, 2003, the defendant knowingly had a firearm, to-wit:  a 9 mm semi-automatic pistol, in his possession or control.

CP at 28.

¶ 25 The jury seemingly returned verdicts acquitting Rooth of unlawful possession of the .22 caliber and finding him guilty of possession of the 9 mm in conformity with the instructions and the closing arguments.   But the count I verdict form stated:  “We, the jury, find the defendant [n]ot  [g]uilty of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count One.” CP at 44 (emphasis added).   The count II verdict form stated:  “We, the jury, find the defendant [g]uilty of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count Two.” CP at 45 (emphasis added).   The jury verdicts address the information, not the “to convict” instructions or the arguments.   Thus, the verdicts do not correspond with either the erroneous closing arguments or the erroneous “to-convict” instructions that incorrectly stated the elements in the information.

 ¶ 26 At issue in this case is whether we should affirm a jury verdict based on erroneous “to-convict” instructions.   Contrary to the State's assertion, the erroneous jury instructions were not a clerical error.  CrR 7.8 provides that:  “[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

 ¶ 27 To determine whether a clerical error exists under CrR 7.8, we use the same test used to determine clerical error under CR 60(a), the civil rule governing amendment of judgments.  State v. Snapp, 119 Wash.App. 614, 626, 82 P.3d 252, review denied, 152 Wash.2d 1028, 101 P.3d 110 (2004).   In Presidential Estates Apartment Associates v. Barrett, 129 Wash.2d 320, 326, 917 P.2d 100 (1996), the court set forth the review necessary to determine whether an error is clerical or judicial.   The court looks at “whether the judgment, as amended, embodies the trial court's intention, as expressed in the record at trial” to determine if the error is clerical.  Presidential, 129 Wash.2d at 326, 917 P.2d 100.   If it does, then the amended judgment merely corrects the language to reflect the court's intention or adds the language the court inadvertently omitted.  Presidential, 129 Wash.2d at 326, 917 P.2d 100. If it does not, then the error is judicial and the court cannot amend the judgment and sentence.  Presidential, 129 Wash.2d at 326, 917 P.2d 100.

  ¶ 28 Here, the trial court's judgment followed a jury trial, not a bench trial The trial court sentenced according to the jury's verdicts, which the State now alleges were incorrect because of clerical error.   Nothing in the record indicates that the trial court intended to sentence in accord with the information but, through some clerical error, it wrongfully sentenced Rooth.   Perhaps if the verdict forms had identified the firearm, i.e., the .22 caliber handgun or the 9 mm handgun, there would be a basis to address clerical error.   But that is not evident from the record.   And “an intentional act of the court, even if in error, cannot be corrected under [CrR 7.8].” Wilson v. Henkle, 45 Wash.App. 162, 167, 724 P.2d 1069 (1986).   The error in the instructions and the judgment and sentence were judicial errors, not clerical errors.

¶ 29 Nevertheless, the State cites to United States v. Stauffer, 922 F.2d 508, 511 (9th Cir.1990), wherein the jurors submitted affidavits stating that they had been confused about the numbering of the counts and that they intended to convict on a different count.   The 9th Circuit permitted a correction.   Stauffer, 922 F.2d at 514.

 ¶ 30 To accomplish what the State desires requires that the two verdicts be changed;  such a change is referred to as “impeach[ing]” the verdict.   See State v. Ng, 110 Wash.2d 32, 43, 750 P.2d 632 (1988).   But the Ninth Circuit's procedure in Stauffer of inquiring into the jury's intent is not permitted in Washington:  “The individual or collective thought processes leading to a verdict ‘inhere in the verdict’ and cannot be used to impeach a jury verdict.”  Richards v. Overlake Hosp. Med. Ctr., 59 Wash.App. 266, 272, 796 P.2d 737 (1990) (quoting Ng, 110 Wash.2d at 43, 750 P.2d 632), review denied, 116 Wash.2d 1014, 807 P.2d 883 (1991).

 ¶ 31 Juror motives, the effect the evidence had on the jurors, the weight given to the evidence by particular jurors, and the jurors' intentions and beliefs are all factors inhering in the jury's thought processes in arriving at its verdict and, therefore, inhere in the verdict itself.   Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747,  768-69, 818 P.2d 1337 (1991).   And any averment that is offered concerning these mental processes is inadmissible to impeach the verdict.  Ayers, 117 Wash.2d at 769, 818 P.2d 1337.   Therefore, any evidence that a juror misunderstood or failed to follow the court's instructions inheres in the verdict and may not be considered.  Ayers, 117 Wash.2d at 769, 818 P.2d 1337.

¶ 32 Accordingly, the verdicts here cannot be impeached.   They must stand and be examined and measured by the information.   The jury acquitted Rooth of count I, possession of the 9 mm handgun.

 ¶ 33 A question remains as to the sufficiency of the evidence as to count II, which charged possession of the .22 caliber handgun.   The State conceded, and we agree and hold, that there was insufficient evidence to convict concerning possession of that firearm.1  The firearm was in a bag well behind the driver, immersed in clutter.   Therefore, the guilty verdict on count II must be reversed.

¶ 34 The only remaining question is whether count III can stand.   That is, because the jury found Rooth not guilty of possession of the 9 mm in count I, could it add an enhancement to count III that requires possession of the 9 mm firearm while attempting to elude?   Those verdicts are inconsistent.

¶ 35 Although neither party addresses this issue, the erroneous jury instructions resulted in inconsistent verdicts regarding counts I and III. Washington has adopted the rule set out in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), for dealing with inconsistent verdicts.   Our Supreme Court noted in Ng that the Dunn rule establishes “ ‘the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons.’ ” Ng, 110 Wash.2d at 48, 750 P.2d 632 (quoting U.S. v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)). The court reaffirmed the rule that inconsistent jury verdicts are  to be harmonized and upheld whenever possible, acknowledging that such inconsistencies may result from jury mistake, compromise, or lenity.  Ng, 110 Wash.2d at 48, 750 P.2d 632.   Thus, the verdict can stand if there was sufficient evidence to uphold the requirement.

II. Evidence Sufficient to Support Weapon Enhancement

 ¶ 36 Rooth argues there was insufficient evidence to support the firearm enhancement conviction.   Rooth is incorrect.

 ¶ 37 This court determines the sufficiency of the evidence by deciding whether, after 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. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980).   When a defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence and all inferences that may be reasonably drawn from the evidence.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   This court defers to the fact finder's resolution of conflicting testimony, witness credibility, and persuasiveness of the evidence.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).

¶ 38 Rooth urges us to examine the nexus requirement under State v. Schelin, 147 Wash.2d 562, 575-76, 55 P.3d 632 (2002).  Schelin held that for purposes of a sentencing enhancement, a defendant is “armed” when he is within “proximity of an easily and readily available deadly weapon for offensive or defensive purposes and when a nexus is established between the defendant, the weapon, and the crime.”  Schelin, 147 Wash.2d at 575-76, 55 P.3d 632.   Rooth does not dispute that the police recovered a gun.   Rather, he asserts that we must determine if the facts are sufficient, as a matter of law, to prove that he was armed.

¶ 39 We have recently held that “the State need not prove a nexus between the defendant, the weapon, and the crime when the defendant actually possesses the firearm.”   State v. Easterlin, 126 Wash.App. 170, 174, 107 P.3d 773 (2005).   Here, the officer's testimony supported a finding that Rooth was the driver of the eluding vehicle;  and Rousey's statement was to the effect that the driver was in actual possession of the firearm during the elude, both by handing it to her and then by throwing it out the van window. Thus, the evidence was sufficient to support the firearm enhancement verdict.

¶ 40 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

III. Improper Opinion Testimony

¶ 41 Rooth contends his rights to a fair trial, due process, and trial by jury were violated by improper opinion testimony.   His contention is meritless.

¶ 42 Generally, a court does not review issues raised for the first time on appeal.  RAP 2.5(a);  State v. McFarland, 127 Wash.2d 322, 332-33, 899 P.2d 1251 (1995).   Rooth failed to object to Officer Kenyon's testimony at trial and now argues that the testimony was an error of constitutional magnitude.  RAP 2.5(a)(3) is not intended to provide criminal defendants with a way to obtain new trials whenever they are able to identify “some constitutional issue not raised before the trial court.”  McFarland, 127 Wash.2d at 333, 899 P.2d 1251.   Instead, the defendant's asserted error must be “manifest.”  McFarland, 127 Wash.2d at 333, 899 P.2d 1251.   This means the error must truly be of constitutional magnitude.  State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988).   In order to prevail, the defendant has to identify a constitutional error and show how the error, in the context of the trial, actually affected the defendant's rights.  Scott, 110 Wash.2d at 688, 757 P.2d 492.   Only when the defendant shows actual prejudice does the error become “manifest” and allow for appellate review.  Scott, 110 Wash.2d at 688, 757 P.2d 492.

¶ 43 Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion that embraces an “ultimate issue” depends on the specific circumstances of each case.  City of Seattle v. Heatley, 70 Wash.App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wash.2d 1011, 869 P.2d 1085 (1994).   Specific circumstances include:  (1) “the type of witness involved”;  (2) “the specific nature of the testimony”;  (3) “the nature of the charges”;  (4) “the type of defense”;  and (5) “the other evidence before the trier of fact.”  Heatley, 70 Wash.App. at 579, 854 P.2d 658.

¶ 44 In State v. Dolan, 118 Wash.App. 323, 329, 73 P.3d 1011 (2003), we held that a witness may not give an opinion on a defendant's guilt either directly or by inference.   We further noted that an opinion expressed by a police officer may influence the fact finder and thus deny the defendant an impartial and fair trial.  Dolan, 118 Wash.App. at 329, 73 P.3d 1011.

¶ 45 Here, in explaining why he pursued Rooth, Officer Kenyon used the term “reckless driving.”   1 RP at 29.   His statement was that normally police did not pursue for traffic infractions but Rooth had turned the situation into reckless driving by failing to stop.   Later in his testimony, Officer Kenyon stated that Rooth tried to lose him during the pursuit.   That answer was in response to the State's questions about things he recalled from the pursuit.   The State also asked the officer to describe Rooth's driving.   The officer responded, “[i]t was right back to what it had originally been, erratic lane changes, excessive speed, it was very reckless, no signals.”   1 RP at 32.

¶ 46 In Heatley, the court held that a witness's statement is not impermissible opinion testimony if the witness bases his inference on the evidence.  Heatley, 70 Wash.App. at 578, 854 P.2d 658.   Officer Kenyon's statements were based on his experience from following Rooth during the chase and his opinions were not improper.

¶ 47 And even assuming that the evidence was impermissible opinion testimony, the error still does not require reversal because “the untainted evidence is so overwhelming that a reasonable jury would have reached the same result in the absence of the error.”  State v. Saunders, 120 Wash.App. 800, 813, 86 P.3d 232 (2004).

IV. Prosecutorial Misconduct

¶ 48 Rooth next alleges that the prosecutor's flagrant misconduct deprived him of his right to a fair trial.   He maintains the prosecutor committed misconduct in three ways:  (1) commenting on Officer Kenyon's credibility during closing argument;  (2) misstating the law with regard to the firearm enhancement to the jury;  and (3) misleading the jury in relation to King's testimony.

¶ 49 Prosecutorial misconduct may violate a defendant's due process right to a fair trial.  State v. Charlton, 90 Wash.2d 657, 664, 585 P.2d 142 (1978).   In order to prevail on an allegation of prosecutorial misconduct, a defendant must show both improper conduct and prejudicial effect.  State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996).   We afford a prosecutor wide latitude in drawing and expressing reasonable inferences from the evidence during closing argument.  State v. Millante, 80 Wash.App. 237, 250, 908 P.2d 374 (1995), review denied, 129 Wash.2d 1012, 917 P.2d 130 (1996).   But a prosecutor may not appeal to the jury's passions or prejudice.  State v. Claflin, 38 Wash.App. 847, 850-51, 690 P.2d 1186 (1984), review denied, 103 Wash.2d 1014 (1985).   We review a claim of alleged improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.  State v. Bryant, 89 Wash.App. 857, 873, 950 P.2d 1004 (1998), review denied, 137 Wash.2d 1017, 978 P.2d 1100 (1999).   A defendant establishes prejudice only if there is a substantial likelihood that the alleged misconduct affected the jury's verdict.  State v. Borg, 145 Wash.2d 329, 335, 36 P.3d 546 (2001).

¶ 50 Where a defendant fails to object to an improper remark, he waives the right to assert prosecutorial misconduct unless the remark was so flagrant and ill-intentioned that it caused enduring and resulting prejudice that a curative instruction could not have remedied.  State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995).   Prosecutorial misconduct does not require reversal if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in absence of the error.  State v. Fiallo-Lopez, 78 Wash.App. 717, 729, 899 P.2d 1294 (1995).   Here, none of Rooth's claimed incidents of prosecutorial misconduct withstands scrutiny;  his claims fail.

A. Closing Argument

¶ 51 Rooth asserts that the prosecutor committed misconduct during closing argument when the prosecutor told the jury that it would have to find that Officer Kenyon lied in order to find there was another man in the van.   Rooth failed to object to the prosecutor's comments.

¶ 52 It is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses either lied or were mistaken.  State v. Casteneda-Perez, 61 Wash.App. 354, 362-63, 810 P.2d 74, review denied, 118 Wash.2d 1007, 822 P.2d 287 (1991).   Here, the prosecutor remarked:

Think about the contents of this van.   All of the things that are in it, all the space that is taken up.   If there's a third person, Officer Kenyon has to be blind.   He has to miss him entirely and he has to come in to this court, under oath, and he has to perjure himself.   For what gain?   For what benefit?

2 RP at 203.

¶ 53 In State v. Fleming, 83 Wash.App. 209, 213, 921 P.2d 1076 (1996), review denied, 131 Wash.2d 1018, 936 P.2d 417 (1997), the defendants also argued prosecutorial misconduct.   During closing argument the prosecutor stated:

Ladies and gentlemen of the jury, for you to find the defendants, Derek Lee and Dwight Fleming, not guilty of the crime of rape in the second degree, with which each of them have been charged, based on the unequivocal testimony of [D.S.] as to what occurred to her back in her bedroom that night, you would have to find either that [D.S.] has lied about what occurred in that bedroom or that she was confused;  essentially that she fantasized what occurred back in that bedroom.

Fleming, 83 Wash.App. at 213, 921 P.2d 1076.

¶ 54 Division One ruled that the prosecutor's arguments misstated the law and also misrepresented the role of the jury and the burden of proof.  Fleming, 83 Wash.App. at 213, 921 P.2d 1076.   Similar to the present case, the defendants in Fleming failed to object to the prosecutor's comments.   Fleming, 83 Wash.App. at 216, 921 P.2d 1076.   However, the court found that that failure did not preclude review because the misconduct rose to the level of manifest constitutional error.  Fleming, 83 Wash.App. at 216, 921 P.2d 1076.

¶ 55 The prosecutor's comments in the present case are similar to those in Fleming.   The prosecutor's argument suggests to the jury that in order to believe Rooth's defense it would have to find that Officer Kenyon lied, committing perjury, and risking his career for the sole purpose of convicting an innocent man.   The prosecutor's comments were a manifest constitutional error.   However, we are convinced that the jury would have convicted Rooth in the absence of the error;  reversal is not required.   See Fiallo-Lopez, 78 Wash.App. at 729, 899 P.2d 1294.

B. Firearm Enhancement

¶ 56 Rooth claims that the prosecutor misstated the law and relieved the State of the full weight of the burden of proof on the firearm enhancement.   This argument also fails.

¶ 57 To prove the weapon enhancement, the State had to prove that a nexus existed between the crime and the firearm.   The jury received the instruction on the nexus requirement in both the prosecutor's closing argument and in the jury instructions in compliance with State v. Holt, 119 Wash.App. 712, 82 P.3d 688 (2004).2

¶ 58 During closing argument, the prosecutor informed the jury it had a nexus question in jury instruction 28.   The prosecutor then correctly stated that a connection had to exist between Rooth and the firearm and the firearm and the commission of the crime.   Unlike Rooth suggests, however, the prosecutor did not ask the jury to suppose a nexus existed but rather discussed what might have happened if Rooth stuck a firearm out the window and pointed it at the police during the chase.   These comments came after the prosecutor described the mandatory nexus finding to the jury.

¶ 59 Nor did the prosecutor state that the jury could find Rooth guilty of the firearm enhancement based on the fact the gun was “readily accessible for offensive or defensive purposes.”   Br. of Appellant at 25;  RP at 218.   The prosecutor made the above statement to rebut defense counsel's argument that Rooth had not pointed the gun at the police.   The prosecutor then stated that the question for the jury to decide was whether the firearm was “readily accessible for offensive or defensive purposes[.]”  RP at 218.   This was not a misstatement of the law.   The law regarding nexus required that the weapon be readily available to use during the crime, not that it actually be used.

C. King's Testimony

¶ 60 Finally, Rooth maintains that the prosecutor committed misconduct in relation to King's testimony.   Rooth states that the prosecutor moved to prevent King from testifying because he knew her testimony would have established that Casper was in the van.   He also asserts that the prosecutor called Rousey to testify for the purpose of impeaching her.   The record does not support Rooth's assertions.

¶ 61 At the beginning of the trial, the State moved to exclude King from testifying.   The trial court excluded any hearsay testimony that King might have offered but it allowed King to testify from her personal knowledge.   The prosecutor's motion was simply to exclude improper hearsay testimony and does not show that the prosecutor knew Casper existed.   Further, Rooth chose not to call King to testify.   The court's ruling did not prevent King from testifying but excluded improper hearsay testimony from being introduced at trial.   The prosecutor did not commit misconduct by moving to exclude improper hearsay testimony.

¶ 62 Additionally, the prosecutor did not mislead the jury by impeaching Rousey, the female passenger.  Evidence Rule 607 allows the credibility of a witness to be attacked by any party, including the party that called the witness.   Here, the State called Rousey because she was an eyewitness to the offense and because she could provide evidence that supported the State's theory that Rooth possessed the 9 mm handgun.   The State questioned Rousey's credibility to demonstrate to the jury that she might have reasons for stating someone other than Rooth was driving the van.

¶ 63 The prosecutor did not state during closing argument that all possible evidence had been presented.   Instead, the prosecutor explained the reason for calling Rousey as a witness and asked the jury to evaluate Rousey's testimony in light of the instructions and to consider her possible motivation for stating that there was an unidentified third party in the van.   It is not improper or misleading for the State to put on evidence and raise arguments contrary to the defense's contentions.

V. Ineffective Assistance of Counsel

¶ 64 Rooth asserts that he received ineffective assistance of counsel.   He bases his argument on four events that occurred during his trial:  (1) defense counsel's failure to object to Officer Kenyon's testimony and to the prosecutor's misconduct;  (2) defense counsel's failure to call King to testify;  and (3) defense counsel's use of chewing tobacco during trial.   None establish ineffective assistance of counsel and, consequently, Rooth's arguments fail.

¶ 65 Under the sixth amendment to the United States Constitution and article I, section 22 of the Washington State Constitution, a defendant is guaranteed the right to effective assistance of counsel in criminal proceedings.   Strickland v. Wash., 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  Wash. ConstT art.   I, § 22.   To prove effective assistance of counsel, Rooth must satisfy a two-part test.  In re Pers. Restraint of Davis, 152 Wash.2d 647, 672-73, 101 P.3d 1 (2004).   He must show that “(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances;  and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.”  McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251 (citing State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987)) (applying the two-prong test in Strickland, 466 U.S. at 687, 104 S.Ct. 2052)).   Reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S.Ct. 2052.   A failure by Rooth to establish either element of the test defeats his ineffective assistance of counsel claim.  Strickland, 466 U.S. at 700, 104 S.Ct. 2052.

A. Failure to Object

1. Officer Kenyon's Testimony

¶ 66 Rooth asserts there was no legitimate tactical reason for defense counsel not to object to Officer Kenyon's repeated expression of Rooth's guilt.   Where a defendant claims ineffective assistance of counsel based on defense counsel's failure to challenge the admission of evidence, the defendant must show:  (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct;  (2) the court likely would have sustained an objection to the evidence;  and (3) had the court not admitted the evidence, the result of the trial would have differed.  McFarland, 127 Wash.2d at 336-337 n. 4, 899 P.2d 1251;  State v. Hendrickson, 129 Wash.2d 61, 80, 917 P.2d 563 (1996).

¶ 67 As previously discussed, Officer Kenyon's use of the word “reckless” was in conjunction with his description of Rooth's driving and was not improper opinion testimony.   The officer's statements had a factual basis and he used his inferences to explain the situation and his reasons for arresting Rooth.   Officer Kenyon's statements were not improper.

¶ 68 Because Officer Kenyon's statements were not improper opinion testimony, it is likely that the court would not have sustained any objections to the statements.   Rooth fails to show either lack of legitimate trial tactic or that the court would have excluded the evidence.   Further, Rooth fails to show that the outcome of the trial would have differed.

2. Prosecutorial Misconduct

¶ 69 Rooth next alleges there was no legitimate reason for counsel's failure to object to the prosecutor's misconduct during trial.   But the prosecutor did not misstate the law to the jury, and his improper statements during closing argument did not constitute reversible error.   Therefore, defense counsel was not defective for failing to object to the prosecutor's statements.

B. Failure to Call Shannon King

¶ 70 Rooth also claims defense counsel was ineffective for failing to call Shannon King to testify.   But King's testimony may have become unnecessary because of other testimony given during the trial.   Rousey testified that Casper was in the van.   She testified it was Casper and not Rooth driving the van.   Rousey also stated that Casper was the first person to jump out of the van and he had handled the weapon.   Defense counsel may have believed that King's limited testimony would not add anything further to the proceedings.

¶ 71 The decision not to call King can be characterized as a tactical one.   Rooth fails to show that King's testimony would have led to a different trial outcome or that defense counsel's decision not to call her was not based on a tactical decision.

C. Use of Chewing Tobacco

¶ 72 Finally, Rooth states defense counsel violated his right to effective counsel because he used chewing tobacco during trial.   As the State correctly responds, Rooth cannot show that counsel's use of chewing tobacco caused counsel to be deficient or that the use of tobacco prejudiced the outcome of the trial.

¶ 73 The record shows that only one juror indicated to the court he had difficulty understanding defense counsel.   The court admonished defense counsel outside of the jury's presence and counsel removed the tobacco.   The court then gave counsel the opportunity to address the jury.   It also told the jury that if anyone had any problems hearing or understanding counsel or the witnesses, the person should raise their hand.   The record does not show any jurors had further complaints regarding defense counsel.   Rooth fails to show how this incident constituted ineffective assistance of counsel.   In sum, his claims of ineffective assistance of counsel fail.

VI. Cumulative Error

¶ 74 Rooth's final contention is that this court must reverse his convictions under the cumulative error doctrine.   The State responds that Rooth has failed to show errors in his case that would require reversal of his convictions.   The State is correct.

¶ 75 Where multiple errors occurred at the trial level, a defendant may be entitled to a new trial if cumulative errors resulted in a trial that was fundamentally unfair.  In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).   Courts apply the cumulative error doctrine when several errors occurred at the trial court level, but none alone warrants reversal.  State v. Hodges, 118 Wash.App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wash.2d 1031, 94 P.3d 960 (2004).   Rather, the combined errors effectively denied the defendant a fair trial.  Hodges, 118 Wash.App. at 673-74, 77 P.3d 375.   But if no prejudicial error occurred, then there can be no cumulative error that deprived the defendant of a fair trial.  Saunders, 120 Wash.App. at 826, 86 P.3d 232.   The cumulative error doctrine is inapplicable to this case.

¶ 76 To summarize, we (1) affirm the jury's verdict on counts I;  (2) reverse the conviction of unlawful possession of a firearm on count II;  but (3) affirm the conviction on count III, even thought it is inconsistent with the verdict in count I, because it was supported by substantial evidence.   See State v. McNeal, 98 Wash.App. 585, 591, 991 P.2d 649 (1999), aff'd, 145 Wash.2d 352, 37 P.3d 280 (2002).   Additionally, we affirm the convictions on counts IV and V.

¶ 77 Reversed in part, affirmed in part, and remanded for resentencing.

FOOTNOTES

1.   It is puzzling that in light of its concession, the State nevertheless proceeded to ask the jury to return a not guilty verdict on the .22 caliber handgun possession charge rather than merely dismissing the count for which there was insufficient evidence.

FN2.  The Supreme Court recently disagreed with the holding in Holt that a jury instruction must contain the nexus language instead, it held that jury instructions need not contain express nexus language.  State v. Willis, 153 Wash.2d 366, 374, 103 P.3d 1213 (2005)..  FN2.  The Supreme Court recently disagreed with the holding in Holt that a jury instruction must contain the nexus language instead, it held that jury instructions need not contain express nexus language.  State v. Willis, 153 Wash.2d 366, 374, 103 P.3d 1213 (2005).

BRIDGEWATER, J.

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