STATE v. BROWN (2005)

PART PUBLISHED OPINION

 ¶ 1 Christopher Lee Brown appeals his convictions of two counts of second degree burglary and one count of first degree trafficking in stolen property.   Among other issues, he claims the prosecutor committed prejudicial misconduct by repeatedly calling him a liar during closing argument.   We agree, and because there is a substantial likelihood the misconduct contributed to the jury's verdict, we reverse.   In addition to the misconduct, we address only those issues likely to arise on retrial.

FACTS

¶ 2 Kim Bottoms, Christopher Brown's ex-girlfriend, told the Sequim police that she was with Brown when he burglarized two storage units.   A Sequim police officer told Bottoms that if she testified truthfully about the burglaries, he would recommend that the prosecutor not file charges against her for the burglaries.

¶ 3 The police found some of the stolen items at Brown's residence, other items at his brother's house, and some at the antique stores where Bottoms said Brown had sold them.   Brown denied burglarizing the storage units.   He explained that his mother had a unit at the storage complex and that he had taken some items from her unit to throw away.   Brown said that when he arrived at the dumpster in the storage facility, he saw a number of sealed boxes and some furniture.   He claimed that he thought somebody had thrown the items away, so he and his current girlfriend loaded the stuff in his van.   Brown's girlfriend corroborated his story.

 ¶ 4 The State moved to preclude Brown's attorney from asking Bottoms about her pending forgery charge.   Defense counsel argued that the evidence was admissible as ER 404(b) (bad acts) evidence.   The trial court refused to allow the questioning.   On appeal, Brown now reasons that the evidence should have been admitted to show Bottoms's motive to help the prosecutor with the expectation of a possible deal on the forgery charge.¹

¶ 5 In closing argument, the prosecutor stated,

What this case is about is really common sense and credibility and I submit to you that this defendant is not credible[;] ․ [t]o believe his [Brown's] story you have to believe either, the Picard's and the Hurlbut's (the victims) simply threw their stuff away one time and he came across it.   Well, I don't think anybody believes that.

Report of Proceedings (RP) (July 8, 2004) at 3-4;  5-6.   After reviewing Bottoms's testimony and Brown's denial of her story, the prosecutor said, “He's a liar, ladies and gentlemen, and that is what you're going to have to decide and I submit to you the right decision is that he is lying and that he did [enter units four and six, steal items, and sell the items].”   RP (July 8, 2004) at 14.   Finally, the prosecutor concluded, “He's a liar, you can't believe what he told you and after you go to the jury room, review the evidence, I believe the right verdict is that you should find him guilty [of the charged crimes].”   RP (July 8, 2004) at 19.

¶ 6 On rebuttal, the prosecutor argued, “[The burden of proof beyond a reasonable doubt is] a good law, but in this case this man is lying and he has burgled two storage units”;  RP (July 8, 2004) at 34;  and again, “[M]aybe I am belaboring in spite of what I said, but I just will remind you again, [Brown] is lying.”   RP (July 8, 2004) at 36.

 ANALYSIS

I. The Jury's Power to Acquit

 ¶ 7 Brown claims that the trial court's “to convict” instructions, which advised the jury that it had a “duty” to convict upon a finding of proof beyond a reasonable doubt, violated his right to a jury trial.   Specifically, he argues that the instruction misled the jury into believing that it lacked the power to nullify.   Because the issue may arise on retrial, we briefly address it.

 ¶ 8 Jury instructions are sufficient if they are not misleading, permit the parties to argue their cases, and properly inform the jury of the applicable law when read as a whole.  State v. Kennard, 101 Wash.App. 533, 536-37, 6 P.3d 38 (2000) (citing State v. Tili, 139 Wash.2d 107, 126, 985 P.2d 365 (1999)).   Brown asserts that the state constitution prohibits the challenged jury instruction language.

¶ 9 In State v. Meggyesy, Division One, addressing essentially the same arguments Brown makes here, upheld a similar instruction, holding that it violated neither the state nor federal constitution.  State v. Meggyesy, 90 Wash.App. 693, 701-04, 958 P.2d 319 (1998), overruled on other grounds in State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005), cert. granted, 546 U.S. 960, 126 S.Ct. 478, 163 L.Ed.2d 362 (2005) (applying the six-step analysis set forth in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986)).

¶ 10 We agreed with the reasoning of Meggyesy in State v. Bonisisio, 92 Wash.App. 783, 964 P.2d 1222 (1998).   There, the defendant also complained of a “to convict” instruction that instructed the jury it had a “duty” to return a verdict of guilty upon finding proof beyond a reasonable doubt of each element of the charge.  Bonisisio, 92 Wash.App. at 793, 964 P.2d 1222.   Bonisisio had proposed an instruction telling the jury that it “may” convict.  Bonisisio, 92 Wash.App. at 793, 964 P.2d 1222.

¶ 11 Brown argues that Bonisisio and Meggyesy are distinguishable because in those cases each defendant asked the court to instruct the jury that it “may” convict.   Here,  Brown argues that the language of the “to convict” instruction affirmatively misleads the jury about its power to acquit.   Brown points to the jury's power to acquit against the evidence, citing to Hartigan v. Territory of Wash., 1 Wash. Terr. 447, 449 (1874).   Brown also argues that the court's use of the word “duty” in the “to convict” instructions conveyed to the jury that they could not acquit if the elements had been established.   He cites to the dictionary definition of “duty” as, “[a]n act or a course of action that is required of one by ․ law.”   Br. of Appellant at 20 (quoting American Heritage Dictionary of the English Language, Fourth Edition, Houghton Mifflin (2000)).   Brown claims that this is a misstatement of the law and that it deceived the jurors about their power to acquit in the face of sufficient evidence.

 ¶ 12 We find no meaningful difference between Brown's argument and the issues raised in Bonisisio and Meggyesy.   The Meggyesy court, although addressing a slightly different argument, held that instructing the jury it had a “duty” to convict if it found the elements were proven beyond a reasonable doubt did not misstate the law.  Meggyesy, 90 Wash.App. at 700-01, 958 P.2d 319.   And in Bonisisio, 92 Wash.App. at 794, 964 P.2d 1222, we held that the trial court did not err in instructing the jury that it had a duty to convict if it found that the State had proven all the elements beyond a reasonable doubt.   Further, the purpose of a jury instruction is to provide the jury with the applicable law to be applied in the case.  State v. Borrero, 147 Wash.2d 353, 362, 58 P.3d 245 (2002).   The power of jury nullification is not an applicable law to be applied in a second degree burglary case.   We reject Brown's argument that the court erred in giving the “duty” instruction.

¶ 13 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.

II. Prosecutorial Misconduct

¶ 14 Brown argues that the prosecutor committed misconduct so flagrant that no curative instruction would have alleviated the problem when she repeatedly commented that Brown was a liar and injected her personal opinion into her closing argument and rebuttal closing argument.

¶ 15 Brown did not object to the prosecutor's comments and arguments below.   A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so flagrant and ill-intentioned that it causes 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).   In determining prejudicial effect, we ask whether there was a substantial likelihood the prosecutor's comments affected the verdict.   State v. Belgarde, 110 Wash.2d 504, 508, 755 P.2d 174 (1988) (citing State v. Reed, 102 Wash.2d 140, 147-48, 684 P.2d 699 (1984)).

¶ 16 A prosecutor is a quasi-judicial officer who represents the State and must act impartially.  State v. Korum, 120 Wash.App. 686, 700, 86 P.3d 166 (2004) (citing State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968)), review granted, 152 Wash.2d 1021, 101 P.3d 108 (2004).   A prosecutor's duty to do justice on behalf of the public encompasses more than mere advocacy of the State's case.  Korum, 120 Wash.App. at 700-01, 86 P.3d 166 (citations omitted). In State v. Reed, the court held improper a prosecutor's comments that the defendant was a liar, that the defendant was “clearly [guilty of] a murder two,” and that the jury should not believe defense witnesses because they were from out of town and drove fancy cars.  Reed, 102 Wash.2d at 145-47, 684 P.2d 699.   The court reversed because there was a substantial likelihood the comments affected the jury.  Reed, 102 Wash.2d at 147-48, 684 P.2d 699.

¶ 17 Moreover, a prosecutor may not argue that to acquit the defendant the jury must disbelieve the State's witnesses.  State v. Fleming, 83 Wash.App. 209, 213, 921 P.2d 1076 (1996).   Such an argument improperly shifts the burden of proof and misstates the jury's role.  Fleming, 83 Wash.App. at 213, 921 P.2d 1076.   In Fleming, the prosecutor argued that in order for the jury to find the defendant not guilty, they would have to find that the victim (also a State's witness) lied or was confused about what happened.  Fleming, 83 Wash.App. at 213, 921 P.2d 1076.   And because the court had held a similar argument improper in an opinion issued two years before Fleming's trial, the court found the statements amounted to a flagrant and ill-intentioned violation.  Fleming, 83 Wash.App. at 214, 921 P.2d 1076.

¶ 18 But in State v. Adams, 76 Wash.2d 650, 660, 458 P.2d 558 (1969), reversed on other grounds by Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971),2 the court looked more kindly on the prosecutor's “liar” argument.   Although in closing, the prosecutor called the defendant a liar several times, each time the prosecutor referred to specific evidence, including the defendant's own testimony, which “clearly demonstrated that in fact [the] defendant had lied.”  Adams, 76 Wash.2d at 660, 458 P.2d 558.   Because of this, the prosecutor was simply drawing reasonable inferences from the evidence-a permissible tactic.  Adams, 76 Wash.2d at 660, 458 P.2d 558.

¶ 19 Adams does not help the prosecutor here because her comments were not limited to specific testimony.   Rather, she began closing argument with “this case is about ․ common sense and credibility and I submit to you that this defendant is not credible.”   RP (July 8, 2004) at 3-4.   Then, discussing Bottoms's testimony and Brown's denial of it, the prosecutor said, “He's a liar, ladies and gentlemen, and that is what you're going to have to decide.”   RP (July 8, 2004) at 14.   Finally, the prosecutor concluded, “He's a liar, you can't believe what he told you and after you go to the jury room, review the evidence, I believe the right verdict is that you should find him guilty [of the charged crimes].”   RP (July 8, 2004) at 19.   In addition, the prosecutor suggested to the jury that to acquit, the jurors would have to believe that the victims “simply threw their stuff away,” a notion their testimony directly contradicted.   RP (July 8, 2004) at 5-6.

¶ 20 Given the ample case law condemning such conduct, we find the prosecutor's comments “flagrant and ill-intentioned.”   And we cannot say the error is harmless.   The State presented ample evidence that Brown took the property, sold some to antique dealers, and still had some.   But the issue was whether Brown broke into the storage units and stole the property or simply found it, apparently abandoned near the dumpster.   And on this critical issue, the jury had to decide whether to believe Bottoms or Brown.   We find a substantial likelihood that the prosecutor's improper arguments unfairly persuaded the jury to believe Bottoms.   Accordingly, we must reverse and remand for a new trial.   See Reed, 102 Wash.2d at 148, 684 P.2d 699.

III. Calculation of Brown's Offender Score

¶ 21 Brown argues that the trial court failed to properly determine his criminal history and offender score.   Although the judgment and sentence report a criminal history, Brown argues that the State presented no evidence of a criminal history other than his 1996 robbery conviction;  moreover, according to Brown, the trial court conducted no hearing on criminal history and made no findings of criminal history.

¶ 22 Because we are reversing Brown's convictions, the issue is moot.   At oral argument the State suggested that the paper work was probably filled out by the attorneys, who agreed on Brown's criminal history and then presented the papers to the court for signing.   Although entirely plausible, we remind the parties that absent some explanation of this on the record, we have no way of knowing what happened in the trial court sentencing.

¶ 23 Reversed and remanded for a new trial.

FOOTNOTES

1.   Because this issue may not arise on retrial, we do not address it.

FN2.  The United States Supreme Court reversed because the death penalty had been abolished.  Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971)..  FN2.  The United States Supreme Court reversed because the death penalty had been abolished.  Adams v. Washington, 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971).

ARMSTRONG, J.