Opinion
No. 25195-1-III.
February 14, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-00807-2, C. James Lust, J., entered May 10, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.
During a long pretrial incarceration in the Yakima County Jail, Michael J. Braae removed the screen from his cell window and then used the screen to break the window. He was charged, and convicted, of second degree malicious mischief and attempted second degree escape. His defense was that he just wanted some fresh air because he believed he was entitled to it. The trial judge refused to give his "fresh air" instruction. On appeal, he raises issues of venue, instructional error, prosecutorial misconduct, and double jeopardy. We affirm.
FACTS
The trial evidence showed Mr. Braae removed a metal mesh screen, shattered a glass window, and forced out a plexiglass barrier in his cell at the Yakima County Jail. Mr. Braae was in isolation and had no yard time, but was allowed dayroom access. Mr. Braae informed a responding corrections officer he just wanted some "fresh air" and then started laughing. Record of Proceedings (RP) (Aug. 22, 2005) at 115.
The State charged Mr. Braae with second degree malicious mischief and attempted second degree escape. Several news accounts appeared about Mr. Braae based on the sensational nature of the crimes he was originally charged with and his country-western, musical background. The media referred to him as "Cowboy Mike." Clerk's Papers (CP) at 134. One article was about security measures, based on information provided by jail staff members.
Based on the media attention, Mr. Braae unsuccessfully requested a change of venue. Of the 65 prospective jurors, 12 had heard about the case based upon responses to jury questionnaires. All 12 were eventually excused.
During trial, Mr. Braae offered the video-taped deposition of Dr. David Lovell, a research associate at the University of Washington. Dr. Lovell opined that there was a reasonable probability that Mr. Braae suffered a psychological deprivation because he was denied outdoor access. Mr. Braae unsuccessfully requested a jury instruction that instructed the jury: "[P]risoners may not be deprived of outdoor exercise. A deprivation of outdoor exercise is unconstitutional." CP at 61.
Regarding the definition of malice, the court instructed the jury: "Malice and maliciously mean an evil intent, wish, or design to vex, annoy, or injure another person. Malice may be, but is not required to be inferred from an act done in willful disregard of the rights of another." CP at 42. Mr. Braae unsuccessfully objected. Mr. Braae offered a similar instruction that omitted the second sentence.
During closing arguments, the prosecutor argued one correction officer who restrained Mr. Braae had to see if he was "compliant." RP (Aug. 26, 2005) at 251. The prosecutor argued, "[W]hy is compliant a key? Because they had to see if they were dealing with someone who was out of control." RP at 251. The court sustained a defense objection. The prosecutor then argued Mr. Braae was "flushed, laughing, giggling while —." RP at 252. Again, Mr. Braae objected and the court told the prosecutor to "move on." RP at 252. Later, the prosecutor argued that Mr. Braae "knew exactly what he was doing. He knew the chaos it would cause, and he thought it was funny." RP at 253. The court then overruled a defense objection, reasoning it was argument. The prosecutor then argued Mr. Braae was proud of his action. The court allowed the argument, explaining the prosecutor's remark was argument, not evidence.
The prosecutor continued, saying that the jail went into "full lockdown mode, which happens when there is an escape attempt." RP at 256. She also remarked, "[t]his was a `joke' to [Mr. Braae,] calculated, planned, [and] executed." RP at 256. Again, the court overruled defense objections to these statements. In rebuttal, the prosecutor commented, "[N]ot getting yard time, not a defense." RP at 270. The court sustained a defense objection, but then allowed the prosecutor to remark, "[E]xcuses. Fresh air, out time, yard time, excuses. If you follow their logic, the jail can be torn down with no repercussions." RP at 271. Lastly, the court allowed the prosecutor to argue, "[l]ook around, citizens of Yakima County, taxpayers, disregarding your rights, tax money that pays for these facilities." RP at 271-72.
The jury found Mr. Braae guilty as charged. He appealed.
ANALYSIS A. Venue
The issue is whether the trial court erred by abusing its discretion in denying Mr. Braae's venue motion. Mr. Braae contends he presented an apparent probability that the jury was influenced by media reports. We find no abuse of discretion.
We review a decision to deny a change of venue for abuse of discretion. State v. Rockl, 130 Wn. App. 293, 297, 122 P.3d 759 (2005). Discretion is abused when it is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Due process requires that the accused receive a trial by an impartial jury free from outside influences, including prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). A presumption of juror prejudice may arise, based on a totality of circumstances, if a defendant shows pretrial publicity has created a probability of unfairness or prejudice. The focus is whether the jurors at the trial had such fixed opinions that they could not judge impartially the guilt of the defendant. State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). We review venue denials for an abuse of discretion.
We independently review the record to determine whether the probability of prejudice is so apparent that it constitutes error to deny a motion to change venue. State v. Thompson, 60 Wn. App. 662, 669, 806 P.2d 1251 (1991). We examine nine nonexclusive factors to determine whether the trial court abused its discretion:
(1) [T]he inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.
State v. Crudup, 11 Wn. App. 583, 587, 524 P.2d 479 (1974).
In Irvin, a "pattern of deep and bitter prejudice" was shown to be present throughout the Indiana community, which was "clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box." Irvin, 366 U.S. at 727. Eight of Mr. Irvin's 12 jurors thought he was guilty, although each juror seated promised to "be fair and impartial." Id. at 728. The Supreme Court reversed the conviction. Id. at 728. Here, unlike in Irvin, only 12 of the 65 prospective jurors heard about the case and all 12 prospective jurors were excused.
Further, under Crudup, no basis exists to change venue. The majority of publicity was circulated several months before Mr. Braae's trial and concerned the original charged crimes. The trial court exercised great care in jury selection. Few prospective jurors had heard of the case, all were excused, and solely one report involved a government official. Lastly, the charges were not severed and Yakima County is not an extremely small county in size or population.
B. Instructional Error
The issue is whether instructional error denied Mr. Braae a fair trial. He contends the trial court erred in denying his proposed jury instruction regarding a constitutional right to outdoor exercise and in the definitional instruction of malice.
We review a trial court's refusal to provide a proposed jury instruction for abuse of discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005). When a trial court rejects a proposed jury instruction predicated upon rulings as to the law, it is subject to de novo review. State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002).
Mr. Braae argues he was unable to argue his defense that he had a right to and was deprived of fresh air. Mr. Braae did argue his "fresh air" defense, but without the benefit of his proposed instruction. Parties are entitled to jury instructions that accurately state the law. State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003). Mr. Braae's proposed instruction stated: "[P]risoners may not be deprived of outdoor exercise. A deprivation of outdoor exercise is unconstitutional." CP at 61.
Exercise is a basic human necessity protected by the eighth amendment and a long-term deprivation of outdoor exercise for inmates is unconstitutional. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). But, a temporary denial of outdoor exercise does not rise to the level of an eighth amendment violation. See Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (five-month lockdown in response to a genuine emergency did not violate the eighth amendment).
Here, for unclear reasons, Mr. Braae was denied yard time, but he did have access to the dayroom for indoor exercise. The record suggests both security and maintenance concerns were reasons for curbing outdoor exercise. No specific court order, regulation, or rule is shown, requiring a different exercise arrangement for Mr. Braae. Access to fresh air is different from preventing access to exercise. And, the legal requirements that may have been established in the above federal cases for exercise at particular institutions are not shown to bind Yakima County.
Mr. Braae's proposed jury instruction is merely theoretical. Moreover, this is not a civil suit over jail conditions. Moreover, no authority allows an escapee to get fresh air or exercise. A trial judge is not required to provide misleading or confusing instructions. See State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005). Since the offered jury instruction did not accurately state the law, and was misleading and confusing, the trial court did not abuse its discretion in denying it.
Next, Mr. Braae contends the State failed to provide evidence to support an inference of malicious intent. The court instructed that malice may be inferred by "an act done in willful disregard of the rights of another." CP at 42. Evidence showed Mr. Braae damaged jail property and then joked and laughed about it, creating an inference of malice. Thus, the evidence supports the instruction. Redmond, 150 Wn.2d at 495.
C. Argument
The issue is whether the prosecutor's closing argument regarding Mr. Braae's demeanor and reference to Yakima County taxpayers amounted to prosecutorial misconduct denying Mr. Braae a fair trial.
We review prosecutorial misconduct rulings for abuse of discretion. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). A defendant bears the burden of establishing, first, prosecutorial misconduct, and second, its prejudicial effect. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). A prosecutor's statements are "viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id. Misconduct is prejudicial if "there is a substantial likelihood that the . . . misconduct affected the verdict." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
During closing argument, the prosecutor made several comments regarding Mr. Braae's demeanor. The court allowed most, but not all, of these remarks because they were based on trial evidence or inferences from the evidence. Certainly, trial counsel will normally dispute the inferences and the qualitative nature of each remark, but argument is, after all, an art, not a science. A prosecutor is permitted to persuasively argue his or her theory of the case based on the evidence presented. Dhaliwal, 150 Wn.2d at 578. Mr. Braae does not show misconduct and fails to establish prejudice. Because any stretch of the evidence shows Mr. Braae was caught damaging his cell and breaking out a window that could further his escape, and made light of it, we conclude that even barring the disputed portions of the State's argument would not have changed the verdict. The jury was fairly left to decide Mr. Braae's intent to escape or get fresh air.
Turning to the prosecutor's single comment that taxpayers fund jails, Mr. Braae aptly argues this was capable of being construed as an improper appeal of passion or prejudice. Even so, the prosecutor's isolated remark likely states an obvious commonly known fact, that the public would bear the repair expense. The repair expense is relevant to the degree of malicious mischief, even if Mr. Braae stipulated to the statutory amount. Finally, Jury Instruction No. 1 cautioned, "[Y]ou will permit neither sympathy nor prejudice to influence your verdict." CP at 35. We presume juries follow the given instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
Given all, Mr. Braae has failed to establish reversible prosecutorial misconduct.
D. Double Jeopardy
The issue is whether Mr. Braae's convictions for second degree malicious mischief and attempted second degree escape violate double jeopardy principles. He raises a question of law, which this court reviews de novo. State v. Watson, 155 Wn.2d 574, 578, 122 P.3d 903 (2005).
The double jeopardy clauses of the fifth amendment and the Washington State Constitution, article I, section 9 protect against multiple punishments for the same offense. To constitute the same criminal offense for purposes of double jeopardy, the offenses must be the same in both law and fact. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). Where an element of one offense is not included in the other, and proof of one offense would not necessarily prove the other, the double jeopardy clause allows separate punishment for both offenses. Id.
A person is guilty of second degree malicious mischief if he or she knowingly and maliciously "[c]auses physical damage to the property of another in an amount exceeding two hundred fifty dollars." RCW 9A.48.080(1)(a). A person is guilty of attempted second degree escape if he or she, with intent to commit an escape, takes a substantial step toward knowingly escaping from a detention facility. RCW 9A.28.020(1), RCW 9A.76.120(1)(a).
In State v. Davis, 577 P.2d 375 (Mont. 1978), two inmates were convicted of felony criminal mischief and attempted escape for digging a hole in the wall of the county jail. Id. at 376. Relying on Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the court held that double jeopardy did not apply because the statutes defining the charged offenses had no common elements. Similarly, here, an element of one offense is not included in the other, and proof of one offense would not necessarily prove the other. Similarly, because each offense entails separate elements and the legislature intended separate punishment, we reject Mr. Braae's substantial step argument based on In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004). Therefore, the double jeopardy clause allows separate punishment for both offenses. Mr. Braae's second degree malicious mischief and attempted second degree escape convictions do not violate double jeopardy principles.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, A.C.J.
Kulik, J., concur.