Opinion
No. 32355-9-II.
May 16, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-02712-1, Frank Cuthbertson, J., entered October 11, 2004.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Donna Yumiko Masumoto, Pierce Co Prosec Atty Office, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, J., concurred in by Quinn-Brintnall, C.J., and Houghton, J.
Matthew Louis Dulisse appeals his convictions of second degree assault with a firearm, unlawful imprisonment, and unlawful possession of a controlled substance. He argues that (1) the trial court's failure to give a unanimity instruction deprived him of a fair trial on the unlawful imprisonment conviction; (2) the evidence was insufficient to support his conviction for unlawful imprisonment; (3) the prosecutor committed misconduct when he commented on Dulisse's failure to present testimony of a certain witness and when he misstated Dulisse's testimony; (4) defense counsel was ineffective because he failed to object to the prosecutor's comments and failed to make a record of the sidebar conference on the missing witness issue; and (5) the court erred when it found that his unlawful imprisonment and second degree assault with a firearm convictions were not the same criminal conduct for purposes of sentencing.
We affirm on all matters except the unlawful imprisonment conviction, which we reverse and remand for a new trial due to the lack of a unanimity instruction.
FACTS I. Substantive Facts
Dulisse and Samantha Hanna had a romantic relationship that lasted for two to three months. The couple regularly used cocaine together, and Hanna ended the relationship in May 2003, because of the drug use. After ending the relationship, Hanna attempted to maintain a friendship with Dulisse and they maintained contact. During that time, Dulisse cut the telephone cords and the cable cord on Hanna's house. And someone, whom she assumed was Dulisse, broke the back window of her car.
Dulisse worked for a cable company and had installed cable under his name at Hanna's house. He cut the cable cord to stop the cable service.
On June 9, 2003, Dulisse called Hanna and told her that he was overdosing on drugs. She went to his apartment where he and a friend were using cocaine. Hanna then joined in the drug use.
At some point the friend left after which Hanna and Dulisse got into an argument when Hanna received a telephone call from her friend Eric Lind. Hanna testified that Dulisse got upset because he did not want her talking with Lind. While she was on the telephone, Dulisse began yelling that Hanna was at his house doing drugs.
Hanna got off the telephone and tried to leave. When Dulisse tried to stop her from leaving, Hanna dialed 911. Dulisse took the telephone from her and turned it off. Hanna then threatened to knock on a neighbor's door and have them call the police if Dulisse did not return her telephone. Dulisse returned it, and Hanna went to her car where she called Lind. Dulisse testified that he called his friend Julie Debose to ask if he could go over to her house later that night.
Dulisse then followed Hanna and got into her car. Hanna testified that he climbed in through the driver-side window and crawled over her to get to the passenger seat. Hanna drove around the apartment complex with Dulisse. She told him to get out of the car. Dulisse opened his wallet, took out a baggie of cocaine and said he was going to hide it in her car so that she would get `busted for it.' Report of Proceedings (RP) at 149. Hanna drove back to the spot she had originally parked and told Dulisse that she was going to go to the store and call the police.
Hanna got out of the car and Dulisse followed. The pair argued. According to Hanna, they pulled on each other's clothes, took things from each other, and threw the other's belongings over a fence. Dulisse threw Hanna's purse over the fence and he threw her telephone on the concrete, breaking off the battery. He then threw the battery over the fence. Hanna testified that Dulisse punched her breast and chest and kneed her in the crotch. During the altercation, they ended up in the middle of a bank of garages; Hanna testified that she was not sure exactly how they ended up there.
Ryan Walsh, who was driving slowly through the parking lot, witnessed the pair arguing by the garages. She testified that Hanna `seemed to be pulled in between the two garages.' RP at 368-69. Walsh further testified: `[Hanna] wasn't going back voluntarily, but I couldn't tell you how he was pulling her or anything like that.' RP at 369. Next, Walsh saw Hanna throw something. Walsh then lost sight of them behind the garages. She pulled forward to see if she could see them but she could not, so she continued to drive toward the apartment building. She did not go inside the building but called 911 and reported the incident. She remained outside and did not see Dulisse or Hanna emerge from behind the garages.
Hanna testified that she ran away from Dulisse and headed behind the apartment building where Dulisse caught up with her. He told her to calm down and that he would help her find her purse. Hanna agreed, and Dulisse went to his van and got a flashlight and helped her look for her purse behind the garages. Dulisse testified that before he returned with the flashlight, he went to his apartment, changed his clothes, and got a gun. Hanna did not leave the area while Dulisse was gone, but she waited for him to return.
Dulisse testified that he spoke with Lind after Hanna initially left the apartment and went to her car. Dulisse said that Lind had threatened him and because Lind was an Army Ranger, Dulisse grabbed the gun, presumably for protection against Lind.
When Dulisse returned, they began arguing again. Hanna told Dulisse that she had sex with Dulisse's friend. Dulisse called his friend who confirmed what Hanna told him. At some point during the conversation with his friend, Dulisse said `bro's before ho's.' RP at 243-44. Dulisse testified that Hanna became angry after hearing his comment and grabbed his crotch and then they began to struggle. Hanna admitted that this comment upset her, and she did not deny that she then hit Dulisse.
But Hanna also testified that after the conversation with his friend, Dulisse pushed her into a fence, sat on her, and pulled out a gun. She said he shoved the gun in her mouth and she pleaded with him not to kill her. Dulisse testified that he did not push Hanna to the ground but, rather, that they both fell during the struggle after she grabbed his crotch. He also said that he never pointed the gun at her and that he did not put it in her mouth.
A neighbor on the other side of the fence heard the couple fighting. She heard a male voice say: `Now what are you going to do? Run?' RP at 340.
Police officer Eric Carlson arrived in response to Walsh's report. He observed Hanna lying on her back on the ground with her head next to the fence. Dulisse was squatting over her and was in the process of getting up when Carlson approached. Carlson announced himself, and Dulisse threw the gun over the fence and raised his hands as Carlson directed. Deputy Curtis Seevers arrived at the scene and handcuffed Dulisse.
Hanna gave a statement to the officers. She did not tell them that Dulisse had put the gun in her mouth but merely said that he had pointed it at her. But she told them that she feared Dulisse would have killed her. Both of Hanna's wrists were red.
Police found cocaine in Dulisse's wallet. Dulisse said that it belonged to Hanna. Officers recovered the gun and Hanna's purse in a neighbor's yard on the other side of the fence. The next day the neighbor found a telephone battery.
Dulisse testified that Hanna attempted to contact him after the incident and that about three weeks after the fight Hanna came to the West End Tavern where Dulisse and his friend Debose were having drinks. Hanna tried to get Dulisse to speak with her, but he refused. Dulisse's distinctive Harley Davidson motorcycle was parked outside the tavern.
II. Procedural History
The State charged Dulisse with first degree kidnapping, second degree assault, unlawful possession of a controlled substance, first degree attempted murder, and harassment. At trial, after the State rested, Dulisse moved to dismiss the harassment and kidnapping charges. The trial court dismissed the harassment charge but denied the motion to dismiss the kidnapping charge.
During closing arguments, the prosecutor commented about Dulisse not calling Debose to testify:
[PROSECUTOR]: Now, I want to go back through some specific things that were said to you. First of all, this West End Tavern, now, you didn't hear any testimony from Julie Debose in this case. The only testimony you heard in this case —
[DEFENSE]: Objection, Your Honor, excuse me. I object.
THE COURT: Excuse me. Hold it.
[DEFENSE]: The defense has no burden of proof.
PROSECUTOR: I'm not suggesting they do, but Julie Debose is testified about.
THE COURT: Excuse me, counsel. Let me talk to counsel at the side, please.
(WHEREUPON, a side bar between the Court and counsel occurred.)
[PROSECUTOR]: You heard about Julie Debose in this trial. You heard about Julie Debose being at the West End Tavern, and the defendant tells you that he was there with Julie Debose, and he says that Julie Debose was there to hear what Samantha Hanna said to him, if anything, at the West End Tavern. Now, you heard also in the instructions that Judge Cuthbertson gave to you that both sides have the opportunity for rebuttal. But yet you did not hear testimony from Julie Debose.
[DEFENSE]: Excuse me, Your Honor. Again, I'm going to object. That's improper argument.
RP at 741-42.
The jury found Dulisse guilty of second degree assault while armed with a firearm, possession of a controlled substance, and first degree unlawful imprisonment, a lesser included offense of kidnapping. It found him not guilty of attempted murder.
The court sentenced Dulisse, based on an offender score of two, to 12 months for unlawful imprisonment, 12 months for second degree assault with a 36-month firearm enhancement, and nine months for possession of a controlled substance, to be served concurrently.
Dulisse appeals.
ANALYSIS I. Unanimity Instruction
Dulisse argues that even if we find that dragging Hanna behind the garages constituted unlawful imprisonment, we must still reverse because the jury did not receive a unanimity instruction. Washington law requires that a defendant may only be convicted when a unanimous jury finds that the defendant committed the criminal act charged in the information. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). Because lack of a unanimity instruction is an error of constitutional magnitude, it may be raised for the first time on appeal. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991), overruled on other grounds in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002)). It is subject to a constitutional harmless error analysis. Kitchen, 110 Wn.2d at 405.
The State must prove all elements of a crime beyond a reasonable doubt. State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). RCW 9A.40.040 governs unlawful imprisonment and states: `A person is guilty of unlawful imprisonment if he knowingly restrains another person.' "Restrains' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is `without consent' if it is accomplished by (a) physical force, intimidation, or deception . . .' RCW 9A.40.010(1).
When the State presents evidence of several acts that could form the basis for a charged crime, the State must either tell the jury which act to rely on or the court must instruct the jury to agree on a specific criminal act. Kitchen, 110 Wn.2d at 409. Where there are multiple distinct acts, the jury must receive a unanimity instruction. Crane, 116 Wn.2d at 330. Multiple acts tend to be shown by evidence of acts that occur at different times, in different places, or on different victims. State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). The court must distinguish between one continuous offense and several distinct acts, each of which could be the basis for the criminal charge. Love, 80 Wn. App at 361.
An example of a continuing course of conduct, which does not require a unanimity instruction, is one that requires an ongoing enterprise with a single objective. Love, 80 Wn. App. at 361. A common sense analysis determines whether multiple acts constitute a continuing course of conduct. Love, 80 Wn. App. at 361.
In Crane, our Supreme Court found that multiple acts of assault over two hours constituted continuous conduct and a unanimity instruction was not required. 116 Wn.2d at 330. The Court found that because it was such a short time period, the jury need only determine if the assault occurred. Crane, 116 Wn.2d at 330.
Here, the State charged Dulisse with attempted murder, second degree assault with a firearm, and kidnapping, all arising from events that started at Dulisse's apartment, moved to Hanna's car, and then to the parking lot and behind the apartment garages. The State argues on appeal that Hanna attempted to leave on several occasions, but that Dulisse prevented her from doing so by taking her personal belongings, getting into her car, and pulling her behind the garages.
The State argues that these several events occurred in different locations, but with a single victim and thus it was a continuing course of conduct not requiring a unanimity instruction. The State argues that the unlawful imprisonment began at the apartment when Dulisse first took Hanna's telephone and that his taking her purse and throwing it over the fence constituted unlawful imprisonment. The State appeared to concede that all events that occurred after Dulisse was seen dragging Hanna behind the garages were part of the assault and not the unlawful imprisonment. Dulisse argues that the act of dragging Hanna between the garages, the factor he believes the State relied on at trial, is the same act underlying the second degree assault charge because the distance Hanna moved was only a few feet and the time between the dragging and the assault was only six minutes. And it cannot be the basis for both assault and unlawful imprisonment.
Walsh testified that she only saw Hanna throw something, so Dulisse may have thrown Hanna's purse and telephone over the fence before or after they were behind the garages. But the throwing had to have occurred before Dulisse left Hanna alone while he retrieved the flashlight and gun, because he got the flashlight to help Hanna find her purse.
Here, because there were multiple distinct acts occurring at different times and places, the State was required to distinguish between the acts that constituted the crime of second degree assault with a firearm and the act or acts that constituted the crime of unlawful imprisonment. Based on the record and oral argument, we cannot discern the factual basis on which the State relied for the unlawful imprisonment charges or the specific evidence relied upon by the jury to support those charges. Under these circumstances, the trial court was required to submit a unanimity instruction to the jury on the charge of unlawful imprisonment.
Because of the lack of clarity as to the basis of the unlawful imprisonment conviction, we cannot say as a matter of law that the failure to give the unanimity instruction was harmless error. Kitchen, 110 Wn.2d at 405 (failure to give a unanimity instruction is subject to constitutional harmless error analysis.) Since the jury was not so instructed, Dulisse's conviction for unlawful imprisonment must be reversed and remanded for a new trial.
Because we reverse Dulisse's conviction for unlawful imprisonment and remand for a new trial on that issue, we do not address his argument that second degree assault and unlawful imprisonment are the same criminal conduct for sentencing purposes.
II. Sufficiency of the Evidence
Dulisse argues that the evidence was insufficient to support his conviction of unlawful imprisonment.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Dejarlais, 88 Wn. App. 297, 305, 944 P.2d 1110 (1997).
Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
RCW 9A.40.040 governs unlawful imprisonment and states: `A person is guilty of unlawful imprisonment if he knowingly restrains another person.'" Restrains' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is `without consent' if it is accomplished by (a) physical force, intimidation, or deception . . .' RCW 9A.40.010(1).
Dulisse argues that the evidence was insufficient to prove a separate act of restraint. He argues that the acts of pulling Hanna behind the garages or pointing the gun at her were incident to the assault, and therefore, constitute the assault offense. Here, the State counters that Dulisse unlawfully imprisoned Hanna when he repeatedly took her telephone and her purse in order to prevent her from leaving and it argues that the imprisonment and assault did not constitute the same offense.
The concept that one crime may be incidental to another crime implicates the merger doctrine. State v. Saunders, 120 Wn. App. 800, 816-17, 86 P.3d 1194 (2004). The merger doctrine does not apply to sufficiency of the evidence challenges, but courts do `borrow merger analysis' to determine sufficiency issues in restraint cases. Saunders, 120 Wn. App. at 817.
Where restraint of a victim's movement is merely incidental to and integral to the commission of another crime, such restraint does not constitute the independent crime of kidnapping. State v. Korum, 120 Wn. App. 686, 703-04, 86 P.3d 166, review granted, 152 Wn.2d 1021 (2004). The Washington criminal code, with its clearly defined degrees of crimes, demonstrates the legislature's intent to `remove the occasion for pyramiding crimes which had in the past resulted in unjust and oppressive multiple punishments for a single offense.' Korum, 120 Wn. App. at 704 (quoting State v. Ingham, 26 Wn. App. 45, 49, 612 P.2d 801 (1980)). Courts must look to the totality of the circumstances to determine whether restraint is incidental to other charges. Saunders, 120 Wn. App. at 818. This requires that courts look to `the facts and circumstances surrounding the crime and the nature of the acts and their relation to the crime.' Saunders, 120 Wn. App. at 818 (quoting State v. Harris, 36 Wn. App. 746, 752-53, 677 P.2d 202 (1984)).
In State v. Green, our Supreme Court concluded that moving a child in the course of a homicide did not constitute kidnapping. 94 Wn.2d 216, 227, 616 P.2d 628 (1980). In Green, the defendant took a child from an alley, moved her about 50 feet, and killed her. 94 Wn.2d at 222-225 n. 4. Two to three minutes elapsed from the time witnesses first heard the child scream to when they found her dead. Green, 94 Wn.2d at 226. The State charged Green with aggravated murder, with kidnapping as an element of the crime. Green, 94 Wn.2d at 218-19. The Court decided that the State failed to prove the kidnapping element because, although Green moved the child, that movement was `an integral part of and not independent of the underlying homicide.' Green, 94 Wn.2d at 227.
Here, the record is unclear about what evidence the State and the jury relied on for the unlawful imprisonment conviction. When we consider the evidence in the light most favorable to the State, we cannot say that a rational trier of fact could not find the essential elements of the crime of unlawful imprisonment beyond a reasonable doubt. Because we remand for a new trial on other issues, double jeopardy does not bar retrial of the unlawful imprisonment charge in its entirety.
III. Prosecutorial Misconduct
Dulisse argues that the prosecutor improperly shifted the burden when he commented that Dulisse did not call Debose as a witness. He further argues that the prosecutor improperly misstated evidence when he (1) said Dulisse denied pulling Hanna behind the garages; and (2) argued Walsh did not see Dulisse return to his apartment.
Prosecutors are quasi-judicial officers of the court and have the duty to make sure the accused receives a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). In order to establish prosecutorial misconduct, the defendant has the burden of proof and must show that the prosecutor's conduct was improper and that it prejudiced his right to a fair trial. Boehning, 127 Wn. App. at 518; State v. Jungers, 125 Wn. App. 895, 830, 106 P.3d 827 (2005). Prejudice occurs where `there is a substantial likelihood the instances of misconduct affected the jury's verdict.' Boehning, 127 Wn. App. at 518 (citations omitted).
Where a defendant fails to object to a prosecutor's conduct below, he or she waives the argument unless the prosecutorial misconduct is so flagrant and ill intentioned that it causes lasting and resulting prejudice and a curative instruction could not have remedied it. Boehning, 127 Wn. App. at 518 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). We look at the prejudicial nature and the cumulative effect of the misconduct in determining whether it warrants reversal. Boehning, 127 Wn. App. at 518.
We review a prosecutor's arguments made during closing arguments in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Boehning, 127 Wn. App. at 519. We grant trial counsel wide latitude to draw reasonable inferences from the evidence presented at the trial, but they may not make statements that are not supported by the evidence. Boehning, 127 Wn. App. at 519.
A. Missing Witness
Our Supreme Court set out the missing witness doctrine in State v. Blair:
Under the `missing witness' or `empty chair' doctrine, it has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and . . . he fails to do so — the jury may draw an inference that it would be unfavorable to him.
State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991) (quoting State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968)). The Court stated that the missing witness doctrine permitted the prosecutor to comment on the defendant's failure to produce a witness, provided that it was clear that the defendant was able to produce the witness, and that `the defendant's testimony unequivocably [sic] implies that the absent witness could corroborate his theory of the case.' Blair, 117 Wn.2d at 487.
But the Court also placed limitations on the applicability of the missing witness doctrine to situations where `under all the circumstances of the case, such unexplained failure to call the witnesses creates a suspicion that there has been a willful attempt to withhold competent testimony.' Blair, 117 Wn.2d at 488 (quoting State v. Baker, 56 Wn.2d 846, 859-60, 355 P.2d 806 (1960)). The inference may be drawn only where there is an unexplained failure to call a witness whom it would be natural for a party to call if the party knew that the testimony would be favorable. Russell, 125 Wn.2d at 90. And the doctrine is not proper if the witness is unimportant or the testimony would be cumulative. Blair, 117 Wn.2d at 489. In short, if the witness's absence can be explained, the inference is not permitted. Blair, 117 Wn.2d at 489. And the missing witness doctrine is not permitted where the uncalled witness is equally available to the parties and is not bound by affection or interest to the defendant. Blair, 117 Wn.2d at 490.
Here, Debose was not equally available to both parties because she was presumably tied by affection to Dulisse. Her absence was not readily explainable as she did not have a testimonial privilege nor would her testimony likely have been self-incriminating. See, e.g., Blair, 117 Wn.2 at 489. She likely could have confirmed that Hanna had come to the West End Tavern and had tried to speak with Dulisse. And she could have testified that Dulisse called her on the night of the assault. But Debose did not witness the altercation between Hanna and Dulisse. Even though the record does not show that Debose was aware of the history of Hanna's and Dulisse's relationship, or that she had specific or unique knowledge of the incident, Dulisse had testified that Debose's testimony could corroborate that he telephoned her on the day of this event, and that Hanna had attempted contact with him at the tavern following it. The prosecutor's statements were not improper.
Furthermore, in evaluating whether the prosecutor's comments were prejudicial, we look to the entire trial. Boehning, 127 Wn. App. at 518. Here, the case hinged on the witnesses' credibility. And the prosecutor commented on Dulisse's credibility by implying that Dulisse was lying about telephoning Debose and about Hanna coming to the tavern. Thus, according to the prosecutor, if Dulisse was lying about that, then he was lying about the events surrounding the fight. But Dulisse and Hanna were not the only two who testified at trial. The jury also heard testimony from (1) Walsh, who said she saw Dulisse pulling Hanna behind the garages; (2) Carlson, who saw Dulisse above Hanna with a gun; and (3) the neighbor, who heard a male voice say, `Now what are you going to do? Run?' The cumulative testimony supported the State's theory such that there is no substantial likelihood that the comment on Debose's absence at trial affected the jury's verdict. Thus, the prosecutor's statements did not prejudice the jury against Dulisse.
B. Statements on the Evidence 1. Statement that Dulisse Denied Pulling Hanna Behind the Garages
Dulisse next argues that the prosecutor improperly misstated the evidence. Dulisse points to the prosecutor's closing argument about Dulisse's version of the altercation as it related to Walsh's eyewitness testimony about Dulisse pulling Hanna behind the garages. Dulisse did not object to the prosecutor's statements during closing argument at trial, thus we will only reverse where the statements were so flagrant and ill intentioned that it caused lasting and resulting prejudice and a curative instruction could not have remedied it. Boehning, 127 Wn. App. at 518 (quoting Russell, 125 Wn.2d at 86). It is improper for the prosecutor to present a closing argument based on evidence not in the record. Boehning, 127 Wn. App. at 519.
The prosecutor stated:
That's what Ryan Walsh sees. And the defendant's response to that: Did you all hear the defendant's response when I asked him that question yesterday? No. It did not happen.
Now, why is that? Why would he say that to you? Because restraining Samantha Hanna is a key issue in this case, and taking her back behind those garages is a key issue in this case . . .
Now, the defendant, when I asked him that question yesterday, bear in mind that when it came to that question, he could not admit that he was the one that was yanking Samantha Hanna behind the garage.
RP at 701-02.
Dulisse argues that his trial testimony was that he did not pull Hanna behind the garages but that there was a time during the altercation that it could have appeared that he was pulling Hanna. Dulisse argues that the prosecutor's argument was highly prejudicial because it called his credibility into question, which was the crucial issue of the case.
Dulisse's testimony during the State's cross-examination was:
Q Are you denying to the jury you struggled with Ms. Hanna in the area between the two —
A No.
Q — garages?
A No.
Q And that you pulled her back behind the two garages?
A I never pulled her back anywhere.
Q So you are denying that you pulled her back —
A Yes.
Q — into the garages? That did not happen?
A That did not happen.
RP at 570-71. Dulisse later testified:
Q Well, there was no time when you would have even been in a position to be seen pulling her back into the —
A Yes, there was.
. . . .
Q All right. Now, it's your testimony that there was never a time when you could have been seen dragging her back into the bushes behind the garage?
A No, there was.
RP at 594-95.
Here, the prosecutor did not base his argument on evidence not in the record. He correctly pointed out that Dulisse denied pulling Hanna behind the garages. Dulisse's statement that it could have appeared he was pulling Hanna did not constitute an admission that he did pull her. Thus, the prosecutor did not misstate Dulisse's testimony, and we conclude that the prosecutor did not commit misconduct when he stated that Dulisse denied pulling Hanna behind the garages.
Further, even if this was a misstatement, it was not so flagrant and ill-intentioned that the jury was prejudiced beyond repair. See, e.g., Boehning, 127 Wn. App. at 518. The jury likely would have reached the same verdict without the prosecutor's statement. Though it tended to show Dulisse lacked credibility, so did much of the evidence presented at trial. For example, Walsh testified that she saw him pull Hanna and Hanna's wrists were red after the incident, at least perhaps indicating restraint.
2. Statement Regarding Dulisse's Version of Events
Dulisse also points to the prosecutor's rebuttal closing argument stating that Dulisse's version of the events was not credible based on the timeframe. The prosecutor argued that there was no way that Dulisse could have gone to his apartment, changed his clothes, and got his gun because Walsh would have seen it, and she did not.
We grant counsel wide latitude to draw inferences from the evidence. Boehning, 127 Wn. App. at 519. This is a reasonable inference. Walsh testified that she saw Dulisse pull Hanna behind the garages and that Dulisse and Hanna were no longer in view. Walsh then called the police and remained outside. She did not see Hanna or Dulisse emerge from behind the garages. The prosecutor made the reasonable inference that Walsh would have seen Dulisse come out if he had actually emerged. Thus, according to the prosecutor's argument, Dulisse's version of the events was not credible. Because of the wide latitude we grant counsel during oral argument, we find the prosecutor's statements a proper inference based on the testimony presented at trial. See, e.g., Boehning, 127 Wn. App. at 519.
IV. Ineffective Assistance of Counsel
Dulisse argues that he received ineffective assistance of counsel because his attorney failed to (1) object to the prosecutor's closing argument stating that Dulisse denied pulling Hanna behind the garages; and (2) preserve on the record a sidebar that occurred after his attorney objected to the prosecutor's use of the missing witness inference.
A. Standard of Review
To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citations omitted). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for counsel's deficient performance, the outcome would have differed. In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995).
B. Failure to Object
Dulisse argues that his attorney should have objected to the prosecutor's closing argument that Dulisse argues misstated his testimony.
Dulisse's counsel's performance did not fall below an objective standard of reasonableness. The prosecutor did not misstate the evidence. He merely repeated what Dulisse had said during testimony. Dulisse's counsel cannot be expected to object to proper comments.
Because Dulisse must show both prejudice and deficient performance, and he fails to show deficiency, we find that Dulisse received effective assistance of counsel. See, e.g., Thomas, 109 Wn.2d at 226.
C. Failure to Preserve the Record
Dulisse argues that if we determine that we cannot reach a decision on the missing witness inference because the sidebar was not preserved on the record, we should find his counsel ineffective for failing to preserve it on the record.
We can properly make a finding on the prosecution's use of the missing witness inference without the record of the sidebar. Thus, Dulisse did not suffer any prejudice from his attorney's failure to include the argument in the record. And a finding of ineffective assistance of counsel requires a showing of prejudice. See, e.g., Thomas, 109 Wn.2d at 226. Thus, we find that Dulisse received effective counsel.
We affirm all matters except the unlawful imprisonment conviction, which we reverse and remand for a new trial due to the lack of a unanimity instruction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, C.J., concur.