Opinion
No. 36093-4-II.
June 24, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03171-9, Serjio Armijo, J., entered March 16, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Arden Curtis Gibson appeals his convictions of fourth degree assault, tampering with a witness, and intimidating a witness. We affirm.
FACTS
Gibson began a romantic relationship with Suzanne Younker in June 2006. They moved into a house together, but Gibson ultimately moved out in early July 2006. The following day, Gibson returned to the house, where he found Younker and Howard Ohelo, one of her former acquaintances. When she opened the door, Gibson pushed Younker out of the way, knocking her into the fireplace screen. He yelled, "what are you doing in my house," and "[g]et out." 3 RP at 110. He then picked up a fireplace poker and swung it at Ohelo, who then retreated outside.
At that point, Younker went to the bedroom to secure her dog, who had become excited from all the commotion. When she finished locking the dog in its cage, she turned around and Gibson hit her on the head with a closed fist. Gibson stated, "Stupid bitch. I hate you," and "I'm going to hurt you for doing this." 3 RP at 117. Younker then grabbed the wireless phone and ran to the bathroom, but Gibson broke through the bathroom door and, when he saw that she was calling 911, pulled the phone base out of the wall.
In between the time police arrested Gibson and his trial, he spoke to Younker on the phone on several occasions. Gibson told her that his attorney advised him to tell her that if she and Ohelo did not show up, Gibson would not get in trouble. Younker testified that Gibson threatened to tell the police that she was involved in activities involving fraudulent checks if she responded to the State's inquiries about the incident.
Gibson also sent Younker 10 letters while he waited for trial. The relevant portions of those letters stated:
My freedom and our future is [sic] in your hands. Don't fuck around, fucker.
3 RP at 143; see also ex. 5A.
I hope all is well and you're in the best of health. As for me, I'm not doing too well. You didn't have to lie to me about sending me some money. I let you get my money from Walter to help you out so you could of at least sent me 50 bucks of it. Since you have plans on not sending me any more, you are a cold bitch. And if you lie about something small like that, how can I trust you and dude not to show up for court? To make sure you don't, I have a little information for you. Do you know those things you make on your computer? I was arrested with three of them. One in your name, one in my name[,] and one in Brian's name for your lawyer's account.
. . . .
They are mixed up with my paperwork and property. I can get a court order and have them released to my lawyer. I'm not going to do that unless I find out you've been talking to the court people and plan on coming to Court.
3 RP at 146-47, 147-48; see also ex. 5D.
It's like someone else took over my body. Some of the things I said and did I would have never done in a million years.
3 RP at 149; see also ex. 5E.
I can only apologize so much for what I did and I'm paying dearly for it and you're making it even harder because I'm not sure that you're going to be there for me, like you say.
3 RP at 152; see also ex. 5H.
Say, Baby, my lawyer told me to tell you guys not to answer any of the paperwork or talk to anybody and things should work out fine.
3 RP at 153; see also ex. 5I.
Gibson testified about Younker's fraudulent check activities and argued that Ohelo attacked him with the fireplace poker. When asked about some of the statements he made in his letters, he acknowledged that he was referring to Ohelo as the "dude" when he stated, "If you lie about something small like that, how can I trust you and dude not to show up for court?" 5 RP at 284-85. He also acknowledged that he was referring to the fraudulent checks when he wrote to her that he had "information" on her. 5 RP at 286.
On January 30, 2007, the State charged Gibson by third amended information with second degree assault against Ohelo, fourth degree assault against Younker, first degree burglary, residential burglary, and two counts of intimidating a witness, Younker. The witness intimidation counts covered two separate periods, July 11 to August 31, 2006, and September 1 to October 1, 2006.
The jury found Gibson guilty of fourth degree assault against Younker. The jury also found him guilty of the lesser-included crime of tampering with a witness for the time period of July 11 to August 31, 2006. Finally, the jury found Gibson guilty of the September 1 to October 1, 2006, intimidating a witness charge. The trial court sentenced him within the standard range.
ANALYSIS I. Prosecutorial Misconduct
Gibson first contends that prosecutorial misconduct denied him a fair trial. Specifically, he assigns error to the State's description during closing argument that Gibson "hijacked" and "attacked" the justice system. Br. of Appellant at 10. To prove prosecutorial misconduct, Gibson must show that the State did not act in good faith and that the specific actions were improper. State v. Manthie, 39 Wn. App. 815, 820, 696 P.2d 33, review denied, 103 Wn.2d 1042 (1985). This court will reverse due to prosecutorial misconduct only if there is a substantial likelihood that the misconduct actually affected the verdict. State v. Bryant, 89 Wn. App. 857, 874, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
Here, Gibson did not object nor request a curative instruction, so he must show that the remark was "so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). We review the challenged comments in the context of the entire argument, the issues in the case, the evidence during argument, and the trial court's jury instructions. Bryant, 89 Wn. App. at 873.
Regarding closing arguments, our courts grant attorneys the largest and most liberal freedom to speak about their client's cause, allowing a wide range of discussions and illustrations. State v. Claflin, 38 Wn. App. 847, 851, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985). But it is not appropriate for the State to appeal solely to the jury's passion and prejudice. Claflin, 38 Wn. App. at 850.
During closing, the prosecutor stated:
What I do want to say is something — it's a little different about these two charges [intimidating a witness] as compared to the first two. The first two charges are assaults. Mr. Ohelo is a victim; Ms. Younker is a victim. Now, on first impression, Ms. Younker is the victim on Counts V and VI [intimidating a witness]. But that's really not what we're talking about here, is it? You were brought in here last week, you're brought in here as jurors. The first thing the Court tells you is the whole system upon which we base our criminal justice system is put in the hands of jurors because it is the safest place for it to be.
What he tried to do was hijack that. It is an attack on the entire court system. It is an attack, not just on the judge or the prosecutor or anything like that. It is an attack directly on how we live as a society. We've also lived with the idea of you have to be able to count on witnesses coming in here and telling people what happened because the alternative is simple. The alternative is there is no justice system and it's all taken care of on the street. And that's why this crime is important. That's why these letters are important and the phone calls are important. And why there's a no-contact order to prevent him from doing these things.
5 RP at 322-23.
Gibson cites two Washington cases as well as several out-of-state cases regarding improper comments. See State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988) (prosecutor made remarks in closing argument that defendant was "strong in" the American Indian Movement and its members were a "deadly group of madmen" and "butchers that kill indiscriminately."); and Claflin, 38 Wn. App. at 849-51 (prosecutor read poem using vivid and inflammatory imagery to describe emotional effect of rape); Br. of Appellant at 12. Gibson acknowledges that the State did not introduce facts outside the evidence, nor did it accuse Gibson of affiliation with terrorist organizations. Rather, he contends that the State incited the jury's passion by informing the jury that Gibson's conduct was an "attack on how we live as a society." 5 RP at 323; Br. of Appellant at 12.
Gibson argues that the State's remarks created images of terrorism and street violence. Further, he alleges that the State essentially informed the jury that a vote of not guilty was a vote for anarchy. As such, he argues that even a proper admonition to the jury would not cure such an emotional call to arms.
The State argues that its use of the term "hijack" did not refer to terrorism. Br. of Resp't at 22. Instead, it argues that it was merely attempting to assert that Gibson was trying to subvert or commandeer the justice system by intimidating a witness against him. Here, in contrast to Belgarde and Claflin, the State did not ask the jury to send a message, did not accuse Gibson of being a liar, did not use deep emotional imagery, and did not invoke inflammatory visions of violence or anarchy. We hold that the statements were not so flagrant or ill-intentioned that an enduring prejudice resulted such that a curative instruction would not have been sufficient. Hoffman, 116 Wn.2d at 93.
II. Prejudicial Evidence
Gibson next argues that the trial court erred by admitting prejudicial evidence that Younker obtained an abortion due to Gibson's demands. Specifically, he asserts that the trial court should not have admitted a portion of one of the letters that he wrote to Younker, exhibit 5E, in which he allegedly expresses regret for pressuring her to get an abortion. We disagree.
The decision to admit or exclude evidence lies within the trial court's discretion. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). A trial court abuses its discretion only if no reasonable person would have taken the position the trial court adopted. Doe v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 141 Wn. App. 407, 434-35, 167 P.3d 1193 (2007). The party challenging the evidence must make a timely and specific objection to the trial court. ER 103; State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). An appellant's failure to object precludes review on appeal. Guloy, 104 Wn.2d at 421.
ER 103(a)(1) provides, "In case the ruling is one admitting evidence, a timely objection or motion to strike is made, stating the specific ground of objection, if the specific ground was not apparent from the context."
The section of the letter in question stated:
Say baby I'm back, had to take a brake [sic] so I can go eat that slop, I've been thinking about us and something you said made me think, You are right we truly don't know each other, I look back on when we first met at that meeting, that was the real me and from then on I don't remember a thing, Its [sic] like someone else took over my body, some of the things I said and did I would have never done in a million years. I swear to God I would have still been with you if you had of kept that baby, and I'm truly sorry I told you to get rid of the baby if you wanted to be with me, I'm not that type of person and I pray to God that you don't hold it against me. I'm a loving and caring individual who loves to spend time with that special lady in my life. I also like taking care of my woman, and letting her know she's appreciated.
Ex. 5E.
The State first contends that Gibson waived his right to challenge this portion of the letter as highly prejudicial because he did not specifically object on that ground below. Instead, defense counsel raised a general objection to the letter in its entirety on relevance grounds. We hold that Gibson waived this claim by failing to object on prejudice grounds below.
In fact, counsel did not read this portion of the letter to the jury. But presumably, the entire letter went to the jury room for deliberations.
Even if we considered the claim, the letter does not indicate that Gibson demanded that Younker get an abortion, nor is there any evidence in the record supporting such an assertion. While the letter does reference Gibson telling Younker to "get rid of the baby," testimony at trial revealed that Younker had given a baby up for foster care and was currently attempting to get that baby back into her home. Ex. 5E. It is just as likely that the jury believed that Gibson wanted her to give the baby up for adoption. Further, there is no substantial likelihood that this statement materially altered the outcome of Gibson's case. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). Thus, even if we considered the claim, the trial court did not abuse its discretion by admitting this letter.
III. Ineffective Assistance
Gibson next contends that defense counsel provided ineffective assistance when he: (1) failed to object to the alleged abortion evidence; (2) failed to object to evidence that Gibson violated a pretrial no-contact order; and (3) introduced Younker's letters, wherein she accused Gibson of assault into evidence. Again, we disagree.
To prevail on a claim of 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). 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), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Because we give great judicial deference to counsel's performance, our analysis begins with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689-90; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). This presumption can be overcome where, for example, the attorney failed to properly investigate, determine appropriate defenses, or properly prepare for trial. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).
Our Supreme Court has held, "'the law must afford the attorney a wide latitude and flexibility in his choice of trial psychology and tactics.'" In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998) (quoting State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968)). We seek to prevent the defendant from using hindsight to second guess his trial attorney and effectively reverse his conviction. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 742-43, 16 P.3d 1 (2001). "If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel." State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986).
Gibson first argues that defense counsel's failure to object to the abortion evidence, discussed above, constituted ineffective assistance. The State contends that the trial court would have overruled any objection to the letter because it was clearly relevant and probative of the assault charges. ER 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Such evidence is admissible unless, under ER 403, the evidence is prejudicial so as to substantially outweigh its probative value, confuse the issues, mislead the jury, or cause any undue delay, waste of time, or needless presentation of cumulative evidence. Erroneous admission of ER 403 evidence requires reversal if there is a reasonable probability that the error materially affected the outcome of the case. Halstien, 122 Wn.2d at 127.
Here, the letter included Gibson's statements that he brought it on himself and that "Its [sic] like someone else took over my body, some of the things I said and did[,] I would have never done in a million years." Exhibit 5E. These statements are evidence of Gibson's own consciousness of guilt regarding the assault charges and the trial court would have overruled any objection.
Further, due to the innocuous and ambiguous nature of the "get rid of the baby" comment, Gibson can show no prejudice. Ex. 5E. The jury acquitted him of the most serious charge. Further, he cannot show that the outcome would have been different because ample evidence supported each charge. Younker testified that Gibson struck her and she testified that Gibson told her over the phone not to come to court or that he would tell the police about her criminal activity. Further, the unchallenged letters support that Gibson threatened, intimidated, and tampered with Younker before trial. As such, his argument fails.
Gibson next argues that defense counsel's failure to object to evidence that he violated a pretrial no-contact order constituted ineffective assistance. The State contends that Gibson's counsel had a valid trial tactic supporting the decision not to object. Specifically, defense counsel's strategy below relating to the assault against Younker included informing the jury that Younker continually contacted the victim, even after the alleged assault. Accordingly, he did not object to evidence that both of them were violating a no-contact order, which the State did not seek to prosecute in this case. The State's argument is not persuasive.
Regardless, even if defense counsel's failure to object was error, it was harmless. As discussed above, the jury acquitted Gibson of the most serious charge and there is no evidence that the jury intended to punish Gibson for violating a court order. Rather, there was ample evidence supporting each of the convictions.
Finally, Gibson contends that counsel erred by introducing a letter Younker wrote to Gibson, wherein she accused him of assault. The State correctly contends that defense counsel had a valid strategy for introducing this letter. Defense counsel articulated his position as follows.
But it boils down to an assault against [Younker]. These letters go on, "I love you, I love you, I love you, I miss you." It's our position that there's a rule that says there's what your state of mind is, under 803. And she's writing these letters after this supposed assault took place. I think I should at least be able to ask her, number one, about the letters written after this assault where she's contacting him saying, "I love you," not letters that say, "Why did you punch me?"
And there's also one letter in particular, which I believe is the July 12 letter, that says — references her not testifying in court. That's prior to Mr. Gibson's letter that the State is going to want to produce that says, we understand you're not coming to court. So I believe that those letters are relevant for those two issues. Her state of mind, something that she writes in regard to specifically the account of intimidation. She writes to him and says, you know, basically I'm not coming to court. I think that's relevant because the intimidation statute is one of a threat.
Now, it's our theory if she writes first and says I'm not coming and then he writes back to her and says, hey, you're not coming, then that lessens the impact of what the State is going to show, which is a threat on the one count.
One of the counts involved a specific reference to I'm going to cause these criminal charges to be filed against you, and that's separate from, I believe that's Count V. There's two counts. One that basically involves a threat of prosecution or reference of prosecution. The other one, don't show up at court. It's basically a don't appear. And I think that her reference earlier in that letter is relevant to that.
3 RP at 55-56. While Gibson may now be displeased with his result, this tactic cannot be the basis for an ineffective assistance claim. Mak, 105 Wn.2d at 731.
STATEMENT ON ADDITIONAL GROUNDS (SAG) ISSUES I. Exculpatory Evidence
Gibson contends that the State withheld exculpatory evidence in violation of his due process rights under the Brady v. Maryland standard. He argues that the State provided the incorrect fireplace poker, because the poker introduced at trial was much smaller than the large poker that he purchased for the home. This argument is moot because the jury acquitted him of the only charge, second degree assault against Ohelo, that involved the poker in question. Accordingly, we do not address this issue.
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
II. Ineffective Assistance
Gibson argues that he received ineffective assistance because his trial counsel did not call the witnesses that he requested. These include Paul Bufalini, Dr. Reed, Donald Nelson, Linda Pennington, Water Harris, and Tony Leach, each of whom he claims would have provided testimony sufficient to convince the jury that he was not guilty. Pennington and Harris both testified for the State and defense counsel cross-examined both, so it is unclear why Gibson included them in his list.
We generally consider the decision not to call witnesses one of trial strategy. Byrd, 30 Wn. App. at 799. Failure to call witnesses amounts to ineffective assistance only if that failure was unreasonable and resulted in prejudice or created a reasonable probability that, had the lawyer presented witnesses, the outcome of trial would have differed. State v. Sherwood, 71 Wn. App. 481, 484, 860 P.2d 407 (1993), review denied, 123 Wn.2d 1022 (1994).
There is no evidence regarding any potential testimony by any of Gibson's requested witnesses in the record. As such, he cannot show that failure to call these witnesses was unreasonable, that the failure resulted in prejudice, or that the outcome of the trial would have changed. Sherwood, 71 Wn. App. at 484. Based on this record, this claim lacks merit.
III. Trial Publicity
Gibson contends that pretrial publicity prevented him from receiving a fair trial. There is no evidence in the record concerning any pretrial publicity and we do not consider matters outside the record on appeal. State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998). If Gibson wishes to address this issue, his proper forum is through a timely brought, properly supported, personal restraint petition. Tolias, 135 Wn.2d at 141.
IV. Jury
Gibson contends that the jury in his case was improper. RAP 10.10(c) states:
Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors.
Here, Gibson does not inform us of the nature or occurrence of the alleged problem with the jury. As such, we do not consider this claim.
V. Racial Bias
Gibson next argues that racial bias prevented him from receiving a fair trial. Again, he fails to inform this court of the nature or occurrence of the alleged problem. See RAP 10.10(c). Even so, a thorough review of the record discloses no racial bias and, accordingly, this argument lacks merit.
VI. Prosecutorial Misconduct
Gibson contends that the State committed prosecutorial misconduct before and during his trial. He does not inform this court of the nature or occurrence of this misconduct. See RAP 10.10(c). As his appellate counsel raised this issue in his direct appeal, we rely on the analysis above regarding this issue.
VII. Change of Venue
Finally, Gibson alleges that the trial court erred when it failed to allow him a change of venue due to the effects of his pretrial publicity. There is no evidence in the record that Gibson requested a change of venue or that the trial court denied such a motion. Accordingly, we do not review this matter because it is outside the record. Tolias, 135 Wn.2d at 140.
VIII. Cumulative Error
Gibson argues that cumulative error requires reversal. Because we hold that there was no error, the claim of cumulative error is meritless.
Affirmed.
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, PJ. and QUINN-BRINTNALL, J., concur.