Opinion
No. 64744-0-I (consolidated with No. 64772-5-I).
Filed: August 22, 2011. UNPUBLISHED OPINION.
Appeals from a judgment of the Superior Court for King County, No. 08-1-14416-6, Michael Heavey, J., entered December 21, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Lau and Spearman, JJ.
The Harrises appeal their convictions for third degree assault. Both Harrises claim that the trial court erred by denying their challenge under Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Kwame additionally contends that prosecutorial misconduct deprived him of a fair trial. We affirm.
FACTS
Kwame-Andre Harris and Novella Harris, husband and wife, were both charged with third degree assault after a physical encounter with police after Kwame's birthday party at the Doubletree Hotel. The Harrises were tried together. The jury convicted both Harrises as charged. Kwame and Novella each appeal. This court consolidated their appeals.
Because both defendants have the same last name, we refer to them by their first names. No disrespect is intended.
DISCUSSION
I. Batson Challenge
Both Kwame and Novella contend that the prosecutor's peremptory strike of juror 27, an African-American member of the jury venire, violated the Equal Protection Clause of the Fourteenth Amendment.
A peremptory challenge is an objection to a juror for which there is no reason given but upon which the court shall exclude him or her. CrR 6.4(e)(1).
During voir dire, the court asked the venire, "Do you have any memorable bad experiences with law enforcement officials?" Nine potential jurors answered in the affirmative: jurors 6, 8, 10, 11, 17, 19, 27, 31, and 34. The State followed up with each of those potential jurors, asking about their negative experiences and their ability to listen fairly to an officer's testimony. When the prosecutor questioned juror 27, she explained the following:
[PROSECUTOR]: Okay. Juror No. 27, you raised your card about a bad experience with a police officer?
JUROR NO. 27: Yes, when I was younger and I was driving home late from work, and I didn't know at the time but a police officer was following me, and it made me very nervous. I was driving on a highway, and I got off the exit ramp. I stopped at the stop sign, and I sped through the stop sign. Because I refused to stop, he pulled me over, and it just made me feel anxious and nervous.
And ever since then I am cautious and make sure I am obeying the speed limit and stop and signal.
But it wasn't a positive experience.
[PROSECUTOR]: Okay. Does that change how you, that experience change how you view police officers today?
JUROR NO. 27: It depends on the situation.
But I know for me personally when I see police, or I know they are in the area, I make sure I'm not in a bad situation because it's easier, I feel it is easier for me to get caught up, or for a group of people, even though I don't do anything wrong.
[PROSECUTOR]: Why do you say that?
JUROR NO. 27: Just based on my experience, my brothers have been pulled over. They haven't been cited. But just because in an area, they match the descriptions. Friends get pulled over, you know, make sure you are going the speed limit and obeying the law. Sometimes, you know, I know police are concerned about safety and enforcing the statutes and laws, but it just depends on the situation. Sometimes people are breaking the law and they need to face the consequences, but I just feel it depends on the person.
[PROSECUTOR]: Okay. So, you feel like the police are out to get you?
Is that what you are saying?
JUROR NO. 27: No, not necessarily, but in certain situations the circumstances for a group of people, they can't identify who said something or who threw something, then you can get caught up in a situation.
[PROSECUTOR]: Okay. Do you feel like you trust police officers, or do you feel like you in general distrust them?
JUROR NO. 27: I can't say one way or another. It depends on the situation and the way they present themselves.
[PROSECUTOR]: Okay. What's your initial feeling when you see a police officer?
JUROR NO. 27: I just want to make sure I am following the law.
[PROSECUTOR]: Now, your experience, all these experiences you talked about, these feelings you talked about, is that going to affect how you view a police officer who might testify in this case?
JUROR NO. 27: I can't say one way or another. Again, it just depends on what evidence is presented, fair to both sides.
[PROSECUTOR]: Do you think it might?
JUROR NO. 27: It may. I can't say one way or another because I don't really know.
The State also questioned Jurors 10, 11, 17, 19, 31, and 34 about their memorable negative experiences with law enforcement. Jurors 6 and 8 were questioned and struck for cause.
At the end of questioning, the trial court requested a side bar. The sidebar was memorialized by the court and the parties later in the proceedings:
THE COURT: I want to put the sidebar on the record. For the record, the Defendants are black, and there were a number of, well, there were, I would say four or five black prospective jurors, and I told the three attorneys at the sidebar that if the State was going to challenge any of the prospective jurors, he had to give me a non-race based reason for that.
Mr. Elsner said that he would, and he did challenge No. 27. He gave me a non-race based reason that she felt apprehensive around, whenever she was around police officers based upon her experience from driving and her general experience in general.
Zach Elsner represented the State, Tim Chiang-Lin represented Kwame, and Brian Todd represented Novella.
Do you wish to add anything to that, Mr. Elsner?
MR. ELSNER: Well, when I asked her straight out if she felt like the police were out to get her, she said, no. But she gave answers that indicated apprehensiveness around police officers and perhaps distrust, and also suggested that it went beyond just her and into her family, that several of her family members felt the same way.
THE COURT: Okay. Do either Counsel wish to add to the sidebar?
MR. CHIANG-LIN: Your Honor, I would just point out that I think it's very normal to be apprehensive around police officers, and under the circumstances [we] should ask that question. She indicated that she had been followed by a police officer. So, I think her statement was nothing out of the ordinary, and that tends to suggest that there is a Batson challenge to her.
MR. TODD: I guess for the record, I would just note an objection as well.
THE COURT: It is my understanding — well, I might agree it is completely normal to have that feeling. It is, she expressed some concern about it, and that's a non-race based reason. So, it's an issue should your clients be convicted for appeal.
After the sidebar, the parties proceeded to use their preemptory challenges. The State exercised a peremptory challenge against juror 27.
A prosecutor's use of a peremptory challenge based on race violates a defendant's right to equal protection. Batson, 476 U.S. at 86; State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). The United States Supreme Court in Batson set forth a three-part analysis to determine whether a member of the venire was peremptorily challenged pursuant to discriminatory criteria. First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 U.S., at 93-94; Luvene, 127 Wn.2d at 699. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justification for the strikes. Batson, 476 U.S. at 94; Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Luvene, 127 Wn.2d at 699. Third, "'[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) (alterations in original) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995) (per curiam)); State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996). To make this last determination, the court evaluates the "'totality of the relevant facts'" to decide "whether counsel's race-neutral explanation for a peremptory challenge should be believed." Hernandez v. New York, 500 U.S. 352, 362, 365, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 48 L. Ed. 2d (1976)).
A prima facie case exists if two criteria are met. First, the challenge must be exercised against a member of a "constitutionally cognizable" group. State v. Evans, 100 Wn. App. 757, 764, 998 P.2d 373 (2000. Second, that fact and "other relevant circumstances" must raise the inference that the challenge was based upon membership in the group. Id. "Relevant circumstances" may include a pattern of strikes against members of the group or the particular questions asked during voir dire. Id.
To determine "whether a prosecutor's explanation is based on discriminatory intent, [we] consider whether the prosecutor has stated a reasonably specific basis for the challenge, such as specific responses or the demeanor of the juror during voir dire, or a particular identifiable incident in that juror's life." State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996) (citing State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992)).
A trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. Hernandez, 500 U.S. at 369; State v. Wright, 78 Wn. App. 93, 99, 896 P.2d 713 (1995). The consideration of "purposeful discrimination" at the third step of the Batson inquiry is a factual one. See Batson, 476 U.S. at 98 n. 21 ("'[A] finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court.") (quoting Anderson v. Bassemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)); see also Miller-El, 545 U.S. at 240. Because this step in the analysis rests on demeanor and credibility, this court gives great deference to the trial court's determination. Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008); Hernandez, 500 U.S. at 365. The defendant ultimately carries the burden of persuasion to prove the existence of purposeful discrimination. Batson, 476 U.S. at 93; Johnson, 545 U.S. at 171.
The parties agree that, although the trial court skipped the first part of the Batson analysis, the question of whether the Harrises established a prima facie case is moot. See State v. Hicks, 163 Wn.2d 477, 492-93, 181 P.3d 831 (2008) (Even "where a trial court [finds] a prima facie case 'out of an abundance of caution,'" if the prosecutor has offered a race-neutral explanation, the ultimate issue of whether or not a "prima facie case was established does not need to be determined" to uphold the trial court's refusal to find a Batson violation.); Luvene, 127 Wn.2d at 699 (If "the prosecutor has offered a race-neutral explanation and the trial court has ruled on the question of racial motivation, the preliminary prima facie case is unnecessary.") (citing Hernandez, 500 U.S. at 359)). The parties also agree that the prosecutor's nondiscriminatory reason for his strike satisfied the second step of the Batson analysis.
Novella argued in her brief that the prosecutor did not provide a "clear and specific explanation" as required by Miller-El, but rather put forth only "general and vague concepts of apprehensiveness that were nothing out of the ordinary." But, counsel for Novella and Kwame conceded at oral argument that the prosecutor's reason was sufficient to satisfy the test.
Therefore, the only question before us is whether the determination to accept the prosecutor's peremptory challenge was clearly erroneous because the Harrises proved the State's reason was not race-neutral.
The Harrises argue that that the trial court committed reversible error as a matter of law, because the trial court did not perform the third part of the Batson test on the record. In particular, the Harrises argue the court erred by failing to sua sponte perform a comparative juror analysis on the record. The trial court certainly should create an ample record of its analysis of this issue to assist the appellate court and to prevent unnecessary retrials. This is particularly true with respect to the prosecutor's and challenged juror's demeanor and credibility. But, any error by the trial court in not making an extensive record of its analysis of the third part or in not performing a comparative juror analysis on the record sua sponte is not per se reversible. If the Harrises' arguments were true, there would have been no reason for the United States Supreme Court to embark on a comparative juror analysis where one had not been performed by the State trial court. See, e.g., Snyder, 552 U.S. at 483 (comparing the answers of the challenged jurors to the answers of Caucasian jurors without the state trial court having done so). Rather, where the trial court has not engaged in a comparative juror analysis, the appellate court may do so if the record permits. Id. Comparative juror analysis is only part of the evaluation of the analysis to determine if the trial court's acceptance of the State's reason is clearly erroneous. See, e.g., id. at 478 ("In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be a Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted."). Reversal for failure to conduct a comparative juror analysis is not required here.
We note that under our Supreme Court's decision in Hicks the reasoning given by the trial court here was likely sufficient. In Hicks, the parties discussed with the trial court the prima facie case. Id. at 484. The prosecutor then gave his reasons for exercising the challenge, including the fact that the juror had a master's degree in education and was a social worker. Id. The trial court commented that "'[h]e must have read the same version of the jury selection book that's been on my shelf for years,'" and then stated only "'Okay. The Batson challenge is denied.'" Id. at 485 (alteration in original). The appellants in that case argued, as Kwame and Novella do here, that the judge failed to perform the third step of Batson's analysis. Id. Our Supreme Court rejected that argument, stating that the United States Supreme Court clarified in Hernandez that "'Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.'" Id. at 493 (quoting Hernandez, 500 U.S. at 358). "Although more articulation of a trial judge's findings is always helpful on appellate review, the court here carefully followed the Batson analysis as outlined in Evans and provided sufficient explanation for his denial of the Batson challenge." Id. at 493-94.
The trial court here evaluated the arguments and determined that the non-race based reason was sufficient: "she expressed some concern about [her ability to fairly weigh the evidence], and that's a non-race based reason." No more articulation of the trial court's reasoning is required under Hicks.
The State contends that a comparative juror analysis argument may not be raised for the first time on appeal. This argument was made by the dissent in Snyder and rejected by the majority. Snyder, 552 U.S. at 489 n.* (Thomas, J., dissenting). A comparative juror analysis may be raised for the first time on appeal. See, e.g., Reed v. Quarterman, 555 F.3d 364, 372-75 (5th Cir. 2009) (holding that an appellate court may review the record to perform a comparative juror analysis even if that analysis is not raised or performed by the trial court under Miller-El).
Harris argues that he has been deprived of a critical record, because the juror information forms necessary to establish the race of the jurors were destroyed. The Batson test requires determining whether a juror of a particular (minority) class was excluded where other (majority) jurors were not. See Miller-El, 545 U.S. at 241 (comparative juror analysis requires "side-by-side comparisons" of "black venire panelists who were struck and white panelists allowed to serve"). The record shows that the venire contained four or five other African American jurors at the time of the sidebar. The record does not identify any specific juror's race except juror 27. Harris has made no showing that the jury forms would have provided that information. We conclude Harris has not established any prejudice from the destruction of the forms. In order to best ensure that the Harrises received a fair trial, we will presume for the purposes of this appeal that all the comparator jurors were Caucasian.
We note that the trial court raised the Batson issue sua sponte. Contrary to this court's admonition in Evans, the trial court failed to have the Harrises articulate a prima facie case on the record. 100 Wn. App. at 770. Had the court done so, the record may be more accurate.
The question before us is whether, given the answers of the jurors, the Harrises have proven that the trial court's determination that the prosecutor offered a race neutral reason for the exclusion was clearly erroneous. It was not.
The State peremptorily challenged jurors 19, 27, and 31. The State accepted jurors 10 and 34, who were impaneled, and juror 11, who was stricken by Novella. Novella also excused juror 17. The Harrises argue that jurors 10, 11, 17, and 34 may serve as comparators. The following summarizes their responses to questioning about prior negative experiences with law enforcement.
The Harrises assert that juror 17 was accepted by the State and therefore can be considered a comparator for juror 27. We do not agree that juror 17 was accepted by the State, as the State did not accept a panel containing that juror. Just because the prosecutor elected to exercise peremptory challenges against other jurors before challenging juror 17 does not mean that the State accepted juror 17. But, even if we consider juror 17 a comparator, no clear error is shown.
When asked to explain her prior negative experiences with law enforcement, juror 10 responded by explaining that a friend had been a victim of domestic violence and was eventually killed by her abuser. Juror 10 stated that the police "wouldn't help her" and "treated her really horrible." But, when asked if the experience affected how the juror viewed police officers, today, juror 10 responded, "No, it's been about six years now, and my personal experience has been pretty good." When asked if the juror would be able to set aside the negative experience, juror 10 responded, "I think since it is not about domestic violence, it would be okay."
Juror 11 acknowledged a negative experience with law enforcement as a child, but stated that "it wasn't because of anything law enforcement had done," and "I am impartial."
At 14 years old, juror 17 was accused of throwing rocks at cars. Juror 17 was not arrested or charged. When asked if the experience would affect the way juror 17 viewed the credibility of officers, juror 17 responded, "Well, I don't know. I really haven't interacted with police officers after that. So, I really couldn't say." When the prosecutor asked the juror if "it might," juror 17 responded, "It could."
Juror 34 described a prior negative experience as "[j]ust small town harassment, being pulled over for a minor infraction that wasn't an infraction, like a shake down. I don't think that's the right thing to be doing. It happened to me more than once. They are bored and have nothing to do sometimes." When asked if those experiences changed how the juror viewed police officers, juror 34 responded, "No, not really. The small towns are different than metropolitan areas, the professionalism." The prosecutor did not ask if Juror 34 would be able to fairly weigh the evidence.
Police officers were the alleged victims. Their testimony was a major part of the State's case. The State's proffered neutral reason for exercising a peremptory challenge against juror 27 was that she indicated apprehensiveness around police officers. Jurors 10, 11, 17 and 34 did not indicate similar apprehensiveness. A comparative juror analysis does not suggest that the State's proffered reason was pretextual.
The State also struck jurors 19 and 31 indicated similar apprehension around police. Juror 19 discussed three negative episodes with police, including one for drinking as a teenager, one for possessing marijuana, and a recent ticket for driving without a seatbelt that "made me mad." The prosecutor asked only, "That must have been pretty recently?" Juror 19 responded, "Yes. That was the only one that was expensive." The prosecutor did not ask if the experiences would affect his ability to consider the evidence. Juror 31 stated, "I was shaken down because I was in an area where there was some, because I happened to be in the wrong area at the wrong time. But they released me because I didn't do anything." Juror 31 also stated, "I had a Seattle police officer who had [it] out for me." When asked by the prosecutor if those experiences affected the way the juror viewed police officers, Juror 31 responded:
We can infer from the record that these jurors were not African American because the State did not flag them in the sidebar Batson discussion.
Yeah. I mean, I figured that some police officers are good people and some aren't. It depends on the person. I guess it is like what people said about honesty. If they look like they are honest, they have credibility. If they look like they are looking away and not very credible, you can't depend on him.
When asked if credibility could be determined based on what was seen in the courtroom, Juror 31 responded, "Base it on what I see. If I think they are credible witnesses, that's how I go."
The fact that the State did not strike jurors 10, 11, 17, and 34 does not show that the State's reason for challenging juror 27 was not race-neutral.
While we have no explicit credibility determinations that are owed deference, the direct and circumstantial evidence in the record does not demonstrate that the prosecutor's strike of juror 27 was racially motivated. We hold that Harris has not met the burden of establishing the trial court's ruling on the Harrises' Batson challenge was clearly erroneous.
II. Prosecutorial Misconduct
Kwame next argues the prosecutor committed misconduct during closing arguments.
This argument was not raised by Novella.
Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's conduct was both improper and prejudicial. State v. Monday, No. 82736-2, slip op. at 8 (Wash. June 9, 2011). We evaluate a prosecutor's conduct by examining it in the full trial context, including the evidence presented, the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Id. at 8-9 (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)). A defendant suffers prejudice only where there is a substantial likelihood that the prosecutor's misconduct affected the jury's verdict. Id. at 9 (quoting State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007)). Without a timely objection, reversal is not required unless the conduct is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008), cert. denied Warren v. Washington, 129 S. Ct. 2007, 173 L. Ed. 2d 1102 (2009). Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be flagrant and ill intentioned. See State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). A defendant claiming prosecutorial misconduct who has preserved the issue by objection bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect. McKenzie, 157 Wn.2d at 52.
In Monday, our Supreme Court held that a constitutional harmless error standard, not the substantial likelihood standard, is appropriate where the prosecutor injects racial biases into the trial. No. 82736-2, slip op. at 15. Because the alleged prosecutorial misconduct here did not involve improper racial or other biases, the higher Monday standard is not applicable here.
Kwame presented a defense of general denial at trial. In the rebuttal portion of the prosecutor's closing argument, the following exchange occurred:
[PROSECUTOR]: Ladies and gentleman, there are two types of defenses in criminal cases, there's the spoken defenses and there's the unspoken defenses. Spoken defenses are the ones you all know, alibi, insanity, self-defense —
MR. CHIANG-LlN: Objection, your Honor, outside the scope.
THE COURT: Overruled.
[PROSECUTOR]: Alibi, insanity, self-defense, those are the spoken defenses, the ones you all know about, those defenses aren't a part of this case. Then there's the unspoken defenses, the general denial, the let's just throw everything up there, see if something sticks and say the State can't prove its case, but we know that the evidence has proved that both Mr. Harris and Mrs. Harris committed Assault in the Third Degree, and there is no reasonable doubt.
Our communities depend —
MR. TODD: Your Honor, objection.
THE COURT: Sustained.
[PROSECUTOR]: When Mr. Harris and Mrs. Harris assaulted Deputy Brunner and Deputy Noel, they put everyone in danger there, they put themselves in danger, they put innocent bystanders in danger, and they put the officers in danger, all of them, not just Brunner and Noel, but all of them. These are officers who have vowed to their families —
MR. TODD: Your Honor, I'm going to object. This is —
THE COURT: Sustained.
[PROSECUTOR]: Because they put them in danger —
MR. TODD: Your Honor, I'm still objecting.
THE COURT: Sustained.
[PROSECUTOR]: The evidence is clear that both of them acted intentionally, both of them put Deputy Noel, Deputy Brunner in danger of this, their safety, that they were in reasonable apprehension of that fear, and that they were acting intentionally. Because of that, you should find both guilty.
Thank you.
The Harrises did not request that the comments be stricken or ask for a limiting instruction. No limiting instruction was given by the court. The court then dismissed the jury for deliberations. Outside of the presence of the jury, the trial court stated:
Mr. Elsner, I think you know this, but you can't argue to appeal to the passion or prejudice of the jurors. Your statements about the community and about police officers coming home safe appeals to the passion or prejudice of the jurors. Obviously appropriate everything else you did. So I just wanted to let you know that.
Kwame argues that the first comments regarding "spoken" and "unspoken" defenses depicted a general denial as a less credible defense than "spoken" defenses. He claims that the prosecutor improperly shifted the burden of proof to the defendant to explain why his general denial and lack of a "spoken" defense was legitimate. He argues that the comment was "particularly egregious given that the prosecutor battled vigorously to prevent Harris from raising a justifiable use of force defense at trial."
First, Kwame did not object to the alleged misstatement of the burden of proof. The only objection to that portion of the prosecutor's closing argument was that the comments were "outside the scope." Therefore, Kwame must show that the conduct was flagrant and ill intentioned in order to obtain a reversal. Warren, 165 Wn.2d at 43.
Next, it is improper for a prosecutor to misstate the burden of proof. See Warren, 165 Wn.2d at 27 (holding that prosecutor's statement, "[The burden of proof beyond a reasonable doubt] 'doesn't mean, as the defense wants you to believe, that you give the defendant the benefit of the doubt,'" was improper). But, the prosecutor's descriptions of the "unspoken" versus "spoken" defenses was neutral and did not improperly disparage a general denial defense. Kwame fails to show that this comment was a flagrant and ill intentioned misstatement.
The State argues that the prosecutor's comments regarding the "unspoken defense" was a fair response to the arguments made by each defense counsel in closing. The panel need not address this argument because the comment was not improper.
Kwame next argues that the prosecutor improperly appealed to the passion and prejudice of the jury when he stated that police officers were placed in danger by Kwame's behavior.
First, the State argues that Kwame did not object to the prosecutor's comments regarding the safety of the officers, because only Novella's counsel objected. Therefore, the State contends that Kwame must show any misconduct was flagrant and ill intentioned. The State cites State v. Fredrick, 45 Wn. App. 916, 922, 729 P.2d 56 (1986), and State v. Carter, 4 Wn. App. 103, 113, 480 P.2d 794 (1971), in support of its contention.
In 1994, the following provision was added to RAP 2.5(a): "A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court." RAP 2.5(a); 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 103.10, at 55-56 (5th ed. 2007). The cases cited by the State to the contrary were filed before the 1994 amendment to the rule. Under the current rule, Novella's objection preserved the error for Kwame's appeal. Kwame need only show that the comments were improper and prejudicial. McKenzie, 157 Wn.2d at 52.
We note that our Supreme Court came to the opposite conclusion in State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000) ("Appellant cannot rely upon the objection of a codefendant's counsel to preserve an evidentiary error on appeal."). RAP 2.5(a) was amended effective September 1, 1994, to add the language relating to the objection of a co-defendant. In Davis, the court relied on pre-1994 cases as authority for its holding. See Davis, 141 Wn.2d at 850 n. 286 (citing State v. Latham, 35 Wn. App. 862, 866-67, 670 P.2d 689 (1983)). The court also discussed RAP 2.5(a) in a footnote but did not mention the provision relating to the objection of a codefendant. Id. at 850 n. 287. We conclude that the plain language of the 1994 amendment to RAP 2.5(a) permitting a defendant to rely on the objection of a codefendant to preserve an error for appeal was not brought to the attention of the court in Davis. We decline to follow its holding in that case.
It is improper for a prosecutor to invite the jury to decide a case based on anything other than the evidence. In re Det. of Gaff, 90 Wn. App 834, 841, 954 P.2d 943 (1998). As the trial court pointed out, appeals to the safety of the community and the officers returning to their families were improper. But, a limiting instruction would have cured any prejudice. Kwame failed to request such an instruction. Therefore, reversal is not necessary.
Kwame put forth an assignment of error and an issue statement alleging that the trial court erred in not giving a curative instruction to any prosecutorial misconduct sua sponte. He mentions the lack of a curative instruction only to note that, although the court twice sustained the objection, the trial court's actions did not ameliorate the prejudice. Kwame cites State v. Perez-Mejia, 134 Wn. App. 907, 920, 143 P.3d 838 (2006), to support his proposition. In that case, the trial court overruled the objection to the improper remarks. Id. It does not stand for the proposition that a trial court must sua sponte issue a curative instruction every time an objection to prosecutorial misconduct is sustained. Kwame has cited no cases supporting the proposition that the trial court erred by failing to offer a limiting instruction absent a request to do so.
We affirm.
We Concur: