Opinion
No. 58325-5-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-04678-0, Bruce W. Hilyer, J., entered June 7, 2006.
Affirmed by unpublished per curiam opinion.
Rasheed Shabazz was convicted of attempted murder in the first degree for shooting an acquaintance in the face. On appeal, Shabazz contends that (1) the trial court erroneously admitted into evidence a photo montage identification, (2) the prosecutor committed misconduct during rebuttal argument, and (3) Shabazz' constitutional right to travel was violated when the court ordered him to have no contact for life with the apartment complex where the shooting took place. Finding no error, we affirm.
FACTS
Deon Upton was shot in the face early one afternoon on the grounds of the Garden Park apartment complex in Federal Way. Police responded to the scene and interviewed several eye witnesses, including the maintenance man for the apartment complex, Son Thach.
The following day, Thach, who was born in Vietnam and has been deaf and mute since birth, went to the police station to see if he could help with the investigation. Aided by Jaqueline Knight, an American Sign Language (ASL) interpreter, Thach picked Shabazz out of a photo montage as the person who did the shooting. The witness' review of the photo montage was videotaped.
At trial, Deon positively identified Shabazz as the person who shot him. Upton testified that problems existed between the two of them as a result of Upton's relationship with Shabazz' former girlfriend. Upton further testified that he was confronted by Shabazz on the day in question, and that Shabazz asked Upton, "`She worth your life? Do you want to die over her?'" Moments later, Upton realized that Shabazz was pointing a gun at him. The next thing Upton remembered was "a loud, pounding sound," and trying not to fall down. Other witnesses, including Upton's brother Dean, testified that, as Upton lay on the ground bleeding, they heard him say that he had been shot by "Jody." Shabazz also goes by the name "Jody."
Upton's stepfather testified that when he asked Dean Upton what had happened, Dean replied, "I don't know, somebody came out of the bushes." Shabazz used this testimony to support his "other suspects" defense. Dean Upton denied ever making the statement.
Testimony was presented to the jury that Deon Upton had recently fought with both his brother Dean and Demerick Dennis.
With the assistance of interpreters, Thach also testified at trial. He stated that he did not believe that Shabazz had anything to do with the shooting. Thach claimed that he was confused when he picked Shabazz' photo at the identification procedure and had only meant to identify Shabazz as someone he had seen on that day. According to Thach, he is not fluent in ASL.
Jaqueline Knight also testified. She listed her credentials and went on to describe how she had used ASL to communicate with Thach. Knight stated that the interpretations she made during the identification procedure were accurate. The trial court admitted the videotape of the montage identification.
Shabazz testified and admitted being at the apartment complex at the time of the shooting. He denied shooting Deon Upton. The jury found Shabazz guilty of both attempted murder in the first degree and assault in the first degree.
At sentencing, the court concluded that the assault conviction merged with the attempted murder conviction. The trial court sentenced Shabazz to 300 months in prison. The court also ordered Shabazz to have "no contact with Deon Upton and family, [or the] Garden Park Apt. Complex" for the rest of his life. This appeal followed.
DECISION
Shabazz contends that the trial court erred both by allowing Knight to testify and by admitting into evidence the videotape of the montage identification. Shabazz argues that the trial court erred by concluding that Knight was competent to testify as to her communications with Thach. We disagree.
Shabazz misconceives the trial court's role in such matters. His argument rests primarily on State v. Karpenski, 94 Wn. App. 80, 971 P.2d 553 (1999), abrogated on other grounds by State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003), in which the court addressed the issue of a child's competency at the time of making a hearsay statement:
Even though a hearsay statement falls within a hearsay exemption or exception, it cannot be reliable if, when it was made, the declarant was incompetent. The competency of most declarants will not be in issue, just as the competency of most trial witnesses is not in issue. But when the competency of a declarant is in issue — as, for example, when a young child is not shown to be competent at trial and the opponent voices a proper objection to the child's pretrial hearsay statement — the proponent must demonstrate not only circumstances described on the face of a hearsay exception, but also circumstances showing that at the time of the hearsay statement the child was describing an event that the child had the capacity to accurately perceive; to accurately recall; and to accurately relate.
Karpenski, 94 Wn. App. at 112 (footnote omitted).
That holding is inapposite here. While it is true that the trial court has an obligation to resolve competency questions, in this case that question was limited to deciding whether the ASL interpreter could interpret accurately. Once the court decided that she could, it was for the jury to decide whether she did interpret accurately. It would have been improper for the trial court to take this factual question away from the jury as trier of fact. Karpenski, 94 Wn. App. at 101 n. 91. See also State v. Owens, 167 Wash. 283, 285, 9 P.2d 90 (1932) (questions as to the credibility of an expert witness and the value of the witness' testimony are for the jury). There was no error.
State v. Watkins, 71 Wn. App. 164, 170, 857 P.2d 300 (1993) ("Ordinarily, the competency of a witness is a preliminary fact question to be determined by the trial court.").
Shabazz does not dispute that Knight met the threshold requirements to be an interpreter for a hearing-impaired person under ER 604 and RCW 2.42.110(2).
Shabazz next contends that he was denied a fair trial by reason of certain remarks made by the prosecutor during rebuttal argument. We disagree.
To establish prosecutorial misconduct, the defendant bears the burden of showing an impropriety as well as its prejudicial effect. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). "In closing argument, a prosecuting attorney has wide latitude to draw and express reasonable inferences from the evidence." State v. Perez-Mejia, 134 Wn. App. 907, 916, 143 P.3d 838 (2006). Accord State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). "When counsel does no more than argue facts in evidence and suggest reasonable inferences from that evidence, there is no misconduct." State v. Clapp, 67 Wn. App. 263, 274, 834 P.2d 1101 (1992). On the other hand, it is improper for a prosecutor to intentionally argue facts unsupported by the evidence. State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963).
In rebuttal argument, the prosecutor remarked:
One of the most appalling things I heard, I heard him say it a number [of] times, is we heard over and over again, ladies and gentlemen, from all of the witnesses that somebody came out of the bushes and shot Deon Upton. We never heard that once. Think about it as to what you heard. Maybe on one and possible two different occasions, defense counsel asked a witness if that was something that he had said at the scene. In both of those instances that witness said, "No, I never made that statement." Now, just because defense counsel said it happened, doesn't mean it happened, because as we all talked about, the evidence you must look to is the evidence that comes from the witness stand. Nobody said anything about anybody coming out of any bushes and shooting someone. That is not a piece of evidence that you can consider.
The State concedes, and we agree, that the prosecutor misrepresented the evidence by saying that no one had testified that somebody had jumped out of the bushes. Deon Upton's stepfather testified that he had been told that somebody had jumped out of the bushes right before Upton was shot. Nonetheless, one who fails to object to improper prosecutorial argument waives a claim to appellate relief unless the objectionable argument was so flagrant and ill-intentioned that it could not have been neutralized by a curative instruction. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
Contrary to the argument raised by Shabazz, the challenged statements in this case were neither flagrant nor ill-intentioned. After making those remarks the prosecutor ended his rebuttal argument by stressing the critical distinction between what the attorneys say and what the record supports. Thus, the impropriety of the argument could easily have been cured if a timely objection had been made. We conclude that any claim of error was waived. Russell, 125 Wn.2d at 85; State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Near the end of his remarks in rebuttal, the prosecutor cautioned:
That's all I have to say. I do believe that all of the evidence is here, and it is very clear. I think that you really do need to think about and decipher between the things that myself and defense counsel says is evidence and the actual evidence. Everyone wants to believe in one thing after another. They try their best to stay as objective as possible as to what the evidence shows, but it is your collective memories of what you think you saw that is really important here.
Finally, Shabazz contends that his constitutional right to travel was violated when the trial court ordered him to have no contact with the Garden Park apartment complex for life. Shabazz argues the banishment order must be vacated because the lifetime ban from the apartment complex is an overly broad restriction on his right to travel freely. Again, we disagree.
"The freedom to travel throughout the United States has long been recognized as a basic right under the United States Constitution." State v. Lee, 135 Wn.2d 369, 389, 957 P.2d 741 (1998). Persons convicted of felonies, however, may have reasonable restrictions placed on travel without violating their constitutional right to travel. State v. McBride, 74 Wn. App. 460, 466-67, 873 P.2d 589 (1994). The propriety of geographic restrictions turns on the particular facts of each case. State v. Schimelpfenig, 128 Wn. App. 224, 230, 115 P.3d 338 (2005).
Here, the order prohibiting Shabazz from having contact with the Garden Park apartment complex was reasonably related to the purposes of sentencing. Under the Sentencing Reform Act of 1981, ch. 9.94A RCW, the sentencing court is authorized to impose crime-related prohibitions. RCW 9.94A.505(8). A "crime-related prohibition" is defined as "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." Former RCW 9.94A.030(12) (2005), recodified as RCW 9.94A.030(13) (Laws of 2005, ch. 436, § 1). Prohibiting Shabazz from returning to the place where he committed a crime of violence is a sentencing condition that is unarguably rationally related to the crime. See McBride, 74 Wn. App. at 466.
Formerly codified as RCW 9.94A.030(12) (2005).
Even more importantly, unlike the defendants in the cases cited by Shabazz, he is not being banned from a large geographical area. The restriction covers a single apartment complex. Nothing suggests that Shabazz ever lived there or that he was ever gainfully employed there. Witnesses in the investigation of the shooting included the apartment manager, the maintenance man (Son Thach), and at least one tenant. Under the circumstances, the order banishing Shabazz from the vicinity of the Garden Park Apartments was neither unduly severe nor restrictive. See State v. Friberg, 435 N.W.2d 509, 510-12 (Minn. 1989) (the rights of defendants convicted of trespass were not violated when they were ordered to stay 500 feet away from the medical clinic where they had trespassed). There was no error.
Shabazz admitted trying to sell drugs at the apartment complex.
Affirmed.