State Of Washington v. Daniel Lavely ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 70937-2-I
Respondent, ) DIVISION ONE ~
-~
v. )
) UNPUBLISHED OPINION ~
DANIEL TIMOTHY LAVELY, ) ~
~
Appellant. ) FILED: April 6, 2015 ~9 ~‘
________________________I ~
LEAcH, J. — Daniel Lavely appeals his conviction for custodial sexual
misconduct in the first degree. He challenges the sufficiency of the evidence to
prove that he detained the victim and claims several acts of prosecutorial
misconduct. Viewed in the light most favorable to the State, the record contains
sufficient evidence to allow a rational juror to find beyond a reasonable doubt that
Lavely detained the victim. Because Lavely indicated that he would put the
victim’s credibility in issue before the prosecutor questioned her about her
veracity, the prosecutor did not improperly vouch for the victim. Even if the
prosecutor improperly questioned the victim and improperly shifted the burden of
proof to Lavely, Lavely did not object on these grounds at trial and does not show
that the prosecutor’s conduct was so flagrant and ill intentioned that a jury
instruction would not have remedied any prejudice. Thus, his claims of
NO. 70937-2-I / 2
prosecutorial misconduct fail. Lavely’s claims of cumulative error fail for the
same reason. We affirm.
FACTS
On May 6, 2012, at 1:00 p.m., Lynnwood Police Officer Iverson
encountered M.M. at the Studio 6 Motel in Mountlake Terrace. After learning of a
Seattle Police Department (SPD) warrant for her arrest, he attempted to arrest
M.M. M.M. was high on methamphetamine. Officer Iverson struggled to arrest
M.M., and she broke a tooth. He cited her for resisting arrest, released her on
that charge, and took her to the hospital. When he discovered SPD could not
take her into custody, he dropped her off at the Home Depot on 205th Street and
Aurora. M.M. then went to Andy’s Motel on Highway 99.
At around 8:00 p.m., Daniel Lavely, then an Edmonds police officer
patrolling Highway 99, stopped M.M. for jaywalking. M.M. told Lavely about the
warrant and her encounter with Officer Iverson that resulted in her broken tooth.
While M.M. sat in the back of his patrol car, Lavely unsuccessfully attempted to
get SPD to take custody of her. Officer Robinson arrived to assist but soon left.
Lavely dropped M.M. off at around 9:00 p.m. at Top Foods on Highway 99. He
told M.M. that he would arrest her if he saw her on Highway 99 again. When
Lavely saw Officer Iverson later that night, Lavely asked Iverson if M.M. was a
prostitute.
-2-
NO.70937-2-1/3
M.M. returned to Andy’s Motel. She found a woman she knew, who
directed her to Larry Wheeler’s room. People in the room were drinking and
watching television. Derrick Wheeler, Larry’s son, left the room. During his
absence, Larry and M.M. had sexual intercourse. Derrick returned to find Larry
sleeping and M.M. dancing around the room naked. Derrick took her to the
hospital, telling the staff that M.M. was high and had threatened suicide. While
she was high on methamphetamine, she had not threatened suicide. M.M. ran
out of the hospital, and Derrick called 911 to report her.
Lavely responded, telling the dispatcher that he would conduct an area
check. From the dispatcher’s description, he assumed that the woman was M.M.
At the hospital, he learned that Derrick had left in the direction of Andy’s Motel.
At Andy’s Motel, Lavely found Derrick and asked him to see if M.M. was in his
room. Derrick found her there and told Lavely.
Lavely told M.M. that she needed to “leave” the motel room. Derrick
remembers that Lavely said, “[M.M.], you need to come with me,” and held her
upper arm as he escorted her down the motel stairs. M.M. testified that Lavely
told her to “come with him” but said Lavely did not touch her at that point. M.M.
asked if she could leave, and Lavely told her that she could not. Lavely placed
her in the backseat of his patrol car. She first sat in the backseat with her feet
-3-
NO. 70937-2-I /4
outside of the patrol car but moved her feet in the car when Lavely shut the car
door. M.M. could not open the rear doors of the patrol car from inside the car.
Lavely testified that he removed M.M. from the hotel room at Derrick’s
request and as part of his duties. He testified that he would only arrest her if she
refused to leave and that he held her arm to help her with her balance. He stated
that M.M. asked for a ride and that he said he could drive her south toward
Seattle. She kept her purse with her, and Lavely testified that she was free to
leave. He testified further that he thought M.M. propositioned him for sex by
asking him for money during the ride. He did not give her money. At her
request, he dropped her off in a well-lit area near Burlington Coat Factory. He
opened the rear door for M.M., and she had a condom wrapper in her hand. He
pulled her out of the vehicle, and their contact ended there.
M.M. testified differently. She testified that at the Burlington Coat Factory,
Lavely drove her around to the back of the building, backing his car into some
trees to face the loading dock. Lavely then opened the rear door. He told her to
get out and to put her hands on the back side window of the car. She thought he
was going to take her to the precinct or to a mental hospital. He patted her
down, began to rub her breasts under her shirt, and put his hand down her pants
and rubbed her vagina. Lavely asked M.M., “Can I make you cum?” M.M. was
scared and said, “Yes.” When Lavely asked her for a condom, she retrieved one,
-4-
NO. 70937-2-Il 5
turned toward Lavely, and put it on him. She turned back around, pulled her
pants down, and he penetrated her vagina. M.M. stated that afterward, M.M.
turned to hug him, but he held up his hands and said, “Just go.” M.M. ran around
the front of the building and saw a street sweeper. She asked him if police went
back behind the building all the time and told him she was raped and about her
tooth.
Ronnie Phillips, a Burlington Coat Factory parking lot sweeper, also
testified for the State. He began his shift at 2:57 a.m. on May 7. He saw M.M.
run around the front of the building and approach him, upset and crying. He
wore earmuffs and his leaf blower was running. He heard her say a police officer
had punched her in the mouth.
She walked back toward Andy’s Motel. A man driving by M.M. stopped
and offered help. He drove M.M. to 7-Il. There he bought her cigarettes at 3:12
am. according to his receipt. M.M. talked to him for 30 minutes, and he dropped
her at Traveler’s Inn. M.M. testified that as she got out of the car, she saw
Lavely drive up in his police car, look at her, and drive off. M.M. returned to
Andy’s Motel and told Derrick that she had been raped. Joel Kennedy, another
person at Andy’s Motel that night, described M.M. as upset and crying. She also
told him that a police officer had raped her.
-5-
NO. 70937-2-I / 6
On May 9, M.M. encountered Officer Osborn at Studio 6 and reported to
him that one police officer had used excessive force against her and another had
raped her. Osborn reported the rape allegation to his supervisor and took M.M.
to Mountlake Terrace Police Department for an interview. Police went to
Burlington Coat Factory that day and found a condom wrapper in the parking lot
behind the building that matched the condom wrappers collected from M.M.’s
belongings.
Detective Kowalchyk from Everett Police Department investigated M.M.’s
case. M.M. gave the detective a description and picked Lavely’s photo from a
photo montage. Detective Kowaichyk interviewed Lavely on May 17. Lavely told
her that he said to M.M. at Andy’s Motel, “Let’s go get in the car. I’m going to
take you down to the bus stop.” Lavely then met with Assistant Chief Lawless at
Edmonds Police Department, appearing shaken and telling Assistant Chief
Lawless he was sorry.
At trial, Corporal Shane Hawley testified that Edmonds Police Department
policies require officers who go to motels on Highway 99 to notify dispatch when
en route, upon arrival, and of their exact location, such as a room number. An
officer must call dispatch when transporting someone of the opposite sex to
communicate that transport has begun and must report odometer readings at the
beginning and end of the trip. Officers typically take a person who cannot be
-6-
NO. 70937-2-I I 7
served a warrant to a bus station behind Costco and not to Burlington Coat
Factory. Lavely contacted dispatch once to clear the call before he went to the
hospital in response to Derrick’s call. He next contacted dispatch again at 3:07
a.m., after M.M. had left, to say he was transporting a female he picked up on the
22200 block of Highway 99, without giving the Andy’s Motel name. He reported
that he had dropped her off at 3:12 a.m. at the bus station.
The State charged Lavely with custodial sexual misconduct in the first
degree, and a jury found him guilty. Lavely appeals.
STANDARD OF REVIEW
This court reviews a claim of insufficient evidence to see if, “after viewing
the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.”1 A defendant challenging the sufficiency of the evidence admits the truth
of the State’s evidence and all reasonable inferences a fact finder could draw
from it.2 A reviewing court defers to the trier of fact to resolve conflicting
testimony and evaluate the persuasiveness of the evidence.3
To establish a claim of prosecutorial misconduct, a defendant must show
that the conduct was both improper and prejudicial.4 If a defendant does not
1 State v. Hosier, 157 Wash. 2d 1, 8, 133 P.3d 936 (2006).
2 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
~ State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182 (2014).
~ State v. Monday, 171 Wash. 2d 667, 675, 257 P.3d 551 (2011) (quoting
State v. Fisher, 165 Wash. 2d 727, 747, 202 P.3d 937 (2009)).
-7-
NO. 70937-2-lI 8
object to a prosecutor’s statements or conduct at trial, then he or she waives the
issue on appeal “unless the prosecutor’s misconduct was so flagrant and ill
intentioned that an instruction could not have cured the resulting prejudice.”5 To
establish prejudice, the defendant must show a substantial likelihood exists that
the misconduct affected the jury’s verdict.6
ANALYSIS
Lavely claims that the State presented insufficient evidence to prove an
element of custodial sexual misconduct in the first degree, that M.M. was “being
detained” at the time of the sexual act. We have reviewed the record to see if a
rational trier of fact could find beyond a reasonable doubt that Lavely detained
M.M. for purposes of the statute.7
Under RCW 9A.44.160(1)(b), “A person is guilty of custodial sexual
misconduct in the first degree when the person has sexual intercourse with
another person: . . . (b) When the victim is being detained, under arrest[,} or in
the custody of a law enforcement officer and the perpetrator is a law enforcement
officer.” This court has defined “being detained” as a seizure or a “restraint on
freedom of movement to such a degree that a reasonable person would not have
felt free to leave.”8 This inquiry examines the particular, objective facts of the
~ State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012).
6 Monday, 171 Wash. 2d at 675.
See Hosier, 157 Wash. 2d at 8.
8 State v. Torres, 151 Wash. App. 378, 380, 212 P.3d 573 (2009).
-8-
NO. 70937-2-I I 9
encounter.9 Evidence indicating a possible seizure, even where a person did not
attempt to leave, includes an officer’s touching of the person or use of language
or tone of voice indicating compliance might be compelled.1°
Lavely argues that his conduct and language toward M.M. at the motel did
not constitute a detention. The record shows that Lavely did not give M.M. the
choice of leaving Andy’s Motel without him. At the motel room, M.M. asked
Lavely if she could leave and he said no, that she had to come with him. Lavely
asserts that this comment is consistent with the officer’s duty to remove an
unwanted guest and ensure M.M. left the premises. Lavely analogizes his
instruction to M.M. to the officer’s question, “Where is the pipe?” in State v.
Thorn.11 In that case, the parties stipulated to the officer’s question and
presented no evidence of the officer’s manner, tone of voice, or body language.12
As a result, the limited record contained insufficient evidence to show a seizure
because it presented no facts on which to base a finding that the officer’s
question was coercive.13 In contrast, the testimony of M.M., Lavely, and Derrick
about the encounter, viewed in the light most favorable to the State, provided
~ Torres, 151 Wash. App. at 386 (quoting State v. Armenta, 134 Wash. 2d 1, II,
948 P.2d 1280 (1997)).
10 State v. Young, 135 Wash. 2d 498, 512, 957 P.2d 681 (1998) (quoting
United States v. Mendenhall, 446 U.S. 544, 554, 100 5. Ct. 1870, 64 L. Ed. 2d
497 (1980)).
11 129 Wash. 2d 347, 353-54, 917 P.2d 108 (1996) overruled on other
grounds by State v. O’Neill, 148 Wash. 2d 564, 62 P.3d 489 (2003).
12 Thorn, 129 Wash. 2d at 349.
13 Thorn, 129 Wash. 2d at 353-54.
-9-
NO.70937-2-I/lU
sufficient evidence of the totality of the circumstances to establish for a rational
juror the coercive nature of Lavely’s instruction.
Lavely further claims that the State cannot prove that he applied force to
M.M. He claims that briefly holding her arm is not analogous to handcuffs or
other force that indicates detention. He did not search her, and he never
removed M.M.’s property from her. But the State produced evidence that Lavely
escorted her to his car while holding her upper arm. M.M. sat in the backseat of
Lavely’s patrol car. Lavely shut the door, which did not open from the inside.
Lavely then drove M.M. to a parking lot behind Burlington Coat Factory, removed
M.M. from the car, and made her place her hands on the back side window of the
car while facing away from him. He first touched her body as if searching her.
Then he touched her sexually. Given the particular, objective facts of the
encounter, a rational juror could find that a person in M.M.’s position would not
have felt free to leave.
At oral argument, Lavely argued that the custodial sexual misconduct
statute requires the detention have a lawful purpose and the prosecutor failed to
show that Lavely had a lawful purpose in detaining M.M. We reject this assertion
without deciding if Lavely’s premise is correct. The record contains sufficient
evidence to allow a rational juror to find that the detention began with the lawful
purpose of removing a trespasser from a motel room.
-10-
NO. 70937-2-I/li
In summary, we conclude that under the totality of the circumstances, the
record sufficiently supports a rational juror’s conclusion that a reasonable person
in M.M.’s position would not believe she was free to leave and that M.M.’s
detention began with a lawful purpose. Thus, sufficient evidence supports
Lavely’s conviction for custodial sexual misconduct in the first degree.
Lavely also alleges three claims of prosecutorial misconduct. First, Lavely
contends that the prosecution improperly vouched for M.M. During direct
examination of M.M., the prosecutor listed her criminal history involving crimes of
dishonesty. Lavely claims that the prosecutor improperly vouched for M.M. when
the prosecutor asked M.M.,
Q: You understand the importance of telling the truth on the
witness stand.
A: Yes.
Q: Have you ever asked me or anyone in my office for any kind
of deal on any of your other cases with respect to this case?
A: No.
Lavely did not object. He also contends that the prosecutor improperly vouched
for M.M.’s credibility when, during its closing rebuttal, the prosecutor argued,
I want you to consider [that] [M.M.] told you she is serving a
sentence. She is so desperate to get out, she never asked me for
anything.
Lavely objected on the basis of improper vouching, and the trial court instructed
the jury to “recall the testimony.”
—11—
NO. 70937-2-1/12
A prosecutor may not express a personal belief in the veracity of a
witness.14 Only a trier of fact may decide if a witness truthfully testifies.15 In
closing argument, a prosecutor has wide latitude to argue reasonable inferences
from the evidence, including those about witness credibility.16 A prosecutor must
make a clear statement of opinion for the court to consider it opinion evidence.17
Whether a witness agreed to testify truthfully has little probative value and may
not be admitted as part of the State’s case in chief.18 Our Supreme Court has
clearly stated its view:
Evidence that a witness has entered into a formal agreement
with the State to testify truthfully should be excluded during direct
examination. Once the witness’s credibility has been attacked
during cross-examination, the prosecutor may reference the
witness’s promise to testify truthfully on redirect. However, such
evidence should be limited, and the prosecutor may not express a
personal belief regarding the witness’s credibility or imply that
evidence outside of the record would ensure that the promise has
been kept.[191
Because Lavely did not object to the challenged testimony, he must show
the claimed misconduct to be so flagrant and ill intentioned that it caused
prejudice that a proper instruction could not cure.2° Lavely argues that by
14 State v. Thorgerson, 172 Wash. 2d 438, 443, 258 P.3d 43 (2011).
15 State v. Ish, 170 Wash. 2d 189, 196, 241 P.3d 389 (2010).
16 Thorgerson, 172 Wash. 2d at 448.
17 State v. Mckenzie, 157 Wash. 2d 44, 53-54, 134 P.3d 221 (2006) (quoting
State v. Papadopoulos, 34 Wash. App. 397, 400, 662 P.2d 59 (1983)).
18~j~ 170 Wash. 2d at 198.
~ 170 Wn.2d at2Ol.
20 See Emerq, 174 Wash. 2d at 760-61.
-12-
NO. 70937-2-I / 13
asserting that M.M. did not make a deal with the State, the prosecutor improperly
placed the “State’s seal of approval” on M.M.’s testimony. Lavely cites State v.
~h21 to support this argument. In that case, the court found the prosecutor
committed misconduct when she referenced a plea agreement where the witness
promised to testify truthfully, thus vouching for the witness’s credibility.22 Here,
Lavely argues, the prosecutor used the absence of an agreement to do the
same. And, Lavely argues, because the State relied on M.M.’s testimony to
establish that M.M. and Lavely had sexual intercourse, the jury’s determination of
M.M.’s credibility determined the outcome of the case and improper vouching
jeopardized the trial’s fundamental fairness.
The State counters that unlike in ~ testimony to the absence of an
agreement does not carry the same implied verification that M.M. testified
truthfully. Moreover, when the State reasonably anticipates an attack on its
witness’s credibility, it may address the issue on direct examination.23 Here, the
prosecutor’s case relied heavily on M.M.’s credibility. And in Lavely’s opening
statements, defense counsel stated that Lavely “is accused by someone who
was seeking to further her self interest during the course of a multi-day drug
binge,” listed M.M.’s criminal history, and asked the jury to determine the truth.
Thus, the prosecutor could reasonably anticipate that Lavely would attack M.M.’s
21170 Wash. 2d 189, 241 P.3d 389 (2010).
22 Ish, 170 Wash. 2d at 199.
23 Statev. Bourgeois, 133 Wash. 2d 389, 402, 945 P.2d 1120 (1997).
-13-
NO. 70937-2-I / 14
credibility in cross-examination. Under these circumstances, the prosecutor did
not have to wait until after the attack to address M.M.’s credibility. Additionally,
had Lavely objected, an instruction to the jury to ignore the evidence would have
remedied any prejudice from the challenged conduct. Thus, this claim fails.
Lavely argues the State’s closing rebuttal argument also improperly
vouched for M.M.’s credibility. The State argues that it properly responded to
Lavely’s closing argument. In closing, Lavely directly attacked M.M.’s credibility
and questioned her motive for testifying, suggesting she lied about Lavely having
sex with her.
Courts afford a prosecutor wide latitude in closing argument, and a
prosecutor may argue inferences from the evidence.24 To engage in improper
vouching, a prosecutor must clearly state a personal opinion about the truth of
the witness’s statements.25 Here, the prosecutor did not make an unequivocal
statement indicating the expression of a personal opinion but argued from the
evidence that M.M. did not have a personal interest in fabricating a story. In so
arguing, the State attempted to enhance M.M.’s credibility and respond to
Lavely’s argument. Thus, the prosecutor’s closing argument on rebuttal did not
constitute improper vouching.
State v. Brett, 126 Wash. 2d 136, 175, 892 P.2d 29 (1995); Thorgerson,
24
172 Wash. 2d at 453.
25 Brett, 126 Wash. 2d at 175.
-14-
NO. 70937-2-I /15
In addition, Lavely cannot show prejudice. After Lavely’s objection to the
prosecutor’s rebuttal argument, the court instructed the jury to recall the
evidence. It later instructed the jury that “[i]f evidence was not admitted or was
stricken from the record,” it may not consider that evidence. Courts presume that
juries follow judges’ instructions.26 To convict Lavely, the jury had to believe
M.M.’s account that she and Lavely had sexual intercourse. However, other
evidence supported M.M.’s testimony. The State produced evidence of a
condom wrapper behind Burlington Coat Factory matching one M.M. carried. A
witness saw M.M. very upset in front of Burlington Coat Factory at around 3:00
a.m. on May 7. That night, M.M. reported to Derrick and Joel Kennedy that an
officer had raped her. A jury could find that this evidence, considered as a
whole, corroborated M.M.’s story. Thus, Lavely cannot show prejudice.
Lavely next contends that the prosecutor violated the advocate-witness
rule by injecting into M.M.’s testimony that she needed to tell the truth, thus
attempting to prove her credibility through his own words and actions. Lavely
argues that the prosecutor did this when he indicated that M.M. did not seek any
agreement with the prosecution in exchange for her testimony, asked if anyone
had told her what to say, and indicated that he had instructed her to tell the truth.
26 Emery, 174 Wash. 2d at 766.
-15-
NO.70937-2-1/16
On cross-examination of M.M., Lavely questioned M.M. about her contact
with Officer Iverson and asked if she had exaggerated her injuries to support her
assault claim. M.M. admitted to being high when the police interviewed her. The
prosecutor rebutted:
Q: Has anyone ever told you, either me, Detective Kowaichyk,
anybody from my office, has anybody ever told you what to say?
A: No.
Q: Actually, I have told you something before, haven’t I, about
what happens on the witness stand.
A: Yeah.
Q: What did Itell you?
A: That—that they try and get you to say stuff that you don’t—
Lavely objected. The trial court sustained. The prosecutor continued:
Q: Did I tell you to—did I ask—did I tell you—
A: Tell the truth.
Q: I told you to tell the truth. How many times have I told you
that during this case?
Lavely objected that the response was “asked and answered.” The trial court
sustained this objection.
Lavely cites United States v. Edwards27 to show that a prosecutor may not
testify to his own knowledge by eliciting witness testimony about a prosecutor’s
27 United States v. Edwards, 154 F.3d 915, 922 (9th Cir. 1998).
-16-
NO. 70937-2-I / 17
actions. Washington case law prohibits an attorney from imparting personal
knowledge about an issue through direct or cross-examination when that
evidence is not admitted otherwise.28 A prosecutor may not refer to extrinsic
evidence never introduced.29 Courts look to see if the question’s focus is to
place the prosecutor’s personal knowledge before the jury without the prosecutor
formally testifying.3°
Because Lavely did not object on the grounds of the prosecutor’s improper
testimony, he waived the right to appeal this issue31 unless he can show the
prosecutor’s questions were so flagrant and ill intentioned that a jury instruction
could not cure the error. Had Lavely properly objected, the questions might
never have been answered. If they were, the court could have ordered the
testimony stricken from the record and instructed the jury to disregard the
testimony.32 When both parties rested, the court instructed the jury on both
witness credibility and the role of counsel at trial and that the lawyer’s words or
actions did not constitute evidence.
28State v. Denton, 58 Wash. App. 251, 257, 792 P.2d 537 (1990).
29 State v. Miles, 139 Wash. App. 879, 887, 162 P.3d 1169 (2007).
30 Miles, 139 Wash. App. at 887 (quoting State v. Lopez, 95 Wash. App. 842,
855, 980 P.2d 224 (1999)).
31 See State v. Guloy, 104 Wash. 2d 412, 422, 705 P.2d 1182 (1985).
32 See State v. Cleveland, 58 Wash. App. 634, 648, 794 P.2d 546 (1990).
-17-
NO. 70937-2-I /18
If the prosecutor improperly questioned M.M. about his own actions, a jury
instruction would have remedied any prejudice from the improper questions and
answers. Thus, Lavely’s challenge based on the advocate-witness rule fails.
Lavely argues that the State improperly shifted the burden of proof to
Lavely. In closing argument, Lavely questioned M.M.’s credibility. The State’s
rebuttal included the following comment:
You can believe what happened to [M.M.} because cross
examination by Counsel really didn’t put holes in her story. After an
hour plus interview with Detective Kowalchyk, after a two-plus hour
interview with the defense team, after an hour of direct
examination, after at least half an hour of cross examination, what
did that get the Defense? What holes were so poked in what she
said about the elements that I have to prove to you after all of those
hours of talking about this, what did that reveal?
Lavely argues that the prosecutor thus improperly suggested to the jury that
Lavely bore a burden to prove his innocence.
The State must prove a defendant’s guilt beyond a reasonable doubt, and
arguments that misstate this burden or shift it to the defendant constitute
misconduct.33 Because defendants do not have a burden to produce evidence, a
prosecutor may not comment on the defendant’s failure to do so.34
Here, because Lavely questioned M.M.’s credibility, the prosecutor was
permitted to argue from the evidence about M.M.’s credibility. But the
prosecutor’s comments about Lavely’s cross-examination of M.M. suggested that
~ Thorcierson, 172 Wash. 2d at 453.
~ Thorgerson, 172 Wash. 2d at 453.
-18-
NO. 70937-2-1/19
Lavely had to “poke holes” in the State’s case. But because Lavely failed to
object to this comment, he must show the prosecutor’s argument was so flagrant
and ill intentioned that an instruction to the jury could not remedy the prejudice.
This court has held that an improper argument shifting the burden of proof
to a defendant may be remedied by a proper instruction to the jury.35 Here a
timely instruction would have cured any prejudice from the prosecutor’s
argument. Thus, Lavely’s argument fails.
Finally, Lavely argues that cumulatively the alleged prosecutorial
misconduct prejudiced his right to a fair trial. Repetitive prosecutorial misconduct
may cumulatively cause prejudice so that no jury instruction can erase its
adverse effect. When this happens, a defendant must be granted a new trial.36
Even when this court decides that each error standing alone would otherwise be
harmless, cumulative error may warrant this court’s reversal of a trial court
decision.37 But if the errors are few and do not affect the trial’s outcome, a court
will not find cumulative error.38
Here, Lavely fails to show how the alleged prosecutorial misconduct
prejudiced the jury and affected the outcome of his trial. Lavely’s cumulative
error argument fails.
~ Cleveland, 58 Wash. App. at 648.
36In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 710, 286 P.3d 673
(2012).
~ State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 (2006).
38 Weber, 159 Wash. 2d at 279.
-19-
NO. 70937-2-I / 20
CONCLUSION
Because the State produced sufficient evidence to prove detention, we
reject Lavely’s challenge to the sufficiency of the evidence. Because Lavely
indicated that he would put M.M.’s veracity at issue during his opening statement,
the prosecutor did not improperly vouch for M.M. when he addressed her veracity
in direct examination. Even if the prosecution improperly questioned M.M. or
improperly shifted the burden of proof to Lavely, Lavely did not properly object
and cannot show that a jury instruction would not have cured any resultant
prejudice. Thus, Lavely’s claims of prosecutorial misconduct fail. For the same
reason, Lavely’s claim of cumulative error fails. We affirm.
WE CONCUR:
-20-