State Of Washington, V. Robert New ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 80561-4-I
)
Respondent, )
) DIVISION ONE
v. )
)
ROBERT NEW, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Robert New was convicted by jury of four counts of rape of a child
in the first degree. New appeals his judgment and sentence arguing that: (1) the trial
court erred in denying his motion to dismiss after the State failed to preserve material
exculpatory evidence, (2) the trial court erred by not dismissing the prosecution
following deprivation of his constitutional right to a speedy trial, (3) the trial court violated
his constitutional right to be present by addressing written jury questions in his absence;
(4) the prosecution committed misconduct during its closing argument, (5) cumulative
error deprived him of a fair trial, and (6) the trial court erred by imposing community
custody supervision fees. We remand to the superior court to strike the supervision
fees. We otherwise affirm.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80561-4-I/2
FACTS
New and Alexis Ham were in a relationship from 1994 to September 1995 while
residing in Canada. Their daughter, J.T., was born on March 18, 1996. New saw J.T.
briefly in her infancy and then did not see her again until she was five years old. In the
meantime, New married Heather New. 1 A dispute over residential time with J.T. ensued
between New and Ham. After increasing visitations, New was given full-time residential
care in October 2003; J.T. was seven years old. Shortly after, New, Heather, and J.T.
moved from Canada to Washington.
In summer 2007, 11-year-old J.T. spent two months with Ham in Canada. Early
morning on July 29, 2007, J.T. told Ham that she had been “molested” on numerous
occasions by New beginning at the age of six. Ham called Royal Canadian Mounted
Police (RCMP) then took J.T. to the police station. The RCMP interviewed Ham and
J.T. In the interview, J.T. disclosed that her father sexually abused her in both Surrey,
British Columbia and Redmond, Washington. On August 22, 2007, J.T. had a medical
exam at the HEAL 2 clinic in Surrey, British Columbia. The exam was conducted by Dr.
Joan Fujiwara and included colposcopy photographs.
The RCMP investigation was forwarded to the Redmond Police Department in
October 2007 and reviewed by Detective Patty Neorr. In August 2008, the State
charged New by information with three counts of first degree rape of a child-domestic
violence. New did not appear for an arraignment scheduled for September 3, 2008. 3
1 We refer to Heather by her first name for clarity. We intend no disrespect.
2 Health Evaluation Assessment and Liaison.
3 The record before us does not indicate that New was aware of the charges or the
arraignment.
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On November 1, 2012, the State amended the information, adding a fourth count
of first degree rape of a child-domestic violence. According to the amended information,
the State believed New was living in Canada and had been convicted of financial fraud
in 2007 and sentenced to 15 months of house arrest. Also according to the amended
information, the State was preparing to extradite New to the United States. The record
does not explain what measures the State took to extradite or prosecute New between
2008 and 2012.
In 2012, the State began negotiations with Canada. In 2015, Canadian
authorities detained New on the Washington charges. New initially opposed extradition,
but Canada eventually delivered New to Washington in April 2018.
After over 20 continuances, the trial commenced in July 2019. New objected to
some continuances, but did not move to dismiss on speedy trial grounds. On July 16,
2019, New moved to dismiss for government mismanagement under CrR 8.3(b)
because the State lost the colposcopy photos taken during the August 2007 medical
exam in Canada. The trial court denied the motion, but excluded the State’s witness
slated to introduce the colposcopy photos.
Trial commenced in July 2019, but a mistrial was declared after defense counsel
fell ill. The second trial began immediately. The parties did not relitigate pretrial
motions.
The jury found New guilty as charged. The trial court imposed an indeterminate
sentence of 285 months minimum to life.
New appeals.
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ANALYSIS
A. Lost Colposcopy Photos
New argues that the trial court erred in denying his CrR 8.3(b) 4 motion to dismiss
following the State’s failure to preserve the August 2007 colposcopy photos that he
claims were materially exculpatory evidence. We disagree.
We review the denial of a motion to dismiss under CrR 8.3(b) for abuse of
discretion. State v. Athan, 160 Wn.2d 354, 375, 158 P.3d 27 (2007). To prevail on a
motion to dismiss under CrR 8.3(b), the defendant must first show arbitrary action or
government misconduct. “Absent a showing of arbitrary action or governmental
misconduct, a trial court cannot dismiss charges under CrR 8.3(b).” State v. Michielli,
132 Wn.2d 229, 239, 937 P.2d 587 (1997). The second necessary element a defendant
must show before a trial court can dismiss charges under CrR 8.3(b) is prejudice
affecting the defendant’s right to a fair trial. Michielli, 132 Wn.2d at 240.
Under the due process clause of both the U.S. Constitution and Washington
State Constitution, criminal defendants have a right to the preservation and disclosure
of material exculpatory evidence in the State’s control. U.S. CONST. amend. XIV;
CONST. art. I, § 3; State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994).
The State has a duty to both preserve and disclose “materially exculpatory” evidence.
State v. Burden, 104 Wn. App. 507, 511, 17 P.3d 1211 (2001). If evidence is materially
exculpatory and not preserved, criminal charges against the defendant must be
4 CrR 8.3(b) provides, in relevant part:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal
prosecution due to arbitrary action or governmental misconduct when there has been
prejudice to the rights of the accused which materially affect the accused’s right to a fair
trial.
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dismissed. Wittenbarger, 124 Wn.2d at 475. In contrast with exculpatory evidence, the
failure to preserve evidence that is only “potentially useful” is not a due process violation
unless the State acted in bad faith while failing to preserve the evidence. The
defendant bears the burden of establishing that the State acted in bad faith.
Wittenbarger, 124 Wn.2d at 477. “A trial court’s determination that missing evidence is
materially exculpatory is a legal conclusion which we review de novo.” Burden, 104 Wn.
App. at 512.
To be material exculpatory evidence, “the evidence must both possess an
exculpatory value that was apparent before it was destroyed and be of such a nature
that the defendant would be unable to obtain comparable evidence by other reasonably
available means.” Wittenbarger, 124 Wn.2d at 475. A showing that evidence might
exonerate the defendant is not sufficient. Wittenbarger, 124 Wn.2d at 475. In contrast,
potentially useful evidence is evidence that “no more can be said than that it could have
been subjected to tests, the results of which might have exonerated the defendant.”
Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
In the course of her investigation, Detective Neorr contacted the HEAL clinic in
Surrey, British Columbia, and requested that they send her the colposcopy photos taken
during J.T.’s August 22, 2007 exam by Dr. Fujiwara. Detective Neorr retrieved the
photos and delivered them to Dr. Sugar at the Harborview Center for Sexual Assault
and Traumatic Stress. Detective Neorr asked Dr. Sugar to review the Canadian
medical report and photos and provide her opinion. On August 1, 2008, Dr. Sugar told
Detective Neorr that she “did not see the abnormality described in Canada’s medical
report, but that didn’t mean it wasn’t there” and that she would have preferred video.
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Dr. Sugar died in 2013. The colposcopy photos were subsequently lost. New argues
the colposcopy photos taken by Dr. Fujiwara were materially exculpatory because Dr.
Sugar opined that they did not show an abnormality consistent with sexual abuse. To
the contrary, the missing colposcopy photos, combined with Dr. Fujiwara’s opinion after
conducting J.T.’s examination, was inculpatory—not exculpatory. While Dr. Sugar
opined that she did not see the abnormality described by Dr. Fujiwara, she also opined
that it didn’t mean that it wasn’t there. At best, Dr. Sugar’s statement regarding the
missing photos might have been potentially useful for cross-examination of Dr. Fujiwara.
New compares his case to Burden. In Burden, the State lost the coat of a
defendant charged with a drug crime. 104 Wn. App. at 510-11. Burden’s defense was
that the coat was a friend’s, along with the drugs inside. He claimed the coat had the
friend’s initials written on the tag. The court concluded the lost coat was materially
exculpatory evidence because it provided affirmative evidence establishing Burden’s
innocence and was “critical to the defense.” Burden, 104 Wn. App. at 510, 512-13. But
in this case, unlike the coat, the colposcopy photos did not provide affirmative evidence
to establish New’s innocence. To the contrary, the photos along with Dr. Fujiwara’s
testimony strongly favored the State. While New may have been able to find a witness
to replace Dr. Sugar and agree that the photos did not show signs of trauma or were
inconclusive, it would not have demonstrated his innocence.
Under CrR 8.3, it is also improper to dismiss a criminal case absent a finding of
prejudice to the defendant. Michielli, 132 Wn.2d at 240. After correctly concluding that
the missing colposcopy photos were not materially exculpatory, the trial court offered
New two choices to cure the prejudice: exclusion of Dr. Fujiwara’s opinion and all
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physical evidence or a stipulation from the State that its expert disagreed with Dr.
Fujiwara’s opinion. New opted to exclude all physical evidence and opinion concerning
the colposcopy photographs and exam. The exclusion of all physical evidence and Dr.
Fujiwara’s opinion cured any potential prejudice to New. Because the trial court was
able to cure any prejudice, and New was able to argue a lack of physical evidence to
present reasonable doubt, the lost colposcopy photos fail to rise to the level of
materially exculpatory evidence and do not justify dismissal.
B. Right to Speedy Trial
New argues that this court should reverse his conviction and dismiss the case
because his constitutional right to a speedy trial was violated. We disagree. 5
We review an alleged violation of a defendant’s Sixth Amendment right to a
speedy trial de novo. State v. Ollivier, 178 Wn.2d 813, 827, 312 P.3d 1 (2013).
Washington uses the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), to determine whether a constitutional speedy trial
violation has occurred. Ollivier, 178 Wn.2d at 827. “The analysis is fact-specific and
‘necessarily dependent upon the peculiar circumstances of the case.’” Ollivier, 178
Wn.2d at 827 (quoting Barker, 407 U.S. at 530-31). Among the nonexclusive factors to
be considered are the “[l]ength of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530. “None
of these factors is sufficient or necessary to a violation.” Ollivier, 178 Wn.2d at 827.
5 In its response brief, the State argues that New failed to assert below the violation of his
right to a speedy trial for the period from 2008 to 2012. We disagree. While limited, in a letter to
the trial court, New argued that the State’s delay from 2008 onward was prejudicial and denied
him the right to a speedy trial.
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As a threshold inquiry to the Barker analysis, a defendant must show that the
length of the delay crossed the line from ordinary to presumptively prejudicial. Ollivier,
178 Wn.2d at 827-28; Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686,
120 L. Ed. 2d 520 (1992). The State correctly concedes here that the delay of 11 years
between the initial charges and trial satisfies the threshold finding of prejudice under
Barker.
The first of the Barker factors is the length of the delay. The record is silent in
respect to the State’s and New’s actions between 2008 and 2012. The State, however,
did not begin extradition proceedings until 2012 and it took another 6 years before New
was arraigned in Washington. The length of delay, particularly where there is no
information explaining the State’s initial four year delay weights against the State.
The second Barker factor examines the reason for the delay. We look “to each
party’s responsibility for the delay, and different weights are assigned to delay, primarily
related to blameworthiness and the impact of the delay on defendant’s right to a fair
trial.” Ollivier, 178 Wn.2d at 831. “At one end of the spectrum is the situation where the
defendant requests or agrees to the delay and therefore ‘is deemed to have waived his
speed trial rights as long as the waiver is knowing and voluntary.’” Ollivier, 178 Wn.2d
at 831 (quoting State v. Iniguez, 167 Wn.2d 273, 284, 217 P.3d 768 (2009)). “At the
other end of the spectrum, if the government deliberately delays the trial to frustrate the
defense, this conduct will be weighted heavily against the State.” Ollivier, 178 Wn.2d at
832.
Again, the State fails to explain the four-year delay between initially charging
New and seeking extradition. Once extradition proceedings began in 2012, subsequent
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delay appears to be the result of New exercising his right to oppose extradition. We
conclude that reason for the 11-year delay between the initial charges and arraignment
in Washington is evenly weighted between the State and New. 6
The third Barker factor requires us to consider the extent at which the defendant
asserts his speedy trial right. Iniguez, 167 Wn.2d at 284. Essentially, the defendant is
more likely to complain the more egregious the violation is. Barker, 407 U.S. at 531.
While the defendant’s assertion is entitled to strong evidentiary weight, the court must
balance this in light of his other conduct. Barker, 407 U.S. at 531-32; United States v.
Loud Hawk, 474 U.S. 302, 314, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). Here, New
never asserted a violation of his rights to a speedy trial from the time extradition
proceedings began, through his arrest in Canada in 2015, and through his arraignment
in Washington in April 2018. He began objecting to trial continuances, asserting a
violation of this right, in September 2018, but did not do so in litigating extradition, nor in
reflection on the time between charges and the beginning of extradition. New simply did
not assert this right for years after knowing of the charges and his rights. The third
factor weighs against New.
Finally, the last factor of the Barker test examines the prejudice to the defendant
as a result of the delay. Iniguez, 167 Wn.2d at 284. A defendant may be relieved of his
burden to establish prejudice. However, “presumed prejudice is recognized only in the
case of extraordinary delay, except when the government’s conduct is more egregious
6 Additionally, New asserts a violation of his speedy trial rights due to the trial court’s
grant of over 20 continuances. However, these continuances concerned trial transcripts,
Canadian reports, and missing witnesses. New conceded to the necessity of many of these
continuances. These continuances were reasonably justified and should not factor into the
analysis. Barker, 407 U.S. at 531.
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than mere negligence.” Ollivier, 178 Wn.2d at 842 (quoting W AYNE R. LAFAVE, JEROLD
H. ISRAEL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 18.2(3) (3d ed. 2007)).
In deciding what is extraordinary enough to constitute presumption, the court considers
the period between the time of the indictment and the time the government began
diligently pursuing the charge. Ollivier, 178 Wn.2d at 842. Absent bad faith, the
average for presumed prejudice is a post-indictment delay of at least five years.
Ollivier, 178 Wn.2d at 843; United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir.
2003) (collecting cases). In this case, the post-indictment delay is approximately four
years, therefore, there is no presumed prejudice.
An assessment of prejudice involves: (1) oppressive pretrial incarceration, (2)
anxiety and concern of the accused, and (3) the possibility the defense will be impaired
by dimming memories and loss of exculpatory evidence. Doggett, 505 U.S. at 654;
Barker, 407 U.S. at 532. Additionally, a defendant must generally “establish actual
prejudice before a violation of the constitutional right to a speedy trial will be
recognized.” Ollivier, 178 Wn.2d at 840.
First, New did not experience oppressive pretrial incarceration. He was allegedly
unaware of the charges for four years and then released to a bail supervisor while
fighting extradition in Canada. New’s incarceration between arraignment in April 2018
and trial in August 2019 does not constitute an oppressive pretrial incarceration.
Ollivier, 178 Wn.2d at 844 (holding a pretrial incarceration of two years is not oppressive
on its face).
Second, New does not argue anxiety and concern as prejudice on appeal. Third,
the delay did not diminish the defense. New argues that the delay caused the loss of
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two witnesses, his in-laws, the loss of colposcopy photos, and death of the expert, Dr.
Sugar. However, as previously addressed, the loss of the colposcopy photos and death
of Dr. Sugar did not prejudice New because the trial court struck all physical evidence,
removing any possible prejudice. Therefore, New failed to establish actual prejudice
resulting from the delay.
Overall, we conclude that the Barker factors weigh in favor of the State and
New’s speedy trial rights were not violated.
C. Right to Be Present
New argues that the trial court violated his right to be present when it answered
a jury question, after conferring with counsel, in his absence. We disagree.
A criminal defendant has the constitutional right to be present at trial. U.S.
CONST. amend. XI, XIV; CONST. art. I, § 22. This includes the right to be present at all
critical stages of the trial. Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L.
Ed. 2d 267 (1983); State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231 (2010), aff’d
on other grounds, 176 Wn.2d 58, 292 P.3d 715 (2012). Also, the defendant has a due
process right to be present “whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against the charge.” United
States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). In
Washington, the right to be present means the right “to appear and defend in person
and by counsel . . . at every stage of the trial when his substantial rights may be
affected.” CONST. art. I, § 22; State v. Irby, 170 Wn.2d 874, 885, 246 P.3d 796 (2011).
A defendant’s right to be present is a question of law reviewed de novo. State v. Slert,
186 Wn.2d 869, 874, 383 P.3d 466 (2016).
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Shortly after the jury began deliberations, the trial court gave counsel their
options for responding to jury questions. The court explained, “[y]ou know, my practice
is I follow whatever method you like. I never respond to jurors without talking to you
first, but I can talk to you over the phone, or I can talk to you here in court, . . . some
combination thereof, whatever works.” Neither party objected nor took issue with the
court’s suggestion. Later that day, the jury sent two written questions: “[w]as evidence
excluded because it took place outside of the time frame in question or because it was
from outside the Court’s jurisdiction?” and “[d]oes the Court have jurisdiction only over
acts committed inside its geographic jurisdiction?”
The next morning, the court consulted with counsel over the phone. It then sent
the jury a response, “Please [re-read] and follow your instructions, including instruction
No. 1, which tells you the evidence you are to consider during your deliberations
consists of the testimony you have heard from witnesses and exhibits I have admitted
during the trial. If the evidence was not admitted, then you are not to consider it in
reaching your verdict.” On August 16, 2019, the Court read the questions and response
in open court with New present prior to hearing the jury’s verdict. New did not object
when informed that the court gave counsel the option to discuss issues over the phone
and did not object to the court’s response when read to him prior to the jury’s verdict.
If a defendant fails to timely object to an alleged violation of the right to be
present, he waives appellate review. Slert, 186 Wn.2d at 875; State v. Jones, 185
Wn.2d 412, 426-27, 372 P.3d 755 (2016). In Slert, the court conducted some portion of
jury selection outside of the defendant’s presence. 186 Wn.2d at 873. And in Jones,
the court selected alternate jurors in the defendant’s absence. 185 Wn.2d at 426-27. In
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both cases, the courts determined that the defendants had a right to be present, but
they waived that right because each failed to timely object to the violations at trial. Slert,
186 Wn.2d at 875-76; Jones, 185 Wn.2d at 426-27. Conversely, prompt objection may
be excused based on particular facts of the case. Slert, 186 Wn.2d at 875-76; Irby, 170
Wn.2d at 884. In Irby, the court dismissed 10 jurors through an e-mail conversation
between the judge and counsel. 170 Wn.2d at 884. In that case, because the record
did not indicate Irby knew of the e-mail, or had a reasonable opportunity to object, the
court heard the merits of his claim. Irby, 170 Wn.2d at 884; Slert, 186 Wn.2d at 875-76.
Unlike in Irby, New had the opportunity to object on two occasions. First, the
court informed New and counsel of the plan to take juror questions at the discretion of
the parties, including and specifically by phone. If New intended to object and enforce
his right to be present, he could have objected at that notion. Second, the court read
New the jury question and the court’s answer the following day in court, prior to
summoning the jury and hearing the jury’s verdict. New had a reasonable opportunity to
object to his lack of presence during the discussion and the court’s answer, but he did
not. Therefore, the issue is unpreserved.
Even if New had timely objected, however, his claim that the conference with
counsel over the jury’s inquiry was a critical stage of the proceeding fails. A defendant
does not have the right to be present when the trial court confers with counsel on a
purely legal issue of how to respond to a jury request for clarification on one of the
court’s instructions. Sublett, 156 Wn. App. at 182-83; State v. Wright, ___ Wn. App. 2d
___, 492 P.3d 224, 229-31 (2021).
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D. Prosecutorial Misconduct
New argues that various statements made during closing argument constitute
prosecutorial misconduct, thus depriving him of a fair trial. We disagree.
Improper arguments made by prosecutors may deprive the defendant of a fair
trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 969, 703-04, 286 P.3d 673 (2012).
To prove prosecutorial misconduct, the defendant bears the burden of establishing that
the prosecutor’s conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741,
756, 278 P.3d 653 (2012). If the defendant failed to object at trial, that burden
increases. Any error is waived, “unless the remark is deemed to be 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. Gentry, 125 Wn.2d 570, 596, 888
P.2d 1105 (1995). We view comments made in closing argument within “the context of
the prosecutor’s entire argument, the issues in the case, the evidence discussed in the
argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d
432 (2003).
New raises several arguments concerning the following statement made during
the State’s closing argument:
And you know what else is credible? Do you remember how you shifted in
your seats when she told you about those smells in the shower, the pain
she felt when her father pushed another finger inside of her into that office
chair? Do you remember how you felt when [J.T.] told you she couldn’t
smell Pantene anymore because it always brought those memories back
to her? You felt those feelings because what you heard had a ring of truth
to it. They rang true. You were uncomfortable hearing a woman describe
her abuse when she was a child because you knew that what she was
saying was true. You know she was not making this up. You can assess
that credibility and decide for yourselves if you thought she was making
this up. And you will come to the end of this trial and you will decide that
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yes, [J.T.] was telling the truth because, you know, if they were lying, if
[J.T.] was lying, that they would have had a better plan, they would have a
better story to tell you. She would [not] have told you how she liked it and
went back and begged for more from her father, asking her to let it start up
again, promising her dad that she would never tell again, just so long he’d
start loving her again. But she did tell you that because that’s her truth.
First, New contends the prosecutor referenced facts not in evidence and inflamed
the jury’s passions and prejudice by discussing the jurors’ feelings and discomfort while
listening to J.T.’s testimony. A prosecutor commits misconduct by making arguments
unsupported by admitted evidence. State v. Belgarde, 110 Wn.2d 504, 507-08, 755
P.2d 174 (1998). Prosecutorial appeals to the passions and prejudices of the jury
similarly constitute misconduct. Belgarde, 110 Wn.2d at 507-08.
“[P]rosecutors represent the public, including defendants, and have a duty to see
that fair trial rights are not violated.” State v. Craven, 15 Wn. App. 2d 380, 385, 475
P.3d 1038 (2020). “A prosecutor acts improperly by seeking a conviction based upon
emotion rather than reason.” Craven, 15 Wn. App. 2d at 285. In Craven, the
prosecutor told the jurors “they would know Craven’s guilt beyond a reasonable doubt
by, in equal measure, recognizing it intellectually and feeling it emotionally in their
hearts and viscerally in their guts.” Craven, 15 Wn. App. 2d at 387. This court
concluded that because the prosecutor’s argument expressly invited jurors to use their
emotions and instincts equally with intellect when reaching a verdict, the closing
argument was improper. Craven, 15 Wn. App. 2d at 390.
This case is similar to Craven. The prosecutor’s statement was inappropriate.
Comments such as, “[d]o you remember how you shifted in your seats” and “[y]ou were
uncomfortable hearing a woman describe her abuse” undoubtedly intended to ruffle the
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jury and question more than just facts and credibility. The prosecutor, as in Craven,
asked the jury to consider their gut feeling and emotional response to J.T.’s testimony.
Emotions and gut feelings are not based upon the evidence presented at trial and are
thus improper prosecutorial remarks.
While the court does not condone or appreciate these remarks, New did not
object. Therefore, the remarks must be deemed so flagrant and ill intentioned that it
leaves an enduring and resulting prejudice the trial court could not neutralize. Gentry,
125 Wn.2d at 596. While inappropriate, the prosecutor’s remarks do not reach that
level of prejudice.
Second, New argues that the above statement was improper because it implied
that the jury must find J.T. was “lying” or “making this up” to acquit. It is improper for a
prosecutor to assert that the jury must find the State’s witnesses are lying or mistaken to
acquit. State v. Rich, 186 Wn. App. 632, 649, 347 P.3d 72 (2015), rev’d on other
grounds, 184 Wn.2d 897, 365 P.3d 746 (2016). That is not what the State did here.
The State only pointed to J.T.’s testimony, including her statements that she went back
to New asking for more. The State did not directly argue or imply that the jury needed
to find J.T. was lying in order to acquit.
Third, New argues that the above statement resulted in the prosecutor vouching
for J.T.’s credibility. A statement is vouching if “the prosecutor expresses his or her
personal belief as to the veracity of the witness.” State v. Ish, 170 Wn.2d 189, 196, 241
P.3d 389 (2010). However, “[al]though it is improper for a prosecutor to vouch for a
witness’s credibility, a prosecutor has wide latitude in closing argument to draw
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reasonable inferences from the evidence and may freely comment on witness credibility
based on the evidence.” State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010).
New fails to demonstrate that the prosecutor improperly vouched for J.T. While
the prosecutor stated “[y]ou know she was not making this up,” this statement was
immediately followed by the statement “[y]ou can assess that credibility and decide for
yourselves if you thought she was making this up.” The prosecutor did not express their
belief that J.T. was credible.
New next argues it was misconduct for the prosecutor to argue that “the law in
Washington doesn’t require any sort of corroborating evidence to prove that a crime
was committed.” At trial, the State proposed that the trial court include as a written jury
instruction the statutory language, “[i]t shall not be necessary that the testimony of the
alleged victim be corroborated.” RCW 9A.44.020(1). The court concluded, “there is no
WPIC [] because, frankly, for the Court to say this to the jury is a comment on the
evidence, and I don’t think I should.” The State asserted it intended to state the rule in
closing. The court replied, “I’d be shocked if you didn’t argue that. All right. And you’re
legally grounded to argue it, but it’s not something I can say.” New did not object.
A prosecutor’s argument “must be confined to the law as set forth in the
instructions given by the court.” State v. Davenport, 100 Wn.2d 757, 766, 675 P.2d
1213 (1984). While this is true, the State’s argument was not a misstatement of law,
nor was it erroneous. The trial court gave explicit permission to present the rule in
closing and New did not object. New cannot now argue on appeal that this constitutes
prosecutorial misconduct.
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Finally, New argues that the prosecutor denigrated the defense counsel in
rebuttal by characterizing New’s closing argument as intending to distract the jury. The
prosecutor argued, “Mr. New wants you to focus on all of [Ham’s] actions and look at
the shiny object over here rather than the truth of what [J.T.] told you.” New cites State
v. Lindsay, 180 Wn.2d 423, 433-34, 326 P.3d 125 (2014) and State v. Thorgerson, 172
Wn.2d 438, 451, 258 P.3d 43 (2011), for support. In Lindsay and Thorgerson, the court
determined that the prosecution committed misconduct by referring to the defense
theory as “a crock” or “bogus” and “sleight of hand.” However, in those cases, the
misconduct arose from prosecutors calling the defense theory dishonest and deceptive.
Here, the prosecutor was citing portions of the defense testimony and closing as
distraction. The prosecutor did not argue that defense counsel was deceiving the jury
or being dishonest to the jury.
E. Cumulative Error
New argues that reversal is required because the cumulative effect of the
violation of his right to be present along with prosecutorial misconduct deprived him of a
fair trial. We disagree.
An accumulation of errors may deprive a defendant of their right to a fair
proceeding. Chambers v. Mississippi, 410 U.S. 284, 290 n.3, 93 S. Ct. 1038, 35 L. Ed.
2d 297 (1973); Emery, 174 Wn.2d at 766. The doctrine applies when errors, alone not
justifying reversal, accumulate to deny the defendant a fair trial. Emery, 174 Wn.2d at
766. It does not apply if the defendant fails to establish error. Emery, 174 Wn.2d at
766. Because New did not establish error, the cumulative error doctrine does not apply.
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F. Supervision Fees
New finally argues that the trial court improperly imposed nonmandatory
supervision fees. We agree.
RCW 9.94A.703(2) provides that “unless waived by the court, as part of any term
of community custody, the court shall order an offender to: (d) Pay supervision fees as
determined by the department.” State v. Dillion, 12 Wn. App. 2d 133, 152, 456 P.3d
1199 (2020). Because they are discretionary, the court is not required to impose
supervision fees. State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116(2018). In Dillion, the trial court improperly imposed the Department of Corrections
supervision fee on an indigent defendant. 12 Wn. App. 2d at 152. There, the appellate
court struck the supervision fees because the record demonstrated that the trial court
only intended to impose mandatory fees, and supervision fees are discretionary. Dillion,
12 Wn. App. 2d at 152.
Similarly in this case, the trial court stated, “I’m waiving all nonmandatory costs
and fees. I really don’t believe that Mr. New has resources.” Therefore, consistent with
the trial court’s intent to waive discretionary costs, we remand the case to the superior
court to strike the nonmandatory supervision fee.
We remand to strike the supervision fees. We otherwise affirm.
WE CONCUR:
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