IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) tr, ) No. 74663-4-1 Respondent, ) ) DIVISION ONE v. • -er.'-3 ) ) UNPUBLISHED OPINION` CORTNEY JAMES STAHL, ) ) Appellant. ) FILED: June 5, 2017 C-' ) APPELWICK, J. — Stahl was convicted of second degree rape, indecent liberties, assault in the third degree, and assault in the fourth degree. Stahl
argues that he was denied his right to a unanimous verdict, that the prosecutor
committed misconduct, and that his counsel was ineffective. He also makes
numerous arguments in a statement of additional grounds for review. We affirm.
FACTS
Cortney Stahl resided in a greenbelt where a number of homeless people
resided. On July 9, 2015, camp resident Jose Leon left the greenbelt briefly for
roughly 30 to 40 minutes. When he returned, Leon observed his friend, Alicia
Nickerson, shaking and crying. Nickerson told Leon that Stahl had been
"manhandling her" and grabbing her throat.
Leon confronted Stahl about Nickerson's accusations. Stahl then hit both
Leon and Nickerson. After Leon asked him to stop, Stahl then appeared to calm
down and left the scene. No. 74663-4-1/2
But, Stahl returned 20 to 30 minutes later and was more aggressive. He
began using a piece of wood, similar to a two by four, to destroy Leon's shelter.
He then began beating both Leon and Nickerson with the wood. Police arrived at
the scene.
Police were informed about a separate incident involving Stahl and
another resident, J.S. J.S. knew Stahl, and had received heroin from Stahl the
day before. J.S. testified that she had woken up when Stahl attemped to put his
penis in her mouth. She tried to get up, but Stahl grabbed her and held her down
as he masturbated.
Another camp resident, N.W. reported an incident involving Stahl to the
police. N.W. testified that Stahl had become angry with her, and threw a thermos
and juice at her while the two were in a tent. As N.W. tried to crawl away from
Stahl, he grabbed her between her legs by her vagina. N.W. testified that it felt
like Stahl was trying to insert his fingers into her vagina. N.W. was able to get
away.
The State charged Stahl with five crimes: indecent liberties and rape in the
second degree for his acts against J.S., assault in the third degree for his acts
against Leon, assault in the fourth degree for his acts against Nickerson, and
indecent liberties for his acts against N.W. The jury found Stahl guilty on all
counts, but the indecent liberties conviction involving J.S. was vacated for double
jeopardy reasons. Stahl appeals. No. 74663-4-1/3
DISCUSSION
Stahl makes three arguments in his brief. First, he argues that he was
denied his right to a unanimous jury verdict. Second, he argues that the
prosecutor committed misconduct. Third, he argues that defense counsel was
ineffective for failing to object to the prosecutor's statements that he claims
amounted to misconduct. He also makes various arguments in a statement of
additional grounds for review (SAG).
I. Right to a Unanimous Jury
Stahl first argues that, with respect to the conviction on count four, the
assault on Nickerson, his right to a unanimous jury verdict was violated. He
claims this is so, because the State did not identify which of the two violent acts
constituted the alleged assault, and the trial court did not give a unanimity
instruction.
A defendant may be convicted only when a unanimous jury concludes that
the criminal act charged in the information has been committed. State v. Crane,
116 Wn.2d 315, 324-25, 804 P.2d 10 (1991), overruled on other grounds by In re
Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.2d 981 (2002). When the
prosecutor presents evidence of several acts that could form the basis of one
count charged, either the State must tell the jury which act to rely on in its
deliberations, or the court must instruct the jury to agree on a specified criminal
act. Id. at 325. The failure to instruct the jury on the required unanimity is
reversible error unless the failure is harmless. State v. Bobenhouse, 143 Wn.
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App. 315, 325, 177 P.3d 209 (2008). Since this is an error of constitutional
magnitude, it may be raised for the first time on appeal. Id.
However, a unanimity instruction is not necessary where the evidence
indicates a "'continuing course of conduct.' " State v. Garman, 100 Wn. App.
307, 313, 984 P.2d 453 (1999) (quoting State v. Kitchen, 110 Wn.2d 403, 409,
756 P.2d 105 (1988)). To determine whether criminal conduct constitutes one
continuing act, we evaluate the facts in a "'commonsense manner.'" Id. (quoting
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989)). A continuing course
of conduct requires an ongoing enterprise with a single objective. Id. But, where
evidence involves conduct at different times and places, or different victims, then
the evidence tends to show distinct acts. Id.
Leon testified that Stahl hit Nickerson while in the encampment.1 Stahl
then left the scene for approximately 20 to 30 minutes. Upon Stahl's return, he
again started hitting Leon and Nickerson. Stahl claims that this is not a
continuing course of conduct.
But, we need not decide whether any error occurred, because any such
error would have been harmless. An error that violates a defendant's right to a
unanimous verdict will not be upheld unless the error is harmless beyond a
reasonable doubt. State v. Coleman, 159 Wn.2d 509, 512, 150 P.3d 1126
(2007). The presumption of error is overcome only if no rational juror could have
a reasonable doubt as to any of the incidents alleged. Id. And, here, the
1 Stahl notes that Nickerson did not testify, and the only testimony regarding the specifics of the assault came from Leon. No. 74663-4-1/5
evidence that the two assaults occurred went uncontroverted. Regarding the first
instance, Leon testified that Nickerson told him that Stahl had been
"manhandling" her on her neck and back, and that she appeared distraught.
And, before Stahl first left the scene, Leon saw Stahl beat Nickerson. Regarding
the second incident, Leon testified that he saw Stahl beat Nickerson with a piece
of wood similar to a two by four.
In addition, corroborating Leon's testimony about the incident, a neighbor
whose property bordered the encampment testified that he heard a woman
yelling and saw a scuffle in the encampment and called the police. The neighbor
testified that the scuffle involved two men and a woman. He testified that one
man was the aggressor. The woman was screaming in distress. The woman
later came to the neighbor for help, and told the neighbor that a man was beating
her up. Stahl points to no evidence that controverts the testimony from Leon or
the neighbor. Any error was harmless.
We hold Stahl's right to a unanimous jury verdict was not violated.
II. Prosecutorial Misconduct
Fuller next argues that the prosecutor committed misconduct during his
closing argument.
The defendant bears the burden of proving that the prosecutor's alleged
misconduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741,
756, 278 P.3d 653 (2012). The burden to establish prejudice requires the
defendant to prove that there is a substantial likelihood that the instances of
misconduct affected the jury's verdict. State v. Thorgerson, 172 Wn.2d 438, 442- No. 74663-4-1/6
43, 258 P.3d 43(2011). The failure to object to an improper remark constitutes a
waiver of error unless it is so flagrant and ill-intentioned that it causes an
enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury. Id. at 443. Stahl concedes that he did not object to any of
the statements he alleges were misconduct. Therefore, his arguments are
waived unless the remarks were flagrant, ill-intentioned, and unable to be cured
by a supplemental instruction. Thorgerson, 172 Wn.2d at 443.
A. Mischaracterization of Defense's Argument
Stahl argues that the prosecutor committed misconduct by
mischaracterizing Stahl's argument so as to appeal to jurors' prejudices.
Creating straw man arguments does not comport with the prosecutor's duty to
seek convictions based on probative evidence and sound reason. State V.
Thierry, 190 Wn. App. 680, 694, 360 P.3d 940 (2015), review denied, 185 Wn.2d
1015, 368 P.2d 171 (2016).
In his closing argument, Stahl repeatedly referred to victims J.S. and N.W.
He stated that J.S. had "chosen this life of the heroin and the living outside as
opposed to getting treatment." As part of the defense's narrative that N.W. had
fabricated her allegations due to Stahl stealing N.W.'s heroin, defense counsel
stated:
She tells us that, well, she uses heroin not daily but not too much. That again, I mean can you -- would a heroin addict minimize how much they use? How important is heroin to her? Well, she's chosen heroin over everything else in her life. Heroin is more important to her than anything.
6 , No. 74663-4-1/7
In rebuttal, the prosecutor stated that the defense had attempted to dehumanize
the victims through such statements. Stahl claims that he did no such thing and
that the prosecutor's statements mischaracterized the defense's arguments.
But, the prosecutor's rebuttal was responsive to the defense's statements.
The prosecutor stated, accurately, that the defense referenced that the victims
had chosen a life of heroin. The prosecutor's rebuttal asked the jury to reject any
inference that the victims "don't deserve your consideration." The prosecutor's
remarks were not an improper straw man. They were an attempt to protect
favorable witnesses' credibility in the face of the defense's numerous remarks on
their heroin usage. The prosecutor did not commit Misconduct by
mischaracterizing the defense's argument.
B. Appeal to Jurors' Sympathies
Stahl also contends that the prosecutor improperly told the jury that policy
considerations should inform their verdict. Specifically, Stahl argues that, by
stating that the defense dehumanized the homeless victims, and that they were
"just as deserving of the protection of the law as anyone else," the prosecutor
asked the jury to reach its verdict based on policy concerns. This, Stahl
contends, mischaracterized his argument and appealed to jurors' sympathies.
Stahl equates this case to previous cases that have overturned
convictions due to "send a message" closing arguments. For example, in State
v. Bautista-Caldera„ the court found reversible error when the prosecutor asked
the jury to convict to let "'children know that you're ready to believe them and
[e]nforce the law on their behalf.' "56 Wn. App. 186, 195, 783 P.2d 116 (1989) No. 74663-4-1/8
(alteration in original). State v. Ramos, 164 Wn. App. 327, 338, 342, 263 P.3d
1268 (2011) was similar. The court overturned after the prosecutor told the jury:
"This is also why we are here today, so people can go out there and buy some
groceries. . . or go to a movie. .. and not have to wade past the coke dealers in
the parking lot." Id. at 338. Stahl claims that the prosecutor's statements in his
case were analogous.
But, here the prosecutor's statements were the opposite. In Ramos and
Bautista-Caldera, the prosecutors asked the jury to use policy concerns to inform
their decision. But, here the prosecutor stated that homeless victims were "just
as deserving of the protection of the law." He did not state or suggest that
homelessness should give the victims more protection under the law, or that
finding Stahl guilty would send a policy message regarding concern for homeless
individuals. The prosecutor also asked the jury not to accept the defense's
attempt to "dehumanize" the victims. But, this too is an attempt to push back on
the defense's attack on the victims' credibility. The prosecutor's comments were
not improper "send a message" comments. Rather, they were acceptable
attempts to address the credibility issues raised by the defense.
C. Vouchinq for Witness Credibility
Finally, Stahl argues that the prosecutor vouched for witness credibility.
He points to the prosecutor's comment in closing arguments that J.S. and N.W.
were forthcoming in their motives for testifying. Specifically, the prosecutor
stated: "But, you know, they were pretty honest too that they weren't here trying No. 74663-4-1/9
to get Mr. Stahl into trouble, you know. To some of them he's still a friend, and
really they hope that he can just get some help."
It is misconduct for a prosecutor to personally vouch for the credibility of a
witness. State v. Brett, 126 Wn.2d 136, ,175, 892 P.2d 29 (1995). But, a
prosecutor has wide latitude in closing argument to draw 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). And,
courts review comments made by a prosecUtor during closing argument in 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).
Although the prosecutor described the witnesses' actions as "honest," the
context shows that he was not personally vouching for their credibility. The
prosecutor used the term when addressing the witnesses' delay in reporting the
crimes. The defense's theory was that this delay suggested a lack of credibility.
The prosecutor described the witnesses as honest one sentence after conceding
that the victims did not immediately report Stahl to the police. The "honest"
comment was a reference to the witnesses acknowledging they delayed in
reporting the crimes, and testifying, as J.S. did, that she did not want to get Stahl
in trouble. The prosecutor did not vouch for the credibility of the witnesses by
merely highlighting that their actions and testimony were consistent.
9 No. 74663-4-1/10
Because we conclude that none of the prosecutor's comments were
improper, we need not decide whether they were prejudicial. The prosecutor did
not commit misconduct.2
III. Statement of Additional Grounds for Review
We discern five legal arguments from Stahl's SAG. First, he argues that
counsel was ineffective for failing to investigate and failing to propose a lesser
included offense jury instruction. Second, he argues that he was denied his right
to testify in his own defense. Third, he argues that he was denied his right to a
speedy trial. Fourth, he argues that he was denied his right to conflict free
counsel. Finally, he argues that cumulative error warrants reversal.
A. Ineffective Assistance of Counsel
In his SAG, Stahl argues that his attorney was ineffective for failing to
adequately investigate potential witnesses and the alleged crime. Defense
counsel has a duty to make reasonable investigations or to make a reasonable
decision that particular investigations are unnecessary. In re Pers. Restraint of
Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992). But, Stahl fails to identify the
specific exculpatory information that such investigations would have revealed.
He speculates that employing an investigator might have been helpful. But,
2 Stahl contends that his counsel was ineffective by failing to object to the prosecutor's remarks that he argues were misconduct. To prevail on an ineffective assistance of counsel claim, the defendant must show that(1) defense counsel's representation was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). But, because we hold that the prosecutor's comments were not improper, there was neither deficient performance, nor prejudice to Stahl as a result of deficient performance. Stahl did not receive ineffective assistance of counsel.
10 No. 74663-4-1/1 1
courts apply a strong presumption that counsel was effective. In re Pers.
Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). Stahl's speculations
that other actions might have helped his defense do not overcome this strong
presumption.
Stahl next claims his counsel was ineffective for failure to propose lesser
included offense jury instructions. But, Stahl fails to identify what lesser included
offense his counsel could have or should have proposed instructions for. Stahl
therefore has not overcome the strong presumption that counsel was effective.
B. Right to Testify
Stahl also claims that his attorney denied Stahl his right to testify in his
own defense. A defendant has a fundamental constitutional right to testify in his
or her own defense. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97
L. Ed. 2d 37 (1987). On a federal level, the right to testify is implicitly based in
the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Id. The Washington constitution explicitly protects the right to testify. WASH.
CONST. art. 1, § 22.
Mere allegations by a defendant that his attorney prevented him from
testifying are insufficient to justify reconsideration of the defendant's waiver of the
right to testify. State v. Robinson, 138 Wn.2d 753, 760, 982 P.2d 590 (1999).
Defendants must show some particularity to give their claims sufficient credibility
to warrant further investigation. Id.
Stahl claims that his attorney's inadequate preparation forced Stahl to
refuse to testify. In a declaration filed below, Stahl stated that his attorney
11 No. 74663-4-1/12
directly asked him if he would like to testify at trial, and even told Stahl that he
had "credibility." Stahl admitted in that declaration that he explicitly declined to
testify when asked, because he felt that his attorney had not adequately
prepared him to testify. Given that Stahl admitted below that his attorney offered
him the opportunity to testify, he was not denied his right to testify in his own
defense. Any arguments about inadequate preparation go to ineffective
assistance of counsel, which we addressed above.
C. Speedy Trial
Stahl argues that the trial court's grant of continuances violated CrR 3.3,
and he was denied his constitutional right to a speedy trial. CrR 3.3(b)(1)(i)
generally requires that trial occurs within 60 days of arraignment if the defendant
is detained in jail. CrR 3.3 accords with the United States Supreme Court's
determination that states can prescribe reasonable periods for commencement of
trials consistent with constitutional standards. State v. 011ivier, 178 Wn. 2d 813,
823, 312 P.3d 1 (2013).
The scheduling order below originally Set Stahl's trial date for September
23, 2015, which was within 60 days of arraignment. On September 3, 2015, after
the State indicated that it would be adding two additional charges against Stahl,
Stahl's attorney requested a continuance so that he could be adequately
prepared for trial. Stahl personally objected to his lawyer's request, but the trial
court was persuaded by trial counsel's need to prepare to defend against the
new charges, and it set a new trial date for October 5, 2015. On September 30,
2015, the State added amended the charges. The trial court ordered a two week
12 ' No. 74663-4-1/13
trial continuance for good cause to October 19, 2015. Stahl's attorney was
granted this second continuance in order, to adequately prepare, but Stahl
himself opposed this continuance.
On appeal, a trial court's grant or denial of a motion for continuance will
not be disturbed absent a showing of manifest abuse of discretion. State v.
Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984). A trial court properly
exercises its discretion under CrR 3.3 when it grants counsel's request to waive
trial in 60 days, over a defendant's objection, to ensure effective representation
at trial. See id. at 15. That was the case here. The trial court made clear that
the new charges filed against Stahl would require additional preparation for
defense counsel, and that this warranted a continuance to October 5, and again
to October 19. Stahl notes that trial did not actually occur until roughly six weeks
after the October 19 trial date. But, he fails to identify any part of the record that
shows whether this was requested by one party, both parties, caused by the
court's calendar, or for any other reason. He therefore has not demonstrated
that the trial court violated CrR 3.3.
Stahl also argues that his constitutional right to a speedy trial was violated.
Compliance with CrR 3.3 does not guarantee that constitutional rights were not
violated. State v. 011ivier, 161 Wn. App. 307, 313, 254 P.3d 883(2011) affd, 178
Wn.2d 813, 312 P.3d 1 (2013). We review constitutional speedy trial claims de
novo. State v. Shemesh, 187 Wn. App. 136, 144, 347 P.3d 1096, review denied,
184 Wn.2d 1007, 357 P.3d 665 (2015).
13 No. 74663-4-1/14
As a threshold matter, to show a violation of constitutional speedy trial
rights, a defendant must show that the length between the accusation and trial
crossed a line from ordinary to presumptively prejudicial. 011ivier, 178 Wn.2d at
827. The passage of time, complexity of charges, and reliance on eyewitness
testimony are relevant to whether a delay was presumptively prejudicial. State v.
iniquez, 167 Wn.2d 273, 292, 217 P.3d 768 (2009). Stahl was arraigned on July
25, 2015. But, the State amended the charges against Stahl on September 30,
2015. Trial occurred in late November and early December 2015. Thus, roughly
four months passed between the initial accusations against Stahl and his trial,
and roughly two months passed between the filing of additional charges and his
trial. This is a reasonable timespan between accusations and trial, and is not
presumptively prejudicial. See State v. Corrado, 94 Wn. App. 228, 233-34, 972
P.2d 515 (1999)(surveying decisions and concluding that delays of eight months
to one year are typically the threshold for delays to be deemed presumptively
prejudicial.). And, this delay was in part caused by the difficulty in completing
witness interviews, and the amendment of charges over two months after the
original charges were filed. Stahl's constitutional right to a speedy trial was not
violated.
D. Right to conflict free counsel
Stahl argues that his appointed counsel had an apparent or actual conflict
that effectively denied Stahl's right to counsel. The Sixth Amendment right to
counsel includes the right to conflict free counsel. Dhaliwal, 150 Wn.2d at 566.
But, Stahl does not explain the specific conflict, actual or apparent, that his
14 No. 74663-4-1/15
counsel had. His argument primarily discusses his dissatisfaction with counsel's
actions, not any conflicts of interest that were present. We therefore reject his
arguments on this issue.
E. Cumulative Error
Stahl also argues cumulative error. Cumulative error warrants reversal
when there have been several trial errors that standing alone may not be
sufficient to justify reversal, but when combined may deny a defendant a fair trial.
State v. Grieff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). But, because we do
not find multiple errors, there can be no cumulative error.
We affirm.
WE CONCUR:
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