FILED
January 9, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31082-5-111 Respondent, ) ) v. ) ) JAMES LELAND FRANCIS, ) ) Appellant, ) ) UNPUBLISHED OPINION JARED A. STEFAN, ) ) Defendant. )
SIDDOWAY, J. - James Francis appeals his convictions of first degree robbery and
second degree robbery, arguing that the prosecutor, in closing argument, impermissibly
commented on his exercise of his constitutional rights to a trial and to remain silent.
During rebuttal argument, the prosecutor contrasted Mr. Francis's actions following the
crimes with those of his accomplice, pointing out that unlike his accomplice, Mr. Francis
did not "return home to talk to the police," did not "provide a free talk to the detectives
pursuant to an agreement to plead guilty," and did not "enter a plea." Report of
Proceedings (RP) (Aug. 9, 2012) at 507. While the trial court sustained an objection to
this argument by the defense, Mr. Francis contends that the State persisted with similar No. 31 082-5-III State v. Francis
argument that was flagrant, ill-intentioned, and the prejudice from which could not be
cured.
The State's argument was objectionable and the defense objection was properly
sustained. The argument was raised only in rebuttal, though, and the defendant declined
to request a curative instruction or object further. Because he shows no substantial
prejudice from those statements that were improper, we affirm.
FACTS AND PROCEDURAL BACKGROUND
James Francis was charged with first and second degree robbery for two instances
of purse snatching in March 2012. In both cases, Mr. Francis grabbed the purses from
the victims and his accomplice, Jared Stefan, drove the getaway car.
The evidence against Mr. Francis was overwhelming. It included testimony of
eyewitnesses to the purse snatchings, one of whom (a witness to the second crime)
correctly" noted the license plate of the car being driven by Mr. Stefan. That led police to
Mr. Stefan, who admitted his role, pleaded guilty, and testified against Mr. Francis. The
evidence also included videotapes of both incidents; text messages between Mr. Francis
and Mr. Stefan relating to the crimes; and ultimately, Mr. Francis's own apologetic
admission at trial that he committed the crimes due to an addiction to oxycontin and a
desperate need for more drugs, and therefore cash, brought on by withdrawal.
At issue was only whether the State could meet its burden of proving two elements
beyond a reasonable doubt: first, that Mr. Francis used force in the two crimes and was
No. 31 082-5-III State v. Francis
therefore guilty of robbery, and second, that Mr. Francis caused bodily injury to the first
victim, making the crime a first degree robbery.
When the State called Mr. Stefan to testify to his and Mr. Francis's plan and
commission of the crimes, he acknowledged making a plea bargain that required him to
testify against Mr. Francis, whom he considered a friend. He admitted that as part of his
agreement with the State, the charges against him had been reduced from first degree
robbery and second degree robbery to, respectively, second degree robbery and first
degree theft. He admitted that two of three other charges previously pending against him
(one for residential burglary, two for trafficking in stolen property) had been reduced as
part of the plea bargain as well.
Asked about events leading up to the crimes, Mr. Stefan testified that he and Mr.
Francis met in an inpatient drug rehabilitation program, that both had initially tried to
stay sober following their completion of the program with the support of their families,
but that both returned to drug use approximately a month later and quickly returned to
smoking oxycontin at a cost of about $500 per day. He testified that he and Mr. Francis
committed crimes to obtain money for drugs.
Mr. Stefan testified that he and Mr. Francis planned both purse snatchings in
advance. He waited in the car on both occasions and did not see Mr. Francis snatch the
purse from the first victim but did see him take the purse from the second victim.
Significantly for the closing arguments that gave rise to the issue on appeal, Mr. Stefan
No. 31082-5-III .
State v. Francis
I I admitted that the purse snatching from the first victim was a robbery, testifying as
I I follows:
Q. Now when you entered this agreement with the state for your testimony, why did you plead guilty to the offense of robbery in the first degree against Sharon Bird? A. What do you mean? 'Cause we did it. Q. And do you, in fact, believe that you were an accomplice to robbery in that case? A. Yeah. Yes.
RP (Aug. 9, 2012) at 357-58.
The lawyers' closing arguments dealt predominantly with the difference between
the crime of robbery and the lesser included crime of first degree theft, which Mr.
Francis's lawyer urged was the crime actually committed and the proper verdict on both
counts.
When Mr. Francis's lawyer gave his closing argument, he admitted that his client
had committed "despicable" crimes. ld. at 492. But he emphasized Mr. Francis's
addiction and evidence that he had grabbed the purses from the two women without
threats, violence, or injury to them.
Toward the end of his argument, Mr. Francis's lawyer addressed the testimony
offered against his client by Mr. Stefan. He told the jury that when he initially looked at
his client's case, there were few witnesses who could identify Mr. Francis as being
involved and "I think I could have taken a very different approach with [Mr. Stefan] and
tried to suggest that perhaps he's willing to point the finger at anyone for a significant
No. 31082-5-111 State v. Francis
reduction in his sentence. Significant reduction. But Mr. Francis didn't want to do that."
Id. at 499-500. Continuing to credit the conduct of his own client, he argued:
During voir dire you remember I asked you if you were [in] a position where you were not guilty of a crime and your attorney advised that you didn't have to testify, how many of you would want to anyway? Well, you saw. That's the approach we took. He testified. Although it was incredibly embarrassing, in front of his mother, he's subject to cross examination. I don't think it was very pleasant. I also don't think it was an evasive strategy. He wanted to take the stand and explain what happened, what he did and what he didn't do. I think that's worthy of serious consideration.
Now the state may argue to you ... that Mr. Stefan took responsibility, pled guilty. I think a couple of things are noteworthy about his arrangement with the state. First, he had other felony matters pending, two counts of first degree trafficking in stolen property and a residential burglary.... In agreement for [his plea bargain], he came in and testified as he did. And it may have been-probably was a very smart decision. I think it's interesting that he pled guilty in count 2 to a first degree theft. So if the prosecutor argues that he took responsibility, well he pled guilty to a first degree theft. It's also interesting that he pled guilty to first theft or the incident that he witnessed. For the one that he saw, where he actually saw what happened, he pled guilty to a first degree theft. For the incident that happened behind him that he didn't see, he pled guilty to a robbery. So I ask you to please take that in consideration when deciding how much responsibility he took. He was in a very difficult position, had very little bargaining power and pled to a robbery that he didn't even see if it happened or not.
Id. at 500-03.
When it was the prosecutor's tum for rebuttal, he addressed the defense argument
contrasting Mr. Francis's decision to take the stand with Mr. Stefan's decision to make a
deal. He addressed it toward the end of his rebuttal and was interrupted by an objection
that was sustained. His reply to the argument proceeded as follows:
You should look at the evidence in deciding whether [Mr. Francis] wants to be held responsible. Unlike Mr. Stefan, he didn't return home to talk to the police. Unlike Mr. Stefan, he didn't provide a free talk to the detectives pursuant to an agreement to plead guilty. Unlike Mr. Stefan, he did not enter a plea and come in [DEFENSE COUNSEL]: Objection, your Honor. THE COURT: Sustained. [PROSECUTOR]: Unlike Mr. Stefan-and he has the right to a trial, 1 want to be absolutely certain about that, just like we discussed in voir dire. Regardless of the strength of the evidence, Mr. Francis has the right to a fair trial and to be convicted beyond a reasonable doubt. Mr. Stefan, however, felt that he was responsible for what happened in this case. And he felt~ertainly he felt that he could get the benefit of a bargain. But you could imagine how hard it must be to get on the stand and be what people in jail might call a snitch and give testimony against your friend. It's not easy. And he had to come in here and do that. Mr. Francis's situation was different. He didn't go home when the police were there, he wasfound at a McDonald's. His clothing was different. He was not rushing to accept responsibility. Now that he's accused ofthese crimes, he is saying he should be found responsible only of a lesser crime, not of the crime of which he's actually guilty, which is robbery in the first degree to Ms. Bird, robbery in the second degree to Ms. Altman, and 1 hope that you will find him guilty of both those crimes.
Id. at 507-08 (emphasis added).
Mr. Francis did not interpose an objection to the latter argument. He did not ask
for a curative instruction.
The jury found Mr. Francis guilty as charged. He appeals.
ANALYSIS
Mr. Francis makes two, related assignments of error: he argues that the prosecutor
committed misconduct by improperly commenting on his pretrial silence and at the same
time improperly commented on his choice not to plead gUilty.
Criminal defendants have a constitutional right to remain silent under the Fifth
Amendment to the federal constitution, which applies to the states through the Fourteenth
Amendment, and under article I, section 9 of the Washington Constitution. State v.
Easter, 130 Wn.2d 228, 238,922 P.2d 1285 (1996). The right to remain silent "extends
to situations prior to the arrest of the accused." Id. at 243. Because "[a] criminal
defendant's assertion of his constitutionally protected due process rights is not evidence
of guilt," courts have long held that the State may not "invite a jury to infer that a
defendant is more likely guilty because he exercised his constitutional rights." State v.
Silva, 119 Wn. App. 422,428-29,81 P.3d 889 (2003).
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee the right to trial by an impartial jury. State v.
Gonzales, 111 Wn. App. 276, 277,45 P.3d 205 (2002). A defendant has a right to put the
State to its burden of proof at a trial, and '''the State may not draw adverse inferences
from the exercise ofa constitutional right.'" State v. Gregory, 158 Wn.2d 759,806,147
P.3d 1201 (2006) (quoting State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984)).
No. 31082-5-III State v. Francis
"A defendant who alleges improper conduct on the part of a prosecutor must first
establish the prosecutor's improper conduct and, second, its prejudicial effect." State v.
Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Pirtle, 127 Wn.2d
628,672,904 P.2d 245 (1995)). "Any allegedly improper statements should be viewed
within the context of the prosecutor's entire argument, the issues in the case, the evidence
discussed in the argument, and the jury instructions." Id. (citing State v. Brown, 132
Wn.2d 529, 561,940 P.2d 546 (1997)). Prejudice on the part of the prosecutor is
established only where there is a substantial likelihood that the instances of misconduct
affected the jury's verdict. Id.
Even if a prosecutor's comments are improper, absent a proper objection and a
request for a curative instruction, the defense waives a prosecutorial misconduct claim
unless the comment was so flagrant or ill-intentioned that an instruction could not have
cured the prejudice. State v. Sublett, 156 Wn. App. 160, 185,231 P.3d 231 (2010) (citing
State v. Charlton, 90 Wn.2d 657,661,585 P.2d 142 (1978)), aff'd, 176 Wn.2d 58, 292
P.3d 715 (2012). Remarks ofa prosecutor, even if they are improper, do not warrant
reversal if they were invited or provoked by defense counsel and are in reply to his
statements, unless the remarks are not a pertinent reply or are so prejudicial that a
curative instruction would be ineffective. State v. Russell, 125 Wn.2d 24,86, 882 P.2d
747 (1994) (citing State v. Dennison, 72 Wn.2d 842,849,435 P.2d 526 (1967)).
I I 1 1 4
I No. 31082-5-111
j i.. In making the determination whether a prosecutor has improperly commented on a j
I defendant's right to remain silent, we consider "whether the prosecutor manifestly
I .,j intended the remarks to be a comment on that right." State v. Crane, 116 Wn.2d 315,
I 331,804 P.2d 10 (1991). "[A] prosecutor's statement will not be considered a comment
j on a constitutional right to remain silent if •standing alone, [it] was so subtle and so brief I that [it] did not naturally and necessarily emphasize defendant's testimonial silence. '"
I
I State v. Burke, 163 Wn.2d 204,216, 181 P.3d 1 (2008) (some alterations in original)
(internal quotation marks omitted) (quoting Crane, 116 Wn.2d at 331).
I Applying these principles to the prosecutor's comments here, his initial comments,
to which Mr. Francis interposed an objection, were improper. While not extensive, they
were not subtle and they were not brief enough to be inconsequential. They manifestly
were a comment on Mr. Francis's exercise of his rights. In the context of the argument,
their only logical relevance was to criticize Mr. Francis for his pretrial silence and his
choice not to plead guilty, so we regard them as intentional.
To say they were intentional in that respect is not to say that they were ill
intentioned, however, and in context, we conclude that they were not. The prosecutor did
not make the argument until rebuttal. He was clearly responding to defense counsel's
effort to contrast what he characterized as Mr. Francis's integrity in standing for trial to
take responsibility but explain himself, with Mr. Stefan's choice to enter a plea to resolve
his outstanding criminal problems.
The prosecutor's argument is somewhat like the argument at issue in United States
v. Tarallo, 380 F.3d 1174 (9th Cir. 2004), amended on denial ofreh 'g, 413 FJd 928
(2005), a case cited by Mr. Francis. In that case, the Ninth Circuit Court of Appeals
refused to reverse a conviction on the basis of a prosecutor's argument that he had called
an accomplice of the defendant to testify "'to give you a view to see somebody who has
accepted responsibility for what he did, who has admitted to you, "Yes, I lied. I lied. I
knew these were lies, and I continued to make them."'" [d. at 1194. The court in Tarallo
concluded that when construed as an effort by the prosecutor to rehabilitate and enhance
the credibility of the accomplice, the comments were not even improper. Here, too, the
prosecutor's effort to rehabilitate Mr. Stefan was not improper-where he got in trouble
was by following the lead of defense counsel's argument and contrasting Mr. Stefan's
actions with those of Mr. Francis.
As to the prosecutor's further comments made after the objection was sustained,
some, though not all, were improper. It was (again) not improper for the prosecutor to
attempt to rehabilitate Mr. Stefan. And the prosecutor's argument that Mr. Francis's
testimony at trial was in an effort to persuade the jury to convict him of a lesser crime,
not to take responsibility, was a fair response to the defense closing argument. It is only
the prosecutor's argument that Mr. Francis "didn't go home when the police were there"
and "was not rushing to accept responsibility" that continued to improperly comment on
Mr. Francis's exercise of his constitutional rights. These comments were not met with an
objection, however, even though another objection presumably would have been
sustained. Mr. Francis must establish that these latter statements were so flagrant and ill
intentioned that he was irreparably prejudiced.
Mr. Francis's failure to request a curative instruction and, in the case of the latter
comments, even to object, is dispositive. First, the failure to make a further objection or
request a curative instruction suggests that the comments did not appear unduly
prejudicial to Mr. Francis's lawyer in the context of trial. State v. Swan, 114 Wn.2d 613,
661, 790 P.2d 610 (1990). And in Jones v. Hogan, 56 Wn.2d 23,26,351 P.2d 153
(1960), the Washington Supreme Court addressed the circumstance of one prompt
objection to an improper comment that was sustained, followed by a second improper
comment in response to which "[n]o more was asked. Upon the second reference, no
action at all was asked of the trial court." When the defendant later complained on
appeal that the prosecutor's statements '''denied defendant the right to a fair and impartial
trial'" and that "'no instruction to the jury ... could remove the irreparable damage done
by [the] second unwarranted reference'" the court answered:
If misconduct occurs, the trial court must be promptly asked to correct it. Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on . . . appeal.
Id. at 27. The circumstances of this case are identical. The answer is the same.
No.31082-5-III State v. Francis
I Finally, we disagree completely with Mr. Francis's contention that no curative
I instruction could erase the prejudice caused by those comments by the prosecutor that
I were improper. The State's closing arguments account for 18 pages of the verbatim
report of proceedings. All of its corilments complained of on appeal, not all of which
I I were improper, account for about one page of that argument. The comments were not
j central to the State's case l but were an incompletely-thought-through effort to counter an
attack on Mr. Stefan's credibility raised by the defense.
Mr. Francis waived his objection for the most part. To the limited extent that the
objection was not waived, he does not demonstrate flagrant, ill-intentioned conduct
whose resulting prejudice an instruction could not have cured.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Francis states four.
His first is that the trial court abused its discretion when it denied his motion to
sever the two offenses under CrR 4.4(b). In denying the motion, the court explained that
"the presumption in favor ofjoint trial was not overcome" and that the "possible
prejudice to the presentation of the defense case is outweighed by the interest in judicial
economy." Clerk's Papers (CP) at 161.
I Having reviewed the record, we disagree with Mr. Francis's suggestion that the contrast made by the prosecutor in rebuttal paralleled a theme he had been developing through triaL
I I i "
No. 31082-5-II1
I i i State v. Francis
I erR 4 .4(b) provides that the trial court must sever offenses if it "determines that I
I f severance will promote a fair determination of the defendant's guilt or innocence of each
offense." At the same time, "Washington law disfavors separate trials." State v.
I McDaniel, 155 Wn. App. 829, 860,230 P.3d 245 (2010). The defendant bears the burden
of demonstrating in his motion to sever that "a trial involving both counts would be so I ! manifestly prejudicial as to outweigh the concern for judicial economy." State v. I Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).
Trial courts consider the following factors in determining whether the potential for
prejudice requires severance: "(D the strength of the State's evidence on each count; (2)
the clarity of defenses as to each count; (3) court instructions to the jury to consider each
count separately; and (4) the admissibility of evidence of the other charges even if not
joined for trial." Russell, 125 Wn.2d at 63. A trial court's refusal to sever offenses is
reviewed for manifest abuse of discretion. Bythrow, 114 Wn.2d at 717.
As to the first factor, the strength of the State's evidence for the two counts was
similar, as Mr. Francis's lawyer conceded in arguing the motion. RP (Aug. 2,2012) at
18. There was substantial evidence that Mr. Francis committed both crimes. From Mr.
Francis's perspective, there was similar evidence that he had not used force or threats in
either. The only difference was that the first victim fell and was injured.
As to the second factor, Mr. Francis argues that the court ignored his different
defenses to the two charges, but at the time he argued the motion to sever, he was unsure
whether he would even assert different defenses. "A defendant's desire to testify only on
one count requires severance only if a defendant makes a 'convincing showing that [he]
has important testimony to give concerning one count and a strong need to refrain from
testifying about another.'" Russell, 125 Wn.2d at 65 (quoting State v. Watkins, 53 Wn.
App. 264, 270, 766 P.2d 484 (1989)). Here, Mr. Francis offered only unexplained
conjecture that he might not take the stand in defense of the first count "depending a lot
on how the State's case plays out." RP (Aug. 2, 2012) at 21. In any event, the State
responded that "a trial judge has a lot of discretion with cross examination if the
defendant wants to remain silent as to one of these two counts," conceding, "I think a trial
court has the power to tell me lcan't ask about that count, and the defendant can limit his
testimony to just one of the charges. The Court can, thereby, limit my cross examination
to one of those charges." Id. at 23.
As to the third factor, Mr. Francis conceded that it was insignificant in arguing the
motion to sever, stating, "We see the Court can properly instruct the jury. There's not an
issue there." Id. at 18-19.
Mr. Francis places most emphasis on the fourth factor: prejudice from evidence
that he argued would not be cross admissible in separate trials. In Bythrow, our Supreme
Court found that a court's denial of a motion to sever two robbery offenses was proper
even though the two crimes were not so similar that evidence of the first would be
admissible in prosecution for the second. 114 Wn.2d at 720-21. The court reasoned that
"'[w]hen evidence concerning the other crime is limited or not admissible, our primary
concern is whether the jury can reasonably be expected to "compartmentalize the
evidence" so that evidence of one crime does not taint the jury's consideration of another
crime,'" it held that "the defendant must be able to point to specific prejudice." ld.
(quoting United States v. Johnson, 820 F.2d 1065, 1071 (9th Cir. 1987)). Mr. Francis
points to no specific prejudice.
Mr. Francis's second ground identified in his SAG is that the trial court abused its
discretion by failing to give a curative instruction after Officer Dustin Howe, when asked
about the injury suffered by the first purse snatching victim, stated, "I want to say she
said something to the effect like she felt like she got hit by a truck." RP (Aug. 7,2012) at
163. Mr. Francis's lawyer objected to this statement, and the court sustained the
objection. Mr. Francis contends that sustaining the objection was not enough; that "[a]
curative instruction is needed or prejudice must be presumed" and that the officer's
testimony was "prejudicial and inflammatory." SAG at 11-12.
Mr. Francis cites no authority in support of the proposition that the trial court
needed to do more than sustain the objection. The trial court's concluding instructions to
the jurors reminded them that "[i]f evidence was not admitted ... , then you are not to
consider it in reaching your verdict." CP at 192. And "[a] party who fails to ask for a
limiting instruction waives any argument on appeal that the trial court should have given
the instruction." State v. Stein, 140 Wn. App. 43, 70, 165 P.3d 16 (2007).
No, 31082-5-111 State v. Francis
Mr. Francis's third ground is that the trial court abused its discretion when it
"chose to ignore" an inquiry by the jury during deliberations as to the legal definition of
force, SAG at 13. The trial court did not ignore the inquiry. It responded, telling the
I , jury to "[p]lease continue deliberations, You are to consider only the testimony of the
I witnesses, the exhibits admitted into evidence, and the instructions of the court," CP at
I 222.
Mr, Francis suggests that the failure to define "force" denied him a fair trial, citing
State v. O'Donnell, 142 Wn, App. 314, 174 P.3d 1205 (2007). But as O'Donnell points
out, "whether the words used in an instruction require further definition is a matter of
judgment to be exercised by the trial court"; "[i]n a criminal case ... the trial court is
required to define technical words and expressions, but not words and expressions which
are of common understanding and self-explanatory"; and "[a] term is considered
technical when its legal definition differs from the common understanding of the word."
Id. at 325, O'Donnell held, as had earlier cases, that "theft" was a term of common
understanding and self-explanatory.
"Force" is similarly a word of common understanding and self-explanatory. And
the court's instructions informed the jury, consistent with RCW 9A.56.190, that the
"force or fear" used in committing a robbery "must be used to obtain or retain possession
of the property or to prevent or overcome resistance to the taking, in either of which case
the degree of force is immaterial." CP at 205 (Instruction 12). The trial court did not
abuse its discretion in declining to define the term further in response to the jury inquiry.
Mr. Francis's fourth ground is essentially that the jury's verdicts were not
I I supported by substantial evidence where the State did not prove beyond a reasonable
doubt that he used force.
I I I As previously observed, the degree of force used or threatened in a robbery is
immaterial. RCW 9A.56.190. '''Any force or threat, no matter how slight, which
I induces an owner to part with his property is sufficient to sustain a robbery conviction.'"
State v. Collinsworth, 90 Wn. App. 546, 553-54, 966 P.2d 905 (1997) (quoting State v.
! Ammlung, 31 Wn. App. 696, 704, 644 P.2d 717 (1982)).
Mr. Francis emphasizes that his first victim testified that her purse was taken off
her shoulder so fast she did not "even remember turning [her] head." RP (Aug. 7,2012)
at 93. But she also testified that she "struggled" to hold onto her purse, and stated, "I feel
1 was pulled to the ground because I was holding on for dear life." Id. at 82. A witness
to the incident testified that the victim was "holding on so hard that she fell over when he
pulled the purse away from her." Id. at 132.
The victim of the second incident testified that, as she was leaving the store, she
"sensed something" over her shoulder and the next thing she saw was her purse "going
off the end of my arm." RP (Aug. 8,2012) at 236-37. When asked, "[D]id the purse
come off your arm because of your relaxation? Or was there some other force applied to
17 No. 31082-5-111 State v. Francis
it?" she answered, "No, it was on my shoulder." Id. at 238. Mr. Francis also testified
that he ran toward the second victim and used two hands to grab her purse. RP (Aug. 9,
2012) at 420-23. While he said that he grabbed the purse from the side "so it would be
quick and easy and 1 didn't have to hurt anybody," id. at 422, injury is not required to
establish a robbery. Mr. Francis admitted that it required some level of force to remove
the purse from her hand. While another jury might have reached a different verdict, the
.evidence presented was sufficient to support this jury's verdicts.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR:
Kulik, J.