FILED COURT OF APPEALS 1tNSIC A II IN THE COURT OF APPEALS OF THE STATE OF WASHING' 2015 FE ! 0 AM 8 : 57 DIVISION II ST'' ; ASH ' GTON STATE OF WASHINGTON, No. 45115 -8 -II BY Respondent.
v.
MICHAEL T. JACKSON, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Michael Jackson appeals his jury trial conviction of assault in the second
degree. He argues that the court violated his Confrontation Clause rights as well as the evidentiary
rules by admitting a hospital record containing statements from non -testifying treatment personnel;
the trial court abused its discretion by continuing the trial beyond the time for trial period; the trial
court erroneously refused to instruct the jury on the lesser included offense of assault in the fourth
degree; the prosecutor committed misconduct in his closing argument; counsel was ineffective by
failing to adequately argue the Confrontation Clause issue; and the trial court erred by ordering
Jackson to pay costs. We accept the State' s concession on the last issue and remand with
instructions to vacate the domestic violence assessment costs and the contributions to the expert
witness fund and special assault unit. In all other respects, we affirm.
FACTS
Alexandria Siefert, while seated with her fiance in his car, observed Jackson attempting to
push Amber L. Lindsey into traffic. Jackson chased Lindsey across the street. He caught up to
her, grabbed her by the hair, bashed her face against a telephone pole, and then choked her with
both hands. Lindsey entered Siefert' s fiance' s car after Siefert' s fiance opened the car door.
Jackson grabbed Lindsey' s hair and tried to pull her from the car. Siefert' s fiance began to drive 45115 -8 -II
and Jackson was momentarily dragged along before he released Lindsey' s hair. Jackson away,
yelled obscenities at the departing car.
Immediately thereafter, Lindsey was crying and shaking and yelling " Oh, my god. Oh, my
god." Report of Proceedings ( RP) ( June 5, 2013) at 447. "[ T] here was a lot of blood everywhere."
RP ( June 5, 2013) at 447. Siefert and her fiance took Lindsey to the hospital.
At the hospital, Lindsey told a triage nurse that "' My ex boyfriend ( Michael) just beat me 1 up on the side of the road. "' Ex. 12A, at 104. Lindsey added that " she was pushed into a wooden
pole hitting the back of her head, he tried to strangle her, pulled her hair and `[ p] ushed my head
into stuff. "' Ex. 12A, at 105. The triage nurse did not testify.
Dr. Timothy Dahlgren examined Lindsey, who told him that her " exboyfriend had grabbed
her and pushed her to the ground such that she struck the back of her head on the ground" and that
he pushed her face against the hinge of the car or against the car, which is the part that caused the
laceration." RP (June 5, 2013) at 374. Dr. Dahlgren testified that he needed Lindsey' s information
about her injuries to help determine if Lindsey could safely leave the hospital, or if Lindsey needed access to help to protect them in the future." RP ( June 5, 2013) at 375.
Dr. Dahlgren sutured the three- centimeter laceration Lindsey suffered from the assault. Dr.
Dahlgren testified that based on his experience, if one looked closely enough, " there would always
be a scar" from such a suturing. RP ( June 5, 2013) at 377. But Dr. Dahlgren testified on cross -
examination that he had not seen Lindsey since treating her, and had no way of knowing what kind
of a scar she might have.
1 Exhibit 12A was designated to this court as clerk' s papers. The exhibit page number reflects the designated clerk' s papers page number.
2 45115 -8 -II
Dr. Dahlgren also referred Lindsey to a social worker. Lindsey told the social worker that
Jackson had " hit her in the face/ head and hit her head against a street sign or pole." Ex. 12A, at
111. The social worker referred Lindsey' s case to law enforcement for " possible
abuse /neglect /violence." Ex. 12A, at 110. The social worker did not testify.
Officer Jonathan Meador met briefly with Lindsey. He observed the large cut on her
forehead and her ten stitches. He then located Jackson and spoke with him. Jackson gave
inconsistent accounts of what happened. First, Jackson claimed that he had not seen Lindsey at all
that day. Then, Jackson claimed in his written statement that he and Lindsey had been going to
do laundry when Lindsey stopped to speak with an acquaintance in a car, and bumped her head on
the doorframe. -
The State charged Jackson with assault in the second degree with a domestic violence
enhancement. 2
PROCEDURAL HISTORY
I. TIME FOR TRIAL
Jackson' s arraignment occurred on February 20, 2013, and trial was set for April 15, 2013.
On April 11, 2013, the State requested a three -week continuance because Siefert was going to be
working in Montana until May 6, 2013. Jackson objected on the grounds that Siefert was not a
necessary witness because she was merely a passerby. The trial court disagreed, finding good
cause to continue the trial to May 5, thus extending the time for trial deadline to June 5. See CrR
3. 3( b)( 5).
2 RCW 9A.36. 021( 1)( a); RCW 10. 99. 020. 45115 -8 -II
On May 6, the State moved for a second continuance because Officer Meador would be
unavailable until the end of May because of out -of -state military training. Again Jackson objected,
requesting a " discussion ... to find out whether or not this could have been avoided." RP ( May
6, 2013) at 5. The trial court rejected Jackson' s argument and continued the trial to June 3. Trial
commenced on that date, within the time for trial deadline.
II. TRIAL
The State relied on the testimony of Dr. Dahlgren, Siefert and Officer Meador. Lindsey,
the triage nurse, and the social worker to whom Lindsey spoke did not testify. Over Jackson' s
objection, the State introduced, and the court admitted, a hospital record that contained the triage
nurse' s and social worker' s notes. Jackson did not testify and he raised a defense of general denial.
At trial, Jackson proposed a jury instruction on the inferior degree offense of assault in the
fourth degree. He argued that no evidence existed to show that Lindsey' s injury was " substantial."
RP ( June 5, 2013) at 484. The trial court rejected the instruction, ruling that the defense failed to
present evidence " affirmatively establish[ ing] the defendant' s theory of the case." RP ( June 5,
2013) at 485.
During closing arguments, the prosecutor addressed Lindsey' s failure to testify, telling the
jury that it " heard her voice" through Siefert' s and Dr. Dahlgren' s testimony. 3 RP ( Jun. 6, 2013)
at 513. The prosecutor further added that victims of domestic violence in general need to be heard:
One of the jurors asked me during voir dire, you know, if the complaining witness of a crime did testify, why would we be in court? You know, why would we not
be here? Okay. Well, the answer is because victims of domestic violence need a voice. They do. Even when they' re not potentially strong enough to stand up on their own, they need someone to stand up for them. And that' s why we' re here today. You didn' t hear from the victim, but you did hear her voice.
3 Jackson did not object to this line of argument, except as to the prosecutor' s reference to Lindsey as the " victim." RP ( June 6, 2013) at 527, 562. Jackson does not raise that issue on appeal.
4 45115 -8 -II
RP ( June 6, 2013) at 527 -28. The prosecutor also explained the concept of reasonable doubt to
the jury using the example of knowing that the world is round:
And we all agree that no one had ever been to space, no one had actually observed the earth being round. But we had a common sense appreciation of the fact. We all agreed that because of that, we were satisfied beyond a reasonable doubt that the earth is round. All right. That' s how you need to think about the proof in this case, having a common sense appreciation of the facts.
RP ( June 6, 2013) at 515. The prosecutor further argued that " trying to concoct a scenario where
the defendant did not commit this crime would be as unrealistic as trying to concoct a scenario
where I am not an attorney." RP ( June 6, 2013) at 567. Jackson did not object to these statements.
In rebuttal, the prosecutor argued that Jackson' s closing argument left him " at a loss for
words." RP ( June 6, 2013) at 563. Jackson timely objected to this statement, but the court
overruled the objection and the prosecutor continued to contradict Jackson' s closing argument that
implied Siefert had been " reckless." RP ( June 6, 2013) at 564. The prosecutor told Lindsey and
the jury that "[ f]or someone to sit here and tell you that the victim was reckless in this crime .. .
or that the people who helped her were reckless, I hope that leaves you at a loss for words as well."
RP ( June 6, 2013) at 565.
The jury convicted Jackson of assault in the second degree, but hung on the issue of
whether Jackson and Lindsey had been members of the same family or household. At sentencing,
the court ordered Jackson to pay $ 1, 135 in fees for his court- appointed attorney, a $ 100 domestic
violence assessment, a $ 100 contribution to the Kitsap County expert witness fund, and a $ 500
contribution to the Kitsap County special assault unit. Jackson appealed his conviction.
5 45115 -8 - II
ANALYSIS
I. STATEMENTS OF NON -TESTIFYING NURSE AND SOCIAL WORKER
Jackson argues that the trial court violated ER 802 and his Sixth and Fourteenth
Amendment rights to confront adverse witnesses when it admitted the notes of the nurse and social
worker who treated Lindsey. The State argues that the court properly admitted the notes because
they were not testimonial and they fell within the business records exception to the hearsay rule. We agree with the State and uphold the trial court.
A. ER 802
Jackson argues that the nurse' s and social worker' s notes constituted inadmissible hearsay.
Hearsay is defined as " a statement, other than one made by the declarant while testifying at the in to the truth the matter asserted." ER 801( c). Hearsay trial or hearing, offered evidence prove of
is not admissible " except as provided by these rules, by other court rules, or by statute." ER 802.
One exception to hearsay includes statements made for purposes of medical diagnosis or treatment.
ER 803( a)( 4). The availability of the declarant is immaterial to the admission of these statements.
ER 803( a)( 4). In addition, RCW 5. 45. 020, the Uniform Business Records as Evidence Act,
provides that:
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
We review a trial court' s decision to admit evidence pursuant to a hearsay exception for
abuse of discretion. State v. Woods, 143 Wn.2d 561, 595, 23 P. 3d 1046 ( 2001). A trial court' s
decision to admit or exclude business records under RCW 5. 45. 020 " is given great weight and will
not be reversed unless there has been a manifest abuse of discretion." State v. Ziegler, 114 Wn.2d
6 45115 -8 - I1
533, 538, 789 P. 2d 79 ( 1990). A manifest abuse of discretion occurs only when " no reasonable
trial court would have ruled as the trial court did." State v. Embry, 171 Wn. App 714, 736, 287
P. 3d 648 ( 2012).
Here, Lindsey' s hospital record included her statements to the nurse and the social worker.
Dr. Dahlgren, the treating physician, testified to the identity and the mode of preparation of the
record. The hospital record was made in the ordinary course of the hospital' s business, and was
generated contemporaneously with the treatment of the patient." RP ( June 5, 2013) at 356.
Finally, the trial court ruled that the source and method of preparation justified the admission of
the hospital record, pointing to the " likelihood that the records are trustworthy." RP ( June 5, 2013)
at343.
We hold that the factors of RCW 5. 45. 020 were met and that because the court properly
admitted Lindsey' s hospital record as a duly authenticated business record, it did not abuse its discretion.
B. Confrontation Clause
A Confrontation Clause analysis is separate from analysis under the rules of evidence.
Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004). We review
an alleged violation of the Confrontation Clause de novo. State v. Hurtado, 173 Wn. App. 592,
598, 294 P. 3d 838 ( 2013). A Confrontation Clause claim may be raised for the firsttime on appeal
if it arises to the level of a manifest error affecting a constitutional right. State v. Kronich, 160
Wn.2d 893, 899 -901, 161 P. 3d 982 ( 2007), overruled on other grounds by State v. Jasper, 174
Wn.2d 96, 271 P. 3d 876 ( 2012); RAP 2. 5( a)( 3).
7 45115 -8 -II
The Sixth and Fourteenth Amendments to the United States Constitution guarantee an
accused person the right to confront adverse witnesses. U.S. CONST. Amends. VI, XIV. The
Confrontation Clause bars " admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross -
examination." Crawford, 541 U. S. at 53 -54. A statement is testimonial if "the primary purpose
of the interrogation is to establish or prove past events potentially relevant to later criminal
prosecution." Davis v. Washington, 547 U. S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 ( 2006).
The State bears the burden to establish that a statement is non -testimonial and thus admissible
absent an opportunity to cross -examine. Hurtado, 173 Wn. App. at 600.
The Washington courts have repeatedly reaffirmed that a statement made for the purpose
of medical diagnosis or treatment is not testimonial for Confrontation Clause purposes. State v.
Sandoval, 137 Wn. App. 532, 538, 154 P. 3d 271 ( 2007); State v. Saunders, 132 Wn. App. 592,
603, 132 P. 3d 743 ( 2006); State v. Fisher, 130 Wn. App. 1, 13 - 14, 108 P. 3d 1262 ( 2005); State v.
Moses, 129 Wn. 718, 730, 119 P. 3d 906 ( 2005); Michigan v. Bryant, _ U.S. _, App. see also
131 S. Ct. 1143, 1157 n. 9, 179 L. Ed. 2d 93 ( 2011); Melendez -Diaz v. Massachusetts, 557 U.S.
305, 312, 129 S. Ct. 2527, 174 L. Ed. 2d 314 ( 2009); Giles v. California, 554 U.S. 353, 376, 128
S. Ct 2678, 171 L. Ed. 2d 488 ( 2008). This proposition is true even when, as here, the statement
inflicts See Sandoval, 137 Wn. App. at 538. The inculpates a person who injury on the patient.
rationale is that a medical professional may wish to " recommend counseling or escape from the
dangerous domestic environment as part of a treatment plan." Saunders, 132 Wn. App. at 608.
Jackson argues that the above cases are distinguishable because the medical professionals
in those cases testified, and the social worker and triage nurse here did not. Jackson argues that it
is the statements of the absent social worker and triage nurse themselves, rather than Lindsey' s
8 45115 -8 -II
statements to these people, that violated the Confrontation Clause. But the identity of the speaker
does not alter either the reliability of the statements or their primary purpose: to assist the treating
physician to best determine a course of medical treatment that will best protect the patient from
further harm. The social worker and triage nurse entered their notes into the hospital record not to
facilitate Jackson' s prosecution, but in order to " prevent recurrence and future injury." State v.
Williams, 137 Wn. App. 736, 746, 154 P. 3d 322 ( 2007). This non -testimonial purpose remained
constant whether Lindsey made the statements or the social worker or triage nurse repeated her
words. Nothing in the record raises any inference that the triage nurse' s and the social worker' s
statements in the hospital record were made for any purpose other than assessment and treatment.
The Confrontation Clause did not bar the admission of the hospital record. We reject Jackson' s
claim and uphold the trial court.4
II, TIME FOR TRIAL
the time for trial by granting continuances rules
Jackson argues that the trial court violated
of the trial without inquiring whether the State had exercised due diligence in securing the
attendance of its witnesses. The State argues that Jackson failed to create a record that the State
had not been diligent, or to show that the defense would be prejudiced. We agree with the State.
4 Even if the trial court violated the Confrontation Clause, the error was harmless. We look to the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P. 2d 1182 ( 1985). Here, the untainted testimony of Siefert and Dr. Dahlgren established that Jackson physically struck Lindsey at least once, and that Lindsey was left with a severe laceration on her forehead immediately afterward. Furthermore, Jackson' s untainted statements were so contradictory as to discredit Jackson' s account of the incident. The weight of this evidence overwhelmingly establishes Jackson' s guilt, making any Confrontation Clause violation harmless.
5 CrR 3. 3.
9 45115 -8 -II
The application of the time for trial rule to a given set of facts is a question of law that we
review de novo. State v. Lackey, 153 Wn. App. 791, 798, 223 P. 3d 1215 ( 2009). Yet the decision
to grant or deny a motion for a continuance rests within the sound discretion of the trial court.
State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004).
CrR 3. 3( b)( 1) requires an accused person who is in custody to be brought to trial within 60
days of arraignment. The court may continue the trial date " when such continuance is required in
the administration of justice and the defendant will not be prejudiced in the presentation of his or
her defense." CrR 3. 3( f)(2). The continuance tolls the time for trial period. CrR 3. 3( e)( 3).
Because Jackson' s trial occurred on June 3, within the first extension of the time for trial, we
review only the first order of continuance.
When a witness is absent, a continuance should be granted only if the party seeking the
continuance has exercised due diligence in securing the attendance of the witness." City ofSeattle
v. Clewis, 159 Wn. App. 842, 847, 247 P. 3d 449 ( 2011). 6 Due diligence requires the proper issuance of subpoenas to essential witnesses. Clewis, 159 Wn. App. at 847. Here, although the
record does not show whether the State served a subpoena on Siefert, copies of the State' s
subpoena are contained therein. Jackson contends the absence of a signature or return on the
subpoena means the State failed to exercise due diligence. We note, however, that in the trial
court, Jackson objected to the continuance solely on the basis that Siefert was not a necessary
witness. We will not review the alleged failure to subpoena a witness for the first time on appeal.
Clewis, 159 Wn. App. at 848.
6 We note that the " due diligence" language is from a case that occurred prior to the amendment of CrR 3. 3. For purposes of this case, we need not decide whether its viability continues under the amended rule. Neither party briefed it. 10 45115 -8 -II
By failing to timely raise the State' s alleged failure to subpoena Siefert, Jackson failed to
preserve the issue for review. The trial court did not abuse its discretion by granting the first
continuance, and Jackson' s trial was timely. We uphold the trial court.
III. INFERIOR DEGREE INSTRUCTION
Jackson argues that the court erred by not instructing the jury on the inferior degree offense
of assault in the fourth degree. The State argues that no factual basis existed to instruct on the
inferior degree offense because the evidence did not support a finding that only assault in the fourth
degree was committed. We agree with the State.
A. Statutory Rights
A defendant has an "` unqualified right ' to have an inferior degree offense passed upon by
the jury. State v. Parker, 102 Wn. 2d 161, 163, 683 P. 2d 189 ( 1984) ( quoting State v. Young, 22
Wash. 273, 276 -77, 60 P. 650 ( 1900)); RCW 10. 61. 003, . 010. This right is not subject to harmless
error analysis. Parker, 102 Wn.2d at 164.
An instruction on an inferior degree offense is properly administered when
1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; ( 2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and ( 3) there is evidence that the defendant committed only the inferior offense."
State v. Fernandez- Medina, 141 Wn.2d 448, 454, 6 P. 3d 1150 ( 2000) ( quoting State v. Peterson,
133 Wn.2d 885, 891, 948 P. 2d 381 ( 1997)) ( internal quotations omitted). This test contains a legal
component and a factual component. Fernandez- Medina, 141 Wn.2d at 454 -56. The parties agree
that the legal component of the test is satisfied. Therefore, only the factual prong is at issue.
11 45115 -8 -II
The factual prong of the test requires evidence which " raise[ s] an inference that only the
lesser included /inferior degree offense was committed to the exclusion of the charged offense."
Fernandez- Medina, 141 Wn.2d at 455 ( emphasis in original). In other words, the evidence must
permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the
greater." State v. Warden, 133 Wn.2d 559, 563, 947 P. 2d 708 ( 1997). "[ T] he evidence must
affirmatively establish the defendant' s theory of the case — it is not enough that the jury might
disbelieve the evidence pointing to guilt." Fernandez- Medina, 141 Wn.2d at 456. We view the
evidence in the light most favorable to the party requesting the inferior degree instruction.
Fernandez- Medina, 141 Wn.2d at 455 -56.
A person is guilty of assault in the fourth degree " if, under circumstances not amounting
to assault in the first, second, or third degree, or custodial assault, he or she assaults another."
RCW 9A. 36. 041. Jackson was charged under RCW 9A.36. 021( 1)( a), which proscribes
i] ntentionally assault[ ing] another and thereby recklessly inflict[ ing] substantial bodily harm."
Substantial bodily harm is defined as " bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or impairment of the function of
any bodily part or organ, or which causes a fracture of any bodily part." RCW 9A.04. 110( 4)( b);
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2. 03. 01, at 26
3rd ed. 2008). Therefore, Jackson is entitled to an inferior degree instruction if the evidence raised
an inference that he only committed assault in the fourth degree, i.e. that Lindsey did not suffer
substantial bodily harm.
Even viewed in the light most favorable to Jackson, the evidence fails to establish that
Lindsey did not suffer substantial bodily harm. She suffered a three- centimeter long laceration on
her forehead that required ten stitches to close. She lost a large amount of blood. The responding
12 45115 -8 -II
officer immediately saw Lindsey' s injury. The evidence unequivocally established that Lindsey
suffered a substantial disfigurement.
Jackson argues that Dr. Dahlgren did not know whether Lindsey' s scar still existed or
would be visible. However, this argument misses the point. The definition of substantial bodily
harm does not require a permanent injury. A temporary injury is sufficient if it is substantial.
Because the evidence unequivocally established that Lindsey had a " temporary but substantial
disfigurement," the evidence failed to raise the inference that only assault in the fourth degree was
committed. RCW 9A. 04. 110( 4)( b). We reject Jackson' s claim and uphold the trial court.
B. Due Process Rights
Jackson raises the alternative argument that state and federal due process rights entitled
him to an inferior degree offense instruction. U. S. CONST. amend. XIV; CONST. art. I, § 3. We
reject his claim.
Although he invokes both the state and federal constitutions, Jackson asks only that we
apply the " traditional federal standard for evaluating procedural due process claims." Br. of
Appellant at 25 n. 10. Federal due process " requires that a lesser included offense instruction be
given only when the evidence warrants such an instruction." Hopper v. Evans, 456 U. S. 605, 611,
102 S. Ct. 2049, 72 L. Ed. 2d 367 ( 1982) ( emphasis in original). As previously articulated, the
evidence did not warrant an inferior degree instruction. Instead, by unequivocally establishing
substantial bodily harm, the evidence precluded instructing on assault in the fourth degree.
Jackson was not entitled to an inferior degree offense instruction under either RCW 10. 61. 010 or
the constitution.
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IV. PROSECUTORIAL MISCONDUCT
Allegations of prosecutorial misconduct are reviewed under an abuse of discretion
standard." State v. Brett, 126 Wn.2d 136, 174 -75, 892 P. 2d 29 ( 1995). Generally, the prosecutorial
misconduct inquiry consists of two prongs: "( 1) whether the prosecutor' s comments were
improper; and ( 2) if so, whether the improper comments caused prejudice." State v. Lindsay, 180
Wn.2d 423, 431, 326 P. 3d 125 ( 2014). The defendant bears the burden of showing that the
prosecutor' s remarks were both improper and prejudicial in the context of the record and all the
circumstances of trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673
2012).
Jackson alleges three improper comments by the prosecutor. The defendant timely
objected to one of them. That comment will be discussed first, followed by the other two
comments Jackson did not object to.
A. Disparaging Defense Counsel
It is misconduct for the prosecutor to impugn the role or integrity of defense counsel.
Lindsay, 180 Wn.2d at 431 -32. For example, a prosecutor commits misconduct by referring to the
defense' s case as " bogus" or involving " sleight of hand" because such language implies " wrongful
deception or even dishonesty in the context of a court proceeding." State v. Thorgerson, 172
Wn.2d 438, 451 -52, 258 P. 3d 43 ( 2011). Similarly, a prosecutor commits misconduct by referring
to the defense' s closing argument as a" crock." Lindsay, 180 Wn.2d at 433 -34.
Here, the prosecutor argued in rebuttal that Jackson' s closing argument had left him " at a
loss for feel the way. RP ( June 6, 2013) at 563, 565. This words" and that the jury should same
argument suggested that the defense' s closing argument should cause outrage in a reasonable
14 45115 -8 -I1
person. The prosecutor impugned defense counsel by implying that the defense' s theory was not
only incorrect, but shameful. We hold that the prosecutor' s comment was 'improper.
We next examine the issue of prejudice. To demonstrate prejudice, Jackson must show a
substantial likelihood that the prosecutor' s statements affected the jury' s verdict. State v. Emery,
174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012). A prosecutor' s improper comments may not be
grounds for reversal if they were specifically provoked by defense counsel. State v. Weber, 159
Wn.2d 252, 276, 149 P. 3d 646 ( 2006).
Here, defense counsel provoked the prosecutor' s statements when he argued that Siefert' s
fiance had acted unsafely when he drove Lindsey away from Jackson:
What kind of reckless behavior do you have in this case? We have
somebody in a car without somebody seated, without somebody with a safety — with their seatbelt on— pulling out into traffic, presumably with the door half open, still dragging Mr. Jackson along. Okay. Is that recklessness attributable to Mr. Jackson? No.
RP ( June 6, 2013) at 545. This argument was not only irrelevant, but it improperly cast aspersions
on Lindsey' s rescuers' actions. Although the prosecutor may have been a bit overzealous in his
response, it was reasonable for the prosecutor to respond to the egregious nature of the defense
argument. The jury could independently evaluate whether defense counsel' s comments ought to
leave one at a loss for words. Jackson fails to demonstrate he was prejudiced by the prosecutor' s
rebuttal.
B. Appeals to Passion or Prejudice
Where the defendant fails to object or request a curative instruction at trial, the issue of
misconduct is waived unless the conduct was so flagrant and ill-intentioned that an instruction
could not have cured the resulting prejudice. State v. Stenson, 132 Wn.2d 668, 719, 940 P. 2d 1239
1997). Under this heightened standard, the defendant must show both that " no curative instruction
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would have obviated any prejudicial effect on the jury" and that the misconduct resulted in
prejudice that " had a substantial likelihood of affecting the jury verdict." Thorgerson, 172 Wn.2d
at455.
It is misconduct for a prosecutor to ask the jury to " decide guilt on something other than
the evidence," such as sympathy for the victim. Moore v. Morton, 255 F.3d 95, 117 ( 3d Cir. 2001).
Here, the prosecutor argued that Jackson was being tried " because victims of domestic violence
need a voice" and " they need someone to stand up for them." RP ( June 6, 2013) at 527. The State
argues that the prosecutor was merely explaining how Siefert' s and Dr. Dahlgren' s testimony
compensated for Lindsey' s failure to testify. But there is a difference between stating that Lindsey
had a voice ( because her statements came in through the testimony of other witnesses), and that
she needed a voice. By arguing that Lindsey " need[ ed] someone to stand up" for her, the
prosecutor suggested that the jury should stand up for Lindsey and convict Jackson. RP ( June 6,
2013) at 527. This improper argument implied that the jury should convict Jackson for reasons
other than the strength of the evidence. However, any prejudice from this statement was cured by
the trial court' s instruction that " the lawyers' statements are not evidence" but are only " intended
to help [ the jury] understand the evidence and apply the law." Clerk' s Papers ( CP) at 78. Jackson
fails to meet the heightened Stenson standard, and thus he has waived the error.
C. Burden of Proof
Arguments by the prosecution that shift or misstate the State' s burden to prove the
defendant' s guilt beyond a reasonable doubt constitute misconduct." Lindsay, 180 Wn.2d at 434.
Again, because Jackson failed to timely object to the prosecution' s comments, the heightened
Stenson standard applies.
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It is misconduct for a prosecutor to trivialize the State' s burden of proof by comparing the
reasonable doubt standard to everyday decision- making. Lindsay, 180 Wn.2d at 436. Here, the
prosecutor argued that the jury could be " satisfied beyond a reasonable doubt that the earth is
round" based on its " common sense appreciation of the fact." RP ( June 6, 2013) at 515.
But the prosecutor' s argument was not intended to indicate that Jackson' s guilt was as
obvious as the fact that the earth is round. Rather, the prosecutor' s argument occurred in the
framework of explaining what an " abiding belief in the truth of the charge" meant. RP ( June 6,
2013) at 514. In context, the prosecutor' s argument meant that in order to convict Jackson, the
jury needed to be as certain that Jackson was guilty as it was certain that the earth is round. While
the prosecutor articulated the reasonable doubt standard poorly, any prejudice could have been
cured with a timely objection and a reminder to the jury to apply the reasonable doubt standard as
defined in the instructions. Jackson cannot show that the prosecutor' s comment was incurable,
and Jackson has waived the error.
Similarly, Jackson did not object to the prosecutor' s argument that " trying to concoct a
scenario where the defendant did not commit this crime would be as unrealistic as trying to concoct
a scenario where I am not an attorney." RP ( June 6, 2013) at 567. The prosecutor merely stated
that Jackson' s theory was not credible, without referencing the burden of proof. Because Jackson
cannot show that the prosecutor' s comment was incurable, Jackson has waived the error. We reject
Jackson' s claims of prosecutorial misconduct concerning the State' s burden.
D. Cumulative Error
The cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant
that no instruction or series of instructions can erase their combined prejudicial effect. State v.
Walker, 164 Wn. App. 724, 737, 265 P. 3d 191 ( 2011). However, this is not such a case. The three
17 45115 -8 -II
errors Jackson complains of were minor in the full context of the prosecution' s closing argument.
The prosecutor' s argument hewed closely to the elements of the crime and repeatedly admonished
the jury to obey the instructions and only to convict Jackson if it was convinced beyond a reasonable doubt of his guilt. As a whole, the prosecutor' s improper comments did not reflect a
flagrant and ill-intentioned attempt to sway the jury using emotion or personal attacks, but were
mere fleeting misstatements that do not entitle Jackson to relief. We find no cumulative error.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Jackson argues that his counsel was ineffective for failing to adequately raise the
Confrontation Clause issue in relation to the nurse' s and social worker' s statements. The State
argues that Jackson' s counsel was not ineffective because the Confrontation Clause issue was
without merit. We agree with the State.
To establish ineffective assistance of counsel, the defendant must prove both that ( 1) the
s performance was deficient and ( 2) the deficiency prejudiced the defendant. State v. attorney'
Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009) ( citing Strickland v. Washington, 466 U.S 668,
687, 104 S. Ct. 2052, 80 L. Ed 2d 674 ( 1984); State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917
P. 2d 563 ( 1996)). An attorney' s performance is deficient if it falls " below an objective standard
of reasonableness based on consideration of all the circumstances." State v. McFarland, 127
Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995). There is a strong presumption that counsel' s
performance was reasonable. Kyllo, 166 Wn.2d at 862.
18 45115 -8 -II
Ineffective assistance of counsel is a mixed question of law and fact that we review de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). Ineffective assistance of
counsel may be analyzed for the first time on appeal if the defendant can show a manifest
constitutional error. McFarland, 127 Wn.2d at 334; RAP 2. 5( a)( 3).
As discussed above, the nurse' s and social worker' s statements were not testimonial and
were not subject to the Confrontation Clause. Therefore, Jackson' s trial counsel did not err by
failing to object more strongly on the Confrontation Clause issue. Expanding on the argument or
renewing the objection would have been futile. Jackson fails to show deficiency and we reject his
ineffective assistance of counsel argument without reaching the prejudice prong.
VI. COSTS
Jackson argues, and the State concedes, that the trial court exceeded its authority by
requiring Jackson to pay for the domestic violence assessment and to contribute to the expert
witness fund and the special assault unit. In addition, Jackson argues that the trial court exceeded
his Jackson its authority by requiring Jackson to pay for the cost of court- appointed counsel.
further argues that the trial court violated Jackson' s right to counsel by ordering him to pay counsel
costs without inquiring into whether he had the present or future ability to pay. The State argues
that the trial court properly imposed counsel costs on Jackson under the recoupment statute.
We agree with the State on all cost issues. We accept the State' s concession and remand
to vacate the domestic violence assessment, expert witness fund, and special assault unit costs.
However, we affirm the trial court' s imposition of counsel costs.
7 As Jackson points out, these costs were improperly imposed because Jackson was not convicted of a crime of domestic violence, Jackson did not use an expert witness, and no statute authorizes the court to require Jackson to pay the Kitsap County special assault unit. The costs were improperly imposed. 19 45115 -8 - II
A. Authority to Impose Counsel Costs
RCW 10. 01. 160( 1) permits a court to require a defendant to pay costs. These costs " shall
be limited to expenses specially incurred by the state in prosecuting the defendant" and may not
include " expenses inherent in providing a constitutionally guaranteed jury trial." RCW
10. 01. 160( 2). Jackson argues that the cost of court- appointed counsel is not an expense specially
incurred by the State in prosecuting the defendant, and thus the statute does not permit the trial
court to require Jackson to pay for the cost of appointed counsel.
Jackson is wrong. As we have held in the past, the cost of court- appointed counsel is one
of the two "' principal expenses which the state specially incurs in prosecuting an individual
defendant. "' Utter v. Dep' t ofSoc. & Health Servs., 140 Wn. App. 293, 309, 165 P. 3d 399 ( 2007)
quoting Oregon v. Fuller, 12 Or. App. 152, 504 P. 2d 1393, 1396 ( 1973), aff'd, 417 U.S. 40, 94 S.
Ct. 2116, 40 L. Ed. 2d 642 ( 1974)) ( emphasis added) ( internal quotations omitted). Because the
cost of Jackson' s appointed counsel is an expense specially incurred by the State, the plain
language of RCW 10. 01. 160 allows the court to impose the cost of appointed counsel on Jackson.
We reject Jackson' s statutory argument.
B. Ability to Pay
Jackson argues that the trial court unconstitutionally chilled his right to counsel by
requiring him to pay for the costs of his court- appointed counsel. We review a claim of a
constitutional error de novo. State v. Edwards, 171 Wn. App. 379, 387, 294 P. 3d 708 ( 2012).
The government may not " chill the assertion of constitutional rights by penalizing those
who choose to exercise them." United States v. Jackson, 390 U. S. 570, 581, 88 S. Ct. 1209, 20 L.
Ed. 2d 138 ( 1968). On the other hand, the Constitution does not mandate that indigent defendants
must "remain forever immune from any obligation to shoulder the expenses of their legal defense,
20 45115 -8 -II
even when they are able to pay without hardship." Fuller v. Oregon, 417 U.S. 40, 53 -54, 94 S. Ct.
2116, 40 L. Ed. 2d 642 ( 1974). It is constitutional for the state to recoup costs from defendants so
long as the recoupment statute properly balances these considerations. This means that the
recoupment statute must be " tailored to impose an obligation only upon those with a foreseeable
ability to meet it, and to enforce that obligation only against those who actually become able to
meet it without hardship." Fuller, 417 U.S. at 54.
An example of a statute that meets these requirements is the Oregon recoupment statute,
OR. REV. STAT. § 135. 050( 1)( d) ( 2012). That statute imposes repayment requirements only upon
a convicted defendant who " is or may be able to pay them." OR. REV. STAT. § 161. 665( 1), ( 4)
2011). It requires the sentencing court to " take account of the financial resources of the defendant
and the nature of the burden that payment of costs will impose." OR. REV. STAT. § 161. 665( 4).
The defendant may not be required to repay costs if it appears at the time of sentencing that " there
is no likelihood that a defendant' s indigency will end." Fuller, 504 P. 2d at 1397. The statute
further allows a defendant to petition the sentencing court for remission ofhis payment obligations.
OR. REV. STAT. § 161. 665( 5). The United States. Supreme Court approved of this statute, noting
that it is " clearly directed only at those convicted defendants who are indigent at the time of the
criminal proceedings against them but who subsequently gain the ability to pay the expenses of
legal representation." Fuller, 417 U. S. at 46.
Washington has a very similar statute, RCW 10. 01. 160. That statute also applies only to
convicted defendants. RCW 10. 01. 160( 1). It imposes payment requirements only if the defendant
is or will be able to pay them." RCW 10. 01. 160( 3). The statute also requires the sentencing court
to " take account of the financial resources of the defendant and the nature of the burden that
payment of costs will impose." RCW 10. 01. 160( 3). The statute permits a defendant to petition
21 45115 -8 -II
the sentencing court for remission, and in cases of manifest hardship, permits the court to " remit
all or part of the amount due in costs, or modify the method of payment under RCW 10. 01. 170."
RCW 10. 01. 160( 4). Our Supreme Court has held that these statutory features satisfy the test
delineated in Fuller. State v. Barklind, 87 Wn.2d 814, 818, 557 P. 2d 314 ( 1976).
The main difference between the Washington statute and the Oregon statute is that the
Washington statute does not require the court to make formal and specific findings on the
defendant' s ability to pay at the time of sentencing, but rather at the time of enforcement. State v.
Blank, 131 Wn.2d 230, 238 -242, 930 P. 2d 1213 ( 1997). Jackson argues that this distinction makes
RCW 10. 01. 160 constitutionally deficient. Our Supreme Court has consistently rejected this
argument. Blank, 131 Wn.2d at 242; State v. Curry, 118 Wn.2d 911, 916, 829 P. 2d 166 ( 1992).
Other state and federal courts interpreting similar recoupment provisions have rejected this
argument as well. See, e. g. United States v. Hutchings, 757 F. 2d 11, 14 -15 ( 2d Cir. 1985); Alaska
v. Albert, 899 P. 2d 103, 112 ( Alaska 1995); North Dakota v. Kottenbroch, 319 N.W.2d 465, 473
N. D. 1982); Ohio v. McLean, 87 Ohio App. 3d 392, 622 N.E. 2d 402, 404 ( 1993); Basaldua v.
State, 558 S. W.2d 2, 6 -7 ( Tex. Ct. App. 1977).
The insight that these courts relied on, and that Jackson' s analysis overlooks, is that the
Supreme Court did not hold that every single element of Oregon' s statute was constitutionally
required. That is, the features of the Oregon recoupment statute were sufficient, but not necessary.
What matters is that " the defendant is entitled to free counsel when he needs it, and the fact that
he knows he may have to repay the costs of the services does not affect his eligibility to obtain
counsel." Blank, 131 Wn.2d at 236; see also Fuller, 417 U. S. at 53.
22 45115 -8 -II
This case is no different from the challenges to our recoupment statute our Supreme Court
previously rejected. Jackson received counsel "` when he need[ ed] it' —that is, during every stage
of the criminal proceedings against him." Fuller, 417 U.S. at 53 ( quoting Fuller, 12 Or. App. at
158 -59). And there is nothing on the record to suggest that Jackson' s knowledge " that he might
someday be required to repay the costs of these services ... affects his eligibility to obtain
counsel." Fuller, 417 U. S. at 53. Like the Oregon statute, our recoupment statute is tailored to
insure that only those who actually become capable of repaying the State will ever be obliged to do so." Fuller, 417 U.S. at 53. This is because the court must determine whether the defendant
is imposed for Blank, 131 pay " before enforced collection or sanction nonpayment." can any
Wn.2d at 242. That is, by interposing a formal inquiry and opportunity to be heard before the
defendant is actually required to pay, RCW 10. 01. 160 employs adequate safeguards to avoid
chilling the right to counsel. Blank, 131 Wn.2d at 245. The statute is sufficiently tailored to
enforce [ a repayment] obligation only against those who actually become able to meet it without
hardship," and Jackson' s constitutional challenge fails. Fuller, 417 U. S. at 54 ( emphasis added).
The costs order does not constitute a manifest constitutional error and should not be considered
here. RAP 2. 5( a)( 3).
Finally, Jackson, citing RPC 1. 5( b), raises a cursory equal protection argument in a
footnote —he argues that it is unfairly discriminatory that an indigent defendant is not apprised of
fees and costs prior to appointment of counsel, when ordinarily counsel must make such disclosure
in advance. We do not reach this claim because it is inadequately briefed and unsupported by
citation to the record or authority. See Bohn v. Cody, 119 Wn.2d 357, 368, 832 P. 2d 71 ( 1992);
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992); RAP
10. 3( a)( 6). See also Blank, 131 Wn.2d at 245 ( equal protection argument that failed to articulate
23 45115 -8 -II
which level of scrutiny applied was " inadequately presented "). The recoupment statute is
constitutional.
We accept the State' s concession and remand with instructions to vacate the domestic
violence assessment costs and the contributions to the expert witness fund and special assault unit.
In all other respects, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is
so ordered.
We concur:
Ac.I