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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 73699-0-1
Respondent, DIVISION ONE
v.
NICHOLAS STERLING LITTLE, UNPUBLISHED
Appellant. FILED: January 30, 2017
Cox, J. — Nicholas Little appeals his judgment and sentence based on his
six convictions for first degree child molestation. The trial court did not abuse its
discretion by excluding other suspect evidence. The trial court properly
exercised its discretion by admitting challenged child hearsay statements
concerning the molestation. And the trial court did not abuse its discretion either
by denying an evidentiary hearing on whether Little's trial counsel prevented him
from testifying at trial or in denying his motion for a new trial. The prosecutor
committed no misconduct during closing argument. Little's Statement of
Additional Grounds for Review does not raise any meritorious issues. We affirm. No. 73699-0-1/2
Little and the victims' mother in this case dated and eventually lived
together with the mother's three daughters—A.M., J.M., and H.M. J.M. and H.M.
are twins. A.M. is the eldest daughter. A.M. was ten and the twins were eight
during trial.
The twins disclosed to their friend, H.B., that they had been sexually
abused. H.B. then told her mother, who reported the matter to child protective
services.
A.M., J.M., and H.M. were interviewed by a child protective services
investigator, a Seattle police officer, and a child interview specialist. The children
later made statements to their mother about the abuse. Two forensic nurse
examiners also examined the children.
The State charged Little with six counts of first degree child molestation.
A jury found him guilty, as charged, on all counts.
Little moved for a new trial, claiming that his trial counsel prevented him
from testifying in his defense at trial. He sought an evidentiary hearing on his
motion. The trial court denied an evidentiary hearing and the motion after it
reviewed the declaration of Little's trial counsel and other materials. The trial
court entered its judgment and sentence in accordance with the jury verdicts.
Little appeals.
OTHER SUSPECT EVIDENCE
Little first argues that the trial court deprived him of his right to present a
defense by excluding "other suspect" evidence. We hold that the court did not No. 73699-0-1/3
abuse its discretion by granting the State's motion to exclude this proffered
evidence.
Criminal defendants have a constitutional right to present a defense under
the Sixth Amendment of the United States Constitution and article I, section 22 of
Washington's Constitution.1 But this right is not absolute, and the evidence "a
defendant seeks to introduce 'must be of at least minimal relevance.'"2
The exclusion of other suspect evidence is a "'specific application'" of the
general evidence rule permitting the trial court to exclude evidence.3 In
Washington, "[t]he standard for relevance of other suspect evidence is whether
there is evidence 'tending to connect' someone other than the defendant with the
crime."4 This inquiry "'focuse[s] upon whether the evidence offered tends to
create a reasonable doubt as to the defendant's guilt, not whether it establishes
the guilt of the third party beyond a reasonable doubt.'"5
1 State v. Wade, 186 Wn. App. 749, 763, 346 P.3d 838, review denied. 184Wn.2d 1004(2015).
2 State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)).
3 State v. Franklin, 180 Wn.2d 371, 378, 325 P.3d 159 (2014) (quoting Holmes v. South Carolina. 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L Ed. 2d 503 (2006)).
4 ]d at 381 (quoting State v. Downs. 168 Wash. 664, 667, 13 P.2d 1 (1932)).
5 Id (emphasis omitted) (quoting Smithart v. State. 988 P.2d 583, 588 (Alaska 1999)). No. 73699-0-1/4
There must be some combination of facts or circumstances pointing "to a
nonspeculative link between the other suspect and the charged crime."6 The
defendant bears the burden to show that the other suspect evidence is
admissible.7
We review for abuse of discretion a trial court's decision to exclude
evidence.8
Here, the State moved in limine "to exclude any suggestion" that the
children's maternal grandfather abused them. As evidenced in its oral ruling on
the State's motion, the trial court applied State v. Franklin.9 There, the supreme
court discussed other suspect evidence and concluded that the trial court
improperly excluded other suspect evidence. In that case, Andre Franklin
"offered evidence that [another person] had the motive, ability, and opportunity to
commit the charged crime, and that [the other person] had personally threatened
[the victim]... in the past."10
The trial court in Little's case correctly applied the Franklin principles in
reaching the correct decision to grant the State's motion to exclude the proffered
"other suspect" evidence.
6]dL
7 State v. Mezquia. 129Wn.App. 118, 124, 118 P.3d 378 (2005).
8 State v. Quaale, 182Wn.2d 191, 196, 340 P.3d 213 (2014).
9 180 Wn.2d 371, 325 P.3d 159 (2014).
10 Id. at 383. No. 73699-0-1/5
The record shows that H.B., a friend of J.M. and H.M., testified that the
twins disclosed to her that they had been sexually abused. H.B. could not
remember whether the name the twins used to identify their abuser was "Nick" or
"Doug." H.B. stated that she "got [the names] mixed up because [she] didn't
know them at all." Doug is Little's father. But he was not the subject of the
State's motion. Rather, the victims' maternal grandfather was the subject of this
motion.
The children's mother testified that she and the children temporarily lived
with the children's maternal grandfather in late 2011 through early 2012. In
2013, the children's maternal grandfather "stayed" with Little, the children, and
their mother for a few weeks.
The evidence at the motion hearing included the child protective services
intake report. It stated: "The children live with their mother and her boyfriend
and the boyfriend's father, name unknown, who is the alleged perpetrator.'"11
The report also stated that the perpetrator "'live[d] about one mile from the family
in the AIki Beach area off of [A]dmiral [W]ay."'12 The record further indicates that
the children's maternal grandfather lived at that location. Defense counsel
argued that the statements referring to Little's father actually referred to the
children's maternal grandfather.
11 Report of Proceedings (September 30, 2014) at 80-81.
12 Id. No. 73699-0-1/6
The trial court granted the State's motion in limine to exclude this proffered
evidence. In its ruling, the court stated:
With that, what we have presently . . . established . . . would be [the children's maternal] grandfather's presence for two to three weeks in the family home, and then the disputed evidence about improper labeling and a person residing in AIki or the West Seattle area. With that record, there simply doesn't exist any chain of facts or circumstances. There is mere opportunity. There is not even motive.113]
We conclude that the trial court did not abuse its discretion in excluding
other suspect evidence concerning the children's maternal grandfather. Little's
argument focuses on the fact that the children's maternal grandfather lived with
them, their mother, and Little at certain periods of time. Little also argues that the
children's maternal grandfather lived in a trailer near their home. Finally, Little
claims that the report to protective services should be read to refer to the
maternal grandfather, despite its plain language.
But these facts are insufficient to satisfy Little's burden to establish a
combination of facts or circumstances pointing "to a nonspeculative link
between the other suspect and the charged crime."14 As the trial court correctly
concluded, these facts establish only opportunity on the part of the maternal
grandfather. They do not, as the trial court correctly determined, establish motive
or anything else to show something more than mere speculation.
Little argues that the evidence establishes more than a speculative link
and relies on the fact that H.B. allegedly identified "Doug" as the twins' abuser.
13]dat112.
14 Franklin, 180 Wn.2d at 381 (emphasis added). No. 73699-0-1/7
He then attempts to make a connection between the children's maternal
grandfather and Doug, who Little refers to as a "grandfather-like figure" in his
appellate briefs. Little essentially argues that the twins mistakenly referred to
Doug, when they really meant to refer to their maternal grandfather, as their
abuser.
This is mere speculation. As previously stated, H.B. testified that she
could not remember whether the abuser was "Nick" or "Doug." Although H.B.
may have been mistaken as to whom the twins referred to as their abuser, this
fails to establish that the twins identified their maternal grandfather as their
abuser. Thus, this does nothing to establish "a nonspeculative link between
[the children's maternal grandfather] and the charged crime."15
CHILD HEARSAY
Little next argues that the trial court abused its discretion by admitting the
children's hearsay statements. There was no abuse of discretion in doing so.
RCW 9A.44.120 governs the admissibility of child hearsay statements and
states in relevant part:
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm . .. , not otherwise admissible by statute or court rule, is admissible in evidence in . . . criminal proceedings ... in the courts of the state of Washington if: (1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
15 Id. (emphasis added). No. 73699-0-1/8
(2) The child either: (a) Testifies at the proceedings; or (b) Is unavailable as a witness. . . .
A trial court is afforded broad discretion in determining the reliability of a
child hearsay statement, as it has the opportunity to observe the child and other
witnesses.16 As previously stated, we review for abuse of discretion a trial court's
decision to admit evidence.17
In State v. Ryan, the supreme court identified the following nine factors
applicable to determining the reliability of a child's out-of-court declarations:
(1) whether there is an apparent motive to lie, (2) the general character of the declarant, (3) whether more than one person heard the statements, (4) the spontaneity of the statements, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contained express assertions of past fact, (7) whether the declarant's lack of knowledge could be established through cross-examination, (8) the remoteness of the possibility of the declarant's recollection being faulty, and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant's involvement.118]
Not every factor must be satisfied.19 Rather, the factors must be
"'substantially met.'"20
16 See State v. Swanson. 62 Wn. App. 186, 191 n.1, 813 P.2d 614 (1991).
17 Quaale, 182 Wn.2d at 196.
18 State v. Kennealv. 151 Wn. App. 861, 880, 214 P.3d 200 (2009) (citing State v. Ryan. 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984)).
19 State v. Woods. 154 Wn.2d 613, 623, 114P.3d 1174 (2005) (plurality opinion).
20 Id, at 623-24 (quoting State v. Swan. 114 Wn.2d 613, 652, 790 P.2d 610(1990)).
8 No. 73699-0-1/9
Here, the trial court considered each of the Ryan factors and determined
that the children's statements provided sufficient indicia of reliability for admission
under RCW 9A.44.120. On appeal, only Ryan factors one, four, five, and nine
are at issue. Little specifically challenges the trial court's admission of the
children's statements to four people—their mother, H.B., Seattle Police Officer
William Askew, and Carolyn Webster, a child interview specialist. Although the
trial court admitted some of the children's statements to their mother, the trial
court also excluded other statements due to a concern regarding the fourth Ryan
factor—spontaneity.
As an initial matter, Little argues that the Ryan factors cannot be applied
to the twins' statements to H.B. because she failed to identify which twin made
the statement to her. Without citation to authority, Little argues that the Ryan
analysis cannot be conducted if the declarant child is not identified. Because
Little fails to cite authority to support this argument, we reject it.21
Apparent Motive to Lie About Abuse
Little argues that he established the children's motive to lie about the
abuse. We disagree.
"The critical inquiry is whether the child was being truthful" when he or she
made the hearsay statements.22
21 See Darkenwald v. Emp't Sec. Dep't. 183 Wn.2d 237, 248, 350 P.3d 647 (2015); RAP 10.3(a)(6).
22 State v. Gribble. 60 Wn. App. 374, 383, 804 P.2d 634 (1991). No. 73699-0-1/10
Here, the trial court recognized that the twins initially denied abuse to Ana
Mejia, a former social worker with child protective services. Mejia interviewed the
children and testified to A.M.'s disclosure of sexual abuse.
The court also found that the children "liked" Little and had no motive to lie
in light of Little's threats and promises of rewards. Additionally, the trial court
determined, based on the victims' mother's testimony, that the children had lied
to their mother in simple situations, such as whether they had brushed their teeth
or cleaned their rooms. But their mother testified that she had not caught the
children in significant lies. The record supports the trial court's decision that the
children had no motive to lie about the abuse in the admitted statements.
Spontaneity
Little argues that the children's statements were not spontaneous. We
disagree.
Statements made in response to questioning are spontaneous so long as
the questions are neither leading nor suggestive.23
Here, the trial court found that the children's statements were
spontaneous. The record shows that the twins voluntarily disclosed their abuse
to their friend H.B. because she did not question the twins about their abuse prior
to their disclosure. Similarly, the record shows that all three children voluntarily
disclosed their abuse to their mother because she did not question the children
about their abuse prior to their disclosure. The trial court also found that Carolyn
Webster, the child interview specialist, used open-ended questions during her
23 Kennealv. 151 Wn. App. at 883.
10 No. 73699-0-1/11
interviews with the children. Additionally, the record shows that Officer Askew
used open-ended questions during this interview with A.M. The record supports
the trial court's decision that the admitted statements were spontaneous.
Timing and Relationship
Little argues that the children's statements were unreliable under this
factor. We disagree.
This factor focuses on "'the timing of the declaration and the relationship
between the declarant and the witness.'"24 The reliability of a child's statement is
likely enhanced when the witness is in a position of trust with the child.25 But this
court has also stated: "As long as there are law enforcement officers or social
workers investigating child abuse,... a child's statements will almost always be
made after professionals become aware of the abuse."26 This fact does not
necessarily lead to diminished reliability of a child's statements, and in some
situations, the presence of a social worker or nurse may enhance the statement's
reliability.27
Here, the trial court found that the relationships between the children and
the witnesses involved the children's mother and their confidant, H.B. The
relationship also involved professional authority figures.
24 Ryan. 103 Wn.2d at 176 (quoting State v. Parris. 98 Wn.2d 140, 146, 654P.2d77(1982)).
25 Kennealv. 151 Wn. App. at 884.
26 State v. Young. 62 Wn. App. 895, 901, 802 P.2d 829 (1991).
27 See id; Kennealv. 151 Wn. App. at 884.
11 No. 73699-0-1/12
There is no dispute that the twins trusted H.B. with their "secret." H.B. told
her mom the twins' secret "four or five days" after they told her. H.B.'s mother
called child protective services that day to report what H.B. had said.
The record also shows that the children trusted their mother. They
disclosed their abuse to her soon after they returned home from their maternal
grandmother's care following the CPS investigation.
Additionally, the trial court concluded that the professional authority figure
relationships supported the reliability of the children's statements because they
"would impress upon the children] that this was a serious situation."
Although Officer Askew was a stranger to A.M., he questioned A.M. the
same day that she disclosed the abuse to Mejia, the former social worker. A.M.
also suggested that she liked Officer Askew by testifying that she thought he
"was pretty cool."
Lastly, Webster, the child interview specialist, was a stranger to the
children but interviewed them two days after Officer Askew and Mejia did.
In sum, the children made statements to their mother, a trusted friend, and
professional authority figures. The record supports the trial court's decision that
the timing of the statements and the relevant relationships between the children
and those who received the admitted statements demonstrated the statements'
reliability.
Surrounding Circumstances
Little argues that the surrounding circumstances indicate that the
children's statements were unreliable. We disagree.
12 No. 73699-0-1/13
This factor focuses on whether the surrounding circumstances indicate
that the declarant misrepresented the defendant's involvement.28
Here, the trial court carefully analyzed the circumstances surrounding the
statements to determine whether they were reliable. The trial court stated:
"Looking at overall circumstances, one can consider and should consider the
inconsistency of accounts. The statements here are not mirror images of one
another; and to the extent that they're not, that goes more to the weight of the
evidence and not its admissibility."29 The trial court also referred to additional
circumstances, such as the children's demonstrations of certain actions with Little
and the specific words they used.
Although the trial court did not explicitly conclude whether the surrounding
circumstances indicated that the children's statements were reliable, the record
shows that the surrounding circumstances do not indicate that the children
misrepresented Little's involvement.
Overall, the trial court properly applied the Ryan factors to this case and
admitted the challenged hearsay statements. This was a proper exercise of
discretion.
MEDICAL TREATMENT HEARSAY EXCEPTION
Little also argues that the trial court abused its discretion by admitting the
children's hearsay statements under the medical diagnosis or treatment
exception. We disagree.
28 Kennealv. 151 Wn. App. at 880.
29 Report of Proceedings (October 2, 2014) at 43.
13 No. 73699-0-1/14
ER 803(a)(4) provides a hearsay exception for statements made for the
purpose of medical diagnosis or treatment. This hearsay exception applies to
statements that are "'reasonably pertinent to diagnosis or treatment.'"30 To
establish reasonable pertinence under this exception, courts consider two
factors: whether "(1) the declarant's motive in making the statement [wa]s to
promote treatment, and (2) [whether] the medical professional reasonably relied
on the statement" for treatment purposes.31
Statement Purpose
Little argues that the children's statements to a forensic nurse examiner
did not satisfy the medical treatment hearsay exception. We disagree.
A declarant's statements are admissible under this exception when the
declarant makes statements for a "medical examination for 'a combination' of
purposes—medical as well as forensic."32
Washington courts also recognize that "it is not per se a requirement that
the child victim understand that his or her statement was needed for treatment if
the statement has other indicia of reliability."33 A very young child's statements
may be admitted under this exception, even without evidence that the child
understood the purpose of her statements, if corroborating evidence supports the
30 State v. Redmond. 150 Wn.2d 489, 496, 78 P.3d 1001 (2003) (quoting ER 803(a)(4)).
31 State v. Williams. 137 Wn. App. 736, 746, 154 P.3d 322 (2007).
32 Id
33 State v. Ashcraft. 71 Wn. App. 444, 457, 859 P.2d 60 (1993).
14 No. 73699-0-1/15
hearsay statement and if "it appears unlikely that the child would fabricate the
cause of the injury."34 The following case further discusses this principle.
In State v. Kilgore, Division Two of this court held that the trial court
properly admitted a child's statements to a nurse.35 The appellate court
concluded that it could infer that the declarant had a treatment motive "as long as
the declarant is not a very young child."36 The court then "assume[d]" that the
child in that case had a treatment motive because the child was "almost 11 years
old" when she spoke to the nurse at a hospital.37
Additionally, the record in that case demonstrated that the child had a
treatment motive. For example, the child explained that she went to the hospital
because she had been sexually abused and sought medical advice.38 The nurse
also explained to the child that the purpose of the examination was to ensure that
she was healthy.39 Thus, the court held that the trial court did not abuse its
discretion in admitting the child's statements to the nurse.40
34 State v. Kilgore. 107 Wn. App. 160, 183, 26 P.3d 308 (2001), aff'd on other grounds. 147 Wn.2d 288, 53 P.3d 974 (2002).
35 Id
36 Id at 184.
37 id at 183.
38|d at 170, 183n.26.
39ldat183n.26.
40 Id. at 183-84.
15 No. 73699-0-1/16
Here, at the motion hearing, the parties discussed the children's medical
records from two examinations. Lori Moore, a forensic nurse examiner, first
examined the children in April 2013. The records demonstrate that Moore
conducted a "limited" physical examination of the children because they
"clinche[d] [their] legs together." Under the "Plan" section of these records,
Moore stated: "Follow up with [the] Providence Intervention Center... in 1-3
days for incomplete genital exam."
Paula Newman-Skomski, a forensic nurse examiner at the Providence
Intervention Center, examined the children in May 2013. According to these
records, A.M. and J.M. disclosed to Newman-Skomski how and where Little
touched them. H.M. responded "No" when Newman-Skomski asked her whether
anyone had touched her in certain areas.
At the motion hearing, Little argued that "there [wa]s no basis for following
up with the subsequent examination other than a forensic examination." He
argued that the records of J.M. and H.M. showed "that there was nothing
medically necessary from that point forward." As for A.M., Little argued that the
condition identified in the first examination was later determined to be incorrect.
Thus, he argued that the statements made during the second examination were
inadmissible because "nothing else exist[ed] to cause or to provide reason for
this subsequent examination other than a forensic exam."
The trial court admitted the children's statements under the medical
treatment hearsay exception, stating:
So the question there turned on the facts of whether the examinations were bifurcated or whether they were separated, and
16 No. 73699-0-1/17
I believe my examination showed that they were bifurcated; that it was a continuation. Thus, it was all for purposes of medical diagnoses, thus a valid exception under the hearsay prohibition.t41l
The record shows that Little objected below to the admission of the
children's statements to Newman-Skomski, the second forensic nurse examiner.
But Little's opening appellate brief refers to the trial court's admission of the
children's statements to "forensic nurses during their exams" while his reply brief
refers to "the forensic nurse" and specifically mentions Newman-Skomski. We
take his argument to be directed at Newman-Skomski, the second nurse
examiner.
As for the children's statements to Newman-Skomski, we conclude that
the trial court did not abuse its discretion in admitting these statements.
As to the first prong of the hearsay exception test, the medical records
demonstrate that the children made their statements to promote treatment. At
the beginning of Newman-Skomski's evaluation of A.M., Newman-Skomski
asked A.M. if A.M. knew why she was there. A.M. responded: "'No, no one told
us . . . .'" Newman-Skomski then asked A.M. if she knew what a checkup was,
and A.M. responded: "Those are not scary.'" Newman-Skomski then asked A.M.
if she had any "owies or anything that she was concerned about," and A.M.
explained an issue with her tooth. Newman-Skomski also explained to A.M. "that
part of making sure she was healthy was talking about safety rules
Newman-Skomski asked similar questions during her evaluation of H.M.
and asked H.M. if she knew why she was there. H.M. responded "'No'" and then
41 Report of Proceedings (October 9, 2014) at 106.
17 No. 73699-0-1/18
stated: "'Well my mom actually said we have a doctor's appointment, but I don't
know."' Newman-Skomski then told H.M. that she was there for a checkup and
asked H.M. if she had any "owies or concerns." H.M. explained an issue with her
eyes and ribs. Newman-Skomski similarly explained to H.M. that "part of doing
her checkup [was] to make sure that she was healthy and safe
Lastly, Newman-Skomski asked similar questions during her evaluation of
J.M. and asked J.M. if she knew why she was there. J.M. responded '"I don't
know,'" and Newman-Skomski explained to J.M. that she was there for a
checkup. J.M. then responded, '"I know that.'" J.M. also explained a scratch on
her finger after Newman-Skomski asked about any "owies or concerns."
Newman-Skomski similarly explained to J.M. that "part of the checkup was to
make sure she was also safe
This record demonstrates that the children understood that their
statements were made for medical diagnosis or treatment purposes. Newman-
Skomski explained to the children that she was conducting a "checkup" and
asked them if they had any "owies" or concerns. The children explained their
physical issues in response. Thus, the State satisfied the first prong of this
hearsay exception test.
As to the second prong of the hearsay exception test, Little does not
dispute that Newman-Skomski "reasonably relied on the statement[s]" for
treatment purposes."42
42 Williams. 137 Wn. App. at 746.
18 No. 73699-0-1/19
These facts demonstrate that the record supports the trial court's decision
to admit the children's statements to Newman-Skomski. There was no abuse of
discretion in doing so.
Little argues that Newman-Skomski "focus[ed]" on "gathering evidence"
during her examinations and that "treatment of any injuries was a possible
benefit." He also argues that the children "had no incentive to be truthful"
because they did not seek medical treatment.
But as Division Two of this court concluded in State v. Williams, a
declarant's statements are admissible under this exception when the declarant
makes statements for a "medical examination for 'a combination' of purposes—
medical as well as forensic."43 This record demonstrates that the children made
their statements to Newman-Skomski for examinations for medical and forensic
purposes. Thus, the children's statements are admissible under this hearsay
exception.
Little attempts to distinguish Williams from this case, arguing that the
children "were uninterested in cooperating with medical care." But the court in
Williams did not mention the victim's cooperation in its analysis. Moreover, Little
fails to cite authority requiring that a declarant cooperate with medical care in
order for this hearsay exception to apply.44
Lastly, Little argues that Newman-Skomski was not the children's regular
medical provider and would not see the children for follow-up appointments. He
43 137 Wn. App. 736, 746, 154 P.3d 322 (2007).
44 See Darkenwald. 183 Wn.2d at 248; RAP 10.3(a)(6).
19 No. 73699-0-1/20
further argues that the children's statements were inadmissible "[ajbsent this
necessary showing." Little cites ER 803(a)(4) to support this argument. But
there is nothing in that rule that requires either of these qualifications.
PROSECUTORIAL MISCONDUCT
Little argues that the prosecutor committed misconduct, depriving him of
his right to a fair trial. We hold there was no misconduct.
To prevail on a claim of prosecutorial misconduct, the defendant must
establish that the prosecutor's conduct was both improper and prejudicial.45
"In closing argument, a prosecutor is afforded wide latitude to draw and
express reasonable inferences from the evidence."46 We review alleged
prosecutorial misconduct in "the context of the total argument, the issues in the
case, the evidence [addressed in the argument], and the instructions given to the
jury."47
Little argues that the prosecutor committed misconduct during closing
argument for two reasons. Neither reason is persuasive.
Impugning Defense Counsel
Little argues that the prosecutor committed misconduct by impugning
defense counsel during closing argument. We disagree.
45 State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
46 State v. Reed. 168 Wn. App. 553, 577, 278 P.3d 203 (2012).
47 Emery. 174 Wn.2d at 764 n.14.
20 No. 73699-0-1/21
It is improper for a prosecutor to impugn a defense counsel's integrity or
role.48 But even where a prosecutor's comments are improper, the remarks are
not grounds for reversal "'if they were invited or provoked by defense counsel
and are in reply to his or her acts and statements.'"49 The improper remarks
constitute grounds for reversal if they "'are not a pertinent reply or are so
prejudicial that a curative instruction would be ineffective.'"50
For example, in State v. Brown, the prosecutor in rebuttal closing
argument described part of the defense's theory of the case as "'ludicrous.'"51
The supreme court stated: "As an advocate, the prosecuting attorney is entitled
to make a fair response to the arguments of defense counsel."52
The court then concluded that the prosecutor's characterization of the
defense theory as "'ludicrous' was reasonable in light of the evidence."53 Thus,
the court held that this was not misconduct, stating: "The use of the word
'ludicrous' was simply editorial comment by the prosecuting attorney which was a
strong, but fair, response to the argument made by the defense."54
48 State v. Lindsay. 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014).
49 State v. Gauthier. 189 Wn. App. 30, 38, 354 P.3d 900 (2015), review denied. 185 Wn.2d 1010 (2016) (quoting State v. Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).
50 ]d (quoting Russell, 125 Wn.2d at 86).
51 132 Wn.2d 529, 565-66, 940 P.2d 546 (1997).
52 Id at 566.
53 Id
54 Id
21 No. 73699-0-1/22
Here, the prosecutor used the word "cagey" one time in rebuttal closing
argument in response to the defense's argument that the children changed their
stories. The prosecutor argued:
[Prosecutor]: And the same principles about human memory and about feeling comfortable when you're talking to people and the content and the circumstances when you're being asked questions, all attribute to changing memories, little details here and there. That's human nature. The Defense, make no mistake about it, is cagey with the words, but they're trying to essentially assassinate .
[Defense counsel]: Objection, Your Honor. [Prosecutor]: [A.M.'s] character.[55]
The prosecutor's use of the word "cagey" is directed to defense counsel's
argument. A dictionary definition of this word includes the words "crafty" or
"shrewd."56 We view the prosecutor's characterization of the defense argument
as "simply [an] editorial comment" and a "fair response" to the defense counsel's
argument about the children's allegedly changing stories.57 We do not view this
one word in rebuttal as sufficient to constitute misconduct.
Little relies on State v. Thorgerson58 to support his argument. He
specifically argues that the prosecutor's comment in this case "suggests that
defense counsel is attempting to intentionally mislead the jury [and] implies [that]
defense counsel is withholding information or engaging in trickery." Not so.
55 Report of Proceedings (October 22, 2014) at 100 (emphasis added).
56 The American Heritage Dictionary (5th ed. 2016), https://www.ahdictionary.com/word/search.html?q=cagey (last visited January 6, 2017).
57 Brown. 132 Wn.2d at 566.
58 172 Wn.2d 438, 258 P.3d 43 (2011).
22 No. 73699-0-1/23
In Thorgerson, the prosecutor during closing argument accused the
defense of engaging in "'sl[e]ight of hand'" tactics and used disparaging terms
like "'bogus'" and "'desperation'" to describe the defense.59 The prosecutor also
planned the "'sleight of hand'" argument in advance.60
A majority of the supreme court determined that the prosecutor impugned
the defense counsel's integrity.61 The court also determined that the prosecutor
"went beyond the bounds of acceptable behavior in disparaging defense counsel"
because the definition of "sleight of hand" "implies wrongful deception or even
dishonesty in the context of a court proceeding."62 The court also concluded that
the prosecutor's conduct "was ill-intentioned misconduct" because the "sleight of
hand" argument was planned in advance.63 But the court later concluded that the
prosecutor's misconduct did not prejudice the jury.64 Thus, there ultimately was
no prosecutorial misconduct in that case.
This case is unlike Thorgerson. Here, the prosecutor did not make three
separate disparaging references to defense counsel. Rather, there was one
comment that we view as an editorial comment about the defense argument, not
counsel. Further, the prosecutor's reference to the defense argument as "cagey"
59 Id at 450 (alteration in original).
60 Id,
61 ]d at 451-52.
62 id at 452.
63 Id
64 Id.
23 No. 73699-0-1/24
did not disparage defense counsel because the definition of "cagey" does not
imply wrongful deception or dishonesty.65 Finally, we simply disagree with the
argument that the use of the word implies something bad about defense counsel.
It does not.
Because we conclude there was no misconduct, we need not address the
prejudice prong of the prosecutorial misconduct claim.
Commenting on Right not to Testify
Little also argues that the prosecutor committed misconduct during closing
argument by commenting on Little's failure to testify. We disagree.
The Fifth Amendment bars a prosecutor from commenting on a
defendant's failure to testify.66 Washington courts consider two factors when
determining whether a prosecutor impermissibly comments on the defendant's
silence: "(1) 'whether the prosecutor manifestly intended the remarks to be a
comment on' the defendant's exercise of his right not to testify and (2) whether
the jury would 'naturally and necessarily' interpret the statement as a comment
on the defendant's silence."67
In cases where the prosecutor's "statement does not explicitly refer to the
defendant's silence, the court must examine 'the nature of the statement and the
65 See Lindsay, 180 Wn.2d at 433-34.
66 State v. Barry. 183 Wn.2d 297, 306, 352 P.3d 161 (2015).
67 ]d at 307 (internal quotation marks omitted) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)).
24 No. 73699-0-1/25
context in which it was offered ... to determine the presence of error.'"68 A
prosecutor's statement does not naturally and necessarily refer to the
defendant's silence where there is no indication that the jury thought about the
defendant's silence or choice not to testify.69
Here, after reading both closing arguments, we conclude that the
prosecutor's statement did not comment on Little's silence or choice not to testify.
First, defense counsel referred to the children's sexual abuse in a cabin
during a trip with numerous people and stated: "It makes no sense that [Little]
would have sexually molested a child . . . with people moving in and out of the
cabin without any kind of announcement at all and it just showing up." Defense
counsel also referred to the testimony of witnesses present at the cabin and their
memories of the trip.
In rebuttal closing, the prosecutor did not explicitly refer to Little's failure to
testify. In response to defense counsel's argument, the prosecutor stated:
By no means were these family members and friends and such lying about the timing of events in [the cabin]. They simply had no way of remembering whether [A.M.] left that [camp] fire for a short slice of time. We're talking about ten to twenty minutes, folks. The reality is that only the Defendant and [A.M.] knew what happened behind that closed bedroom door.[70]
Defense counsel objected to this argument, and the trial court overruled
the objection.
68 id at 308-09 (alteration in original) (quoting United States v. Elkins. 774 F.2d530, 537(1stCir. 1985)).
69 See id. at 309.
70 Report of Proceedings (October 22, 2014) at 94 (emphasis added).
25 No. 73699-0-1/26
The context of the parties' arguments demonstrates that the prosecutor's
statement would not cause the jury to "'naturally and necessarily' interpret the
statement as a comment on" Little's failure to testify.71 Had the prosecutor
referred only to Little as having knowledge of what happened, there would have
been a problem. But the plain words of the argument also refer to A.M., another
witness to what happened. This does not constitute a comment on Little's failure
to testify.
Little argues that the prosecutor "directly commented" on Little's failure to
testify. The record shows otherwise.
Little also argues that the prosecutor's statement "effectively told the jury
that only Mr. Little and A.M. could say what happened, and Mr. Little failed to
take the stand." Although this is a reasonable interpretation of the prosecutor's
statement, this argument fails to consider the context of the prosecutor's
statement, which we must examine "'to determine the presence of error.'"72 As
explained above, reading both parties' closing arguments demonstrates that the
prosecutor's statement did not comment on Little's silence or choice not to testify.
MOTION FOR NEW TRIAL AND EVIDENTIARY HEARING ON TESTIFYING
Little argues that the trial court erred in denying his motion for a new trial
and an evidentiary hearing to establish that his attorney prevented him from
testifying. We hold that the court did not abuse its discretion in either respect.
71 Barry. 183 Wn.2d at 307 (internal quotation marks omitted) (quoting Crane. 116 Wn.2d at 331).
72 id at 308 (quoting Elkins. 774 F.2d at 537). 26 No. 73699-0-1/27
CrR 7.5 governs motions for new trials. The rule provides that trial courts
may grant a defendant a new trial due to certain "causes" such as jury
misconduct or proceeding irregularities.73
We review for abuse of discretion a trial court's decision to deny a motion
for a new trial.74
The United States Constitution recognizes a criminal defendant's right to
testify on his or her own behalf.75 Washington's Constitution also explicitly
protects a criminal defendant's right to testify.76 This fundamental right cannot be
abrogated by defense counsel or by the court.77 Only the defendant has the
authority to exercise or waive this right, and any such waiver must be made
knowingly, voluntarily, and intelligently.78
Washington affords a defendant an evidentiary hearing upon a sufficient
showing that his or her attorney actually prevented the defendant from taking the
stand.79 A defendant's "[m]ere allegations . .. that his attorney prevented him
from testifying are insufficient to justify reconsideration of the defendant's waiver
73 CrR 7.5(a).
74 State v. Mohamed. 186 Wn.2d 235, 240-41, 375 P.3d 1068 (2016).
75 Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S. Ct. 2704, 97 L Ed. 2d 37 (1987); State v. Robinson. 138 Wn.2d 753, 758, 982 P.2d 590 (1999).
76 Robinson. 138 Wn.2d at 758.
77 id
78 id
79 id at 759.
27 No. 73699-0-1/28
of the right to testify. Defendants must show some 'particularity' to give their
claims sufficient credibility to warrant further investigation."80 Thus, "[t]he
defendant must 'allege specific facts' and must be able to 'demonstrate, from the
record, that those specific factual allegations would be credible.'"81 Once the
defendant meets his burden, "he is entitled to an evidentiary hearing on the issue
of whether he voluntarily waived the right to testify."82
Washington courts must distinguish between situations where the
defendant's attorney actually prevented the defendant from taking the stand from
situations where the attorney merely advised the defendant against testifying as
a matter of trial tactics.83 "[I]t is entirely appropriate for the attorney to advise and
inform the client in making the decision to take the stand."84 But if a defendant
can prove that his or her attorney used coercive tactics to prevent the defendant
from testifying, he or she has "unquestionably proven" that the attorney actually
prevented the defendant from testifying.85 For example, an attorney prevents a
80 Id at 760 (quoting Underwood v. Clark. 939 F.2d 473, 476 (7th Cir. 1991)).
81 Id (internal quotation marks omitted) (quoting Passos-Paternina v. United States. 12 F. Supp. 2d 231, 239 (D.P.R. 1998), affd, 201 F.3d 428 (1st Cir. 1999)).
82 id
83 id at 763.
84 id
85 Id. at 762.
28 No. 73699-0-1/29
defendant from testifying when the attorney threatens to withdraw unless the
defendant agrees not to take the stand.86
To establish that the "attorney actually prevented the defendant from
testifying, the defendant must prove that the attorney refused to allow him to
testify in the face of the defendant's unequivocal demands that he be allowed to
do so."87 In the absence of such demands by the defendant, Washington courts
"will presume that the defendant elected not to take the stand upon the advice of
counsel."88
Here, there is no credible evidence to show that Little's attorney prevented
him from testifying. Thus, an evidentiary hearing was unnecessary. The court
did not abuse its discretion in denying Little's motion on the record before this
court.
After the defense rested, the State asked the court to address Little in a
colloquy regarding his right to testify. The following exchange occurred:
[PROSECUTOR]: So because of what I'm hearing from [defense counsel], I take his word at face value, and where we are right now, I think it's just critical that the [c]ourt makes sure that Mr. Littlefs waiver] is knowingly and voluntarily. [TRIAL COURT]: What I would feel comfortable with is asking his attorney. [Defense counsel], if you would address, generally, whether you believe it's the case that your client understands his applicable constitutional rights? [DEFENSE COUNSEL]: I, in fact, do believe that. I believe that he understands his right to counsel, and this is a decision that—I won't go into the details of it, but he's been apprised as the [c]ourt would
86 id
87 id at 764.
88 Id.
29 No. 73699-0-1/30
imagine competent counsel would do, and I hope I've been competent. [TRIAL COURT]: And do you believe it is clear to your client that he has the absolute right to testify and the absolute right to not testify!?] [DEFENSE COUNSEL]: Yes, Your HonorJ89!
Soon after, the court had the following discussion with Little:
[TRIAL COURT]: First, Mr. Little, do you have any questions of me, any questions of the [c]ourt regarding what your attorney addressed earlier; that is, your right to testify absolutely and your right not to testify? THE DEFENDANT: Not at all, Your Honor. [TRIAL COURT]: All right. Thank youJ90)
After the jury entered its verdict, Little moved for a new trial. Defense
counsel submitted a declaration supporting the motion and explained that he and
the prosecutor "became aware that [Little] had a very strong odor of alcohol
about him." Counsel also described two incidences of Little's inappropriate
behavior that day and explained that the events "raise[d] a serious question as to
whether the defendant was in a position of making a competent decision whether
to testify in his own defense." Counsel later filed a motion to withdraw.
The trial court granted counsel's motion to withdraw, and Little obtained
new counsel.
In March 2015, Little submitted a declaration and described his
consumption of alcohol the night before and the morning of his court appearance.
He declared that he expressed his desire to testify to defense counsel and that
counsel responded: '"I cannot put you on.'" Little also referred to a note he gave
89 Report of Proceedings (October 21, 2014) at 83-84.
90 id at 88.
30 No. 73699-0-1/31
counsel during trial, which stated: "I think it'd be wise for me to get on the stand.
I just wish I could tell the whole story."91
Little further described what counsel had told him during their discussion,
stating:
He told me that there was a possibility that the jury might smell the alcohol or think I was drunk. He further told me that the [c]ourt might hold me in contempt or revoke my bond if it realized that I smelted so strongly of alcohol. [Counsel] never discussed with me the possibility of requesting a recess or continuance so that I could testify at some point in the future.[92]
Lastly, Little explained his reasons for not testifying, stating:
The consideration of getting in[to] trouble with the court or having the jury believe I was intoxicated or hung over were a substantial part of my decision not to object when [counsel] told the [c]ourt that I would not be testifying. Had I known that it would have been possible to testify at some later time when I did not appear hung over or smell of alcohol, I would have demanded that [counsel] pursue that option.[93]
In April 2015, Little moved for an evidentiary hearing to resolve the factual
issues underlying his motion for a new trial—specifically, whether counsel
prevented him from testifying.
In the State's response to Little's motion for an evidentiary hearing, it
attached transcripts of Little's telephone calls from jail and two declarations from
original defense counsel.
91 Clerk's Papers at 307.
92 id at 188.
93 Id.
31 No. 73699-0-1/32
In his declarations, counsel explained his interpretation of his
conversations with Little. Counsel stated: "It was understood that Mr. Little's
decision to testify would be made during the trial after the State finished
presenting its case in chief."94 Additionally, counsel described Little's failure to
appear at two of their three scheduled meetings to prepare his testimony. Little
also failed to call counsel as scheduled and failed to return counsel's calls
regarding the testimony preparation meetings. Counsel believed that Little "was
ill-prepared to testify" and told Little: "I don't see how I can put you on."
Counsel further stated that he advised Little that it was his right and
decision to testify and did not recall Little stating that he wanted to testify.
Counsel "assertively told" Little "that it would be a really, really bad decision if he
decided to testify." Counsel also declared: "I never told Mr. Little that he could
not testify. I never made any promises or threats to Mr. Little in order to
persuade him one way or the other about his right and decision to testify."95
Additionally, counsel acknowledged that he did not discuss with Little "the
possibility of requesting a recess or continuance of the defense case-in-chief so
that he may testify without the risk of the jury smelling alcohol on [him]."96
In one of Little's jail telephone calls, he referred to counsel and stated:
I would be okay with a mistrial and retrial for sure this time knowing that the pros, or the judge, or the jury's gonna most likely convict I will definitely get on the stand. I thought maybe that there would be reasonable doubt in this case and [counsel] advised me not to get
94 Id at 302.
95 Id at 305.
96 Id. at 213.
32 No. 73699-0-1/33
on the stand so [I] didn't. But had I known that there would have been this, if this was gonna be, if. . . I'd [] known this was gonna be the outcome or had even the slightest inclination that this was gonna be the outcome I for sure would have been put on the stand. I would have been like yes I wanna go on the stand you knowJ97'
In another phone call, Little stated:
I told him the whole time ... I wanna go up there and I wanna share my piece. But at the same time its like if I'm gonna be attacked by the prosecutor and it's gonna hurt me I don't wanna do that. He was like oh yeah you're not going up there then.1981
Little also stated:
[H]e's trying to say that I wasn't competent to get on the stand and testify on that day because I was drunk and that's true I guess to a certain extent. But it's, also, because he advised me not to .. . for all the . . . throughout the whole entire course of the trial.. . .[99]
The trial court determined that the record did not establish "as probably
true that Defendant demanded to testify, nor that [counsel] prevented or refused
any such demand."100 It also found that Little's claims and credibility were
"seriously undermined by his post-verdict statements captured in telephone
calls."101 Thus, the trial court denied Little's motions for an evidentiary hearing
and a new trial.
The record on appeal shows that Little's claims were simply not credible in
view of the record before the trial court. Little was present when counsel
97jdat108.
98 id at 332.
99 id at 368.
100 id at 407.
101 Id.
33 No. 73699-0-1/34
represented to the court that Little understood his right to testify and chose not to
exercise it. Shortly after, the trial judge asked Little if he had any questions to
which Little replied in the negative. If he had questioned the representations his
counsel made to the court at that time, he could have raised the issue when
invited to do so by the court. He did not.
Moreover, Little's post verdict statements captured on his phone calls from
jail undermine the argument he now makes on appeal. Accordingly, he has
failed in his burden to show either a right to an evidentiary hearing or the trial
court's abuse of discretion in denying his motion for a new trial.
STATEMENT OF ADDITIONAL GROUNDS
Little raises at least 15 numbered grounds for review in his Statement of
Additional Grounds of over 50 pages. This statement far exceeds the
permissible limits specified in RAP 10.10(b). Accordingly, we limit our review to
the materials that are permitted by this rule, no more.
Little's first, fourth, fifth, eighth, ninth, tenth, twelfth, and thirteenth claims
were already addressed in counsel's briefing on Little's behalf. We do not
address them again here.
Little's second claim is an appeal of a standard range sentence. Appeal of
such sentences is not generally allowed.102 There is nothing here to suggest that
we should depart from that general rule.
102 State v. Osman. 157 Wn.2d 474, 481, 139 P.3d 334 (2006); see also RCW9.94A.585(1).
34 No. 73699-0-1/35
His third claim of error that the trial judge "swamp[ed] a prior sexual abuse
report" is insufficient to merit review. Accordingly, we do not address this any
further.
The sixth and seventh claims, challenging probable cause on the basis of
alleged perjury, lacks sufficient support in this record. Accordingly, we do not
further address these claims. "The appropriate means of raising matters outside
our record is through the filing of a personal restraint petition."103
The eleventh claim also lacks sufficient clarity to warrant review.
Lastly, the fourteenth and fifteenth claims focus on the alleged lack of
sufficient evidence to support the convictions. Applying the standards of State v.
Green104 to this record, we conclude that the jury's verdicts are supported by
substantial evidence in this record.
COSTS
Little argues that appellate costs should not be assessed against him
should he lose. We agree.
RCW 10.73.160(1) gives appellate courts discretion to decline to impose
appellate costs on appeal.105 Under this court's recent opinion in State v.
103 State v. Hart. 188 Wn. App. 453, 466, 353 P.3d 253 (2015).
104 94 Wn.2d 216, 616 P.2d 628 (1980) (plurality opinion).
105 State v. Nolan, 141 Wn.2d 620, 629, 8 P.3d 300 (2000).
35 No. 73699-0-1/36
Sinclair, the issue of appellate costs is to be decided by the panel that renders
the decision.106
Here, shortly after the trial court entered the judgment and sentence, Little
filed a motion and declaration seeking appellate review at public expense and
appointment of an attorney. The motion stated that Little is indigent and referred
to his declaration. Little filed a separate declaration regarding his finances, which
shows that he does not have any income or assets. The trial court granted
Little's motion and appointed an appellate attorney.
Under Sinclair, we presume that indigency continues unless the record
shows otherwise.107 Nothing in this record overcomes this presumption.
Accordingly, an award to the State for appellate costs is inappropriate under
these circumstances.
We affirm the Judgment and Sentence and the Order Re Claim of
Ineffective Assistance of Counsel. We deny any award of costs of appeal to the
State.
6p>7t. J. WE CONCUR:
^•/ 106 See State v. Sinclair, 192 Wn. App. 380, 385, 367 P.3d 612, review denied. 185 Wn.2d 1034 (2016).
107 ]d at 393. 36