State Of Washington v. Bryan Edwards Corbett, Jr. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72453-3-1
Respondent, DIVISION ONE
v.
BRYAN EDWARDS CORBETT, JR., UNPUBLISHED
Appellant. FILED: February 29. 2016
Cox, J. — Bryan Corbett appeals his judgment and sentence based on
convictions of burglary, two counts of felony violation of a court order, and fourth
degree assault. The jury also found by special verdict that certain of these
crimes were aggravated domestic violence offenses. Here, the court properly
gave WPIC 4.01 as the reasonable doubt instruction. The court did not abuse its
discretion in admitting under ER 404(b) evidence of his acts of prior domestic
violence. Corbett fails in his burden to show that the State committed
misconduct requiring reversal. The court commented on the evidence in a jury
instruction, but the record affirmatively shows that this error did not prejudice
Corbett. There was no cumulative error requiring reversal. And finally, the State
properly concedes that this record fails to demonstrate the trial court's reasoning
in imposing a lifetime sentencing condition prohibiting Corbett from contact with
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his son. We affirm the convictions, but strike the sentencing condition imposing
the lifetime sentencing condition regarding contact with Corbett's son. We
remand with instructions.
The State charged Bryan Corbett with several domestic violence crimes.
These charges arose from the same incident on February 2, 2014, Super Bowl
Sunday.
C.H. testified at trial that she was with Corbett in her apartment on that
day. Corbett and C.H. have a son named J.N. After an argument, she took J.N.
and fled to the apartment of her neighbor, Suldan Mohamed. Corbett followed
and forced his way into Mohamed's apartment. According to testimony at trial,
Corbett picked up a knife block on the kitchen counter and threw it at her. The
knife block struck their son, J.N. He lost consciousness.
Mohamed called 911 to obtain medical assistance for J.N. During his call,
Mohamed identified the assailant as "Bryan Nichols," based on what C.H. told
him. Corbett also goes by the name "Bryan Nichols." Medical personnel and
police responded to the scene.
C.H. and J.N. went to the hospital. There, C.H. told a doctor and a social
worker from Child Protective Services (CPS) that Corbett was responsible for her
and J.N.'s injuries. But to protect Corbett, C.H. initially told the investigating
officer that a man named "James Dixon" had assaulted her.
The jury convicted Corbett. The trial court entered its judgment and
sentence on the jury verdicts. The sentence included a lifetime ban on Corbett
having contact with J.N.
No. 72453-3-1/3
Corbett appeals.
REASONABLE DOUBT INSTRUCTION
Corbett argues that the reasonable doubt instruction given in this case,
WPIC 4.01, is unconstitutional. Because controlling case authority directs the
use of this standard instruction, we reject this argument.
As a preliminary matter, the State argues that Corbett cannot raise this
issue for the first time on appeal. But an instruction that misstates the
reasonable doubt standard is a manifest constitutional error that may be raised
for the first time on appeal.1 Thus, we address his argument to the extent
necessary.
Here, the trial court instructed the jury on reasonable doubt, using WPIC
4.01—the standard reasonable doubt instruction. In relevant part, that instruction
states "A reasonable doubt is one for which a reason exists and may arise from
the evidence or lack of evidence."2
Corbett claims this standard instruction is unconstitutional. In substance,
he claims the instruction mandates that a juror must be able to articulate a
reason in order to have reasonable doubt. He further argues this claimed
articulation requirement undermines the presumption of innocence.
The supreme court has ordered trial courts to use WPIC 4.01 in all
criminal cases.3 This court recently noted that directive in rejecting the same
1 See State v. Kalebaugh, 183 Wash. 2d 578, 584-85, 355 P.3d 253 (2015).
2 WPIC 4.01.
3 State v. Bennett, 161 Wash. 2d 303, 318, 165 P.3d 1241 (2007).
3
No. 72453-3-1/4
argument that Corbett makes here.4 We also reject this argument on the same
basis.
ER 404(B)
Corbett argues that the court abused its discretion in admitting evidence of
his prior acts of domestic violence against C.H. We disagree.
In this case, C.H. initially told the police that a man named "James Dixon"
had assaulted her. She later testified that "James Dixon" was a name she "made
up" to protect Corbett.
Under ER 404(b), the State elicited testimony showing that Corbett had
twice assaulted C.H. in 2012. Both times, C.H. had initially lied to "the
authorities," stating "that somebody else had committed the crime." But C.H.
eventually testified, and Corbett was convicted of both assaults.
Here, the judge instructed the jury that it could consider this evidence only
as it related to C.H.'s credibility. This is consistent with the requirements for
admission of such evidence.5
ER 404(b) limits the admission of prior acts. It states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
4 State v. Lizarraga. No. 71532-1-1, 2015 WL 8112963, at *20 (Wash. Ct.
App. Dec. 7, 2015).
5 State v. Maqers, 164 Wash. 2d 174, 186-87, 189 P.3d 126 (2008).
No. 72453-3-1/5
The supreme court has held "that prior acts of domestic violence,
involving the defendant and the crime victim, are admissible in order to
assist the jury in judging the credibility of a recanting victim."6
Ifthe trial court properly interprets ER 404(b), we review for abuse
of discretion its decision to admit or exclude evidence.7 "A trial court
abuses its discretion if a decision is manifestly unreasonable or based on
untenable grounds or untenable reasons."8 A court also abuses its
discretion if it does not follow an evidentiary rule's requirements.9
In this case, C.H. recanted her prior statement that "James Dixon"
had assaulted her and later identified Corbett as the perpetrator. Thus,
the court properly admitted the prior acts of domestic violence, and C.H.'s
prior recantations, under ER 404(b).
Corbett acknowledges that C.H. recanted, and thus evidence of the
prior acts of domestic violence were admissible. But he argues that there
is an additional requirement—"expert testimony explaining the dynamics
of domestic violence requirements."10 This is incorrect.
6 Id at 186.
7 State v. Fisher. 165 Wash. 2d 727, 745, 202 P.3d 937 (2009).
8 Skaait County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp.
Dist. No. 1. 177 Wash. 2d 718, 730, 305 P.3d 1079 (2013).
9 Fisher. 165 Wash. 2d at 745.
10 Brief of Appellant at 20.
No. 72453-3-1/6
A majority of the supreme court has declined to adopt this
additional requirement.11 Corbett fails to cite any authority that requires
expert testimony before admitting prior incidents of domestic violence
under the circumstance of this case. Thus, we reject this argument.
GOVERNMENT MISCONDUCT
Corbett argues that the State committed "egregious misconduct" by
attempting to bribe a material trial witness.12 We conclude that he has failed in
his burden to show that the alleged misconduct requires reversal.
As a preliminary matter, the State argues that Corbett may not raise this
issue for the first time on appeal. We disagree.
The supreme court, with little analysis, has stated that outrageous
government conduct implicates "due process under the Fifth and Fourteenth
Amendments of the federal constitution."13 Thus, we address this issue.
This doctrine "is founded on the principle that the conduct of law
enforcement officers and informants may be 'so outrageous that due process
principles would absolutely bar the government from invoking judicial processes
to obtain a conviction.'"14 To violate due process, the government's conduct
11 See Magers, 164 Wash. 2d at 197-98 (C. Johnson, J. dissenting).
12 Brief of Appellant at 12.
13 State v. Lively. 130Wn.2d 1, 18,921 P.2d 1035(1996).
14 jd, at 19 (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.
Ct. 1637, 36 L. Ed. 2d 366 (1973)).
No. 72453-3-1/7
"must shock the universal sense of fairness."15 Government conduct is
outrageous if it "amount[s] to criminal activity or conduct 'repugnant to a sense of
justice.'"16
Corbett's argument centers on a recorded telephone conversation
between Suldan Mohamed and Detective Adam Thorp of the Domestic Violence
Unit. Detective Thorp was investigating the incident in Mohamed's apartment on
which the charges in this case were based. The incident included the assailant
throwing an empty knife block at C.H., which hit her son, J.N.
Our review of the record reveals that the State questioned Mohamed, who
testified at trial, about this conversation. During cross-examination, Corbett also
questioned him about the conversation:
[Corbett:] Do you remember feeling pressured by Detective Thorp
to participate in the prosecution?
[Mohamed:] Yeah, in a sense. You can be subpoenaed, you can
be—you know, didn't want to incriminate myself.
[Corbett:] Do you remember being told that the name of the person
that Detective Thorp wanted you to help prosecute was Bryan
Nichols or Bryan Corbett? Do you remember him telling you that?
[Mohamed:] They tell me, correct, that his first and last name.
Because the first and last time that I heard his name was the
night—the night that I was in the 911. And that's why I asked her
what's his first and last name.
[Corbett:] And do you remember Detective Thorp offering to buy
you a set of steak knives as a thank you if you were to
agree to help him prosecute Bryan Corbett?
15
Id.
16]g\g<2>at 22 (quoting People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78,
83, 406 N.Y.S.2d 714 (1978)).
7
No. 72453-3-1/8
[Objection overruled]
[Mohamed:] Yeah, he said he offered me, that is correct. The
officer said, We'll buy you, if in the case that you don't want this, we
will buy you a knife set or whatever. I said, I don't want nothing to
do with this stuff, it's okay. Not interested.
[Corbett:] So the conversation you had with Detective Thorp started
out with you saying you don't know how tall or short the man was,
him telling you it was vitally important that you helped him
prosecute Bryan Corbett by name, and offered to give you a gift if
you would do so; is that correct?
[Mohamed:] Offered to replace.
[Corbett:] He told you you could keep the old one when they were
done using it as evidence too, though, right?
[Mohamed:] In a sense, something like that. But what I meant to
say was I didn't want him to buy me anything. But he offering. He
said, We'll buy you, you know, one if you—
[Corbett:] It was very clear—
[Mohamed:]—if you will allow us to keep it, he allow if—We taking
this for evidence, but when we done, we'll buy you, if you want,
another one. That was the offer.[17]
Detective Thorp testified later in the trial. During cross-examination,
Corbett questioned him regarding a portion of his testimony on direct:
[Corbett:] You stated in response to a question from [the State] that
you didn't offer Mr. Mohamed anything to cooperate in the
investigation and prosecution of Mr. Corbett?
[Detective Thorp:] That is correct.
[Corbett:] That's actually not true, though, is it?
[Detective Thorp:] That is true, sir.
[Corbett:] You offered to buy him a set of steak knives that would
be his to keep, didn't you?
17 Report of Proceedings Vol. 4 (July 16, 2014) at 183-84.
8
No. 72453-3-1/9
[Detective Thorp:] Not in exchange for testimony or a statement.
[Corbett:] You didn't explicitly state that it was in exchange for
anything, right?
[Detective Thorp:] That is correct. It was simply a replacement for
what he was—he had lost.
[Corbett:] All right. So let's make sure I understand. You told him
you really needed his help to prosecute Mr. Corbett, it was very
important that he cooperate, right?
[Detective Thorp:] I'm sure at some point I expressed the interest in
getting a statement, yes.
[Corbett:] And then you told him, We'd be happy to buy you a set of
steak knives, which would be yours to keep at the end of the case,
right?
[Detective Thorp:] That is correct, but not in the same conversation.
[Corbett:] I beg your pardon, wasn't it all in the same conversation,
within about a minute?
[Detective Thorp:] I don't believe so, but—
[Corbett:] I'm going to play for you a section of that recorded
testimony.
[Corbett:] Okay.
[Corbett:] And bear with me. It might take a minute to get the exact
spot right.
(Recording transcribed as follows:)
MR. MOHAMED: (Inaudible) Does that make sense?
DETECTIVE THORP: Yeah. And by the way, I need to advise you,
this line is recorded. But you are a huge part of this particular case
as far as bringing justice to the perpetrator and making sure that he
is held responsible as the only witness. Because [C.H.] may not be
very cooperative right now, and so it really relies heavily on your—
on your—on what you saw on your statements and whatnot. In
fact, I've been authorized by the Prosecuting Attorney's Office to
No. 72453-3-1/10
buy you a new knife set, knife block and knife set, and you can
keep your old ones, as well, if that's something you're interested in.
(End of audio recording.)
[Corbett:] So not merely in the same conversation, but almost
literally in the same breath; wouldn't you agree?
[Detective Thorp:] Okay. That sounded pretty close, yes.[18]
At trial, Corbett denied that he was the assailant. Thus, identity was a
primary issue. C.H. had given a false name—"James Dixon"—when questioned
on the day of the incident. And Mohamed had initially indicated that he was
uncertain whether Corbett was the assailant. Thus, Corbett sought to impeach
the testimony of both Mohamed and Detective Thorp by the examinations quoted
earlier in this opinion. Corbett continued this strategy at closing argument,
arguing, in part, as follows:
[The prosecutor] states that you know [C.H.] is telling the
truth now because of what Mr. Mohamed said. I'd like to talk to you
about Mr. Mohamed. I'm sure it was an easy argument for [the
prosecutor] to make that it's ridiculous that Mr. Mohamed lied
because he told them for a set of steak knives. That is ridiculous.
No one is saying that that's what happened.
What did happen is that Mr. Mohamed had a very startling
event occur to him. Shortly after that, you heard his own voice
telling the detective, I don't know, man, it was a black male. I
couldn't say how short or tall he was. Looking at a picture of him
probably wouldn't help me recognize him. I just don't know.
Then what happened? Detective Thorp called him on the
phone, and you heard Detective Thorp's voice on that tape as well.
Detective Thorp told Mr. Mohamed that it was critically important
that Mr. Mohamed save the day. That Mr. Mohamed be the one to
make sure that Bryan got convicted. He didn't ask him anything, he
told him, This is the man who did it, you need to make sure that he
gets convicted, because no one else can save the day.
18 Id, at 207-09.
10
No. 72453-3-1/11
He pulled out all the stops. Honestly, have any of you ever
heard of a detective offering to buy a set of steak knives? It's
absurd, to borrow [the prosecutor's phrase.
That's not why Mr. Mohamed told you what he told you.
There are more subtle reasons for what he did. How do we know
he couldn't properly identify Bryan? Because he told you so in his
own voice on the tape. I wouldn't be able to recognize him, I don't
know how tall he was, it happened so fast.
Then, under pressure, and being given an opportunity to feel
important and to feel as though he had helped and as though he
had saved the day, then he spent every day for the last six months
walking in and out of his building, multiple times, seeing a picture of
the man that he had been told was guilty by the detective. Of
course he identified Mr. Corbett. Of course he did J19]
Based on this testimony and closing argument, Corbett argues that the
State attempted to bribe Mohamed by offering to replace the knife block and buy
a knife set for him in exchange for favorable testimony at trial. He further claims
this constitutes "egregious conduct," requiring reversal. We cannot agree.
First, we are struck by the fact that Corbett's trial counsel made what
appears to this court to have been a reasonable tactical decision to elect to put
these facts before a jury to impeach two important witnesses on the issue of
identity. Counsel elected not to seek any remedy from the trial court, either by a
mistrial motion or a request to strike the testimony of Mohamed. Thus, there is
no ruling by the trial court for us to review.
Second, Corbett concedes on appeal that Mohamed was a reluctant
witness at trial. The record bears this out. He testified at trial that he was there
19 Report of Proceedings Vol. 6 (July 21, 2014) at 412-13.
11
No. 72453-3-1/12
because the State subpoenaed him and told him he would go to jail if he did not
testify. Mohamed also declined the detective's offer.
The jury heard this testimony and was in the best position to judge his
credibility. Likewise, the jury was in the best position to judge the credibility of
Detective Thorp on whether he was offering to bribe Mohamed or offering to
replace property that had been taken as evidence. We do not review credibility
determinations.20
We would be far more concerned about Mohamed's testimony if the jury
had not been apprised of his recorded telephone conversation with Detective
Thorp. But we simply cannot find fault with trial counsel's tactical choice to put
these facts before the jury in the hope that doing so would successfully impeach
Mohamed's testimony on the primary issue of identity.
Third, Corbett relies on cases that are inapposite to support his argument.
Corbett uses In re Disciplinary Proceedings Against Bonet21 to argue that a
prosecutor commits professional misconduct by offering a benefit "to a witness
with intent to influence that person's testimony."22 While we agree with that
proposition, the record here does not show that the prosecutor attempted to offer
a benefit to Mohamed to influence his testimony.
20 State v. Robinson, 189 Wash. App. 877, 896, 359 P.3d 874 (2015).
21 144 Wash. 2d 502, 29 P.3d 1242 (2001).
22 Brief of Appellant at 15.
12
No. 72453-3-1/13
Corbett relies on Detective Thorp's statement to Mohamed that he "[had]
been authorized by the Prosecuting Attorney's Office to buy [Mohamed] a new
knife set."23 But the fact that the prosecutor's office authorized buying a new
knife set does not by itself show intent to influence Mohamed's testimony. In
Bonet, the prosecutor dropped a pending charge against a witness as part of an
agreement for that witness not to testify in a trial.24 Thus, the record in this case
does not resemble the record in Bonet.
The other cases on which Corbett relies are also distinguishable from the
present case. State v. Cory25 and State v. Pefia Fuentes26 involve
eavesdropping on privileged conversations between clients and defense
counsel—"shocking and unpardonable" conduct.27 Similarly, in State v. Monday,
the prosecutor "s[ought] to achieve a conviction by resorting to racist
arguments."28 Comparing these cases to the present case, the alleged
misconduct here fails to "shock the universal sense of fairness."29 Thus, Corbett
fails to show that due process requires reversing his convictions.
23 Report of Proceedings Vol. 4 (July 16, 2014) at 209.
24 Bonet. 144 Wash. 2d at 514-15.
25 62 Wash. 2d 371, 372, 382 P.2d 1019(1963).
26 179 Wn.2d. 808, 811, 318 P.3d 257 (2014).
27 Cory. 62 Wash. 2d at 378.
28 171 Wash. 2d 667, 680, 257 P.3d 551 (2011).
29 Lively, 130 Wash. 2d at 19.
13
No. 72453-3-1/14
In sum, we conclude that Corbett fails in his burden to show that the State
engaged in "criminal activity or conduct 'repugnant to a sense of justice'" that
requires reversal.30
COMMENT ON THE EVIDENCE
Corbett claims that the court gave an improper jury instruction, which
constituted a comment on the evidence. We agree that the jury instruction did
comment on the evidence. But the record shows that the comment did not
prejudice Corbett.
Corbett received an exceptional sentence based on two sentence
enhancements. One enhancement was that Corbett's crimes were part of an
ongoing pattern of abuse for a prolonged period of time. "[W]hether a particular
pattern of abuse occurred over a 'prolonged period of time'" is a question for the
jury.31
Washington's constitution prohibits judges from commenting on the
evidence.32 In State v. Brush, the supreme court held that WPIC 300.17, a
pattern jury instruction defining "'a prolonged period of time'" as "'more than a few
weeks,'" was an impermissible comment on the evidence.33
30 JdL at 22 (quoting Isaacson. 378 N.E.2d at 83).
31 State v. Brush. 183 Wash. 2d 550, 558, 353 P.3d 213 (2015).
32 CONST, art. IV, § 16.
33 183 Wash. 2d 550, 558-59, 353 P.3d 213 (2015).
14
No. 72453-3-1/15
Here, the trial court provided the jury the same pattern jury instruction
defining a prolonged period of time that was the subject of Brush. The State
properly concedes that, under Brush, this instruction constitutes an improper
comment on the evidence.
A comment on the evidence does not automatically require reversal.34
Rather, courts apply a two-step analysis to determine whether the error requires
reversal: "Judicial comments are presumed to be prejudicial, and the burden is
on the State to show that the defendant was not prejudiced, unless the record
affirmatively shows that no prejudice could have resulted."35
Thus, the question is whether the State can meet its high burden to show
that giving this instruction in this case did not prejudice Corbett.
In Brush, the court determined that the State failed to show that the
comment on the evidence was not prejudicial.36 In that case, the State presented
evidence showing that the "abuse occurred during a two-month period."37 Thus,
the State could not show that the jury instruction, which stated that a prolonged
period of time was more than a few weeks, was not prejudicial.38
34 State v. Lew. 156 Wash. 2d 709, 725, 132 P.3d 1076 (2006).
35 id, at 723.
36 183 Wash. 2d at 559-60.
37 \± at 555.
38 id, at 559-60.
15
No. 72453-3-1/16
In contrast, in State v. Levy, the supreme court held that a comment on
the evidence was not prejudicial.39 In that case, the court instructed the jury that
the apartment in question constituted a "building" for the purposes of the burglary
statute.40 Although this was improper, Levy had never challenged that the
apartment was a building.41 Under the facts of that case, the court held "that the
jury could not conclude that [the] apartment was anything other than a building."42
Here, unlike in Brush, the uncontested evidence showed that the domestic
abuse had occurred for a period far longer than a few weeks. The admitted
evidence showed that Corbett had been convicted of over 20 domestic violence
crimes from 2003 to 2014, the time of trial.
This case is like Levy. In Levy, the defendant did not challenge that the
apartment was a building.43 Similarly, here Corbett did not challenge that the
period from 2003 to 2014 was a prolonged period of time. If the jury believed the
evidence on the prior domestic abuse, it could not have failed to find that the
domestic abuse occurred over a prolonged period of time.
Accordingly, the State has met its burden to show that the comment on
the evidence in this case was not prejudicial. There is no reversible error.
39 156 Wash. 2d 709, 726-27, 132 P.3d 1076 (2006).
40 id, at 716, 721.
41 id, at 726.
42 id,
43 id,
16
No. 72453-3-1/17
Corbett argues that this case resembles State v. Becker.44 We disagree.
In that case, the trial court improperly commented on the evidence by
instructing the jury that an education program was a school for the purposes of a
school-zone enhancement.45 The supreme court determined that that this
comment on the evidence was prejudicial.46
But in Becker, whether the education program was a school was a
contested issue. The "Defendants presented considerable evidence at trial that
[the education program] d[id] not have many of the attributes of a traditional
school otherwise required by law."47 And the defendants' theory of the case was
that the education program was not a school under the statute.48 Thus,
"Although the major issue at trial was whether [the education program] itself was
a school within the meaning of the statute RCW 69.50.435, the trial court's
special verdict essentially withheld that determination from the jury."49
Accordingly, Becker is distinguishable. Here, Corbett did not challenge
the length of the alleged abuse. And whether 10 years is a prolonged period of
time was not an issue in this case.
44132 Wash. 2d 54, 935 P.2d 1321 (1997).
45 id, at 65.
46 id,
47 id, at 58.
48 id, at 59.
49 id, at 63.
17
No. 72453-3-1/18
PROSECUTORIAL MISCONDUCT
Corbett next argues that the prosecutor committed misconduct during
closing argument. He fails in his burden to show either misconduct or prejudice.
To prevail on a claim of prosecutorial misconduct, the defendant must
establish that the prosecutor's conduct was both improper and prejudicial.50
If a defendant fails to object at trial, we grant relief only if the remark was "so
flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice."51 "Under this heightened standard, the defendant must show that (1)
'no curative instruction would have obviated any prejudicial effect on the jury' and
(2) the misconduct resulted in prejudice that 'had a substantial likelihood of
affecting the jury verdict.'"52 Additionally, when the defendant fails to object, it
"'strongly suggests to a court that the argument or event in question did not
appear critically prejudicial to an appellant in the context of the trial.'"53
"In closing argument, a prosecutor is afforded wide latitude to draw and
express reasonable inferences from the evidence."54 We review alleged
prosecutorial misconduct in "the context of the total argument, the issues in the
50 State v. Emery, 174 Wash. 2d 741, 756, 278 P.3d 653 (2012).
51 id, at 760-61.
52 id, at 761 (quoting State v. Thorqerson, 172 Wash. 2d 438, 455, 258 P.3d
43(2011)).
53 State v. McKenzie. 157 Wash. 2d 44, 53 n.2, 134 P.3d 221 (2006) (quoting
State v. Swan, 114 Wash. 2d 613, 661, 790 P.2d 610 (1990)).
54 State v. Reed, 168 Wash. App. 553, 577, 278 P.3d 203 (2012).
18
No. 72453-3-1/19
case, the evidence [addressed in the argument], and the instructions given to the
jury."55
Corbett argues that the prosecutor committed misconduct during closing
argument for two reasons. Neither argument is persuasive.
Impugning Defense Counsel
Corbett first argues that the prosecutor impugned defense counsel during
closing argument by characterizing the defense's arguments as "absurd."
Prosecutors may argue that "the evidence does not support the
[defendant's] theory of the case."56 But they "must not impugn the role or
integrity of defense counsel."57
A prosecutor's disparaging remarks about the defense's arguments do not
necessarily disparage defense counsel—"isolated remarks calling defense
arguments 'bogus' and 'desperate,' while strong and perhaps close to improper,
do not directly impugn the role or integrity of counsel, and such isolated
comments are unlikely to amount to prosecutorial misconduct."58
For example, in State v. Brown, the prosecutor described part of the
defense's theory of the case as "'ludicrous.'"59 The supreme court held that this
was not misconduct, stating "[t]he use of the word 'ludicrous' was simply editorial
55 Emery, 174 Wash. 2d at 764 n.14.
56 Thorgerson. 172 Wash. 2d at 465.
57 id,
58 id, at 466.
59 132 Wash. 2d 529, 565-66, 940 P.2d 546 (1997).
19
No. 72453-3-1/20
comment by the prosecuting attorney which was a strong, but fair, response to
the argument made by the defense."60
In contrast, in State v. Thorgerson, "the prosecutor impugned defense
counsel's integrity, particularly in referring to his presentation of his case as
'bogus' and involving 'sleight of hand.'"61 "In particular, 'sleight of hand' implies
wrongful deception or even dishonesty in the context of a court proceeding."62
Similarly, in State v. Lindsay, the prosecutor impugned defense counsel by
stating that counsel had "pitched ... a crock" to the jury.63 This impugned
defense counsel because that term "implies deception and dishonesty" and is "a
shortening of an explicitly vulgar phrase."64
Likewise, in State v. Warren, the prosecutor impugned defense counsel.65
In that case, the prosecutor "described defense counsel's argument as a 'classic
example of taking these facts and completely twisting them to their own benefit,
and hoping that you are not smart enough to figure out what in fact they are
60 id, at 566.
61 172 Wash. 2d 438, 451-52, 258 P.3d 43 (2011).
62 id, at 452 (quoting Webster's Third New International Dictionary
2141 (2003)).
63 180 Wash. 2d 423, 433, 326 P.3d 125 (2014).
64 id, at 433-34.
65 165 Wash. 2d 17, 29-30, 195 P.3d 940 (2008).
20
No. 72453-3-1/21
doing.'"66 But even in that case, these comments were "not so flagrant and ill
intentioned that no instruction could have cured them."67
Here, the prosecutor used a variation of the phrase "quite frankly absurd"
three times in closing argument. He used this phrase twice to characterize the
argument that C.H. would use the assault on her child as an opportunity to frame
Corbett. The third time he used it to characterize the argument that Mohamed
identified Corbett as the assailant to receive a free set of knives.
Corbett did not object to any of these characterizations, suggesting that
trial counsel did not consider them objectionable in the context of the trial.
Instead, Corbett chose to use closing argument to respond to the prosecutor's
comments. Corbett acknowledged that the idea that "Mr. Mohamed lied ... for
a set of steak knives" was "ridiculous." Corbett went on to distinguish his
argument from the prosecutor's characterization. He also responded to the
prosecutor's other uses of the word "absurd."
Here, the prosecutor did not directly impugn defense counsel. Thus, his
comments resemble those in Brown, not those in Lindsay, Thorgerson, or
Warren. In the context of this case, Corbett fails to show that the prosecutor
committed misconduct during closing argument. Moreover, he fails to showthat
a curative instruction would not have cured the alleged misconduct.
66 id, at 29.
67 Id. at 30.
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No. 72453-3-1/22
Corbett argues that using the word "absurd" is analogous to using the
terms "bogus" or "a crock." But those terms, unlike "absurd," imply falsehood or
deception.68 Rather, using "absurd" is analogous to using "ludicrous," "which was
a strong, but fair, response to the argument made by the defense."69
"We Know"
Corbett also argues that the prosecutor committed misconduct by
repeatedly using the phrase "we know" during closing argument. We disagree.
In certain circumstances, using the phrase "we know" may constitute
misconduct.70 But a prosecutor does not commit misconduct by using this term
only to marshal the evidence in the case.71
Here, the prosecutor used the phrase "we know" several times during
closing argument. Corbett did not object. Accordingly, trial counsel did not
believe that using these words was objectionable in the context of the case. And
Corbett failed to request a curative instruction.
A fair review of this record shows that the prosecutor used this phrase
only to marshal the evidence. Thus, Corbett cannot show that using "we know"
was misconduct in this case.
68 Thorgerson. 172 Wash. 2d at 451-52; Lindsay. 180 Wash. 2d at 433.
69 Brown, 132 Wash. 2d at 566.
70 State v. Robinson. 189 Wash. App. 877, 894-95, 359 P.3d 874 (2015).
71 Id, at 895.
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No. 72453-3-1/23
CUMULATIVE ERROR
Corbett also argues that cumulative error requires reversal. We disagree.
Where several errors standing alone do not warrant reversal, the
cumulative error doctrine requires reversal when the combined effects of the
errors denied the defendant a fair trial.72
Here, for the reasons discussed earlier, the court's comment on the
evidence was the only error at trial. And as described earlier, the record shows
that this error did not prejudice Corbett.
NO-CONTACT ORDER
Corbett argues that the court improperly prohibited him from contacting his
son for life as a sentencing condition. We accept the State's concession of legal
error, strike this condition, and remand for resentencing.
"[The] defendant's fundamental rights limit the sentencing court's ability to
impose sentencing conditions."73 Parents have a fundamental right in the care of
their children.74
If a sentencing condition interferes with a fundamental right, the condition
must be "reasonably necessary to accomplish the essential needs of the State
72 State v. Davis. 175 Wash. 2d 287, 345, 290 P.3d 43 (2012).
73 In re Rainev. 168 Wash. 2d 367, 377, 229 P.3d 686 (2010).
74 Warren, 165 Wash. 2d at 34.
23
No. 72453-3-1/24
and public order."75 "[T]he interplay of sentencing conditions and fundamental
rights is delicate and fact-specific."76
A court may not impose a no-contact order between a parent and child
without "addressing] the parameters of the no-contact order under the
"'reasonably necessary' standard."77 If a trial court fails to address the proper
standard, this court strikes the no-contact order and remands for resentencing.78
Here, the trial court imposed a sentencing condition that prohibited Corbett
from contacting his son for the duration of Corbett's lifetime. The State properly
concedes that the court failed to address the "reasonably necessary" standard.
Thus, we strike this condition and remand for reconsideration and resentencing.
We affirm Corbett's conviction, strike the sentencing condition imposing a
no-contact order for his lifetime, and remand for reconsideration and
resentencing.
^er"JT
WE CONCUR:
Tf^oUovi f ^ w^'"f^
75 id, at 32.
76 Rainev. 168 Wash. 2d at 377.
77 id, at 381-82.
78 Id.
24