State Of Washington v. Robert J. Hill ( 2014 )

(- ~ r. "* r- A r-'
^ 151 Wash. 2d 265, 272, 87 P.3d 1169 (2004).
No. 71645-0-1/4
On May 22, 2012, the court continued the case at Hill's request (continuing trial
date to July 12, 2012, expiration date of August 22, 2012).
On July 12, 2012, the trial began.
Hill only objected to the State's April 16, 2012 motion for continuance. Hill's only
asserted basis for his objection was that he wanted to go to trial. His attorney's
argument, in its entirety, was:
Your Honor, we're opposed to any continuance of this matter. It
seems to us that these scheduling issues were probably-or certainly
could have been known when the trial was last set and could have been
taken into consideration and a trial set where everybody could be
available if it goes, and Mr. Hill is opposing any continuance and prefers to
go to trial.!4'
Hill did not contest the State's proffered reasons for the continuance, but argued that
these were "scheduling issues" that should have been dealt with at the prior hearing.5
The trial court explained the reasons for the motion to continue as:
One of the assault victims is out of the country with the military, and two
law enforcement officers are not available. It is proposed to continue this,
at this time, from 04/16/12 to 05/22/12. The case is 154 days old, and
there have been four prior continuances.'61
The trial court granted the motion, stating that "the court finds good cause under State
v. Campbell to continue this matter, so I've signed the order of continuance."7
For the first time on appeal, Hill asserts that the charges should have been
dismissed based on a violation of the speedy trial rule. This court will not consider an
4 Report of Proceedings (RP) (Apr. 16, 2012) at 9.
5]d\
6 id, at 8.
7 Id at 9 (citing State v. Campbell, 103 Wash. 2d 1, 691 P.2d 929 (1984)).
No. 71645-0-1/5
issue raised for the first time on appeal unless it involves a manifest error affecting a
constitutional right.8 While there is a constitutional right to a speedy trial, the CrR 3.3
right to trial within 60 days is not constitutional in nature.9
Additionally, Hill did not file a motion to dismiss the charges, he did not argue that
the proposed trial date was outside the CrR 3.3 speedy trial limits, and the parties'
attorneys selected the date for the new trial as their schedules allowed. Under CrR 3.3,
a timely objection must be made to a trial date set outside of the CrR 3.3 expiration date
so that the trial court has the opportunity to fix the error and comply with the CrR 3.3
requirements.10 Because no timely motion was presented to the trial court and the
alleged 60-day speedy trial violation is not a constitutional issue, we decline to reach the
speedy trial argument.
Hill also argues for the first time on appeal that the trial court erroneously relied
on State v. Campbell.11 In that case, the defendant requested a continuance based on
concerns that counsel was not prepared for trial.12 Although the facts of Campbell are
distinguishable, Campbell holds that the trial court's ruling on a motion for continuance
"will not be disturbed absent a showing of manifest abuse of discretion," and that the
trial court may properly grant a continuance over defense objection where the ruling is
8 RAP 2.5(a); State v. Brewer, 148 Wash. App. 666, 673, 205 P.3d 900 (2009).
9 State v. Torres, 111 Wash. App. 323, 330, 44 P.3d 903 (2002).
10 State v. Chavez-Romero, 170 Wn. App, 568, 581, 285 P.3d 195(2012).
11 103 Wash. 2d 1, 691 P.2d 929 (1984).
12 Id. at 14.
No. 71645-0-1/6
based on valid reasons, including a concern to ensure a fair trial.13 The unavailability of
a key witness is recognized as a valid reason for a court to grant a motion for
continuance.14 Hill fails to demonstrate that the trial court abused its discretion in
granting the motion for a continuance under these circumstances.
Hill's speedy trial argument fails, both for lack of an adequate objection in the trial
court and because the trial court did not abuse its discretion in granting the State's
April 16, 2012 motion for continuance.
Prosecutorial Misconduct
Hill argues that prosecutorial misconduct requires reversal of his convictions. We
disagree.
Although a prosecutor has wide latitude to argue reasonable inferences from the
evidence, he or she must seek convictions based only on probative evidence and sound
reason.15 "The prosecutor should not use arguments calculated to inflame the passions
or prejudices of the jury.'"16
In order to prevail on a claim of prosecutorial misconduct, a defendant is required
to show that the prosecutor's conduct was both improper and prejudicial.17 The
prejudice prong requires that the defendant show a substantial likelihood that the
13 Id, at 14-15.
14 State v. Iniguez. 167 Wash. 2d 273, 279, 217 P.3d 768 (2009) (State's witness
left the country and was unavailable); State v. Day, 51 Wash. App. 544, 549, 754 P.2d
1021 (1988).
15 In re Glasmann, 175 Wash. 2d 696, 704, 286 P.3d 673 (2012).
16 jd. (quoting ABA, Standards for Criminal Justice std. 3-5.8(c) (2d ed. 1980)).
17 Id.
6
No. 71645-0-1/7
misconduct affected the jury verdict.18 We consider the prosecutor's alleged improper
conduct in the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the jury instructions.19
Hill claims the prosecutor misstated and trivialized the beyond a reasonable
doubt standard of proof. We disagree that there was misconduct.
"Due process requires the State to prove, beyond a reasonable doubt, every
element necessary to constitute the crime with which the defendant is charged."20
Misstating or trivializing the State's burden to prove the defendant's guilt beyond a
reasonable doubt is misconduct.21
Here, the prosecutor paraphrased the jury instruction describing reasonable
doubt:
If I were to take you from the building and drive you around in the back
seat of a limousine with a blindfold on for 40 minutes—you can go 40
minutes this way, that way, or you can go around in a big circle; you don't
know where you're going. And I bring you up to a building that has ten
flights of stairs, and I put you in a room, and I take your blindfold off, and
you see three windows and a chair in the middle, and I have you sit in the
middle, and then I say, let's do a little experiment here; go look out that
first window and see what you see, and you do; you go out, and you look
out the first window, and you see a mountain, and then I tell you -- you
know, I say, can you tell me beyond a reasonable doubt where you are?
You know you're in Washington because you didn't go that far in the car.
You went 40 minutes; but you say to me, I can still be in Tacoma because
I can see that beautiful mountain from right out there on the highway, and I
show you a body of water. I ask you to look out the next window, and you
do; and of course, you see this large body of water and you say, wait a
minute, you know. I say, can you tell me beyond a reasonable doubt
18|o\
19 State v. Anderson, 153 Wash. App. 417, 430, 220 P.3d 1273 (2009).
20 Glasmann, 175 Wash. 2d at 713.
21 Id.
No. 71645-0-1/8
where you are? And you say, of course not. I can see the water from
Tacoma. I can see it from Seattle. I don't know where I am beyond a
reasonable doubt. But then I say, look out the third window, and you do,
and you see this thing that you recognize right there, and it's the Space
Needle, and it's as big as day, and you see it. You know beyond a
reasonable doubt you're in Seattle, and I don't have to show you the EMP.
I don't have to show you the Seattle Art Museum. I don't have to show
you-l don't have to show you a hundred things. I don't have to show you
a thousand things. I've showed you three things, and you were convinced
beyond a reasonable doubt; so the argument where there's evidence or
lack thereof, there's not a lack of evidence here, folks. There's enough
evidence for you to find the defendant guilty beyond a reasonable
doubt.'22!
In State v. Lindsay, the Supreme Court recently examined whether a
prosecutor's use of a similar analogy amounted to a misstatement of the burden of
proof. It concluded that analogies where the prosecutor quantifies the amount of the
puzzle that may be complete in order to know beyond a reasonable doubt what the
puzzle is are improper.23 But analogies where the prosecutor gives only a general
reference to being able to discern the subject of a puzzle with some pieces missing
were not improper.24
Similar to the argument under consideration in Lindsay, here, the process of
elimination analogy that the prosecutor used to illustrate reasonable doubt was a
general reference and did not improperly quantify the burden of proof. And the
22 RP (July 19, 2012) at 235-36.
23 No. 88437-4, 2014 WL 1848454, at *6-7 (Wash. May 8, 2014) (quoting State v.
Johnson, 158 Wash. App. 677, 682, 243 P.3d 936 (2010) (statement that "even being able
to see only half, you can be assured beyond a reasonable doubt that this is going to be
a picture of Tacoma.")).
24 Id, (quoting State v. Curtiss, 161 Wash. App. 673, 700, 250 P.3d 496 (2011)
(statement that "There will come a time when you're putting that puzzle together, and
even with pieces missing, you'll be able to say, with some certainty, beyond a
reasonable doubt what that puzzle is: The Tacoma Dome.")).
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No. 71645-0-1/9
prosecutor concluded his challenged remark by expressly referring to the correct burden
of proof: "[Tjhere's not a lack of evidence here, folks. There's enough evidence for you
to find the defendant guilty beyond a reasonable doubt."25
Hill fails to demonstrate that the prosecutor's closing argument was misconduct.
Statement of Additional Grounds for Review
Hill argues in his statement of additional grounds for review that the trial court
erred by not recusing after Hill filed an affidavit of prejudice. He also contends that the
assault convictions were improper because he lacked the "intent to make contact" with
the victims and the victims consented to being touched.26 Neither argument has merit.
Hill's affidavit of prejudice was not timely filed. Under RCW 4.12.050, an affidavit
is timely if filed before a discretionary ruling is made. The trial court made numerous
discretionary rulings prior to Hill filing the affidavit on August 12, 2012, including rulings
on several motions for continuance—which are recognized as discretionary rulings.27
The trial court did not err by refusing to recuse.
Hill's arguments concerning his intent and the victims' alleged consent are
conclusory factual arguments concerning issues the jury necessarily resolved against
Hill. The record provides ample evidence to allow the jury to find all the elements of the
assault charges were proved beyond a reasonable doubt. This court defers to the trier
25 RP (July 19, 2012) at 236.
26 Statement of Additional Grounds at 1.
27 State v. Dennison, 115 Wash. 2d 609, 620, 801 P.2d 193 (1990).
No. 71645-0-1/10
of fact to resolve conflicting testimony, evaluate the credibility of witnesses, and
generally weigh the persuasiveness of the evidence.28
Affirmed.
WE CONCUR:
cWJCQ,
28 State v. Lubers, 81 Wash. App. 614, 619, 915 P.2d 1157 (1996).
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