State Of Washington, Respondent/cross-appellant v. Daryl C. Rogers, Ii, Appellant/cross-respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 81396-0-I
)
Respondent, )
)
v. )
)
DARYL ROGERS, a/k/a ) UNPUBLISHED OPINION
DARYL CRAIG ROGERS, )
)
Appellant. )
)
VERELLEN, J. — Daryl Rogers contends multiple errors prevented him from
enjoying a fair trial. Because the record does not support his contentions, we
affirm Rogers’ conviction.
The court did not abuse its discretion by denying Rogers’ motion for mistrial
because the improper testimony mentioning his past juvenile detention was
fleeting and immediately dismissed as “irrelevant” by the court’s instruction to the
jury.
The court did not abuse its discretion by admitting expert opinion testimony
because both experts opined within their areas of expertise on relevant matters
without invading the jury’s role in determining credibility.
No. 81396-0-I/2
The court did not abuse its discretion by declining to strike a juror sua
sponte because the whole of the circumstances did not show he had an actual
bias that would prejudice Rogers.
The prosecutor properly stated the State’s burden of proof and merely
made arguments based on the evidence presented at trial.
However, a limited remand is necessary to strike a condition of community
custody.
Therefore, we affirm Rogers’ conviction and remand for proceedings
consistent with this opinion.
FACTS
When J.O. was a young girl, her family became close with Daryl Rogers
and his family and even had Thanksgiving together one year. J.O.’s mother and
stepfather hired him to babysit several times when they went out. J.O.’s mother
remained in contact with Rogers even after fleeing to Alaska with her children to
escape her abusive husband. After her husband learned her whereabouts and
began sending people to her door, J.O.’s mother and her children returned to
Washington and moved into Rogers’ house. They lived in his house for two or
three months before moving out due to a dispute about rent.
Years later, when J.O was 16, she revealed that Rogers had raped and
molested her. J.O. resisted going to the police, but, two weeks later, her mother
convinced her. The State charged Rogers with three counts of first degree rape of
a child and three counts of first degree child molestation. During trial, J.O.
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testified, as did two medical providers who had treated her, a mental health
counselor and a pediatrician. The providers testified about their observations and
provided general background information within their fields of expertise. Rogers
testified in his own defense and called several additional witnesses. The jury
convicted him on three counts of first degree rape of a child, first degree child
molestation, and was unable to reach a verdict on the remaining charges.
Rogers appeals.
ANALYSIS
I. Motion for Mistrial
Rogers argues the court abused its discretion when it denied his motion for
a mistrial after a witness testified he had been in juvenile detention. We review a
court’s decision to deny a motion for mistrial for an abuse of discretion.1
A serious trial irregularity, such as a witness’s violation of a pretrial ruling
excluding evidence, can prejudice a defendant.2 When a defendant moves for a
mistrial due to a serious irregularity, the court must determine its prejudicial effect
by examining “‘(1) its seriousness; (2) whether it involved cumulative evidence;
and (3) whether the trial court properly instructed the jury to disregard it.’”3 A
1 State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010).
2 Id.3 Id. (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)).
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mistrial is appropriate when the irregularity, weighed against the entire record,
prevented the defendant from having a fair trial.4
Here, the court granted an unopposed defense motion to exclude “any prior
convictions by the defendant.”5 When J.O.’s mother testified, the prosecutor
asked how her family first met and got to know Rogers. She responded:
His stepfather was the maintenance man at the Fisher Mill
Apartments, and he knew that we were new here, so we became
friends with him. And then his mother used to come to the
apartments in the community room, so we met her as well. They
invited us to church. He was in juvenile detention at the time of us
meeting his mom and his sister and brother. Then when he got out
of juvenile detention --[6]
Defense counsel objected, and the court stopped her testimony. Outside the jury’s
presence, the parties argued whether mistrial was appropriate. When the jury
returned, the court instructed it to disregard the testimony:
Before we proceed, I’m going to give you an instruction regarding a
remark the witness made and that wasn’t in response to a question.
It was some reference made by the witness to the possibility [the]
defendant may have been in juvenile detention at some point. That
was inappropriate. That has nothing to do with this case. It’s
irrelevant to this case. I’m instructing you at this time to disregard
that remark and not to consider it or discuss it during your
deliberations.[7]
The evidence was not raised again.
4 Id. (quoting State v. Thompson, 90 Wn. App. 41, 47, 950 P.2d 977(1998)).
5 Report of Proceedings (RP) (Oct. 29, 2018) at 53.
6 RP (Oct. 30, 2018) at 317-18.
7 Id. at 321-22.
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Rogers agrees the evidence was not cumulative and that the court gave an
instruction to disregard. He argues the court’s instruction “only served to
emphasize Rogers’ juvenile criminal history” and “was insufficient to ensure a fair
trial because it emphasized the inadmissible and prejudicial evidence . . . by
repeating it.”8 But Rogers fails to explain how the jury was to identify and
disregard the “inappropriate” and “irrelevant” evidence without the court referring
to it. The majority of the witness’s response was appropriate and relevant, so the
court’s reference to “juvenile detention” was necessary to provide a clear
instruction.
Within the context of the multiday trial, the witness’s fleeting comment did
not prevent Rogers from having a fair trial. The court gave an unequivocal and
immediate instruction to disregard the improper testimony and lessened its
seriousness by explaining Rogers’ juvenile detention was irrelevant to the current
charges. The improper testimony was not raised again. Rogers fails to show the
court abused its discretion by denying his request for a mistrial.
II. Improper Opinion Evidence
Rogers contends improper expert opinion testimony bolstered J.O.’s
credibility by making her seem like she fit the profile of a victim of sexual abuse.
We review a court’s decision to admit opinion evidence for abuse of discretion.9
Generally, opinion “testimony that is not a direct comment on the defendant’s guilt
8 Appellant’s Br. at 8-9.
9 City of Seattle v. Levesque, 12 Wn. App. 2d 687, 698, 460 P.3d 205(2020).
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or on the veracity of a witness, is otherwise helpful to the jury, and is based on
inferences from the evidence is not improper opinion testimony.”10 An expert may
testify even more broadly and discuss “scientific, technical, or other specialized
knowledge” if it will “assist the trier of fact to understand the evidence or to
determine a fact in issue.”11 Testimony suggesting that “‘a victim exhibits behavior
typical of a group’” does not improperly comment on credibility because it does not
directly allow an inference of guilt.12
In State v. Kirkman, the defendant argued a doctor’s testimony bolstered
the victim’s credibility.13 The defendant was charged with raping a six-year-old
girl, and a doctor testified about the results of his physical exam on the victim.14
The victim’s vaginal exam showed no signs of sexual contact, and in response to
the State’s questions, the doctor opined “to have no findings after receiving a
history like that is actually the norm rather than the exception.”15 The doctor also
10 City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
11 ER 702.
12 State v. Florczak, 76 Wn. App. 55, 73, 882 P.2d 199 (1994) (quoting
State v. Jones, 71 Wn. App. 798, 815, 815 n.6, 863 P.2d 85 (1993)); see State v.
Case, No. 52464-3-II, slip op. at 18 (Wash. Ct. App. June 23, 2020),
https://www.courts.wa.gov/opinions/pdf/D2%2052464-3-II%20Published%20
Opinion.pdf. (“Expert witnesses may testify on general characteristics or conduct
typically exhibited by survivors of domestic violence.”)
13 159 Wn.2d 918, 155 P.3d 125 (2007).
14 Id. at 924.
15 Id.
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testified the young victim “had good language skills for her age [and] spoke
clearly” before relaying the victim’s disclosure’s about the defendant raping her.16
The court concluded none of the testimony was improper.17 The doctor’s
opinion about the physical examination was relevant because the defendant
attacked the victim’s credibility, and it explained the discrepancy between the rape
allegations and normal physical exam.18 His opinion about the victim’s clear
communication was “content neutral” because it discussed his observations of the
victim’s manner and did not comment on “the substance of the matters
discussed.”19 The testimony “did not come close to testifying on any ultimate fact”
because the doctor “never opined that [the defendant] was guilty,” that the victim
was raped, or that he believed the victim.20
In the 1988 case of State v. Ciskie, a boyfriend was on trial for repeatedly
raping his girlfriend over 10 months as part of a pattern of physical and emotional
abuse.21 The State called an expert to testify about the then-novel idea of battered
person syndrome, patterns of domestic abuse, and why abused partners may stay
with their abusers.22 The trial court limited the expert’s testimony to battered
16 Id. at 924-25.
17 Id. at 934.
18 Id. at 933.
19 Id.
20 Id.
21 110 Wn.2d 263, 266-68, 751 P.2d 1165 (1988).
22 Id. at 273-74.
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person syndrome, the girlfriend’s diagnosis of posttraumatic stress disorder and
related background information, and it prohibited testimony opining about whether
she had been raped.23 Although this ruling could have let the jury infer that the
girlfriend had been raped, the court concluded these decisions were not an abuse
of discretion because they aided the jury’s understanding without “invading its role
as judge of credibility.”24
Rogers argues testimony from licensed mental health counselor Maureen
Garrett “vouched for J.O.’s credibility and, indirectly, Rogers’ guilt.” 25 Garrett
treated J.O. from late 2016 through early 2017. Garrett testified about J.O.’s
diagnosis of posttraumatic stress disorder and related symptoms and then
answered a series of questions from the State about self-harm and sexual abuse.
Garrett explained, “There’s a correlation between trauma and sexual abuse,
specifically in self-harming behaviors” and that self-harming behaviors can be a
coping mechanism for sexual trauma.26 She also noted self-harm is not exclusive
to sexual assault victims. Earlier that day, J.O. had testified she engaged in self-
harm, such as burning and cutting herself, after Rogers assaulted her.
Like the doctor in Kirkman, Garrett did not comment about J.O.’s history of
self-harm or whether she found J.O. credible. And like the expert in Ciskie, her
testimony opined generally on the correlation between self-harm and a history of
23 Id. at 280.
24 Id.25 Appellant’s Br. at 12.
26 RP (Oct. 30, 2018) at 409-10.
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trauma, providing background on an unfamiliar subject to help the jury’s
understanding. Rogers analogizes this case to State v. Jones, in which a social
worker testified she “believed” the victim’s allegations and that the victim “had
been sexually molested by [the defendant] at some point.”27 Jones is inapposite
because Garrett did not comment directly on J.O.’s credibility or Rogers’ guilt.
Because Garrett’s testimony did not directly opine about J.O.’s credibility, it
assisted the jury, and it was based upon her personal observations and expertise,
Rogers fails to show the court abused its discretion.28
Rogers also challenges testimony from Dr. Kimberly Copeland for
bolstering J.O.’s credibility.29 Copeland performed a physical examination on J.O.
after she revealed Rogers’ assaults. Copeland testified the vaginal examination
was “normal.”30 The State asked, “Was that surprising to you?,” and Copeland
explained:
I expect a large majority of these exams to be normal, regardless of
the type of abuse that has happened. And that’s based on
numerous studies that have been done following kids that have been
abused or not abused and looking at their exams. And it’s only
about five percent that have had penetrative abusive events that will
have any abnormal findings.[31]
27 71 Wn. App. 798, 803-04, 863 P.2d 85 (1993).
28 Heatley, 70 Wn. App. at 578; ER 702.
29 The State contends Rogers failed to preserve this issue for appeal.
Because we have the discretion to consider an issue not properly objected to
during trial, RAP 2.5(a), and it does not change the outcome, we will consider the
merits of Rogers’ argument.
30 RP (Oct. 30, 2018) at 444.
31 Id.9
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This testimony is based upon Copeland’s expertise as a pediatrician and helps the
jury understand her lack of surprise at J.O.’s normal physical examination,
especially when the body’s reaction to sexual trauma is not common knowledge.
As in Kirkman and Ciskie, Copeland’s testimony was relevant to the jury’s
understanding and did not opine directly about any issues for the jury. Rogers
does not show the court abused its discretion.
III. Juror Bias
Rogers argues he did not receive a fair trial due to juror bias. He contends
the court failed to dismiss juror 16 sua sponte after the juror expressed actual bias.
A court has broad discretion to consider all of the circumstances when deciding
whether to dismiss a juror.32 We review a court’s decision to seat or dismiss a
juror for abuse of discretion.33
The trial court has an independent statutory duty to dismiss a juror who has
shown actual bias.34 A juror manifests actual bias when he “cannot try the issue
impartially.”35 Thus, merely equivocal answers do not require dismissal,36 and an
expression of bias may be neutralized by further questioning.37
32State v. Phillips, 6 Wn. App. 2d 651, 662, 431 P.3d 1056 (2018), review
denied, 193 Wn.2d 1007, 438 P.3d 116 (2019).
33 State v. Lawler, 194 Wn. App. 275, 282, 374 P.3d 278 (2016).
34 Phillips, 6 Wn. App. 2d at 666.
35 RCW 4.44.170(2).
36Lawler, 194 Wn. App. at 283; see RCW 4.44.190 (dismissal of a juror is
not required if he can disregard his biased opinion).
37See State v. Irby, 187 Wn. App. 183, 195-96, 347 P.3d 1103 (2015)
(additional individual questioning may show equivocation and neutralize bias).
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In State v. Gonzales, this court required retrial after concluding the trial
court failed to dismissed a biased juror.38 During voir dire, the State asked about
the credibility of police officers, and the juror opined she could not disbelieve a
police officer’s testimony.39 The juror also said, “I don’t know if I could” maintain a
presumption of innocence for the defendant if a police officer testified to his guilt.40
Because the juror admitted a bias towards police officers, that her bias would harm
her ability to deliberate, that her bias would undermine the presumption of
innocence, and neither the court nor any party attempted to rehabilitate the juror,
the court abused its discretion by seating her.41
Rogers contends juror 16 expressed actual bias during defense counsel’s
portion of voir dire. Defense counsel posed a hypothetical and asked whether any
juror’s ability to render a verdict would change if the defendant declined to present
a case. He and juror 16 had the following exchange:
JUROR 16: Well, without strong exculpatory evidence on the
defense part, the State has the scales tipped in their
favor. There is just no way I could look at everything
they present without a defense and judge otherwise.
COUNSEL: Okay. Well, I appreciate the candor. I suspect that
might be a preconceived notion that a lot of people
come in with. I would like to remove the idea for a
second that I—that we wouldn’t present any kind of a
case, and as I proposed to [juror] No. 15 here, look at all
the evidence as a whole, but imagine a hypothetical
where you had questions after that.
38 111 Wn. App. 276, 277, 45 P.3d 205 (2002).
39 Id. at 278.
40 Id. at 279.
41 Id. at 281-82.
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JUROR 16: Sure, I would submit my questions to the judge.
COUNSEL: Okay.
JUROR 16: But, again, it’s heavily weighted toward the State.[42]
In other portions of voir dire, juror 16 was asked whether he could follow a court’s
instructions regarding the law, even if he thought the law was different. He
explained, “If the crime meets the definition of what is set on paper is written as a
law, that’s what needs to be followed, not what you think it means.”43 Juror 16
also expressed a bias against elected judges because they “always seem to want
to throw the book at a defendant to appear tough on crime,” but he “would do the
best I could” to set those feelings aside.44 Juror 16 also said his mother had been
sexually assaulted, but when asked by defense counsel if that “would make it very
difficult or possible for you to be impartial,” he responded, “No. No, not on that.”45
Unlike the juror in Gonzales, he did not express an inability to remain
impartial due to a bias against the defendant or towards the police. Juror 16
admitted a presentation of evidence by the State could sway him in absence of a
presentation by the defendant—a mere hypothetical when the court knew Rogers
would be presenting a defense. Although juror 16 reiterated his bias after defense
counsel clarified Rogers would mount a defense, it may have been clear to the
court that juror 16 did not catch the clarification. The court also knew defense
42 RP (Oct. 29, 2018) at 134-35.
43 Id. at 144.
44 Id. at 103.
45 Id. at 113.
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counsel declined to strike juror 16 and, given all of juror 16’s responses, may not
have wanted to undermine a legitimate tactical decision not to challenge him.46
Considered within the full context of voir dire and the trial, the court did not abuse
its discretion by seating juror 16.
IV. Statement of Additional Grounds
Rogers filed a statement of additional grounds, arguing prosecutorial
misconduct deprived him of a fair trial.
To show prosecutorial misconduct, a defendant must establish “‘that the
prosecutor’s conduct was both improper and prejudicial in the context of the entire
record and the circumstances at trial.’”47 A prosecutor’s conduct was prejudicial
when the defendant can show “‘a substantial likelihood [that] the instances of
misconduct affected the jury’s verdict.’”48 But when, as here, a defendant fails to
object to improper conduct at trial, the error is waived unless the conduct “‘is so
flagrant and ill intentioned that it causes an enduring and resulting prejudice that
could not have been neutralized by an admonition to the jury.’”49
46 See Lawler, 194 Wn. App. at 284-85 (explaining a court must balance its
duty to strike a juror showing actual bias with a defendant’s right to control his
defense); CP at 144 (jury panel sheet showing defense counsel declined to use all
of his challenges).
47State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal
quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d
126 (2008)).
48 Id. at 442-43 (alteration in original) (quoting Magers, 164 Wn. 2d at 191).
49 Id. at 443 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747(1994)).
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First, Rogers appears to argue the prosecutor asked improper
impeachment questions of defense witness Demetrius Rogers, the defendant’s
brother. Soon after cross-examination began, the prosecutor and Demetrius50 had
the following exchange:
Q: Right before you came in here, your sister came out to talk to
you, right?
A: We did not have a conversation.
Q: You guys didn’t just talk about all that briefly before coming in?
A: I handed her my phone and my cover and that was all.
Q: You’ve spoken with your brother Daryl about this case before
today, right?
A: I have.
Q: And you’ve talked about the fact that you were going to be
called to testify, right?
A: He let me know, yes.
Q: And you’ve talked about the allegations, right?
A: I was aware, yes.
....
Q: You love your brother very much, right?
A: I do.[51]
The prosecutor’s questions impeached Demetrius’s credibility by
suggesting a bias towards his family, an entirely appropriate purpose of cross-
50 We refer to Demetrius by his first name for clarity.
51 RP (Oct. 31, 2018) at 550-51, 553.
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examination.52 Contrary to Rogers’ belief that the prosecutor inserted himself into
trial by asking whether Demetrius spoke with his sister, Demetrius’s answer laid
the foundation by establishing they had interacted.53 The prosecutor’s reliance on
his knowledge of their interaction was no different from any attorney’s reliance on
an out-of-court interview to lay foundation.
Second, Rogers argues the prosecutor misstated the burden of proof in his
closing argument. We review allegedly improper remarks in closing argument
within their entire context, including the issues in the case and the instructions to
the jury.54 Rogers contends the prosecutor misstated the burden of proof by
arguing “[b]eyond a reasonable doubt does not mean beyond all doubt. It is not
100 percent.”55 But the prosecutor also quoted the unchallenged jury instruction
providing the State’s burden of proof. And he also explained proof beyond a
reasonable doubt required “an abiding belief in the truth of the charges”56 and
urged the jury to convict only if the evidence “left [them] with an abiding belief that
52See State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996)
(“Evidence of bias and interest is relevant to a witness’s credibility.”).
Rogers’ reliance on a federal case, United States v. Rangel-Guzman, 752
53
F.3d 1222, 1224 (9th Cir. 2014), is misplaced. In that case, the prosecutor relied
on her own knowledge of the defendant’s prior statements from outside of court to
impeach him without first establishing a foundation, which inserted her into the
proceedings by introducing new evidence only through her questions. Id. at 1225.
54 State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009).
55 Statement of Additional Grounds at 4 (quoting RP (Nov. 1, 2018) at 683-
84).
56 RP (Nov. 1, 2018) at 683.
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[Rogers] did these things to [J.O.].”57 The prosecutor did not misstate the burden
of proof.58
Third, Rogers argues the State shifted the burden of proof by impugning
Rogers’ credibility and vouching for J.O.’s credibility. A prosecutor has wide
latitude during closing argument to draw reasonable inferences from the evidence,
including about the credibility of witnesses.59 Improper vouching occurs when a
prosecutor expresses his personal beliefs about a witness’s credibility or relies
upon information not introduced in evidence to support a witness’s credibility. 60
J.O. and Rogers both testified, so the prosecutor was free to argue about their
credibility based on the evidence. This is especially true where credibility is a
central issue in a trial, and the defendant’s theory of the case calls the complaining
witness’s credibility into question.61 Because Rogers and J.O. testified and the
prosecutor’s arguments were reasonable inferences from the evidence presented
and did not rely on the prosecutor’s personal feelings, he did not shift the burden
of proof or improperly vouch for J.O.’s credibility.
57 Id. at 685.
58 See State v. Pirtle, 127 Wn.2d 628, 658, 904 P.2d 245 (1995) (“abiding
belief” instruction does not misstate the burden of proof).
59 Thorgerson, 172 Wn.2d at 448.
60 Id. at 462.
61 See id. at 448 (credibility arguments during closing were appropriate
where the defendant questioned the complaining witness’s truthfulness); RP
(Oct. 29, 2018) at 190 (Rogers arguing J.O. had incentives to make up sexual
misconduct allegations).
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Fourth, Rogers contends the prosecutor made an improper argument by
referring to uncharged crimes. A prosecutor may not make statements
unsupported by the record that prejudice the defendant.62 Rogers compares this
case to State v. Boehning, where the prosecutor repeatedly referenced dismissed
charges of rape against the defendant and facts not introduced into evidence.63
But the cases are entirely distinct. The prosecutor here clearly stated the six
charges were based on at least five different assaults, and he identified each
assault. The assaults he identified were based on J.O.’s testimony, which
included her estimate that Rogers forced her to perform oral sex on him between
five and ten times. The prosecutor merely made a reasonable argument based
upon the evidence.
Because Rogers fails to show the prosecutor’s conduct was improper, his
failure to object at trial waived these issues.64 And, contrary to Rogers’ contention,
defense counsel was not ineffective for declining to object.
V. Community Custody Conditions
Rogers contends, and the State agrees, the trial court erred by requiring
that his therapist make regular reports to the Department of Corrections. Because
the condition does not appear to be authorized by law, the State’s concession is
well-taken and ministerial remand is appropriate to strike it.
62 State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
63 127 Wn. App. 511, 519-23, 111 P.3d 899 (2005).
64 Thorgerson, 172 Wn.2d at 443.
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Therefore, we affirm Rogers’ conviction and remand for proceedings
consistent with this opinion.
WE CONCUR:
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