No. 58672-6-I.The Court of Appeals of Washington, Division One.
November 13, 2007.
PER CURIAM.
Appellant Vernon Agee, convicted of murder, contends that the prosecutor committed misconduct. A witness for the State stated that he knew Agee through having “done time” in the past. Agee did not object to the improper statement. Because the prosecutor did not purposefully elicit the statement, and it was not incurably prejudicial, we conclude Agee waived the claim of prosecutorial misconduct.
LaTroy Swan was shot and killed in a house owned by Per Crosley. According to Crosley and others who testified at the trial, his two bedroom house was frequently occupied by sellers and users of drugs. Crosley would allow people to stay at his house in exchange for drugs.
Agee, who both used and sold drugs, began frequenting Crosley’s house in March 2005 after he helped Crosley get his stolen van back. Crosley testified that Agee then began to use and sell drugs at his house. After a while, Agee started bringing people to Crosley’s house, spending the night at the house without Crosley’s permission, and then, just prior to the shooting, started leaving his personal belongings there. The day before the shooting, Crosley asked Agee and his friends to leave. Agee refused. According to Crosley, Agee threatened to shoot him if he persisted in trying to get them to leave.[1]
The next day, there were several people in the house using drugs, including Crosley. Ratina Rose was one of the drug-sellers who frequented the house. She and her husband, LaTroy Swan, came by and asked Crosley for money that he owed her. Rose and Swan had been married for about one month. Rose testified that she had been going to Per Crosley’s house nearly every day to sell drugs since the summer of 2004. Rose was aware that Agee kept clothes at Crosley’s house, and that people took advantage of Crosley and would not leave his residence. Crosley told Rose that he did not have the money he owed her because he could not leave the house with all of the people there.
Rose testified that Crosley asked her to help him clear out the house and she agreed. Rose went to get a .38 caliber pistol that she kept in the trunk of her car. She returned to the house with the gun, and told people to leave. Many people did leave, but Agee remained. Rose asked Agee if he was staying to “make some money” and he said “yes.”[2] Agee walked Rose and Swan out to their car around 2:00 p.m.
According to Rose, she and Swan returned about 7:00 p.m. Agee was not there, but he showed up about 20 minutes later. Swan let him in and Rose heard Agee ask if he could get his clothes. As Agee began to reach for his clothes, Rose saw him pull a gun out of his sweatshirt. Agee told everybody to get on the ground. Rose ran upstairs, trying to get out of the house. Rose heard Swan tell Agee, “I see you waving the gun around, you better use it.”[3]
Rose said that she was climbing out of an upstairs window and climbing down a tree when she heard two gun shots. She got her gun from her car and was returning to the house when she ran into Agee on the side of the house. According to Rose, Agee reached into his sweatshirt pocket and pulled his gun on her. Agee saw that she had a gun, and he took it from her. Rose asked Agee if he was going to shoot her in front of everybody. Agee then put the hood of his sweatshirt over his head and ran toward Crosley’s van. Rose said she ran inside and saw that Swan had been shot.
Agee represented himself at trial. Before trial, the State moved to preclude Agee from mentioning “other suspect” evidence. Agee theorized that Ratina Rose was the shooter. The trial court granted the State’s motion on the basis that Agee had not laid the necessary foundation to support “other suspect” evidence.[4] The court directed Agee to look at the evidence rules and case law so that he would understand how to present the necessary foundation. The court informed Agee that his standby counsel could assist him with that research. Agee did not testify at trial, he did not elicit “other suspect” testimony during his cross-examination of the State’s witnesses, and he chose not to present any witnesses.
A jury found Agee guilty of second degree murder on April 5, 2006. As a persistent offender, he was sentenced to life imprisonment without the possibility of parole on August 11, 2006. Agee appeals.
PROSECUTORIAL MISCONDUCT
Agee contends that prosecutorial misconduct deprived him of his right to a fair trial. Before trial, the court determined that all evidence relating to Agee’s prior bad acts, his criminal history, and time served would be inadmissible. Agee takes issue with the following exchange between the deputy prosecutor and one of the witnesses called by the State to testify about his interaction with Agee before the shooting:
[PROSECUTOR]: How do you know this man [Agee]?
[WITNESS]: Just acquainted through I’ve done time before.[5]
“Trial court rulings based on allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.” State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). In making such a challenge, the defendant bears the burden of establishing that the prosecutor’s conduct was both improper and prejudicial. A criminal defendant is deprived of a fair trial when there is a “substantial likelihood” that the prosecutor’s misconduct affected the verdict. State v. Reed, 102 Wn.2d 140, 147, 684 P.2d 699 (1984). Because Agee did not raise a proper objection to the comments at trial, request a curative instruction, or move for a mistrial, he cannot raise the issue of misconduct on appeal unless the misconduct was so flagrant or ill-intentioned that the prejudice could not have been obviated by a curative instruction. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988); State v. Echevarria, 71 Wn. App. 595, 597, 860 P.2d 420 (1993).
Agee argues that the comment was prejudicial because the jurors would infer that he had served time and was therefore a criminal type, making them more likely to conclude that he, rather than someone else at the house, was Swan’s killer. He argues that the prosecutor either intentionally elicited the prejudicial remark, or else violated the pretrial order by failing to ensure that the witness was aware of it. See State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979) (“state has a duty to properly prepare its own witnesses prior to trial”).
Agee compares the effect of the remark to the misconduct held to be flagrant and incurable in State v. Stith, 71 Wn. App. 14, 856 P.2d 415
(1993). In Stith, the appellant was convicted of being a drug dealer. On appeal he alleged three instances of prosecutorial misconduct. First, the prosecutor suggested on several occasions that the jury would have to conclude that the police were lying if they wanted to believe the defendant. Second, the prosecutor said the defendant had been out of jail for only a week when he “was just coming back and he was dealing again.”Stith, 71 Wn. App. at 16. Third, the prosecutor implied that the defendant’s guilt had already been determined when a judge entered a finding of probable cause. The Court of Appeals determined that the argument about lying was not incurably prejudicial. But the other remarks, when taken together, were so egregiously prejudicial as to demand a new trial.
Here, unlike in Stith, the alleged misconduct in Agee’s case was isolated and much less egregious. The record suggests that the prosecutor was surprised by the remark, not that he intentionally elicited it. Right after the witness answered the question, the prosecutor followed up by suggesting a different answer:
[PROSECUTOR]: So you know him from around town; is that fair to say?
[WITNESS]: Yes.
[PROSECUTOR]: How about down Pac. Highway and Tukwila, do you know him from that area too?
[WITNESS]: Yes.[6]
Given the amount of testimony presented about drug activity occurring in and around the house, the jury likely inferred at most that Agee had done time on a drug conviction. While prejudicial, evidence of time served for a drug conviction is less prejudicial in a murder case than if it had been evidence of time served for a violent offense. Any prejudice that remained after the prosecutor’s follow up questions was not so flagrant as to be incurable. Because Agee did not preserve his argument with a proper objection below, it is not reviewable.
Even if the objection had been properly preserved, Agee has not shown a substantial likelihood that the comment affected the verdict. As the State summarized in closing argument, the evidence against Agee was abundant. The State presented five witnesses who saw the defendant enter Crosley’s house minutes before the shooting. Three of those witnesses saw the defendant pull out a gun and one saw the defendant shoot Swan. Although Agee attempted to undermine the credibility of each State witness by pointing out minor inconsistencies, we conclude it is unlikely that the comment that Agee had previously “done time” affected the jury’s verdict.
PRIOR CONVICTIONS
Agee also claims that he has a right to a jury determination of his prior convictions based on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 2537-38, 159 L. Ed. 2d 403 (2004) Apprendi does not apply where the State seeks to prove the existence of a prior conviction. State v. Theifault, 160 Wn.2d 409, 419, 158 P.3d 580
(2007).
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds for review, Agee contends that the trial court erred when it did not permit him to present evidence tending to prove that Ratina Rose committed the murder. Evidentiary rulings are within the discretion of the trial court and will not be disturbed absent an abuse of discretion, i.e., untenable or manifestly unreasonable grounds. State v. Clark, 78 Wn. App. 471, 477, 898 P.2d 854, review denied, 128 Wn.2d 1004 (1995).
Washington courts have long held that to admit evidence suggesting another person committed the charged offense, the defendant must lay an adequate foundation, that is, he must establish a train of facts or circumstances as tend clearly to point out someone besides the defendant as the guilty party. State v. Downs, 168 Wash. 664, 667, 13 P.2d 1
(1932). That foundation requires a clear nexus between the person and the crime. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993) review denied, 123 Wn.2d 1031 (1994). Motive, ability, and opportunity to commit a crime alone are not sufficient. State v. Rehak, 67 Wn. App. 157, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993). The offered testimony must evidence a “step taken by the third party that indicates an intention to act” on the motive or opportunity. Rehak, 67 Wn. App. at 163.
Agee contends that Downs and later Washington cases relying on it are no longer good law after Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). In Holmes, the trial court precluded the defendant from introducing potentially exculpatory other suspect evidence because the State’s case was so strong. State appellate courts affirmed. In reversing, the Supreme Court noted that South Carolina courts had long followed the widely accepted rule, similar to Washington’s, that before other suspect testimony can be received, “`there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.'” Holmes v. South Carolina, 547 U.S. at 328 (referring to the rule adopted in State v. Gregory, 198 S. Ct. 98, 104-05, 16 S.E.2d 532, 534-35 (1941)). The Holmes court reaffirmed that the States possess broad latitude under the constitution to establish rules excluding evidence from criminal trials. Reversal was required, however, because the South Carolina courts had “radically changed and extended” Gregory‘s proper rule by holding defense evidence could be excluded, regardless of its strength or capacity to mislead the jury, simply because the State presented a strong forensic case. Holmes, 547 U.S. at 328. Downs applies the same rule as Gregory. Therefore, Holmes does not undermine Downs.
In an effort to convert the exclusion of “other suspect” evidence into a constitutional error, Agee contends that the court violated his constitutional right to present a defense, and to confront and cross-examine adverse witnesses. See, e.g., State v. Darden, 145 Wn.2d 612, 620-622, 41 P.3d 1189 (2002); State v. Hudlow, 99 Wn.2d 1, 14-16, 659 P.2d 514 (1983). He claims that the analysis in this line of cases undermines the rule set forth in Downs. This court recently rejected this same argument in State v. Howard, 127 Wn. App. 862, 868, 113 P.3d 511
(2005), review denied, 156 Wn.2d 1014 (2006). Downs remains good law and is controlling.
Agee alleges that Rose had the opportunity, the means, and the motive to shoot Swan. Agee did not, however, proffer any evidence to the trial court that Rose took a step indicating an intention to shoot Swan. Given the lack of foundation, it was not unreasonable for the trial court to prevent Agee from pursuing his other suspect theory.
Agee claims that the trial court issued an improper “to convict” jury instruction. The instruction, taken from the Washington Pattern instructions, provided the jury with the ability to find Agee guilty of either intentional murder or, in the alternative, felony murder:
To convict the defendant of the crime of Murder in the Second Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
Intentional Murder:
(1) That on or about the 12th day of April, 2005, the defendant
(a) shot Latroy Swan; and
(b) That the defendant acted with intent to cause the death of Latroy Swan; and
(c) That Latroy Swan died as a result of defendant’s acts; and
(d) That the acts occurred in the State of Washington.
OR
Felony Murder:
(2) That on or about the 12th day of April, 2005, Latroy Swan was killed, and
(a) That the defendant was committing or attempting to commit assault in the second degree, and
(b) That the defendant caused the death of Latroy Swan in the course of and in furtherance of such crime or in immediate flight from such crime; and
(c) That the acts occurred in the State of Washington.
If you find from the evidence that either elements (1)(a), (b), (c), and (d) or (2)(a), (b), and (c) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (1)(a-d) or (2)(a-c) has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to elements (1)(a-d) and (2)(a-c), then it will be your duty to return a verdict of not guilty.
Clerk’s Papers at 170-71, emphasis added; see WPIC 27.02. Agee claims that the fourth paragraph of the instruction should have said “each” instead of “either,” so that it would read:
If you find from the evidence that each elements (1)(a), (b), (c), and (d) or (2)(a), (b), and (c) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
When two crimes are charged, as here, the word “either” is proper because it directs the jury to convict if they find either all of the elements of one crime or all of the elements of another crime. Thus, use of the word “either” was proper because the prosecutor was seeking conviction for either felony murder or intentional murder. Because the instruction was a clear and accurate statement of the law, it provides no grounds for review.
Affirmed.