Washington criminal defendants are entitled to a fair trial. In some cases, prosecutors may seek to introduce irrelevant and inflammatory evidence that tends to prejudice the jury. Domestic violence and civil protection order violation cases can be particularly vulnerable to prejudice. In some cases, a prosecutor’s misconduct may lead to an unfair trial for the defendant. A defendant in a Washington domestic violence case recently challenged his conviction, alleging prosecutorial misconduct.
The defendant was arrested following a 911 call. According to the appeals court’s opinion, the caller described a man, later identified as the defendant, hitting a woman, pulling her hair, and choking her. The defendant gave the responding officers his brother’s name and information. Officers found the defendant’s identification during a search at the jail. They also learned there was a no-contact order prohibiting him from contact with the alleged victim.
The defendant was ultimately charged with domestic violence felony violation of a no-contact order. He was also charged with first degree criminal impersonation and resisting arrest. Additionally, he was charged with escape from community custody, but this charge was tried separately. The defendant was found guilty of all charges. He appealed.
The defendant argued there was prosecutorial misconduct. He argued the prosecutor elicited “irrelevant and inflammatory testimony” by asking the 911 caller about her reaction to the assault. The defendant can only establish prosecutorial misconduct by showing the conduct was improper and prejudicial. A defendant waives error by failing to object at trial, unless the misconduct was “so flagrant and ill intentioned” the prejudice could not be cured with an instruction. The defendant must, therefore, show the misconduct caused prejudice with “a substantial likelihood of affecting the jury verdict” and that the prejudice could not be cured with an instruction.
The prosecutor asked the 911 caller how she reacted to the assault and how it made her feel. The 911 caller stated it was “traumatizing” and that she “cried for that woman all night long.” The appeals court found the question and answer were not relevant to any element of the charges or the defendant’s guilt. The appeals court also found the answer likely aroused an emotional response in the jury and was therefore unfairly prejudicial. The appeals court noted that this question was not the type of “flagrant and ill intentioned” conduct that courts have previously found could not be cured with an instruction. The appeals court found any prejudice here could have been cured with a jury instruction to disregard the response.
The defendant also argued he received ineffective assistance of counsel because his attorney failed to object to the response. To show ineffective assistance of counsel, the defendant must show that the court would likely have sustained the proposed objection and the trial results would likely have been different if the evidence had not been admitted. Additionally, he must show that the failure to object did not meet the prevailing professional norms. Generally, the decision to object or not is considered trial tactics. Washington courts have held that failure to object will only constitute incompetence in “egregious circumstances” where the testimony is central to the case against the defendant.
The defendant argued his attorney was ineffective in failing to object to testimony about the victim’s demeanor and the 911 caller’s own response to witnessing the event. The 911 caller testified that the victim seemed “so sad and like somebody who has been through this a time or two before.” The appeals court found this statement was improper because it was speculative and not based on the witness’s personal knowledge. The appeals court also found the statement prejudicial because it implied there had been previous incidents of domestic violence. To present evidence of previous domestic violence, the state must establish the overriding probative value.” The appeals court reiterated its finding that the caller’s testimony regarding her own reaction was irrelevant and prejudiced.
The appeals court found, however, that the defendant had not established that the failure to object was not a strategic decision or that an objection would have changed the trial outcome. The court found the defense attorney could have decided not to object as part of a legitimate trial strategy. The attorney may not have wanted to emphasize the 911 calls or other testimony of the caller. Furthermore, the defendant had not shown a reasonable probability that the trial results would have been different. The appeals court said there was “overwhelming evidence” of the defendant’s guilt, including the witness’s testimony and the recordings of the 911 calls. The appeals court found the defendant had not shown ineffective assistance of counsel.
The defendant also argued that the cumulative effect of the improper testimony regarding the caller’s reaction and the victim’s demeanor caused an unfair trial. When multiple trial errors combined result in an unfair trial, though individually they may be insufficient to justify reversal, the cumulative error doctrine applies. The doctrine does not apply when there are only a few errors that do not affect the trial outcome.
The appeals court found it was unlikely the improper testimony prevented a fair trial. The court again noted the evidence of guilt was “overwhelming,” so it was unlikely the errors affected the trial outcome.
The appeals court also rejected the defendant’s argument the evidence for the criminal impersonation charge was insufficient.
The appeals court affirmed the convictions.
The appeals court found the errors in this case were not sufficient to require reversal of the defendant’s convictions, but it did find the testimony was improper. If you are facing charges related to violation of a civil protection order, an experienced Washington civil protection order attorney can help protect your rights before and during trial. Call Blair & Kim, PLLC at (206) 622-6562 to schedule an appointment.
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