Appeal from Superior Court of Snohomish County. Docket No: 93-1-01533-4. Date filed 05/12/94. Judge signing: Hon. Larry E. McKeeman.
Authored by Ann L. Ellington. Concurring: William W. Baker, H. Joseph Coleman
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Mark Allan Dowell appeals from judgment and sentence on four counts arising from the same incident against a single victim. He first argues for a new trial based on prosecutorial misconduct. Although the prosecutor did commit misconduct, it was either cured or waived by lack of objection. Dowell also argues that double jeopardy permits only a single conviction arising from the same incident from each of the following two groups: (A) rape in the second degree and rape of a child in the second degree; and (B) indecent liberties and child molestation in the second degree. We agree, and remand for vacation of one conviction from each group. Dowell's sentence will not be affected. Facts The State charged Dowell with indecent liberties, child molestation in the second degree, rape in the second degree, and rape of a child in the second degree. The jury convicted him as charged. The charges were premised on events that took place in August, 1993 involving a single victim, S.O.
S.O. testified that Dowell arrived with three juvenile males at the apartment where she was baby-sitting. The other males soon left, leaving Dowell and S.O. alone. Dowell held her down and touched her sexually. Dowell then exposed his penis and kept telling S.O. to "suck his dick." When S.O. refused, Dowell forced her head down so that his penis entered her mouth.
Before trial, the court excluded references to Dowell's alleged gang affiliations. On cross-examination, defense counsel asked S.O. why she did not initially tell the police that Dowell arrived and departed with other males, or that Dowell put his penis in her mouth. S.O. responded that she was scared of the juveniles and was generally scared about what would happen.
On redirect, the prosecutor asked S.O. why she was scared of Dowell's friends and she explained that they had gang affiliations. The prosecutor then asked if they bragged about being in gangs and S.O. said they did. The prosecutor next asked whether "Mark" talked about gangs and S.O. said he did. Defense counsel then objected and moved for a mistrial. *fn1 The court denied the motion but instructed the jury to disregard the last question and answer.
During closing, the prosecutor asked the jurors to put themselves "in that girl's place," and stated that the only way they could acquit Dowell was "to come to the Conclusion [S.O.] lied to you from the stand." The prosecutor also claimed that "it's [S.O.'s] word against [Dowell's], and he is laughing at her."
During the defense closing, counsel noted that S.O. was the only person in the courtroom who had the support of two prosecutors, victim aides, teachers, and counselors. The prosecutor responded in rebuttal and in so doing called Dowell an "animal":
There is a very clear and very precise reason why these people are in here. The rape victims go through a litany of problems, the self abuse they heap upon themselves, how did I get myself into that? What could I have done to avoid that? Why did this happen to me? You heard [S.O.] on the stand, "God, why is this happening to me now?" It's not her fault. It's whose fault?
It's this animal right here, who forced himself on her.
The jury found Dowell guilty on all counts. The court ruled that the convictions constituted the same criminal conduct and imposed concurrent sentences. Prosecutorial Misconduct Dowell argues that he is entitled to a new trial based on the prosecutor's deliberate elicitation of "gang" testimony and based on the prosecutor's statements in closing argument. The State maintains that the conduct was not improper, but even if improper, was either harmless or not preserved for review. We conclude that the prosecutor did commit misconduct, but because it was, or could have been, obviated by curative instruction, reversal is not required.
To prove prosecutorial misconduct, a defendant must show that the prosecutor's actions were improper and had prejudicial effect. State v. Hoffman, 116 Wash. 2d 51, 93, 804 P.2d 577 (1991). When misconduct is not objected to, reversal is only required if a curative instruction could not have neutralized the prejudice. Hoffman, 116 Wash. 2d at 93.
The first alleged impropriety was the eliciting of testimony about Dowell's gang affiliation. Dowell's counsel objected and moved for a mistrial. The court denied counsel's mistrial motion, but sustained his objection and gave a curative instruction.
The decision of whether to grant a mistrial is discretionary with the trial court. State v. Escalona, 49 Wash. App. 251, 254-55, 742 P.2d 190 (1987). When determining whether a curative instruction is a valid alternative to a new trial, the court looks at the seriousness of the irregularity, whether the statement was cumulative, and the nature of the prejudice. See State v. Mak, 105 ...