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State v. Mulligan

Washington Court of Appeals


August 11, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
BRUCE D. MULLIGAN, APPELLANT.

Appeal from Superior Court of Whatcom County. Docket No: 92-1-00218-6. Date filed: 07/08/93.

Authored by Faye C. Kennedy. Concurring: William W. Baker, Mary K. Becker.

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Bruce Mulligan appeals his conviction of one count of first degree murder, contending, inter alia, that the trial court erred in basing the imposition of his exceptional sentence on the impact of the crime on the victim's young children. Although we affirm Mulligan's conviction, we agree that the impact of the murder on the victim's children, who were not present at the time of the crime, was not a legally sufficient basis for the imposition of the exceptional sentence. We thus reverse Mulligan's exceptional sentence and remand for the imposition of a standard range sentence. *fn1

FACTS

On January 1, 1992, Bruce Mulligan and his wife Kimberly went elk hunting in the woods of rural Whatcom County, where Kimberly died from a single gunshot wound to the chest. During the ensuing 3 months, police actively investigated; on March 6, 1992, the State charged Mulligan with one count of first degree murder. The first trial, presided over by Judge Moynihan, commenced on January 19, 1993, and, after 5 weeks, ended in a mistrial when the jury was unable to reach a verdict. The second trial, presided over by Judge Swedberg, commenced on May 10, 1993; after 8 weeks of trial, Mulligan was found guilty as charged.

The standard range sentence was 240 to 320 months. The State requested an exceptional sentence of 640 months relying, in part, on the aggravating factor of the impact of Kimberly's murder on her two young children. The record reflects that the two children, who were 5 and 9 years of age, respectively, at the time of their mother's death, were separated and placed with new families residing in different towns, after Mulligan was arrested. Kimberly's son resides in a foster home while her daughter lives with relatives. Kimberly had been the children's primary caretaker. The trial Judge agreed that the impact of the crime on Kimberly's children was substantial and compelling. He thus imposed an exceptional sentence of 420 months, concluding:

1. The Defendant's actions have deprived the children of their mother and have had a profound and permanent impact on them.

2. The Defendant's actions have also deprived the children of his company and support as their father.

3. The impact that the killing of Kimberly Mulligan would have on her children was foreseeable to the Defendant before he killed her.

4. The impact on the children is of such a distinctive nature that it is not normally associated with the commission of murder in the first degree.

5. The impact that the Defendant's actions have had on the children is an Aggravating Factor justifying an exceptional sentence under the Sentencing Reform Act of 1981, RCW 9.94A, et. seq. This timely appeal followed.

Discussion

Mulligan contends that the trial court erred in basing the imposition of the exceptional sentence on the impact of the crime on Kimberly's young children. He argues that the impact on the children does not distinguish this murder from others in the same category, and it is thus not the type of aggravating factor that justifies a sentence outside the standard range.

The Sentencing Reform Act of 1981 (SRA) created presumptive sentencing ranges for most felonies based on the seriousness of the crime and the defendant's criminal history. RCW 9.94A.320-.360; State v. Oxborrow, 106 Wash. 2d 525, 529, 723 P.2d 1123 (1986). A sentencing court may impose an exceptional sentence outside the standard range if it finds "that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). See also State v. Grewe, 117 Wash. 2d 211, 214, 813 P.2d 1238 (1991). RCW 9.94A.390 provides a nonexclusive list of aggravating factors which the court may consider in imposing an exceptional sentence. Upon appeal of an exceptional sentence, a reviewing court must reverse the sentence if it finds:

(a) Either that the reasons supplied by the sentencing Judge are not supported by the record which was before the Judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient. RCW 9.94A.210(4). See also State v. Scott, 72 Wash. App. 207, 213, 866 P.2d 1258 (1993), aff'd, 126 Wash. 2d 388, 894 P.2d 1308 (1995); State v. Ross, 71 Wash. App. 556, 561-62, 861 P.2d 473 (1993), 883 P.2d 329 (1994).

In this case, Mulligan challenges the legal sufficiency of the aggravating factor relied upon by the trial court. An aggravating factor is legally sufficient to justify the imposition of an exceptional sentence as long as the factor was not necessarily considered by the Legislature in establishing the standard range, and as long as the factor is "'sufficiently substantial and compelling to distinguish the crime in question from others in the same category.'" Scott, 72 Wash. App. at 214-15 (quoting Grewe, 117 Wash. 2d at 216). Here, contrary to Mulligan's argument that "there was no specific showing of trauma to either Mulligan child", there is ample evidence in the record of the devastating disruption suffered by the children as a consequence of the murder of their mother. They lost not only the companionship of their mother and father, but of each other, as well. Following Mulligan's arrest, the children, who were 9 and 5 at the time of their mother's death, were separated and placed with new families. Kimberly's son resides in a foster home while her daughter lives with relatives. Even Mulligan's trial counsel candidly admitted that "there definitely was an impact" on the children as a result of Kimberly's death.

We also perceive that the murder of one parent by the other parent may be even more traumatic to a young child than would be the murder of a parent by a stranger or an acquaintance. Psychiatrists have studied children who have lost one parent at the hands of the other, and have made the following observations:

Many of the children had suffered multiple losses; they had lost not only their mother, but their father, other relations, home possessions, school, friends and community. They had to live with their shame at [sic] being the children of a killer, and with their guilt of not being able to prevent the killing.

Traumatized and bereaved, they then have to adjust to life with a new family who may be strangers to them, or if related, not well known.

Relatives themselves might be grief stricken or ashamed of the part their kin played in the death and therefore not fully available to the children to care for them in their need. They may be parted from their brothers and sisters, blamed for the tragedy, and certainly have to cope with the curiosity of their peers as well as the adjustment to [a] new school and neighborhood. Dora Black et al., Where Father Kills Mother: Helping Children Move From Trauma To Grief (1993). Sadly, it is reasonable to infer that the experiences of the Mulligan children mirror many if not most of the psychiatrists' observations.

Despite the devastating impact suffered by the children in this case, to affirm this exceptional sentence would be effectively to create a rule that an exceptional sentence is justified any time one parent of minor children murders the other parent. Such a rule must come from the Legislature, not from the courts. Unfortunately, cases of spousal homicide are not rare; we cannot say as a matter of law that the Legislature did not consider cases of one parent of minor children killing the other parent when setting the standard range for first degree murder. As our Supreme Court has recognized:

Determination of crimes and punishment has traditionally been a legislative prerogative, subject to only very limited review in the courts. A belief on the part of the judiciary that sentencing possibilities are inadequate goes to the wisdom of the Dispositional standards and cannot be enough to overcome the legislatively prescribed range of punishment. State v. Freitag, 127 Wash. 2d 141, 144-45, 896 P.2d 1254 (1995) (quoting State v. Bryan, 93 Wash. 2d 177, 181, 606 P.2d 1228 (1980). See also State v. Manussier, 129 Wash. 2d 652, 667-68, 921 P.2d 473 (1996), cert. denied, 137 L. Ed. 2d 709, 117 S. Ct. 1563 (1997).

Moreover, virtually every murder is devastating to the family of the victim. Many members of such families, adults and minor children alike, may suffer from irrational feelings of guilt at not, somehow, having prevented the murder; such is the human condition a fact presumably considered by the Legislature in setting the standard range for first degree murder.

Impact to third parties, particularly children, does, in some instances, justify an exceptional sentence. See, e.g., State v. Cuevas-Diaz, 61 Wash. App. 902, 905-07, 812 P.2d 883 (1991); State v. Barnes, 58 Wash. App. 465, 475, 794 P.2d 52 (1990), aff'd in part, rev'd in part on other grounds, 117 Wash. 2d 701, 818 P.2d 1088 (1991). But the better reasoned cases allowing for exceptional sentences based on third-party impact take into consideration the fact that the third parties were forced to witness the actual criminal act, e.g., State v. Johnson, 124 Wash. 2d 57, 75-76, 873 P.2d 514 (1994) as well as the increased culpability of the defendant, who knew or should have known of the presence of third parties and the probable extraordinary impact they would suffer, e.g., Cuevas-Diaz, 61 Wash. App. at 905-07; Barnes, 58 Wash. App. at 475.

Mulligan did not force the children to witness the murder of their mother. Although the devastating impact of this crime certainly was foreseeable by Mulligan, the devastating impact of all such crimes was equally foreseeable by the Legislature when it set the standard range for first degree murder. Accordingly, we are constrained to conclude that the sentencing court erred in basing Mulligan's exceptional sentence on the impact of the crime on Kimberly's young children. We thus reverse the exceptional sentence and remand for the imposition of a standard range sentence.

A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered.

Mulligan next contends that Judge Moynihan erred in declaring the first trial to be a mistrial, resulting in double jeopardy, and that Judge Swedberg erred in admitting evidence of Mulligan's prior bankruptcy and in allowing his second wife to testify as to the reason for their divorce, during the second trial. He also contends that prosecutorial misconduct, as well as cumulative error, resulted in an unfair second trial. Finally, in his pro se supplemental brief, Mulligan contends that Judge Moynihan erred in permitting the jury to separate during jury deliberations for the first trial, and that Judge Swedberg erred in denying Mulligan's motion for a mistrial following the second trial, based upon ineffective assistance of counsel and governmental misconduct. Finding no reversible error, we affirm Mulligan's conviction.

I. Declaration of Mistrial On Friday, February 19, 1993, at the Conclusion of a 5 week trial, the State's first case against Mulligan went to the jury. The State's theory had been that Mulligan premeditated Kimberly's murder because he disliked her, and for financial gain from the $650,000 in insurance policies he took out on her life in the months preceding the killing. The defense theory was that Kimberly died as the result of an unfortunate hunting accident, when the muzzle-loaded, homemade rifle she was carrying accidentally discharged as she tripped over a log. After deliberating for 2-1/2 hours on Friday, and a full day on Saturday, the jury foreman informed the bailiff that the jury was unable to reach a decision. When the foreman confirmed for the court that the jury was evenly divided and had been unable to reach a verdict, Judge Moynihan inquired: "Do you believe at this time that further deliberations would result in a verdict one way or another?" The foreman responded: "We haven't made any progress today." The Judge then stated: "What I would really like to do and what I'm going to ask you to do is go home and come back and try again on Monday morning. If after deliberating Monday you're unable to reach a verdict, then we'll declare a hung jury."

After releasing the jury for the remainder of the weekend, the Judge told counsel that they would have the opportunity to be heard before any final decision regarding a mistrial was made. The Judge agreed with the State's concern that given the length of the trial "just one day [was] not enough."

On Monday, February 22, after morning deliberations, the Judge indicated to counsel that the jury remained deadlocked and that he intended to excuse them. The prosecutor objected, stating:

I know from my position because of the length of trial I would like to see them held until 4:30 today. If we don't have a decision, if they indicate they're at a point of deadlock, then perhaps that would be the time to actually make that declaration. But I believe it should be at least till 4:30 today. Defense counsel joined in the prosecutor's objection, stating: "I would concur at least with that, if not a little [bit] longer, into tomorrow." Expressing preliminary agreement with counsel's objections, the court called the jury back into the courtroom, and again asked whether further deliberations would result in a verdict. The foreman responded: "No. It's the opinion of this group of people that we will not be able to form a unanimous opinion." The court then instructed the jury: "I'm going to have you go back in at least until 4:00 or 4:30 this afternoon. Then come in and we'll ask the question again."

At about 4:30 on Monday afternoon, the Judge called both counsel back into court. The prosecutor stated that he was "not sure if it would be worthwhile at this point to continue any longer." Defense counsel similarly noted that the jury was "obviously . . . deadlocked," but requested that the court nonetheless instruct the jury to continue deliberations without a deadline. The court rejected defense counsel's request, concluding that further deliberations could result in a coerced verdict. After calling the jury back into court, the Judge again inquired whether the foreman felt that further deliberations would result in a verdict. The foreman responded: "No, sir. I do not feel that at all." When a poll revealed that each juror agreed that further deliberations would not result in a verdict, the court declared a mistrial.

Mulligan now contends that the trial court erred in declaring a mistrial. He argues that by its impermissible comments, the court improperly influenced the jury to fail to reach a verdict in violation of CrR 6.15(f)(2). He asserts that his second trial was thus barred by the state and federal double jeopardy clauses.

Both the United States and the Washington State Constitutions protect defendants against double jeopardy. State v. Carson, 128 Wash. 2d 805, 821, 912 P.2d 1016 (1996). In addition to prohibiting a second prosecution for the same offense after conviction or acquittal, these constitutional proscriptions protect the "'valued right [of the defendant] to have his trial completed by a particular tribunal.'" State v. Jones, 97 Wash. 2d 159, 162, 641 P.2d 708 (1982) (quoting Arizona v. Washington, 434 U.S. 497, 503 n.11, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)). Thus, because jeopardy has been held to attach after the jury is impaneled and sworn and the first witness has answered the first question, the double jeopardy clause may preclude a second prosecution when a defendant's trial has been terminated by a mistrial. Jones, 97 Wash. 2d at 162.

Our Supreme Court has cautioned that the prohibition of a second prosecution following a mistrial is not absolute:

Where . . . a jury has been impaneled and sworn to try the cause, the defendant has the right to have his case determined by that jury; and a discharge of that jury, without his consent, has the same affect as an acquittal, unless such discharge was necessary in the interest of the proper administration of public Justice. Jones, 97 Wash. 2d at 162 (quoting State v. Connors, 59 Wash. 2d 879, 883, 371 P.2d 541 (1962) (emphasis added in Jones)). The "classic" situation in which the proper administration of Justice requires the discharge of a jury is when the jury is unable to agree on a verdict. State v. Barnes, 85 Wash. App. 638, 656, 932 P.2d 669 (1997). See also Carson, 128 Wash. 2d at 821; Jones, 97 Wash. 2d at 163; RCW 4.44.330. *fn2

The trial court has broad discretion in determining whether to declare a mistrial when it considers the jury deadlocked. Jones, 97 Wash. 2d at 163; Barnes, 85 Wash. App. at 656.

Nevertheless, there must be a factual basis for the exercise of the discretion to discharge a jury; "extraordinary and striking circumstances" must exist before the Judge's discretion can come into play. Obviously, if the jury, through its foreman and of its own accord, acknowledges that it is hopelessly deadlocked, there would be a factual basis for discharge if the other jurors agree with the foreman. The jury's acknowledgment of hopeless deadlock is an "extraordinary and striking" circumstance which would justify the Judge's exercise of his discretion to discharge the jury. In exercising that discretion, the Judge should consider the length of time the jury had been deliberating in light of the length of the trial and the volume and complexity of the evidence. Jones, 97 Wash. 2d at 164 (emphasis added).

In the present case, the State contends that because the jury indicated that it was hopelessly deadlocked, there existed an "extraordinary and striking" circumstance that justified the declaration of a mistrial. Citing State v. Boogaard, *fn3 Mulligan responds that, through its comments regarding the consequences of the jury's failure to reach agreement and the length of time it would be required to deliberate, the trial court improperly influenced the jury to fail to reach a verdict in violation of CrR 6.15(f)(2). CrR 6.15(f)(2) provides: "After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate." In Boogaard, the Supreme Court explained that the purpose of the rule is to prevent the coercive pressure of judicial interference in the deliberative process. There, the Court reversed the defendant's conviction for theft because it found that the trial court had improperly influenced minority jurors to vote with the majority when, knowing that the vote was 10 to 2, it asked each juror whether a verdict could be reached within a half hour. The Court held:

The questioning of individual jurors, with respect to each juror's opinion regarding the jury's ability to reach a verdict in a prescribed length of time, after the court was apprised of the history of the vote in the presence of the jurors, unavoidably tended to suggest to minority jurors that they should "give in" for the sake of that goal which the Judge obviously deemed desirable--namely, a verdict within a half hour. Boogaard, 90 Wash. 2d at 736.

Here, when the court was informed at the Conclusion of the first full day of deliberations that the jury had been unable to reach a verdict, it stated: "What I would really like to do and what I'm going to ask you to do is go home and come back and try again on Monday morning. If after deliberating Monday you're unable to reach a verdict, then we'll declare a hung jury." (Emphasis added). This statement, which apprised the jury of the consequences of its failure to reach agreement and the length of time it would be required to deliberate, was a plain violation of CrR 6.15(f)(2). The question before us is whether that error so tainted the remainder of the jury deliberations that we must find a double jeopardy violation.

Although we reject the State's argument that the Judge properly could have declared a mistrial on Saturday afternoon when the foreman announced that the jury had made no progress that day, several factors persuade us that there was no violation of double jeopardy, in spite of the court's error in telling the jury that it would declare a hung jury if the jurors were unable to reach a verdict on the following Monday. The concern in a case such as this one is that the jury, which the record reflects remained evenly divided throughout their deliberations, might have eventually reached a verdict if the Judge had not appeared to set an artificial deadline of one more full day of deliberations. What persuades us that the Judge's unfortunate remark did not have this unconstitutional effect is the nature of the evidence at trial, and the sincerity of the jurors' responses to the questions posed to the foreman and during the jury poll. It is clear from the record that the jurors wanted to be able to agree, understood the court's instructions, and understood that it was desirable that they reach a unanimous verdict, but that they simply could not do so. We have not only the record of the jury's responses, but also the remarks of counsel, who were present and thus privy to signals from the jury that are not available to this reviewing court, that both were persuaded by the end of the day on Monday that it would not "be worthwhile at this point to continue any longer", and that the jury was "obviously . . . deadlocked." The Judge had, by this point, mitigated his earlier error by directing the jury to re-read the instructions, and by reminding them of their duty to listen to each other's views. Moreover, prior to the lunch recess on Monday, the Judge informed the jury that they would deliberate "at least" until the end of the day, implying that it could be longer. He did not at this point repeat the statement that he would declare a hung jury at the end of the day if no progress had been made.

It is also clear that the Judge, himself, was not wedded to the artificial deadline he had earlier announced. After the jury left the courtroom on Friday afternoon, he indicated to counsel that if there were, indeed, to be any progress, then deliberations would continue. Furthermore, aside from the one unfortunate remark, the Judge did exactly what the case law requires of him: he ascertained that the jury was evenly divided without allowing them to indicate any individual juror's position; he reminded the jury of the court's instructions and of the desirability that they reach a verdict; he informed them that their deliberations were relatively short given the length of the trial; he consulted with counsel; and he expressly balanced the defendant's right to obtain a verdict from his original tribunal against the concern that he not be subjected to a coerced verdict.

This case is thus distinguishable from Jones, wherein the Supreme Court held that the trial court did not have sufficient grounds on which to exercise its discretion to discharge the jury. In Jones, unlike this case, the jury had not in any way indicated that it was having difficulties with its deliberations before the court called it back into the courtroom. Moreover, the court twice asked the jury whether a verdict would be possible within 90 minutes, not whether one could be reached at all. Finally, the court failed to explore the alternatives to discharging the jury, such as resuming deliberations the following morning. On these facts, the Supreme Court explained that the trial court "did not establish that the jury considered itself genuinely deadlocked, but only that, in the middle of the night, it could not reach a verdict within 90 minutes." Jones, 97 Wash. 2d at 166. None of the factors present in Jones existed in this case. We thus conclude that the trial court did not violate Mulligan's right against double jeopardy by finding that the jury was genuinely deadlocked and declaring a mistrial on that basis.

In sum, we are persuaded that the clear error in appearing to set a deadline on jury deliberations was not the cause of this jury's inability to reach a verdict. Based on the nature of the evidence at trial in addition to the record of the court's communications with the jury and with counsel, we believe that this jury could not have reached a unanimous verdict in any event; it remained evenly divided, with no progress, from the first hours of deliberation through the ensuing 2 full days of deliberation. By Monday in the late afternoon, the Judge's concern that a verdict not be coerced had become a realistic concern.

II. Evidence of Mulligan's Prior Bankruptcy

Prior to trial, Mulligan moved to exclude evidence that he filed for bankruptcy in 1989. He argued that the evidence was prejudicial, and that the bankruptcy was finalized 2 years before Kimberly's death. The State responded that evidence of Mulligan's bankruptcy was relevant to its theory that the murder was motivated, in part, by a desire for financial gain. The prosecutor argued: "I believe that looking at his financial status at this time is really important. The bankruptcy was just finished in 1990, and he was having a very difficult time getting a business going, and finances were very tight at this point." The trial court agreed that the evidence was relevant and denied Mulligan's motion to exclude, finding:

Presumably a person who files bankruptcy at the end has only the assets that are allowed under homestead and other rights and would demonstrate the lack of substantial assets two years before the death occurred.

I don't see that a bankruptcy in this day and age carries the stigma that perhaps it once did or perhaps in other areas did. I -- I

think it's relevant. I don't see it to be that prejudicial, and I'll deny the motion to exclude the mention of bankruptcy.

Mulligan now contends on appeal that the trial court erred in admitting evidence of his bankruptcy, arguing that the evidence was not relevant, and even if it was relevant, the prejudicial effect of the evidence outweighed its probative value.

The decision to admit evidence lies within the sound discretion of the trial court, and will not be overturned on appeal absent manifest abuse of discretion. State v. Markle, 118 Wash. 2d 424, 438, 823 P.2d 1101 (1992); State v. Hamlet, 83 Wash. App. 350, 358, 921 P.2d 560 (1996), review granted, 131 Wash. 2d 1005 (1997). Under ER 402, "all relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state." Evidence is relevant if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401; see also Channel v. Mills, 77 Wash. App. 268, 890 P.2d 535 (1995). Even if relevant, however, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. ER 403.

This court recently considered the admissibility of evidence of a defendant's bankruptcy in a criminal prosecution in State v. Matthews, 75 Wash. App. 278, 877 P.2d 252 (1994). In that case, the defendant was convicted of first degree murder for the stabbing death of a store owner. The State's theory at trial was that the murder was committed during an attempted robbery, and because the defendant was in financial distress at the time of the crime, he had a financial motive for committing the murder. In support of its theory, the State sought to elicit testimony regarding the defendant's recent bankruptcy. Over defense counsel's objection, the trial court admitted the testimony as a foundation for further evidence of the financial circumstances of the defendant at the time of the crime.

On appeal, this court affirmed the trial court's ruling admitting the evidence, holding:

We find no abuse of discretion by the trial court in allowing this evidence. While we agree with [the defendant] that a bankruptcy relieves financial distress, this evidence was presented as a foundation for other evidence that [the defendant] was living beyond his means at the time of the murder. From this evidence, the State crafted its theory that [the victim's] murder was the result of an interrupted robbery by a financially pressured man. Matthews, 75 Wash. App. at 284. Although this court warned that such evidence should be admitted "with caution," it noted that, if believed, the evidence established a link between the defendant's financial condition and a motive to commit robbery. Matthews, 75 Wash. App. at 286-87. Significantly, this court emphasized that "the focus of the evidence was not on poverty, but rather on the fact that the lifestyle of [the defendant] and his family seemingly exceeded the family's income." Matthews, 75 Wash. App. at 286. The evidence was thus relevant and admissible. Matthews, 75 Wash. App. at 288.

In the present case, evidence of Mulligan's 1990 bankruptcy was equally relevant and admissible. Here, the State theorized that Kimberly's murder was motivated, at least in part, by a desire for financial gain. The State presented evidence that Mulligan was experiencing financial difficulties around the time of the murder, and although he needed capital for his failing business, he was unable to obtain a conventional loan given his financial history. As in Matthews, the focus of the evidence was not on Mulligan's poverty, per se, but rather on the fact that his financial circumstances were insufficient to support his business and lifestyle. As in Matthews, the evidence of Mulligan's bankruptcy established a link between his financial condition and a motive to commit the murder of his wife, who was insured for over a half million dollars. Because the evidence of Mulligan's bankruptcy thus tended to make the existence of a fact that was of consequence to the determination of the action more probable than it would have been without the evidence, we conclude that it was relevant.

Mulligan next contends that, even if the evidence of his prior bankruptcy was relevant, any relevance was outweighed by its prejudicial effect. This court, however, rejected this same argument in Matthews: "Although recent bankruptcy followed by living beyond one's means may not be praiseworthy, neither is such evidence so prejudicial as to outweigh its probative value in support of a rational theory of a planned but interrupted robbery." Matthews, 75 Wash. App. at 286 Similarly, here, given the State's rational theory of a planned murder for financial gain, we hold that the evidence of Mulligan's bankruptcy was not so prejudicial as to outweigh its probative value. *fn4

III. Testimony of Mulligan's Second Wife

During its rebuttal case, the State sought to elicit testimony from Mulligan's second wife Gayle regarding two specific instances of violence during their marriage and the reason for their divorce. Mulligan objected, arguing that the testimony related to incidents more than 10 years prior to Kimberly's death, and that the probative value of the testimony was thus far outweighed by its prejudicial effect. Finding that the testimony as to the specific instances of violence was "grossly more prejudicial than relevant", the court excluded it. But because Mulligan himself had raised the issue of the reason for his divorce from Gayle during direct examination, the court held that the State was allowed to elicit such testimony from Gayle in rebuttal.

When Gayle took the stand, the prosecutor asked her: "The defendant testified in this case that the reason for the divorce was the fact that he had started seeing Kimberly. Was that the reason for the divorce?" Gayle responded:

No. I did not know about Kimberly until after he had moved out. The reason for the divorce was I was just sick and tired. I couldn't take any more of his abuse, any more of his intimidation, any more of his lies, any more of his cheating, his drinking. I just couldn't take any more. Defense counsel did not object to Gayle's testimony.

Mulligan now asserts on appeal that the trial court erred in permitting Gayle to testify as to the reasons for their divorce. As a preliminary matter, the State argues that this court should refuse to consider Mulligan's assignment of error because he failed to raise a sufficient objection at the time Gayle's testimony was admitted. The record indicates, however, that Mulligan objected to the admission of the testimony when the State moved, outside the presence of the jury, to introduce the evidence. Because the trial court was made aware of Mulligan's objection, and because it was given an opportunity to rule on the issue, we will address Mulligan's assignment of error on appeal. See State v. Sullivan, 69 Wash. App. 167, 170, 847 P.2d 953 (1993) (holding that when the parties have advanced an issue below, giving the trial court an opportunity to rule on relevant authority, and the court does so rule, it may not be necessary to object at the time of admission of the claimed erroneous evidence in order to preserve the issue for appeal).

Turning to the merits of Mulligan's assignment of error, he argues that the admission of Gayle's testimony violated ER 404 because it was offered to show that he was a person of bad character and that he acted in conformity with that character when he killed Kimberly. Mulligan, however, mischaracterizes the reason for the presentation of Gayle's testimony. During direct examination, Mulligan testified that he and Gayle were divorced because he "left her for another woman." In its rebuttal case, the State offered Gayle's testimony to dispute the accuracy of Mulligan's explanation of the reason for their divorce.

Under the Evidence Rules, a defendant who elects to testify "is subject to impeachment by any of the methods authorized by Rules 607, 608, and 609, regardless of whether he offered evidence of his good character under Rule 404(a)(1)." Karl B. Tegland, 5 Washington Practice, sec. 110, at 378 (1989). ER 607 provides: "The credibility of a witness may be attacked by any party . . ." Because Mulligan testified to the reason for his divorce from Gayle during direct examination, he opened the door to evidence presented by the State disputing his version of the facts. Gayle's testimony, presented in rebuttal, was limited to her understanding of the reason for their divorce. Although other Judges might have ruled differently due to the collateral nature of the reason for the divorce from Gayle, we do not conclude that the trial court abused its discretion in admitting the evidence.

IV. Prosecutorial Misconduct

During rebuttal argument, the prosecutor made the following argument:

I know this has been a very, very long afternoon. I'm sure you probably don't want to hear much more about this case at all. Please indulge me for just a few minutes. I feel I have to respond to something [defense counsel] mentioned.

There's a saying in law when you've got the law you pound the law. When you've got the facts you pound the facts. When you've got neither one on your side, you pound the table. In fact, as far as that theory of conspiracy that seems to engulf many people and involves my office. Detective Childers has arranged to get all these people together to come up and get the defendant. Even [defense counsel] has indicated that there's no evidence.

He then proceeded and indicated we shouldn't be here. This case should have been dismissed. That was his argument to show that somehow we got everybody together and either phonied the evidence or trumped up this evidence led by Detective Childers. And, of course, that would relate to the other officers, because the officers were there for many conversations. The other officers were here in the courtroom.

I'd ask you to use your common sense. I'd ask you to look very carefully at what he was arguing to you. That's a very typical defense tactic, and it's called taking your eye off the ball and focus on somebody else other than the defendant. That's exactly the trick that [defense counsel] is trying to use on you. I'd ask you to look very carefully at what he's told you. (Emphasis added). Defense counsel raised no objection to the prosecutor's argument.

Citing the emphasized statements quoted above, Mulligan now contends on appeal that the prosecutor committed misconduct by disparaging the defense case, by referring to matters outside the evidence, and by launching a personal attack on defense counsel.

To establish prosecutorial misconduct, the defendant must show the impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wash. 2d 570, 640, 888 P.2d 1105, cert. denied, 133 L. Ed. 2d 79, 116 S. Ct. 131 (1995) (quoting State v. Hoffman, 116 Wash. 2d 51, 93, 804 P.2d 577 (1991)); State v. Millante, 80 Wash. App. 237, 251, 908 P.2d 374 (1995), review denied, 129 Wash. 2d 1012, 917 P.2d 130 (1996); State v. Walden, 69 Wash. App. 183, 185, 847 P.2d 956 (1993) (quoting State v. Smith, 104 Wash. 2d 497, 510, 707 P.2d 1306 (1985)). A conviction will be reversed only if "'there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.'" State v. Luvene, 127 Wash. 2d 690, 701, 903 P.2d 960 (1995) (quoting State v. Lord, 117 Wash. 2d 829, 887, 822 P.2d 177 (1991)). The failure to object to a prosecutor's improper remark constitutes a waiver of the error "'unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.'" Gentry, 125 Wash. 2d at 640 (quoting Hoffman, 116 Wash. 2d at 93). Reversal of the defendant's conviction is not required if the error could have been cured by a curative instruction which the defense did not request. Gentry, 125 Wash. 2d at 640 (quoting Hoffman, 116 Wash. 2d at 93).

Citing State v. Reed, 102 Wash. 2d 140, 145, 684 P.2d 699 (1984), Mulligan contends that the prosecutor's reference to counsel "pounding the table" improperly disparaged his case by insinuating that defense counsel believed he was guilty. In Reed, the Supreme Court reversed the defendant's conviction for first degree murder because it found that the prosecutor committed misconduct denying him a fair trial. During closing argument in that case, the prosecutor called the defendant a liar "no less than four times", stated that defense counsel did not have a case, stated that the defendant "was clearly a 'murder two,'" and implied that defense witnesses should not be believed. Reed, 102 Wash. 2d at 145-46. The Court held that these comments, which reflected the prosecutor's personal opinion of the credibility of the witnesses and the guilt of the accused, were a "grievous departure" from the standards of conduct. Reed, 102 Wash. 2d at 148.

This case is distinguishable. Here, the prosecutor's allegedly improper statement was made in response to defense counsel's argument regarding a theory of conspiracy. Rather than asserting a personal opinion as to the guilt of the accused, which was found to be reversible error in Reed, the prosecutor in this case was arguing that the evidence did not support the defense theory of a conspiracy. Our Supreme Court has held that it is not misconduct for a prosecutor to argue that the evidence does not support the defense theory of the case. State v. Russell, 125 Wash. 2d 24, 87, 882 P.2d 747 (1994).

Citing State v. Belgarde, 110 Wash. 2d 504, 506-08, 755 P.2d 174 (1988), aff'd, 119 Wash. 2d 711, 837 P.2d 599 (1992), Mulligan next contends that by referring to trial strategy and the significance of its use, the prosecutor improperly referred to matters outside the evidence. Belgarde, however, does not support Mulligan's argument. There, the Supreme Court held that the prosecutor improperly testified to facts outside the record when he told the jury that the defendant belonged to a group that he characterized as a "deadly group of madmen" and "butchers that kill indiscriminately". Belgarde, 110 Wash. 2d at 508. Here, the prosecutor's statements did not constitute testimony to "facts" outside the record like that present in Belgarde.

Finally, Mulligan contends that the prosecutor's comments about defense "tactics" and "tricks" were improper because they cast suspicion on defense counsel and the role of defense counsel at trial. Although the State argues that the prosecutor was merely responding to defense counsel's allegation of a conspiracy, the prosecutor could have responded without alluding to "tactics" and "tricks", which necessarily connote an attempt to deceive or delude. See Webster's Third New International Dictionary 2442 (1969). The prosecutor's comments were thus improper. But even though the comments were improper, Mulligan has failed to argue that there is a substantial likelihood that the improper comments affected the verdict. Because the record does not indicate that they did affect the verdict, we affirm Mulligan's conviction despite the prosecutor's comments.

V. Separation of Jury

In his pro se supplemental brief, Mulligan contends that the Judge in his first trial erred in permitting the jury to separate during deliberations. Citing RCW 4.44.300 and State v. Smalls, 99 Wash. 2d 755, 665 P.2d 384 (1983), he argues that he is thus entitled to a presumption that he was prejudiced by the separation. Although this issue would appear to be moot, in that the first trial ended in a mistrial for reasons that appear to have nothing to do with the separation of the jury during deliberations, we will nevertheless address the merits of the contention in that the State has not argued that the contention is moot.

RCW 4.44.300 provides:

After hearing the charge, the jury may either decide in the jury box or retire for deliberation. If they retire, they must be kept together in a room provided for them, or some other convenient place under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. The officer shall, to the best of his ability, keep the jury thus separate from other persons, without drink, except water, and without food, except [as] ordered by the court. He must not suffer any communication to be made to them, nor make any himself, unless by order of the court, except to ask them if they have agreed upon their verdict, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed on. In Smalls, our Supreme Court held that if a jury is separated in violation of RCW 4.44.300, a presumption arises that the defendant has been prejudiced. The Court expressly noted, however, that "if defendant waives the protection offered by RCW 4.44.300 by agreeing to separation of the jury, he cannot assert the presumption of prejudice." Smalls, 99 Wash. 2d at 766.

Here, as in Smalls, Mulligan failed to object on the record when the court stated that it was sending the jury home until the following court day. *fn5 He thus waived the protection of RCW 4.44.300 and cannot assert the presumption of prejudice. In the absence of the presumption, a defendant must show at least a probability of prejudice. Smalls, 99 Wash. 2d at 767-68 (citing State v. Cunningham, 27 Wash. App. 834, 838, 620 P.2d 535 (1980); State v. Stiltner, 80 Wash. 2d 47, 491 P.2d 1043 (1971)). In this case, although Mulligan alludes to various "prejudicial" news articles that were circulating during the time his jury was at home, he himself admits "there is no way of knowing for certain whether the jurors in [this] case were influenced or not by these prejudicial news releases while at home." As in Smalls, Mulligan has failed to present evidence such as juror affidavits indicating a probability that he was prejudiced by the separation of the jury. See Smalls, 99 Wash. 2d at 768.

VI. Ineffective Assistance of Counsel

Although not the subject of an assignment of error or a statement of issue, Mulligan also suggests in his pro se supplemental brief that Judge Swedberg erred in concluding that his trial counsel was not rendered ineffective by having to devote considerable time to the issue of the conflict of interest concerning the State's potential witness, Cameron Howard, who was represented by Mulligan's defense counsel at the time police contacted Howard and allegedly promised him leniency with respect to a pending charge if he would testify against Mulligan as a jail house snitch. An appellant's failure to properly assign error will be excused when the nature of the challenge is perfectly clear from the party's brief. State v. Slanaker, 58 Wash. App. 161, 166, 791 P.2d 575 (1990); State v. Clark, 53 Wash. App. 120, 123, 765 P.2d 916 (1988). Because that is the case here, we will consider Mulligan's argument despite the absence of an assignment of error. Having reviewed the materials in the appendix to the pro se brief, however, we conclude that Judge Swedberg's ruling is perfectly supportable. As the Judge observed, defense counsel did not ask for a continuance to prepare further for the trial, and during the trial, court was recessed for 2 days, and a holiday resulted in a 3-day weekend, so that Mulligan's defense was not prejudiced by the extra work required when the State proposed to call Howard as a witness.

Although Mulligan also alludes in his pro se supplemental brief to alleged governmental misconduct giving rise to the conflict of interest with respect to potential witness Howard, the portions of the record appended to the pro se supplemental brief do not support the contention. Moreover, as the trial court ruled, the conflict of interest was rendered moot when the State elected not to call Howard as a witness. *fn6

The conviction is affirmed. The exceptional sentence is reversed and the matter is remanded for imposition of a standard range sentence.

WE CONCUR:

William W. Baker

Mary K. Becker


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