State v. Thorgerson

• Decision Date: 25 August 2011
• Docket Number: No. 83357–5.,83357–5.
• Citation: 258 P.3d 43,172 Wash.2d 438
• Parties: STATE of Washington, Respondent,v.Kenneth John THORGERSON, Petitioner.
• Court: Washington Supreme Court

172 Wash.2d 438

258 P.3d 43

STATE of Washington, Respondent,

v.Kenneth John THORGERSON, Petitioner.

No. 83357–5.

Supreme Court of Washington, En Banc.

Argued Sept. 23, 2010.Decided Aug. 25, 2011.

Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, for Petitioner.Seth Aaron Fine, Thomas Marshal Curtis, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.MADSEN, C.J.

[172 Wash.2d 440] ¶ 1 A jury convicted Kenneth Thorgerson on four counts of child molestation. He contends that his convictions must be reversed because prosecutorial misconduct occurred during his trial. We agree with the Court of Appeals that some of the conduct he challenges was not misconduct and that the misconduct that did occur does not constitute reversible error. Accordingly, we affirm the Court of Appeals.

FACTS

¶ 2 When D.T. was about six or seven years old, her stepfather, defendant Kenneth Thorgerson, began trying to place her hand on his penis. She testified at trial that initially Thorgerson made her touch him over clothing, but about the time that she started fourth grade Thorgerson successfully forced her to touch him directly. Then, after two years during which Thorgerson persisted in trying to get D.T. to touch him, when she was in sixth grade she “gave him a hand job until he ejaculated” because she was “sick” of his attempts to force her to touch him and thought if she did this he would leave her alone. II Verbatim Report of Proceedings (VRP) (May 20, 2008) at 27. When D.T. was in the seventh grade, she refused Thorgerson's persistent attempts to force her to touch him sexually and threatened to tell her mother. She was not forced to touch him again.

¶ 3 D.T. did not tell anyone about Thorgerson's abuse until she was 17 years old. Then she told her high school boyfriend. She also told her brother and her best friend, and eventually she confided in Lisa Carson, her high school counselor. Ms. Carson contacted the police and Washington State Department of Social and Health Services, Child Protective Services.

¶ 4 Thorgerson denied any improper contact with D.T. He said that D.T. and her boyfriend had fabricated the story in order to avoid Thorgerson's strict rules and spend more time together.

¶ 5 The State charged Thorgerson with three counts of first-degree child molestation and one count of second-degree child molestation. At the trial, the State's evidence consisted of D.T.'s testimony and the testimony of people that she made statements to about the abuse. There was no physical evidence or eyewitness testimony.¹

¶ 6 Thorgerson testified and denied the allegations. The defense presented its theory that D.T., along with her boyfriend and aided by her brother and girl friend, asserted the allegations in order to avoid her father's strict rules. The jury convicted Thorgerson on all counts charged. The trial court denied Thorgerson's motion for a new trial based on prosecutorial misconduct. He appealed, and the Court of Appeals affirmed in an unpublished decision. State v. Thorgerson, noted at 150 Wash.App. 1038, 150 Wash.App. 1038 (2009), review granted, 168 Wash.2d 1010, 226 P.3d 782 (2010).

¶ 7 Thorgerson maintains that during his trial the prosecuting attorney improperly vouched for D.T.'s credibility and bolstered her testimony, shifted the burden of proof to the defendant, and impugned defense counsel. Thorgerson did not object at trial to any of the instances of claimed prosecutorial misconduct. The facts pertaining to these claims are discussed in detail below.

ANALYSIS

¶ 8 To prevail on a claim of prosecutorial misconduct, the 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.’ ” State v. Magers, 164 Wash.2d 174, 191, 189 P.3d 126 (2008) (quoting State v. Hughes, 118 Wash.App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wash.2d 668, 727, 940 P.2d 1239 (1997))); accord State v. Ish, 170 Wash.2d 189, 195, 241 P.3d 389 (2010); State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003). The burden to establish prejudice requires the defendant to prove that “there is a substantial likelihood [that] the instances of misconduct affected the jury's verdict.” Magers, 164 Wash.2d at 191, 189 P.3d 126 (alteration in original); accord Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432; Russell, 125 Wash.2d at 85, 882 P.2d 747; see, e.g., State v. Weber, 159 Wash.2d 252, 276, 149 P.3d 646 (2006) (defendant failed to prove that prosecutor's misconduct in eliciting testimony barred by pretrial ruling, to which he did not object, caused prejudice affecting the outcome of the trial). The “failure to object to an improper remark constitutes a waiver of error unless the remark 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.” State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994); accord Fisher, 165 Wash.2d at 747, 202 P.3d 937. When reviewing a claim that prosecutorial misconduct requires reversal, the court should review the statements in the context of the entire case. Russell, 125 Wash.2d at 86, 882 P.2d 747.

¶ 9 A prosecuting attorney represents the people and presumptively acts with impartiality in the interest of justice. State v. Fisher, 165 Wash.2d 727, 746, 202 P.3d 937 (2009). As a quasijudicial officer, a prosecutor must subdue courtroom zeal for the sake of fairness to the defendant. Id.

¶ 10 Vouching. Improper vouching occurs when the prosecutor expresses a personal belief in the veracity of a witness or indicates that evidence not presented at trial supports the testimony of a witness. Ish, 170 Wash.2d at 196, 241 P.3d 389. Whether a witness testifies truthfully is an issue entirely within the province of the trier of fact. Id.

¶ 11 Thorgerson maintains that the prosecuting attorney vouched for D.T.'s credibility by suggesting that he knew personally that statements she made outside of the courtroom were consistent with her testimony and bolstered her testimony by implying that the State had information the jury could not hear because of the hearsay rules but which showed D.T. told her story consistently, including to people who did not testify, and therefore the jury should conclude that D.T. was testifying truthfully. One of the statements about which Thorgerson complains occurred in the prosecutor's opening statement:

She's got a boyfriend about this time;.... She confides in him what had happened. And he generally wouldn't be able to testify to—about everything that's said in that conversation because the rules don't allow it. But I do expect that he'll testify the nature [sic] or the demeanor of that conversation, and he'll tell you it's a pretty sad one.

I VRP (May 19, 2008) at 161.

¶ 12 In context, this statement concerns a witness's expected testimony, a permissible subject for opening statements. See Magers, 164 Wash.2d at 191, 189 P.3d 126 (“[d]uring an opening statement, a prosecutor may state what the State's evidence is expected to show”); see State v. Whelchel, 115 Wash.2d 708, 727, 801 P.2d 948 (1990). We do not believe this comment rises to the level of misconduct. And, although we do not approve the reference to rules that prevented the boyfriend from relaying all he was told, the prosecutor did not refer to the nature of that testimony or his personal belief in what was said to the boyfriend. Moreover, the jury was instructed that opening statements are not evidence, and the jury must be presumed to have followed this instruction. See State v. Grisby, 97 Wash.2d 493, 647 P.2d 6 (1982) (when the trial court instructs that an opening statement is not evidence, the jury is presumed to follow the instruction). Moreover, as discussed below, defense counsel raised the issue of the consistency of D.T.'s statements and elicited her testimony that all of her statements, including statements to her boyfriend, were consistent. For all these reasons, even if the reference to the “rules” was misconduct, it was not prejudicial. We agree with the Court of Appeals that there is no likelihood this comment affected the jury verdict.

[172 Wash.2d 445] ¶ 13 The next incident cited by Thorgerson occurred during closing argument, when the prosecuting attorney argued:

We did make a point of asking [D.T.] about all of the people she's talked to.... She told her boyfriend, she told a girlfriend, she told her brother, she told the school counselor, she told Deputy Eastep, she talked briefly to a detective. She wrote a written statement on it to the deputy. She talked to a nurse. She's talked to people in my office and an advocate. Others. So we're already past 10.

How many times was the defense able to say, well, isn't it true you told the nurse this? So you never got to hear all the statements. That's why I never got to ask the boyfriend what did she say to you? We were able to describe about the emotion, the demeanor, the timing, things of that nature? But you didn't get the statement that she says to her from me because there's hearsay rules.

III VRP (May 21, 2008) at 174–75.

¶ 14 Thorgerson contends these comments constituted misconduct and that prejudice is established because this case turned on the credibility of two witnesses—the victim and the defendant—and the prosecutor's references to consistency of the victim's statements to persons who did not testify at the trial created “a ‘substantial likelihood’ of affecting the jury” in these circumstances. Pet. for Review at 17.

¶ 15 Again, we do not condone the prosecutor's reference to the hearsay rules and how they affect production of evidence at trial. But the more important focus here is Thorgerson's claim that the prosecutor's references bolstered D.T.'s testimony and informed the jury that he had personal knowledge and believed that D.T. was telling the truth, and therefore the members of the jury should also...