State v. Bono, No. 36131-1-II (Wash. App. 6/30/2009), 36131-1-II.

Decision Date30 June 2009
Docket NumberNo. 36131-1-II.,No. 36243-1-II.,36131-1-II.,36243-1-II.
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. JEREMY JAMES BONO and JARED NATHANIEL METCALF, Appellants.

Appeal from Pierce County Superior Court. Docket No: 05-1-05264-5. Judgment or order under review. Date filed: 03/23/2007. Judge signing: Honorable Brian Maynard Tollefson.

Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, Po Box 7718, Tacoma, WA, 98417.

Reed Manley Benjamin Speir, Attorney at Law, 3800 Bridgeport Way W Ste A23, University Place, WA, 98466-4495.

Lisa Elizabeth Tabbut, Attorney at Law, Po Box 1396, Longview, WA, 98632-7822.

Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.

UNPUBLISHED OPINION

Van Deren, C.J.

In consolidated appeals, codefendants Jeremy Bono and Jared Metcalf appeal their convictions for first degree assault with a deadly weapon of Garrett Wilson. They both argue that the prosecutor committed misconduct during closing argument by relying on facts not in evidence. Metcalf also argues sentencing error. Both defendants filed statements of additional grounds for review (SAGs)1 raising various issues without merit.

We affirm the convictions and we do not reach Metcalf's sentencing issue because it will require additional evidence to resolve and, therefore, should be raised in a personal restraint petition (PRP).

FACTS

On October 26, 2005, the Pierce County prosecutor charged Jeremy Bono and Jared Metcalf with first degree assault of Garrett Wilson. In October 2005, Wilson was staying at Tracy Vasquez's home. Vasquez saw Bono drive by his house on October 12, 2005. Twenty minutes later, Bono and Metcalf came to the open door and Metcalf asked for Wilson. Wilson knew Jeremy Bono because he had dated Bono's sister. They generally had gotten along, although Bono recently told Wilson that he would kill him if he slept with his sister. Wilson did not expect Bono and Metcalf as visitors that day.

Bono and Metcalf said that they needed to go for a ride and Wilson left with them. Wilson testified later that he left with the two men because he thought they were angry and because he did not want anything to happen in Vasquez's home. Vasquez looked out of the window and saw the three men driving away in a pickup truck. He saw Bono driving, with Wilson sitting in the middle and Metcalf sitting on the passenger side.

In the truck, Metcalf restrained Wilson and hit him. Metcalf punched Wilson with his fist and hit him with an empty liquor bottle. Metcalf uttered obscenities, some of which may have been of a sexual nature involving what might happen to Wilson. When Wilson asked Bono "why [he] was getting beat up," Bono said something about his sister being arrested. Report of Proceedings (RP) at 327. Metcalf told Wilson to empty his pockets; Wilson complied. Wilson defecated in his pants. He testified that he did this to be funny but he also suggested, prior to testifying at trial, that he did it to make himself repugnant to his assailants.

After driving for 20 minutes, Bono parked the truck on an isolated logging road. Metcalf told Wilson to remove his clothes, which Wilson did. Metcalf tried to grab Wilson and they both fell to the ground. Wilson ran toward some bushes and two rocks hit him as he ran away. He hid in the bushes until Bono and Metcalf drove away. He then dressed and walked down the road, where a man driving by picked him up, called 911, and drove him to a fire station.

Paramedics transported Wilson to the hospital. Daniel Brocksmith, a physician's assistant, took photographs to document Wilson's condition when he first arrived at the hospital. Brocksmith testified that Wilson suffered a nasal fracture and skull fracture and that he was covered in feces and had numerous lacerations to his head and face. Wilson told Brocksmith that "he had been assaulted with bottles and fists." RP at 293.

At the hospital, Wilson indicated that he did not want to speak to police officers. Brocksmith reported that Wilson was "[c]ooperative to a point where he could tell them his personal information. But anything about the incident, he wouldn't say anything about it."2 RP at 295. A week or so later, after he had been released from the hospital, Wilson spoke with an officer concerning the assault on October 12. As a result of the interview, the police arrested Bono and Metcalf. The prosecutor's office charged them with first degree assault of Wilson.

Both informations included a deadly weapon enhancement.

After his arrest, Metcalf repeatedly contacted Wilson and offered him money to make the case go away. The State eventually arrested Wilson as a material witness; Wilson testified that he thought the case should not be prosecuted. Metcalf also called Vasquez multiple times and offered Vasquez money to write a statement that would "help him out." RP at 188. Vasquez eventually authored two statements — one for Metcalf and one for Bono — which indicated that they had not assaulted Wilson.

The trial court consolidated the two cases for trial. A jury found both Bono and Metcalf guilty as charged. The trial court sentenced Bono to 136 months plus 24 months for the deadly weapon enhancement. The court sentenced Metcalf to 176 months plus 24 months for the deadly weapon enhancement.

ANALYSIS
I. Prosecutorial Misconduct

Both Bono and Metcalf argue that the prosecutor committed misconduct during closing argument. Specifically, they contend that when the prosecutor argued that Wilson soiled himself to prevent Bono or Metcalf from sexually assaulting him, the prosecutor did not base his argument on facts in the record and the argument was highly prejudicial.

A. Standard of Review

As recently stated by our Supreme Court:

To prevail on a claim of prosecutorial misconduct, a defendant must show first that the prosecutor's comments were improper and second that the comments were prejudicial. See, e.g., State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359, cert. denied, 128 S. Ct. 2964 (2007); State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).

State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008), cert. denied, Warren v. Washington, 129 S. Ct. 2007 (2009). When objecting to closing argument for the first time on appeal, an appellant must show that the argument was "so flagrant and ill-intentioned that no instruction could have cured [it]." Warren, 165 Wn.2d at 30.

In analyzing prejudice alleged to arise from a prosecutor's argument, we look at the challenged comments "in the context of the total argument, the issues in the case, the evidence, and the instructions given to the jury." Warren, 165 Wn.2d at 28. In addition, a jury is presumed to follow a court's instructions. Warren, 165 Wn.2d at 28.

B. Objections At Trial to State's Closing Argument

In response to Bono and Metcalf's claims of prosecutorial misconduct, the State first asserts that Bono and Metcalf failed to object to the challenged substance of the closing argument at various times. But the record shows that counsel objected at least once to the argument. All statements — whether objected to at trial or not — challenged by Bono or Metcalf on appeal go to whether the prosecutor improperly implied that Bono or Metcalf threatened to sexually assault Wilson and that Wilson soiled himself for this reason.

Bono objected to the prosecutor's statement regarding Wilson's reluctance to testify, specifically, the statement that "he doesn't want to come before you and talk about the fact that he potentially was raped and had to poop all over himself to prevent . . . ." RP at 591. The prosecutor was interrupted by a defense objection based on an insufficient factual basis of the prosecutor's argument. And Metcalf objected to the statement that:

Mr. Metcalf's intent was to cause great bodily harm to Mr. Wilson, and probably other crimes, other acts such as rape. But as Mr. Wilson at one point said, he pooped on himself — he didn't use that word but I'm going to use it — in order to dissuade these two individuals from further humiliating him.

RP at 546-47. The trial court overruled both objections.

C. Factual Support for the State's Closing Argument

Metcalf and Bono argue that the prosecutor's comments lacked factual support. The State counters that its argument was supported by a reasonable inference from the evidence.

The relevant portions of Wilson's testimony state:

[STATE:] I want to ask you a question that I don't mean to embarrass you,

it's just obviously part of this —

[WILSON:] Yeah, I sh[*]t myself. You got a problem with that?

[STATE:] . . . . When did you do that?

[WILSON:] Shortly after we got in the truck while I was in a sleeper hold.

[STATE:] Why did you do it?

[WILSON:] Just because I thought it would be funny.

. . . .

[STATE:] Well, did you ever explain that differently?

[WILSON:] I don't know, possibly.

[STATE:] Did you ever explain it in relation to the sexual comments that were made about you'3

[WILSON:] No.

. . . .

[STATE:] Well, I think you indicated in the affirmative that the comments were of a sexual nature of things that were going to be done to you, is that correct?

[WILSON:] Yeah, it was well after I sh[*]t myself.

[STATE:] Did you not say that you sh[*]t yourself in order to avoid that kind of contact?

[WILSON:] No.

[STATE:] You did not say that —

[WILSON:] No.

[METCALF COUNSEL:] Objection, asked and answered.

[THE COURT:] Objection overruled.

[STATE:] — in front of all three of the attorneys here?

[WILSON:] Not that I recall. I do not think I did. I might have. I don't know.

. . . .

[STATE:] Okay. Now, why would you take your clothes off?

[WILSON:] . . . . I had pants full of crap.

. . . .

[STATE:] . . . . Which person out of the people that were there told you to take your clothes off?

[WILSON:] Well, if I don't think it was [Bono], who does that...

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