State v. Clarke, No. 52289-2-I (WA 3/28/2005)
Decision Date | 28 March 2005 |
Docket Number | No. 52289-2-I,52289-2-I |
Parties | STATE OF WASHINGTON, Respondent, v. THOMAS J. CLARKE, Appellant. |
Court | Washington Supreme Court |
Appeal from Superior Court of King County. Docket No. 02-1-02089-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Robert H Alsdorf.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Erin Hairopoulos Becker, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Thomas Clarke was convicted of child molestation in the first degree and was sentenced to life in prison with no parole under the Persistent Offender Accountability Act. He had three prior convictions: two counts of indecent liberties and one count of assault in the second degree with sexual motivation, all committed against boys. He alleges prosecutorial misconduct, ineffective assistance of counsel, and challenges the Persistent Offender Accountability Act on several constitutional bases.
In January 2002, Thomas Clarke saw Fred Schneider (Schneider) panhandling at a Costco. Clarke began talking with Schneider and offered him a job helping Clarke in Clarke's janitorial business. Schneider accepted, and later took Clarke to meet his family. Schneider was living with his sister and brother-in-law, Linda and Eugene Needham, their four children, and a family friend, Doug Talley (Talley). The group shared two rooms at the Spruce Motel in Tukwila, Washington. At the time, Eugene Needham was unemployed due to an injury, and Linda Needham, Schneider and Talley were disabled and received government assistance checks. Clarke offered to pay the Needham's three boys, Michael, D'Angelo and Daryl, $15 each per shift to help him and Schneider in his janitorial work. The Needhams agreed. Clarke began picking up Schneider and the boys on Friday afternoons and taking them to jobs. Clarke fed everyone fast food and paid them as promised. Since the work was not finished until late in the evening, Clarke preferred not to drive them back to Tukwila, suggesting instead that Schneider and the boys stay with him overnight in his Seattle apartment. The Needhams agreed.
Clarke's apartment was a single room in the Boylston Hotel. When staying the night, Schneider and 13-year-old Michael would sleep on the floor, and 11-year-old D'Angelo and 9-year-old Daryl would alternate between sleeping on the floor and sharing the bed with Clarke. These visits occurred several times.
The manager of the Boylston Hotel noticed that Clarke had children visiting him and called the police. Clarke was a registered sex offender, and had three prior convictions for sexually abusing boys. The officers that responded to the call questioned both Clarke and the boys, who denied that anything inappropriate had occurred. The police called Eugene Needham to tell him of Clarke's history, and then drove the boys home.
Back at the motel, Daryl told his father that Clarke had touched his penis while he stayed in Clarke's bed. Daryl later repeated this to the police. The police then arrested Clarke and interviewed him. Clarke initially denied any wrongdoing, but eventually admitted touching Daryl's penis. On March 7, 2002, Clarke was charged with one count of child molestation in the first degree.
At trial, Daryl testified that Clarke touched his penis when they slept on the bed together. During cross-examination, defense counsel asked Daryl if he was making up this story in the same way he had told lies in the past, and Daryl said he was. Defense counsel pointed this out in closing argument. The prosecutor responded by saying that Daryl had likely not been paying attention to defense counsel's question and got mixed up because Daryl was `being cross-examined by somebody whose sole purpose is to confuse him.' Defense counsel did not object to this comment.
Detectives Tim Fields (Fields) and Donna Lopez (Lopez), the two officers that had interviewed Clarke after his arrest, also testified at trial. Lopez testified that during the interview Fields asked Clarke if he had ever received treatment while incarcerated for his prior convictions. Clarke had said he never entered treatment because he did not do anything wrong, and he had heard from other inmates that he would never be released if he underwent treatment. Fields then told him that this was incorrect, that treatment was designed to move offenders back into society. Between Lopez's and Fields' testimony, defense counsel moved to admit evidence that Clarke was facing a life sentence if convicted, arguing that the jury should know that Clarke would not be moved back into society if convicted. The trial court denied this motion.
Clarke was found guilty. At sentencing, the prosecutor offered evidence of Clarke's prior convictions in order to show that he was a persistent offender. The trial court, without a jury, found that the state had met its burden and sentenced Clarke to life in prison under the Persistent Offender Accountability Act (POAA). Clarke appeals.
Clarke argues that prosecutorial misconduct denied him a fair trial. Specifically, Clarke cites to the prosecutor's statement that defense counsel `is a trained lawyer, and he actually is able to manipulate that child, confusing him.' Clarke also cites to the prosecutor's statement that Daryl was `being cross-examined by somebody whose sole purpose is to confuse him.' Defense counsel did not object to these comments at trial. A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. Brown, 132 Wn.2d at 561. Failure to object to a prosecutor's improper remark constitutes a waiver of any misconduct; however, appellate review is not precluded if the misconduct is so flagrant and ill-intentioned that no curative instructions could have neutralized the resulting prejudice. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995).
Assuming without deciding that the comments were improper, Clarke has not shown that they likely affected the jury's verdict. Fields testified that Clarke confessed to touching Daryl's penis. In addition, the trial court gave the jury instructions that the lawyer's statements were not evidence, and that the jury must disregard statements not supported by law or evidence. It is presumed that jurors follow the court's instructions. State v. Cunningham, 51 Wn.2d 502, 505, 319 P.2d 847 (1958). Thus, there is no substantial likelihood of prejudice.
In addition, Clarke has not shown that the comments were so flagrant and ill-intentioned that a curative instruction would have been useless. Cases in which the prosecutor's comments rose to that level involved more extreme comments that were about the defendant, not defense counsel.1 In addition, similar comments about defense counsel have not been held to be flagrant and ill-intentioned. In State v. Negrete, 72 Wn. App. 62, 66, 863 P.2d 137 (1993), the prosecutor stated in closing argument that defense counsel was being paid to twist the words of the witness. The court found that although the remark was improper, it was not prejudicial beyond cure. Negrete, 72 Wn. App. at 67. Here, the prosecutor stated that defense counsel was manipulating and confusing Daryl on the stand. Thus, Clarke has not shown that a curative instruction would not have remedied any impropriety; accordingly, his claim must fail.
Clarke contends that since the prosecution's statement deprived him of his constitutional right to counsel, the comment must be reviewed under the standard of whether it was harmless beyond a reasonable doubt. Since we do not find that an error of constitutional dimensions occurred, we need not analyze the statement under that standard.
Clarke contends that his counsel's failure to argue that the state had opened the door to evidence of potential punishment constitutes ineffective assistance of counsel. Specifically, Clarke argues that the state opened the door to the otherwise inadmissible issue of potential punishment when Lopez testified about the conversation between Clarke and Fields. Lopez testified that Fields told Clarke that treatment is set up to help offenders overcome problems `so they can get back out and function in society.'2 Defense counsel later argued that he should be permitted to introduce evidence of the life sentence Clarke faced, to show that Fields' statement was untrue. The trial court did not admit that evidence. Clarke argues that counsel's failure to use the `open door' argument when seeking to admit the evidence constituted ineffective assistance of counsel.3 In order to prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that his or her lawyer's performance was so deficient that the lawyer was not functioning as `counsel' for Sixth Amendment purposes, and (2) that there is a reasonable probability that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). When assessing the adequacy of the lawyer's performance, courts apply a strong presumption of reasonableness. Thomas, 109 Wn.2d at 226. Clarke contends that the `open door' doctrine is so well-established that a failure to raise it constitutes deficient performance. Clarke further contends that if the evidence had been admitted, the jury may have...
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