State v. Craven

• Decision Date: 16 November 2020
• Docket Number: No. 78849-3-I,78849-3-I
• Citation: 475 P.3d 1038
• Parties: STATE of Washington, Respondent, v. Zachary Damien CRAVEN, Appellant.
• Court: Washington Court of Appeals

475 P.3d 1038

STATE of Washington, Respondent,

v.Zachary Damien CRAVEN, Appellant.

No. 78849-3-I

Court of Appeals of Washington, Division 1.

FILED November 16, 2020

Nielsen Koch PLLC, Attorney at Law, Eric J. Nielsen, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Carla Barbieri Carlstrom, King Co. Prosecutor's Office, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, for Respondent.

PUBLISHED IN PART

Verellen, J. ¶1 Jurors should reach a verdict based upon the evidence presented at trial and the law provided by the court. Because this process should be based in reason and logic, a prosecutor makes an improper closing argument by emphatically inviting jurors to rely on their emotions and moral sense as well as their intellect when reaching a verdict. Although Zachary Craven demonstrates the State's closing argument was improper, he fails to show it was prejudicial in view of the trial court's timely oral instruction to the jury that the application of the law to the facts is "an intellectual, not an emotional decision."¹ Retrial is not required.

¶2 Craven's remaining issues also do not warrant any relief on appeal.

¶3 Therefore, we affirm.

FACTS

¶4 Robert Luxton and Angelika Hayden were in a close relationship for decades and raised Hayden's biological grandson, Zachary Craven. Craven called Luxton "grandpa" and Hayden "mom." As Craven got older, his relationship with Hayden deteriorated. In 2013 and again in April of 2015, Craven pleaded guilty to domestic violence felony harassment for threatening to kill Hayden. He then moved in with Luxton, who no longer lived with Hayden.

¶5 On July 1, 2015, Luxton saw Craven come into their house from the garage and inject something into his arm. Luxton had never seen Craven use drugs like that before. Craven then took out an old .22 caliber pistol Luxton kept in the garage, put it to Luxton's temple, and said, "I will kill you."² Although scared, Luxton said, "No, you won't."³ Craven hit Luxton's temple with the gun.

¶6 On July 7, Luxton went to check on Hayden at home because she was not answering her phone. The front door was ajar, and he saw Hayden slumped over the coffee table in her living room. The television was on. He saw blood and a shell casing from a .22. Hayden had been shot once in the right temple, killing her.

¶7 That same day, Theresa Cunningham and her parents flew back to Washington after a vacation to Indiana. They were supposed to be picked up from the airport by Meagan Smith, who was one of Cunningham's best friends and who had been house-sitting for them. Smith was not at the airport or answering her cell phone, so Cunningham's uncle drove them home. No lights were on in the house, even though it was around 11:00 pm. The front door was locked, and Smith had their keys. Cunningham and her father walked to the back door. It was open. Cunningham used her cell phone as a flashlight as they walked into the house. She saw Smith's body on the kitchen floor and began to scream. Smith had been shot once in the head, killing her. A shell from a .22 was on the floor. They fled from the house. Cunningham called 911 and said her ex-boyfriend, Zachary Craven, had killed Smith.

¶8 After responding to the Cunningham home, Renton Police Officer Christopher Reyes brought Cunningham and her parents to the station for an interview. About 10 minutes into his interview with Cunningham, her phone rang. She put the phone on speaker and, in a clear voice, she and Officer Reyes heard Craven say, "I'm in trouble. I need help. Come meet me alone."⁴ Craven said he was at a drugstore in downtown Renton. Officer Reyes told dispatch where to find him.

¶9 Officer Dave Adam was on patrol around 1:00 a.m. when the call went out to detain Craven as a person of interest in Smith's death. Officer Adam found Craven waiting outside the drugstore. He called Craven's name and ordered him to lie on the ground. Craven dropped the bag he was holding, put up his hands, and began to walk away. After Craven ignored several more orders to stop, Officer Gary Berntson tased and arrested him. Officer Berntson took Craven to the police station and then to the hospital because Craven complained of pain in his wrists. Craven's blood was drawn at the hospital, and it tested positive for methamphetamine and traces of opiates.

¶10 The State charged Craven with second degree assault and two counts of first degree murder. Craven entered pleas of not guilty, made a general denial to the charges, and raised a mitigating theory of voluntary intoxication. The State moved to admit documents Craven wrote and gave to an inmate, who then provided them to the police. The court admitted the documents but reserved ruling on admitting the inmate's police interview because the inmate refused to testify. The State also moved to admit dozens of pieces of evidence under ER 404(b), and Craven moved to sever the charges against him. The court admitted some of the ER 404(b) evidence and denied the motion to sever.

¶11 In his opening statement, Craven admitted to killing Hayden and Smith but argued it was not intentional or premeditated. Over the lengthy trial, 44 witnesses testified, including more than 20 police officers and 7 scientists with the Washington State Patrol crime laboratory. During closing argument, the prosecutor argued, "[T]he law is rooted in our ... common intellectual sense [and] common moral sense. What that means is that if we apply the law to the evidence in this case, and if we follow the law, we will reach the correct verdict. And it should feel right when you do so."⁵ He repeatedly emphasized "it should feel right" in the head, heart, and gut when applying the law to the facts to find Craven guilty.⁶ After the jury found him guilty, the court sentenced Craven to 72 years’ incarceration.

¶12 Craven appeals.

ANALYSIS

I. Prosecutorial Misconduct

¶13 "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."⁷ Prosecutors represent the public, including defendants, and have a duty to see that fair trial rights are not violated.⁸ Prosecutors must " ‘seek convictions based only on probative evidence and sound reason.’ "⁹ A prosecutor acts improperly by seeking a conviction based upon emotion rather than reason.¹⁰ Reversal is required if the improper conduct prejudiced the defendant.¹¹

¶14 Craven alleges the prosecutor's closing argument prejudiced him. We review allegations of prosecutorial misconduct for an abuse of discretion.¹² We review the argument within the context of the trial as a whole.¹³ Craven bears the burden of proving the prosecutor's argument was both improper and prejudicial.¹⁴

¶15 During closing arguments, the prosecutor equated having a verdict "feel right" or "make sense" emotionally and morally with applying the law to the facts of the case:

[PROSECUTOR]: Members of the jury, the law isn't supposed to be mystic. It's supposed to represent us as a society. It's our shared beliefs, our shared understandings, our shared morals. The law is simply a codification of those things, and that's what you have before you in the form of those jury instructions. At first blush they may seem wordy, confusing, complicated. But if you take the time to actually read them, think about them, you will see that they make sense. It's because the law is rooted in our shared common intellectual sense, the law is rooted in our shared common moral sense.

[DEFENSE]: I'm going to object, Your Honor. Improper argument.

COURT: Objection overruled.

[PROSECUTOR]: Common intellectual sense, common moral sense. What that means is that if we apply the law to the evidence in this case, and if we follow the law, we will reach the correct verdict. And it should feel right when you do so.

[DEFENSE]: Objection, Your Honor.

COURT: Objection overruled. Jury will apply the law to the facts. The law is what is contained in my instructions. The facts are the evidence, which the jury finds to have been proven and established. It is an intellectual, not an emotional decision, but that is the process that will be used.

[PROSECUTOR]: If we follow the law, we will reach the correct verdicts. If you follow the law, you will reach the correct verdicts. And when do you that, it will feel right here intellectually.

[DEFENSE]: Objection, Your Honor, to characterization of the feeling right here.

COURT: The objection is overruled. Your objection is noted.

[PROSECUTOR]: It will feel right here intellectually [indicating the head]. Remember our shared common intellectual sense. It will feel right here morally [indicating the heart], our shared common moral sense. That's the law, and it should feel right here [indicating the gut or stomach].^[15]

[DEFENSE]: Objection, Your Honor.

COURT: The objection is noted.

[PROSECUTOR]: And that's because the law makes sense. It makes sense here, and it makes sense here, and it makes sense here. (Indicating.)

....

... The defendant must be found guilty of assault in the second degree for pistol whipping Luxton on the 2nd. The defendant must be found guilty of murder in the first degree for the premeditated killing of his 66 year old grandmother Angelika Hayden. The defendant must be found guilty of murder in the first degree for the premeditated killing of 21 year old Meagan Smith. These are the only conclusions that make sense. These are the only verdicts that make sense.

[DEFENSE]: Objection, Your Honor.

COURT: Objection overruled.

[PROSECUTOR]: When you consider the evidence, and you follow the law, these verdicts make sense. They make sense here. (Indicating.) They make sense here. (Indicating.)

[DEFENSE]: I'm going to object again.

[PROSECUTOR]: And they make sense here (Indicating.).

Thank you.^[16]

Craven argues this argument was improper because it asked the jury to come to a decision based equally upon what feels...