State v. Goodwin

• Decision Date: 02 April 2019
• Docket Number: No. 50707-2-II,50707-2-II
• Parties: STATE OF WASHINGTON, Respondent, v. HOWARD B. GOODWIN, IV, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. HOWARD B. GOODWIN, IV, Appellant.

No. 50707-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

April 2, 2019

UNPUBLISHED OPINION

GLASGOW, J. — Despite a court order prohibiting Howard Goodwin from having contact with Patricia Meyer, he decided to spend the night with her in a park because she was homeless. Meyer called the police in the early morning hours and said that Goodwin, her boyfriend of 14 years, had assaulted and attempted to rape her. Later that night, she also told the police and emergency room staff that Goodwin had assaulted her and tried to force her to have sex and perform oral sex on him.

At trial, Meyer recanted to some degree. The prosecutor argued to the jury that they should believe Meyer's statements on the night of the assault, rather than Meyer's testimony at trial where Goodwin was present. Defense counsel did not object. The jury acquitted Goodwin of second degree attempted rape but convicted him of second degree assault, fourth degree assault, violation of a court order, and indecent liberties with forcible compulsion.

Goodwin appeals, arguing that the prosecutor improperly commented on Goodwin's exercise of his right to be present at his own trial and that Goodwin's defense counsel was ineffective for failing to object to the prosecutor's statement. We conclude that the prosecutor's statement was not improper because it addressed the credibility of witness statements. As a result, defense counsel was not deficient in his failure to object. Goodwin also raises several arguments in his statement of additional grounds and supplemental statement of additional grounds. We reject those arguments as well. Accordingly, we affirm Goodwin's convictions.

FACTS

At the time of the incident, a no-contact order prohibited Goodwin from having contact with Meyer. Nevertheless, the two of them went to a park together, where they began kissing and engaging in foreplay.

After some time they began arguing, and the argument eventually escalated into a physical fight. Goodwin started wrestling Meyer to keep her from leaving as she was trying to run away, and he threw Meyer to the ground where she hit her head. Meyer then managed to get away. Goodwin told her that "it wasn't going to be good" if she called the police and then he ran away. Verbatim Report of Proceedings (VRP) (Vol. IV) at 390. Meyer called the police. During that call, Meyer said that she had refused to have sex with Goodwin and in response, he had hit her.

When police and medics arrived at the park, they took Meyer to the emergency room. There Meyer told Dr. Brett Jensen that Goodwin had assaulted her, saying he had picked her up, thrown her, kicked her, and hit her. Meyer also told Dr. Jensen that he tried to force her to have oral sex, but that no penetration had occurred. Meyer reported a significant headache and pain in her back, neck, hand, wrist, left arm, and leg. Dr. Jensen noted multiple tender areas, abrasions, and swelling on Meyer's scalp and the side of her head. Meyer declined a sexual assault exam.

Meyer also discussed the incident with a nurse and a police officer, Deputy Russell Bradseth, at the hospital. Meyer told the nurse that Goodwin had shoved, pushed, kicked her,and grabbed her by the face, but she denied being sexually assaulted. Meyer reported to Deputy Bradseth that she had told Goodwin she did not want to have sex and just wanted to sleep, and she told him several times to stop touching her. Meyer said that Goodwin had climbed on top of her, tried to force her to have sex, and yelled at her to touch his penis.

Meyer also made a written statement to the police in which she said that Goodwin had "physically assaulted and sexually assaulted" her "three separate times," and on his "last attempt to rape" her he body slammed her onto the concrete and threatened to kill her if she called the police. VRP (Vol. IV) at 457.

The State charged Goodwin with second degree attempted rape, second degree assault, fourth degree assault, felony violation of a domestic violence court order, and indecent liberties with forcible compulsion.

At trial, the prosecutor played a redacted version of Meyer's 911 call for the jury. During the call, Meyer said that Goodwin "wanted to have sex and I said 'no,' and he just started hitting me and beating me and telling me how he was going to (inaudible) make me, make me." VRP (Vol. IV) at 411. Meyer told the dispatcher that she was sexually assaulted and that Goodwin "picked [her] up and body slammed [her] on the cement," and also tried to force her to perform oral sex on him "[s]everal times." VRP (Vol. IV) at 412, 420-24. Dr. Jensen, the emergency room nurse, and Deputy Bradseth all testified to what Meyer had told them that night.

At trial, Meyer recanted to some degree. She testified that Goodwin never hit her, but he told her he was going to force her to have sex, he attempted to make her perform oral sex, and he threatened to kill her if she called the police. She also denied any sexual assault. She admitted that she had been using methamphetamine that night, but she was not sure if it had affected hermemory. Dr. Jensen testified that he saw no signs of drugs or alcohol use when he examined Meyer in the emergency room.

Goodwin also testified at trial. He agreed that he and Meyer got into a verbal argument that escalated into a physical altercation, although he claimed it was Meyer who instigated the argument and escalated it by throwing a bucket of chicken at him as he was leaving because he had fallen asleep during foreplay. He admitted that he grabbed Meyer by the hair, "smacked her upside the head," and wrestled with her to keep her from calling 911. VRP (Vol. V) at 584-86, 605. He also did not dispute that he violated the no-contact order. He said he never tried to force Meyer to have sex with him, nor did he threaten to hurt her if she called the police.

In closing argument, the prosecutor read aloud Meyer's written statement to the police, noting that she signed it under penalty of perjury, and then made the following argument:

Now, defense counsel may want you to disbelieve [Meyer], disbelieve what she says to 911, what she said to the doctor, what she wrote in her statement. He, defense [counsel], he wants you to believe what [Meyer] has testified to the last two days.

So what do we make of her testimony in the last two days? Well, first off, remember, that testimony, those statements were made in front of Mr. Goodwin. This 911 call was not, the statements to the doctor were not, and her statements to Deputy Bradseth were not. She has admittedly said, she wants to see him again. She told you that at one point back in November she felt that Mr. Goodwin was all that she had.

VRP (Vol. V) at 672. Defense counsel did not object to any of these statements.

The jury acquitted Goodwin of attempted second degree rape and convicted on all other counts.

Goodwin appeals his convictions.

ANALYSIS

I. PROSECUTORIAL MISCONDUCT

Goodwin argues that during closing argument the prosecutor improperly commented on Goodwin's exercise of his constitutional right to be present at trial. We disagree.

A. Burden for Allegations of Prosecutorial Misconduct

To prevail on a prosecutorial misconduct claim, Goodwin bears the burden to show that the prosecutor's comment on his presence at trial was both improper and prejudicial in the context of the entire record and the circumstances at trial. See State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). When a claim is made that the prosecutor committed misconduct during closing argument, we review the prosecutor's statements "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). During closing argument, prosecutors have "'wide latitude in making arguments to the jury and prosecutors are allowed to draw reasonable inferences from the evidence.'" State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006)).

The defendant must show there is a "'substantial likelihood'" the improper statements affected the jury's verdict. State v. McCreven, 170 Wn. App. 444, 468, 284 P.3d 793 (2012) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). The failure to object to an improper remark constitutes waiver "unless the remark is so flagrant and ill intentioned that it causes enduring and resulting prejudice" that an instruction or admonition to the jury could nothave cured. Thorgerson, 172 Wn.2d at 443 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)); see also State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

B. Reference to a Defendant's Exercise of a Constitutional Right

The State may not draw adverse inferences from the exercise of a constitutional right. See generally, United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968); State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984) (listing cases). Our Supreme Court has recognized that "a comment in closing argument that is 'tied only to the defendant's presence in the courtroom and not to his actual testimony'" can run afoul of article I, section 22 of the Washington Constitution. State v. Martin, 171 Wn.2d 521, 535-36, 252 P.3d 872 (2011) (quoting Portuondo v. Agard, 529 U.S. 61, 77, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000) (Ginsburg, J., dissenting)). A comment on the exercise of a constitutional right in closing argument after the defendant has submitted his case is particularly problematic because the defendant may be prevented from providing a meaningful response. Id. at 535-36.

Nevertheless, our Supreme Court recently reiterated that "not all arguments that discuss a defendant's constitutional rights are impermissible. The question is 'whether the prosecutor manifestly intended the remarks...