State v. Hoeg

• Decision Date: 29 February 2016
• Docket Number: No. 72912-8-I
• Citation: State v. Hoeg, No. 72912-8-I (Wash. App. Feb 29, 2016)
• Parties: STATE OF WASHINGTON, Respondent, v. ZACKARY ALLEN HOEG, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. ZACKARY ALLEN HOEG, Appellant.

No. 72912-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 29, 2016

UNPUBLISHED OPINION

DWYER, J. — Following a jury trial, Zackary Hoeg was convicted of attempted residential burglary.On appeal, Hoeg contends both that prosecutorial misconduct deprived him of his constitutional right to a fair trial and that his attorney provided constitutionally ineffective assistance by neither objecting to the alleged misconduct nor requesting a curative jury instruction.Finding no error, we affirm.

I

Kirsten Zenie's deceased parents owned a home located in a residential neighborhood in Marysville.The home sits on a five acre parcel located back from the roadway and is surrounded by woods.As executor of her father's estate, Zenie maintained the home, paying the utility bills and taxes.Although the house had been unoccupied since 2012, Zenie visited the property at least once per month, and often as frequently as three times per week, to tend to various chores.

On March 7, 2014, Zenie received a call from a security company informing her that the alarm at the property had been activated.Upon confirming that no one should have been at the house, the security company advised Zenie to call the police.Shortly thereafter, Zenie received a call from Marysville Police Officer Jeremy Wood.Officer Wood likewise confirmed with Zenie that no one had permission to be at the home.

Within minutes, Officer Wood arrived at the home and positioned himself in a location to observe the property.Officer Wood soon noticed a man, later identified as Hoeg, leaving the back portion of the property heading eastward.After spotting Officer Wood, Hoeg changed course and briskly started walking southbound away from Officer Wood's patrol vehicle.After backup officers arrived, Officer Wood approached Hoeg, handcuffed him, and placed him in the back of his patrol car.Officer Wood explained to Hoeg that he was being detained in connection with an investigation into a residential burglary.

Meanwhile, other officers approached the main door of the home, observed the scene, and reported to Officer Wood that a visible shoe print was present and that the main door had been kicked in.Upon receiving this information, Officer Wood read Hoeg his Miranda¹ rights and asked Hoeg if he wished to talk about the incident.Hoeg was cooperative with the investigation and informed Officer Wood that he had kicked in the door, that the alarm sounded, and that he then took off.Hoeg stated that he was looking for directions to the main road, clean clothes, and blankets.

Based on the foregoing events, the State charged Hoeg with attempted residential burglary.

At trial, Hoeg testified in his own defense.Hoeg testified that he was homeless and that on March 7he had been walking through a wooded area in Marysville when he came upon a house.He recalled that he walked around the house for approximately 20 or 30 minutes, looked in the windows, knocked on the door, and rang the doorbell in order to discern whether anyone was living there.Hoeg stated that he believed that no one occupied the house at the time² and that he attempted to gain access to the home because he was wearing dirty clothes and wanted to "find something warmer to wear and possibly a blanket to use at nighttime."Hoeg testified that he thought the items in the home "were left behind, discarded, and no one was going to come back for them."

Additionally, Hoeg stated that he kicked the door open because he thought the house was vacant and this was his only means of entry.He testified that, in the event he was wrong about the house being unoccupied, he did notwant to be "held responsible for taking something that was worth value or anything."³When the alarm sounded, he ran off into the woods.As he saw Officer Wood approaching, Hoeg went in the other direction instead of talking to him because he was afraid.

The jury convicted Hoeg of attempted residential burglary, and the court imposed a sentence of 60 days confinement.Hoeg timely appeals.

II

Hoeg first contends that reversal of his conviction is required because the prosecutor engaged in misconduct by improperly appealing to the jurors' emotions.This is so, he asserts, because the prosecutor's repeated references to "universal truths" and "accountability" invited the jurors to decide the case on an emotional, not evidentiary, basis.We disagree.

"The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitutionandarticle I, section 22 of the Washington State Constitution."In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673(2012)(citingEstelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126(1976);State v. Finch, 137 Wn.2d 792, 843, 975 P.2d 967(1999))."Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial."Glasmann, 175 Wn.2d at 703-04(citingState v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213(1984)).

"In order to establish prosecutorial misconduct, a defendant must show '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 Wn.2d 174, 191, 189 P.3d 126(2008)(quotingState v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681(2003)).When analyzing prejudice, we consider the comments in the context of the entire argument, not in isolation.State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43(2011)(citingState v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747(1994))."The criterion always is, has such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a [defendant] from having a fair trial?"Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464(1932).

"Once a defendant establishes that a prosecutor's statements are improper, we determine whether the defendant was prejudiced under one of two standards of review."State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012).Where the defendant objects at trial, the defendant must demonstrate that "the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict."Emery, 174 Wn.2d at 760(citingState v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273(2009)).However, the failure to object to an improper remark at trial constitutes a waiver of the claim of error, "and appellate review is precluded, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."State v. Stenson, 132 Wn.2d 668, 726-27, 940 P.2d 1239(1997)(citingState v. Gentry, 125 Wn.2d 570, 596,888 P.2d 1105(1995);State v. Fiallo-Lopez, 78 Wn. App. 717, 726, 899 P.2d 1294(1995))."Under this heightened standard, the defendant must show that (1)'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'"Emery, 174 Wn. 2d at 761(quotingThorgerson, 172 Wn.2d at 455).

Hoeg did not object to the prosecutor's statements at trial, did not request a mistrial, and did not request a curative instruction to the jury.Thus, Hoeg bears the burden of proving (1) that the prosecutor's remarks were improper, (2) that these remarks were so flagrant and ill-intentioned that they resulted in enduring prejudice, and (3) that the prejudice could not have been alleviated by a proper curative instruction.SeeEmery, 174 Wn. 2d at 761;Thorgerson, 172 Wn.2d at 455.

The relevant portion of the prosecutor's closing argument was as follows:

There are some universal truths that we all know.Our home should be a safe zone.It should be somewhere where we can keep our private things, where we can feel safe, where we can have an expectation of privacy.When we're home, when we're behind locked doors, we should feel that we're safe, that no one is going to come kicking in our door, that the police won't come kicking in our door.We all know that.When we're not home and we lock our doors when we leave, that somebody is not going to just come busting in and take our things.When we leave for vacation and we lock up before we leave, that our house is not just open for the taking because we're gone, because we didn't mow our lawn for a week while we were gone for a month.That doesn't mean it's an open invitation for anybody to just come and help themselves.Those are things that we all know.

When you think about how many things you leave behind when you leave in the morning to go to work, how many of your family heirlooms that you have tucked away somewhere in your home, maybe even in a place that normal people when they'rewalking through your house wouldn't know.They wouldn't see them walking through your living room.You have them tucked away somewhere private.

Photo albums, Social Security numbers, bank statements, all of those private things that are tucked away in your house.They're in your home because you know that that's a safe place.That's your home.You don't get more private than that.You store them there because you assume that they're safe behind locked doors.

There are some basic concepts that we all know, that we teach our children.We talked about that on Monday, about accountability.Why do we teach our children to respect other people, to respect boundaries, not to hit other people, to bite other children, to respect not only their space, but their bodies?Those basic concepts we teach them at young ages for a reason because when you grow up we have those same basic concepts that we all expect other people to respect.And it comes down to accountability.And that's why we're here, is accountability.

The defendant admitted to what he did on March 7th.He admitted to being on

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