State v. MacDonald

• Decision Date: 10 August 2004
• Docket Number: No. 29117-7-II.,29117-7-II.
• Citation: 122 Wash. App. 804,95 P.3d 1248,122 Wn. App. 804
• Parties: STATE of Washington, Respondent, v. Stephen James MacDONALD, Appellant.
• Court: Washington Court of Appeals

95 P.3d 1248

122 Wn. App. 804

122 Wash. App. 804

STATE of Washington, Respondent, v. Stephen James MacDONALD, Appellant.

No. 29117-7-II.

Court of Appeals of Washington, Division 2.

August 10, 2004.

Suzan L. Clark, Attorney at Law, Vancouver, WA, David Zuckerman, Attorney at Law, Seattle, WA, for Appellant.

Kimberley Robert Farr, Attorney at Law, Vancouver, WA, for Respondent.

QUINN-BRINTNALL, C.J.

A jury convicted Stephen James MacDonald of first degree rape (Count I) and second degree rape (Count II) based on two separate incidents involving two separate victims. He appeals, claiming numerous errors.

Because the State failed to disclose material evidence favorable to the accused and improperly commented on MacDonald's right to remain silent, we reverse MacDonald's convictions. We also address MacDonald's arguments regarding the disqualification of his counsel of choice and denial of his severance motions because they may arise again on remand. Thus, we reverse and remand for a separate trial on each count.

FACTS

MacDonald's two convictions stem from two separate incidents. In Count I, MacDonald was charged with raping C.T. in her home on April 26, 2000. C.T. was then chronologically 18 years old and functioned at the upper end of the mentally deficient range. In Count II, MacDonald was charged with the second degree rape of L.P., then 16 years old, on either March 23 or 24, 2000, at Hathaway Elementary School in Clark County.

COUNT I (C.T.)

On April 26, 2000, MacDonald went to C.T.'s home to see her brother, Ruben. While C.T. was in the kitchen cooking a steak, MacDonald approached her from behind and started kissing her. C.T. told MacDonald to stop and pushed him away. MacDonald persisted and eventually used his finger to penetrate her vagina. C.T. repeatedly told MacDonald to stop, but she did not know what else to do. When C.T. pushed MacDonald away, he pulled his pants down and exposed himself.

At that point, C.T.'s brother returned MacDonald's page by calling MacDonald at Ruben's home. While MacDonald was talking to Ruben, C.T. went to her room and shut the door. C.T. thought she had heard MacDonald open the door and leave the trailer. C.T. stayed in her bedroom, but MacDonald opened the bedroom door a short while later. Although C.T. told MacDonald to leave, he pushed her onto her bed and forced her to have sexual intercourse with him.

MacDonald left only when C.T. said that she thought she heard someone coming and told him to leave. MacDonald left, and C.T. locked the front door.

When C.T.'s mother returned home that night, C.T. did not immediately tell her of the incident with MacDonald. But the next day, C.T. noticed that she was bleeding from her vagina. C.T.'s teacher noticed that something was wrong and asked C.T. if she was all right. C.T. told her teacher about MacDonald's raping her and the school notified C.T.'s mother. C.T. went to a hospital, where she received a pelvic examination. The police were also notified and C.T. told detectives about the incident.

COUNT II (L.P.)

According to L.P., she went to Hathaway to pick up her younger brother from after-school care and noticed a red car stopped near the school. MacDonald got out of the car with his adult dog and the car left.

MacDonald approached L.P. and started talking to her. MacDonald asked L.P. to hug him, and she did so. After the hug, MacDonald grabbed L.P. and took her behind the school. L.P. told MacDonald "no" repeatedly. MacDonald pushed L.P. against the wall and tried to kiss her, but she kept resisting and saying "no." L.P. tried to push MacDonald away, but MacDonald managed to put his hand inside her pants and penetrate her with his finger. L.P. pushed MacDonald away and left to pick up her brother.

L.P. did not immediately report the incident. But at a surprise birthday party, she revealed the incident during a game of Truth or Dare. In April 2001, L.P.'s assistant principal, with whom L.P. had a close relationship, asked L.P. whether the Truth or Dare account was true; L.P. said that it was. The school notified police, and L.P. eventually told investigating detectives of the incident.

The jury convicted MacDonald of one count of first degree rape and one count of second degree rape.¹ The court sentenced MacDonald to serve a standard range sentence of 120 months. MacDonald appeals.

MacDonald's appeal presents numerous issues. Two require reversal of his convictions: (1) the State's failure to disclose exculpatory evidence material to L.P.'s credibility and (2) improper closing argument. But we address two additional issues concerning the trial court's disqualification of MacDonald's counsel of choice and the trial court's refusal to sever the counts for trial because these issues are likely to reoccur on remand.

ANALYSIS

DUTY TO DISCLOSE

MacDonald claims that the State failed to disclose material exculpatory impeaching information. The specific information concerns L.P. only and is outlined in a confidential letter from the trial court to this court. Having reviewed the letter, we agree that the State failed in its duty to disclose the information.

Due process requires the prosecution to disclose material evidence favorable to the accused which, if suppressed, would deprive the defendant of a fair trial. In re Personal Restraint of Rice, 118 Wash.2d 876, 887, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992). The undisclosed evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability ... is a probability sufficient to undermine confidence in the outcome." State v. Benn, 120 Wash.2d 631, 649, 845 P.2d 289 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)), cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993), aff'd, 283 F.3d 1040 (2002). Material evidence may include evidence that is wholly impeaching if the result of the proceeding would have been different had the evidence been disclosed. Benn, 120 Wash.2d at 649-50, 845 P.2d 289.

There was no physical evidence that MacDonald raped L.P., only L.P.'s testimony. Thus, relevant material evidence impeaching L.P.'s credibility creates a reasonable probability that the outcome of the proceeding would have been different had the jury heard the information. Withholding relevant material impeachment evidence from the defense and the jury undermines confidence in the outcome of the trial and violates due process. Here, the State violated its constitutional duty to disclose to the defense relevant material evidence impeaching L.P.'s credibility and we reverse the jury's verdict on Count II and remand for retrial.

PROSECUTORIAL MISCONDUCT

MacDonald also contends that the State committed prosecutorial misconduct when it commented on MacDonald's failure to deny having raped C.T. when he took the stand to deny the allegation that he raped L.P. The State argues that MacDonald's testimony opened the door.

It is undisputed that the State cannot comment on a defendant's invocation of the right to remain silent as a suggestion to the jury of an admission of guilt. State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996). Following a series of adverse rulings excluding evidence of his dog's age, MacDonald took the stand to testify for the limited purpose of establishing his dog's age. L.P. had testified to having seen the dog on the day of the alleged rape and whether the dog was an adult or a puppy at the time had become relevant to evaluating L.P.'s credibility and her ability to accurately perceive and recall the day's events.

During his testimony, MacDonald provided other details of his encounter with L.P., such as whether he had seen L.P. at the high school in September 1999, whether he encountered an unidentified individual in a red car at the school, and whether he encountered L.P. in a brown truck. By testifying, MacDonald waived his Fifth Amendment right to remain silent on the charge of raping L.P., Harris By and Through Ramseyer v. Blodgett, 853 F.Supp. 1239, 1282 (W.D.Wash.1994),aff'd, 64 F.3d 1432 (1995), and the State could have cross examined MacDonald on this testimony. State v. Jones, 26 Wash.App. 1, 8, 612 P.2d 404,review denied, 94 Wash.2d 1013 (1980) (a party may cross examine a witness within the scope of a direct examination). But MacDonald did not testify about the charges alleged in Count I of the information: that he raped C.T.

During closing argument, the prosecutor commented:

Now the Defendant took the stand, and I'll point this out again, two young women have come forward and said that they had been raped by Mr. MacDonald. He was given the opportunity to tell you about that, but he didn't do it. He didn't do that at all. You have to take the testimony that you've been given from the stand.

You know it's kind of odd that you wouldn't come forward and protest your innocence and explain your side. And that's something you can consider in reaching your decision as to who's telling you the truth.

6 Report of Proceedings (RP) at 951.

The State argues that this comment was proper under State v. Young, 89 Wash.2d 613, 574 P.2d 1171, cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). Young held that a prosecutor may "argue the failure of the defendant to disclaim responsibility after he voluntarily waived his right to remain silent and when his questions and comments showed knowledge of the crime." 89 Wash.2d at 621, 574 P.2d 1171. But the State's reliance is wholly misplaced. First, the comment in Young referred to a defendant who waived the right to remain silent during an interrogation — not when testifying on his own behalf at trial. 89 Wash.2d at 621, 574 P.2d 1171; see also State v. Clark, 143 Wash.2d 731, 765, 24 P.3d 1006,

cert. denied, 534 U.S. 1000, 122 S.Ct. 475, 151 L.Ed.2d 389 (2001). And second,...