State v. McAllister
| Decision Date | 25 September 2014 |
| Docket Number | No. 32290-4-III,32290-4-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent. v. PATRICK J. MCALLISTER, Appellant. |
KORSMO, J. — Patrick McAllister appeals his 31 convictions for rape and assault of his fiancee, a young woman whom he courted and brought to Washington from the Philippines. We reverse one count of rape due to insufficient evidence, and affirm the remaining counts after concluding that any errors in the prosecutor's closing argument did not amount to prejudicial misconduct.
Mr. McAllister was friends with Temur Perkins, a fellow resident of Jefferson County. Mr. Perkins was married to Rosemarie, a native of the Philippines. The Perkins's had met and married in that country before moving to Port Townsend where their children were born. Rosemarie Perkins introduced Mr. McAllister to her younger sister, S.L., over the telephone.
Mr. McAllister and S.L. began a telephone relationship with him calling her regularly over the next six to eight months. He then went to the Philippines to meet her and her family. She accepted his marriage proposal and moved to Manila from her village in Leyte in order to facilitate obtaining a visa to enter the United States.
She received a K-1 fiancee visa, which required her to marry within 90-days of entering the United States. She arrived in this country in the spring of 2010. At that point she was approximately 21 years of age and Mr. McAllister was approximately 47. The two took up residence at Mr. McAllister's home in rural Jefferson County.
Accounts of what transpired after that vary dramatically. Due to her religious upbringing, S.L. did not believe in pre-marital intercourse and refused Mr. McAllister's sexual advances. She described a litany of sexual abuse occurring over a 37-day period that included forcible and non-consensual intercourse of various varieties and numerous instances of assault, some of which occurred after sexual encounters and some that were unrelated. In contrast, Mr. McAllister testified that the couple was happy and had engaged in voluntary sexual intercourse on several occasions. He denied being physically able to kick S.L. as she had alleged occurred several times.
The defense theory at trial was that S.L. made up the story of abuse in order to stay in the country under a U visa. An attorney, Elizabeth Li, testified as an expert for the defense concerning how a person coming to this country on a K-1 fiancee visa could stay in the country under a U visa in order to assist in a prosecution of an abuser. Ms. Litestified that many who remain in the country under a U visa subsequently are able to obtain permanent residency status, although there is a quota on the number of people who can do so. She testified that the majority of her practice was in business immigration, but that 40 percent involved Report of Proceedings (RP) at 476.
The case was argued by the parties on the basis of credibility. The prosecutor emphasized that Mr. McAllister was a controlling person who never left S.L. alone with others and used "medicine" to perpetrate the sexual abuse. In contrast, the defense presented photographic evidence that suggested the pair were a happy couple who visited others and that S.L. made up the abuse allegations in order to gain permanent residency status and live near her sister. Defense counsel argued that the only option for S.L. to stay in the United States was to claim to be the victim of a crime. RP at 676.
In rebuttal, the prosecutor took issue with the immigration motivation argument. He argued that she did not need a U visa to seek residency due to her sister:
The Prosecutor also went on to indicate that S.L. did not have to cooperate in the prosecution and could still maintain on the U visa:
[Prosecutor:] And Li even said, Ms. Li even said, that [S.L.] doesn't need to stay to get a conviction in order for her to stay here on this new visa. So, you know, she could refuse to cooperate. She could refuse to testify. She could say, you know, I just can't do this. Please don't make me testify. Please don't make me do this. I don't want to get up in front of a room full of strangers and tell them this stuff. I just can't do it. And that happens all the time in courtrooms around this country.
The prosecutor also addressed Mr. McAllister's testimony that he had a bad ankle and knee by arguing that there was no medical corroboration:
The defense objected to the argument as "burden shifting." RP at 690. The court again cautioned the jury about attorney remarks. Id. After the jury had retired to deliberate, the trial judge told defense counsel that he did not consider the argument to be burden shifting because the prosecutor was not talking about "something they have to prove." RP at 700.
The court permitted 31 of the 40 counts to go to the jury. The jury returned guilty verdicts on all 31 counts, found that each charge involved domestic violence, and also found that the rapes were committed with the aggravating factor of deliberate cruelty. In total, the jury found Mr. McAllister guilty of 13 counts of rape in the second degree, 10 counts of rape in the third degree, and 8 counts of assault in the fourth degree.
The trial court imposed a minimum sentence of 250 months on the second degree rape counts, concurrent standard range terms of 60 months on the third degree rape counts, and concurrent one year terms on the assault counts. Mr. McAllister then timely appealed.
Mr. McAllister argues on several grounds that the prosecutor committed misconduct and that his counsel performed ineffectively. He also argues that his right to present a defense was impaired, the evidence was insufficient to support the second degree rape allegation in count 18, and that third degree rape cannot constitute a crime of domestic violence. We will address those arguments in the stated order.1
Mr. McAllister strenuously argues that the prosecutor committed misconduct, largely in his rebuttal argument, that deprived him of a fair trial. In particular, he alleges that the prosecutor argued facts not in evidence, improperly shifted the burden to the defense, and made references to the jury's personal experiences, with the cumulative effect of these actions requiring a new trial. While there may have been some error, it did not prejudice the defense.
Well understood standards govern our review of this claim. The general rule is that a prosecutor can properly draw reasonable inferences from the evidence admitted at trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991); State v. Hale, 26 Wn. App. 211, 216, 611 P.2d 1370 (1980),review denied, 95 Wn.2d 1030 (1981). The prosecutor can also argue that the evidence does not support the defendant's theory of the case. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). "Mere appeals to jury passion and prejudice, as well as prejudicial allusions to matters outside the evidence, are inappropriate." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). However, the defendant must object to the prosecutor's allegedly improper argument to preserve a claim of error unless the argument was so "flagrant and ill intentioned that no curative instructions could have obviated the prejudice." Id. When improper argument is alleged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. Hoffman, 116 Wn.2d at 93.
In determining whether prosecutorial comments have denied the defendant a fair trial, a...
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