State v. McKenzie

• Citation: 134 P.3d 221,157 Wn.2d 44
• Decision Date: 18 May 2006
• Docket Number: No. 76585-5.,76585-5.
• Parties: STATE of Washington, Respondent, v. David Wyatt McKENZIE, Petitioner.
• Court: United States State Supreme Court of Washington

134 P.3d 221

157 Wn.2d 44

STATE of Washington, Respondent, v. David Wyatt McKENZIE, Petitioner.

No. 76585-5.

Supreme Court of Washington, En Banc.

Argued November 10, 2005.

Decided May 18, 2006.

COPYRIGHT MATERIAL OMITTED

Tom P. Conom, Attorney at Law, Edmonds, for Petitioner.

Thomas Marshal Curtis, Snohomish County Pros Ofc, Everett, for Respondent.

OWENS, J.

¶ 1 A jury found David McKenzie guilty of three counts of rape of a child in the second degree. McKenzie filed a motion for a new trial, contending that remarks made by the deputy prosecutor during rebuttal closing argument had prejudiced his right to a fair trial. The trial court denied the motion. McKenzie appealed from the denial of the motion and from the judgment and sentence, but in an unpublished per curiam opinion, the Court of Appeals affirmed McKenzie's conviction. State v. McKenzie, noted at 124 Wash.App. 1056, 2005 WL 12020, 2005 Wash. App. LEXIS 1 (per curiam). We now affirm the Court of Appeals.

FACTS

¶ 2 In November 2002, McKenzie was charged by information with the felony of rape of a child in the second degree, arising out of his alleged sexual abuse of his stepdaughter C.T.¹ McKenzie's jury trial began in June 2003. Called as the State's first witness, C.T. testified that the incidents occurred between September 1997 and the late spring or early summer of 1999, a period of time when she was in the sixth and seventh grades and living in a three-bedroom home in Lake Stevens with her mother, her stepfather, and her older sister, Shelby.

¶ 3 C.T. reported that McKenzie would enter her bedroom at night, kneel beside her bed, slide his hand beneath her covers, and vaginally penetrate her with two or three fingers, inserting them "[a]s far as he could go." Verbatim Report of Proceedings (VRP) at 34. C.T. testified that the rapes occurred "[b]etween three and six times a week" — that "it was a regular almost-everyday ordeal." Id. at 36. She told the jury that when she heard the door of the wood stove creak at night, she would feel "[s]cared" because it had been her stepfather's practice to smoke a cigarette in the living room at the wood stove, walk into the kitchen and wash his hands, and then enter her room, sometimes after stopping in his own room or in Shelby's room next door to turn off her television. Id. at 38. C.T. recalled the smell of cigarette smoke when McKenzie was at her bedside, and she described his fingers as "[r]ough" and the penetration as "dry" and painful. VRP at 33-34. She explained that she would feign sleep, roll over toward the wall, and try to tuck her covers beneath her "like a kid... wrapped up in a burrito," but that, even if she rolled away from her stepfather and faced the wall, he still penetrated her with his fingers and that during those incidents she could feel his hand on her bottom. Id. at 36. She reported that on some occasions he also touched her breasts with his hands and mouth. C.T. stated that, at the time of the abuse, she had "thought it happened to everybody, not just me," and had even believed that McKenzie "was doing the same thing" to her sister. Id. at 39. C.T. testified that, ultimately, on one of the nightly occasions when McKenzie was kneeling by her bed and "was about to try to do what he did every other time," she had opened her eyes and said "'No, don't. Stop it,"' and that he had responded, "'I thought you liked it. I thought it was fun.'" Id. at 41. According to C.T., McKenzie never again touched her inappropriately.

¶ 4 The State called as witnesses Lindsey Swain and Tyler Anyan, two of C.T.'s friends to whom she first disclosed the alleged molestation. Terri Anyan, Tyler's mother, also testified. In the fall of 2000, Tyler told his mother of the abuse, and in February and April 2001, she spoke with C.T. and encouraged her to tell her mother or, if that did not seem possible, her father. C.T. disclosed the abuse to her father in May 2001. He testified that C.T.'s mother, Laurie McKenzie, had "[s]eemingly wanted to take the situation out of the United States up to Canada to avoid the United States judicial system, for some unknown reason," and that he had given her "over a month of time" before contacting Child Protective Services (CPS) and getting C.T. "into some counseling." Id. at 104.

¶ 5 The defense called C.T.'s sister and mother. Shelby testified that she knew a number of C.T.'s friends and that, as to C.T.'s reputation for truthfulness, "[s]he wasn't truthful at all." Id. at 158. (The State later called two of the friends that Shelby had mentioned, and they testified that C.T. "always told the truth," "was always honest." Id. at 208, 209.) The deputy prosecutor elicited from Shelby that she blamed C.T. for tearing the family apart with the allegations against their stepfather. Shelby also testified that she was neither employed nor married and was indebted to McKenzie for potentially "thousands" in loans used to cover her mortgage, a custody battle with her child's father, and some recent travel expenses. Id. at 162. The deputy prosecutor's final question emphasized Shelby's financial dependence:

Q. And if David goes to prison, he can't give you any more money, can he?

A. No.

Id. at 168. Similarly, on cross-examination, C.T.'s mother conceded that she was only "kind of working" and that McKenzie was paying the mortgage on their home. Id. at 197.

¶ 6 McKenzie took the stand in his own defense. When defense counsel asked him about whether he and C.T.'s mother had directly discussed taking C.T. "to a counselor up in Canada," McKenzie responded: "There was counselors. What we were thinking about in Canada, in Washington, we were actually looking for a mediator, what we were trying to do." Id. at 221. As to why he was "wanting a mediator," McKenzie replied, "Because what we needed to do was actually get [C.T.] help." Id. Although McKenzie acknowledged that, during the period covered by the allegations, he would go into C.T.'s bedroom at night to turn off her television, he denied ever touching her inappropriately. He also testified that, within the family, C.T. had a reputation for "being untruthful." Id. at 229.

¶ 7 On cross-examination, the deputy prosecutor questioned McKenzie about the family members in attendance and established that they were there to support him, not C.T., whom McKenzie described as having "attacked everybody in this family." Id. at 232. McKenzie acknowledged that he had "helped Shelby out quite a bit financially," lending her money to pay legal fees, her mortgage, and travel expenses. Id. He admitted that, despite his ability to look up the word "counselor" in a phone book, he had been unable to find a counselor between May 2001, when the abuse was disclosed, and July, when CPS was contacted. The deputy prosecutor then asked a series of questions concerning the effort to arrange counseling for C.T.:

Q. Are you telling this jury between May and July you couldn't find one?

A. We were trying to figure things out.

Q. I'm just asking if you couldn't find one.

A. We did not locate one, no.

Q. Okay. You talked about sending her to a counselor in Canada, though; isn't that right?

A. We talked about issues of Canada.

Q. And that's because in Canada you thought there would be a different reporting requirement. Isn't that right?

A. Not so much that, but Canada with the exchange rate, excuse me. The exchange rate is much better.

Q. So you thought you could save some money on [C.T.'s] counseling if you sent her to Canada.

A. Well, we're looking at the whole options.

Id. at 240-41.

¶ 8 On the fourth day of trial, the court instructed the jury, and the deputy prosecutor and defense counsel made closing arguments. While the deputy prosecutor made several objections during defense counsel's argument, defense counsel raised no objections during the deputy prosecutor's closing argument or rebuttal. The jury returned a verdict that same day, finding McKenzie guilty on the three charged crimes of rape of a child in the second degree.

¶ 9 McKenzie retained new counsel and on August 18, 2003, filed a "Motion for Arrest of Judgment and, Alternatively, Motion for New Trial." Clerk's Papers (CP) at 131-32. On October 10, 2003, he filed a memorandum supporting only the motion for a new trial, citing as grounds CrR 7.5(a)(2), "[m]isconduct of the prosecution." The State responded to the motion for a new trial on October 31, and on November 5 McKenzie filed a supplemental supporting memorandum. At a hearing on the same day, the trial court entertained the motion on the merits, even though it had not been timely filed. See CrR 7.5(b) (providing that a motion for a new trial must be filed within 10 days of verdict). After hearing argument, the trial court denied the motion for a new trial and sentenced McKenzie to 146 months on each count (the low end of the standard range), with the three sentences to run concurrently.

¶ 10 McKenzie immediately filed a notice of appeal from the judgment and sentence and from the order denying his motion for a new trial. In an unpublished per curiam opinion, the Court of Appeals affirmed McKenzie's conviction. McKenzie, 2005 WL 12020, 2005 Wash.App. LEXIS 1. We granted McKenzie's petition for review. State v. McKenzie, noted at 154 Wash.2d 1020, 116 P.3d 398 (2005).

ISSUE

¶ 11 Did McKenzie establish that the deputy prosecutor made improper remarks in rebuttal closing argument? If so, did he show that the improper remarks, which prompted no objection from defense counsel, were so prejudicial that they could not have been cured by an instruction to the jury?

ANALYSIS

¶ 12 Standard of Review. CrR 7.5(a) provides that "[t]he court on motion of a defendant may grant a new trial . . . when it affirmatively appears that a substantial right of the defendant was materially affected." This court has repeatedly stated that "[t]he granting or denial of a new trial is a matter primarily within the discretion of the trial court and ...