State v. Stroman, No. 29457-5-II (WA 3/8/2005), 29457-5-II
| Decision Date | 08 March 2005 |
| Docket Number | No. 29457-5-II,29457-5-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. ELIJAH MICHAEL STROMAN, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 01-1-05626-5. Judgment or order under review. Date filed: 09/24/2002. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Elijah Michael Stroman appeals his first degree felony murder conviction. He alleges (1) prosecutorial misconduct; (2) trial court error in evidentiary rulings and in denying his motion for mistrial; (3) violation of his Fourth Amendment rights; (4) ineffective assistance of counsel; and (5) cumulative error. In a separate Statement of Additional Grounds1 (SAG), Stroman challenges detectives' photomontage interviewing techniques and admission of opinion testimony. Finding no error, we affirm.
On October 16, 2001, Stroman, Jeanette Murray, and Todd Dow drove to the Travel Inn motel in Tacoma. Dow gave Stroman use of his car in exchange for drugs and a place to sleep.
During the ride, Dow saw Stroman display a brick-colored gun that he believed had .22 caliber bullets.
When they arrived at the motel, Murray enlisted someone named `Papa' to sign the motel registration card and to show identification for the room. 13 Report of Proceedings (RP) at 578. Murray also signed the registration card under a false name. Murray, Stroman, and Dow then went to room 30, where Calvin Rouse joined them. Dow saw Murray hold the gun and then hand it back to Stroman.
The four stayed at the motel until October 18th. On that night, Gary Wilson and Cassidy Moen were engaging in sexual acts and smoking crack cocaine in room 24 of the motel. Wilson and Moen eventually ran out of cocaine. Moen saw Murray outside their motel room and knew that Murray would sell her more drugs.
Murray sold them crack on more than one occasion that night and, at one point, she noticed that Wilson had a large amount of cash in the motel room. Murray advised Wilson to put the money away because of people who `can and will take your money if they have a chance.' 16 RP at 901.
After she saw Wilson's money, Murray returned to room 30 and told Stroman, Rouse, and Dow that Wilson had a large amount of cash. Stroman, Rouse, and Murray decided that they wanted to `hit a lick.' 21 RP at 1831. Dow testified that this slang phrase meant `{t}aking something from somewhere or somebody.' 21 RP at 1831.
This group then `unexpected{ly}' began planning to leave room 30 and discussed which of their belongings they should take down to the car. 21 RP at 1833. They instructed Dow on what to take down and, after he made several trips, they told him to wait in the car. From the car, Dow saw Stroman, Murray, and Rouse leave room 30 and walk toward room 24.
Someone knocked at Wilson's motel room door, and Wilson answered it. Murray and the two men entered the room. One of the men had a bandana covering most of his face and carried a gun. Murray grabbed for Wilson's jeans, which were on the floor, while the two men began to beat Wilson.
Moen backed toward the bathroom and heard Wilson say, 16 RP at 910. Moen then heard several gunshots but could not see who fired the gun. When Moen emerged from the bathroom, Wilson was on the floor, and the three assailants were gone. Moen went to the door and saw a tall black male jump into a car and pull out quickly.
While Dow was waiting in the car, he heard shots. Then he saw Murray, Stroman, and Rouse run for the car and saw Stroman lose a shoe. When they reached the car, Stroman got behind the wheel, Murray hopped in with money in her hands, and Rouse was bleeding from an injury.
Stroman drove to the East Wind Motel in Federal Way, stating that Tacoma was a `hot area' and that they should `go somewhere else.' 21 RP 1856. Police responded to the Travel Inn and found Wilson dead. He had suffered three gunshot wounds and multiple injuries to his upper torso as a result of blunt trauma. The police recovered four bullet casings that were.45 caliber.
Police found documents with Rouse's name on them in room 24, a white tennis shoe on the staircase, and a $100 bill in the parking lot. A search of room 30 revealed a Cheetos bag with Stroman's fingerprint and a beer can with Murray's fingerprint.
The police arrested Murray and Stroman at the East Wind Motel on October 26th. On October 29, 2001, the State charged Stroman with first degree felony murder with a firearm enhancement.
The trial court denied Stroman's motion to suppress evidence the police found in room 30 and his motion to suppress Moen's identification of Stroman as one of the assailants.
During trial, Stroman moved for a mistrial because the State elicited testimony indicating that Stroman's fingerprints were on file with police before the current crime. The court denied the motion.
Stroman moved to preclude Dow from testifying that he saw Stroman with a gun shortly before the shooting. Following Stroman's offer of proof, the court denied the motion. The court also denied Stroman's motion to exclude Dow's testimony regarding plans to `hit a lick' and leave town. 21 RP at 1831.
The jury found Stroman guilty as charged. At sentencing, the court ordered Stroman to provide a blood sample for deoxyribonucleic acid (DNA) identification analysis.
Stroman subsequently filed this timely appeal, asserting prosecutorial misconduct, trial court error in the admission of evidence and denial of Stroman's motion for mistrial, violation of his Fourth Amendment rights, ineffective assistance of counsel, and cumulative error. In a separate SAG, Stroman also challenged suggestive identification procedures and the admission of opinion testimony.
Stroman alleges that the prosecutor committed multiple acts of `flagrant' and `egregious' misconduct throughout the trial. Stroman lists a number of acts that he contends amount to prosecutorial misconduct, but we address only the assertions with arguable merit.
We review a trial court's ruling on a claim of prosecutorial misconduct under an abuse of discretion standard. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). The defendant bears the burden of showing prejudicial misconduct. Finch, 137 Wn.2d 839.
A prosecutor's misconduct warrants a new trial where there is a substantial likelihood that the misconduct affected the verdict. Finch, 137 Wn.2d 839. But where Stroman did not timely object below, we will not disturb the jury's decision unless the misconduct is `so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Stroman first asserts that the prosecutor committed misconduct by detailing how difficult it was for Moen to suffer the embarrassment of testifying. He contends that this tactic appealed to the passions and prejudices of the jury and influenced the jury to draw `a negative inference from the fact that Stroman had exercised his right to have a trial occur.' Br. of Appellant at 34. Appeals to the jury's passions and prejudices, and references to matters outside the evidence, are improper. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
The State asked Moen whether she had `experienced any hardship in the jail because of the fact that {she was} a material witness in a murder case.' 16 RP at 953. Moen responded, `Yes.' 16 RP at 953. A defense objection was sustained.2
On the evidence in this case this question was improper, but it is unlikely that it influenced the jury or affected its verdict. The jury properly heard testimony that Moen was being held in jail at the State's request because she was a flight risk. Any impropriety by the prosecutor was harmless under these circumstances.
Stroman now raises similar objections to the prosecutor's statement during closing:
{D}efense counsel{} spent the better part of a day cross-examining Cassidy Moen, reminding her exactly why it is she wishes she could forget the events that occurred on October 19th at the Travel Inn on Pacific Avenue.
Cassidy Moen got exactly what she anticipated she'd get for cooperating with the investigation and testifying at trial. Cassidy Moen was incarcerated for over 42 days on a motion by the Prosecutor's Office. . . .
But she got far more than that. Cassidy Moen got absolute humiliation. For almost a full day she sat on the stand right here, before numerous people she'd never met before, and had to disclose to you the most personal natures of her lifestyle.
23 RP at 2097-98. Stroman did not object to this argument at trial.
While this argument may be viewed as one appealing to the passions and prejudices of the jury, it was not flagrant misconduct requiring reversal. Brown, 132 Wn.2d at 561. And any prejudice created by the prosecutor's statements could have been neutralized by a curative instruction to the jury had an objection been made.3
Stroman further asserts that the prosecutor committed misconduct by bolstering Moen and Dow's credibility. But the prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986). Here, the prosecutor simply used the facts of the case to infer that the State's witnesses were telling the truth. There was no prejudicial impropriety in this assertion.
Finally, Stroman argues that the prosecutor misstated the law during closing argument when he stated that in order to believe the defense theory of the case, the jury would have to believe that the police engaged in corrupt behavior. Stroman contends...
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