GROSSE, J.
Where a defendant in a criminal case fails to request a curative instruction following an instance of prosecutorial misconduct, we will reverse only if the misconduct was so prejudicial that no instruction could have cured it. Here, defendant William Maxie failed to request a curative instruction following admitted prosecutorial misconduct that was not so flagrant or ill-intentioned that an appropriate instruction could not have cured the prejudice. We affirm.
FACTS
On the evening of January 3, 2002, D.P., then 15 years old, was standing on University Way (`the Ave') in the U-District. Maxie called D.P. over to him, and he asked her if she wanted to buy drugs. D.P. told Maxie that she wanted some `speed or weed,' and she gave him her watch and some money. Maxie offered to buy D.P. some food, and she accepted.
As they walked toward a restaurant on the Ave, Maxie asked D.P. if she would `suck his dick.' She said no. Maxie then asked D.P. to have sex with him for all the money he had with him. Again, she declined. Inside the restaurant, Maxie ordered some food for D.P. As she ate, Maxie twice began rubbing his hand on her thigh near her genitals. On both occasions, D.P. told Maxie to stop. Maxie then became upset that D.P. was apparently not going to have sex with him in return for the food. D.P. again told Maxie that she would not have sex with him.
Still upset, Maxie demanded that the restaurant manager, Damian McDonnell, refund him the money that he had paid for D.P.'s food. McDonnell then spoke with D.P., and he asked if she would like him to call the police. D.P. hesitated because she feared that if she made a complaint, the police would send her to juvenile detention as a runaway. D.P. eventually did decide to complain to the police about Maxie.
By the time the police arrived, Maxie had left the restaurant. D.P. told University Police Officer Kevin Kilpatrick what happened, and she gave him Maxie's physical description. Officer Kilpatrick realized that the description matched that of a person he had just seen outside the restaurant. Officer Kilpatrick thought that D.P. appeared to be very young. Based on the information he received from D.P., and his observation of Maxie, Officer Kilpatrick instructed other officers to detain Maxie. University Police Officer Alan Beard asked Maxie to return to the restaurant, and he agreed.
After D.P. identified Maxie as her assailant, the officers arrested him. A search of Maxie after the arrest produced a silver woman's wristwatch. Maxie told the police that he bought the watch from D.P. for five dollars, but he denied ever being inside the restaurant with her. The King County Prosecutor charged Maxie with communicating with a minor for immoral purposes (CMIP), a gross misdemeanor, under RCW 9.68A.090. The jury found Maxie guilty as charged.
DISCUSSION
Prosecutorial misconduct. Maxie argues that the prosecutor repeatedly committed misconduct, and that this denied him his right to a fair trial. Specifically, Maxie contends that the prosecutor's cross examination called for Maxie to explain why D.P. would lie, and that the prosecutor implied his personal belief in the truth of D.P.'s testimony. Maxie also contends that the prosecutor commented on his guilt. Finally, Maxie contends that the prosecutor argued facts not in evidence during closing argument and violated a pretrial ruling when he argued that D.P. was `the perfect victim.'
After each instance of purported misconduct, Maxie either did not object or did not request a curative instruction. On review, therefore, we will reverse Maxie's conviction for prosecutorial misconduct only if he shows that it was so flagrant and ill-intentioned that no curative instruction could have cured the prejudice. During cross-examination, the prosecutor asked Maxie a series of three questions that in substance asked him to explain why D.P. would have lied when she complained to the police. The questions were:
See State v. Alexander, 64 Wn. App. 147, 155, 822 P.2d 1250 (1992).
Q: It is a little different, isn't it, Mr. Maxie, if you are talking about a kid who is a runaway, because as we learned from [D.P.'s] testimony she learned she might get arrested and go to juvie for telling? She put herself in jeopardy. Doesn't that speak volumes about the truth of her testimony?
Q: Why would this kid go and tell the police knowing that she is going to be in trouble?
Q: The question is, sir, if it is not true why would she make this up? Maxie objected to each question, and the trial court sustained his objections.
Maxie argues that these questions unequivocally communicated the prosecutor's personal belief that D.P.'s testimony was true, which impermissibly `bolstered' D.P.'s testimony. Maxie contends that the questions prejudiced the verdict because the jury likely would not have convicted him absent the prosecutor's questions. The State concedes that the questions were improper because they asked Maxie to comment on the truth of D.P.'s testimony. Nonetheless, the State argues that the questions were not so flagrant and ill-intentioned that no instruction could have cured the prejudice.
The case of State v. Graham is analogous. There, the prosecutor challenged the defendant on cross examination to explain why the complaining witness would lie. Although the trial court sustained Graham's objections to two questions, it allowed the prosecutor to ask whether Graham knew of any reason why the complaining witness would lie. On review, we found that the prosecutor's questions and remarks did not amount to flagrant and ill-intentioned misconduct. In doing so, we contrasted the prosecutor's conduct in Graham from the misconduct in State v. Reed, where the prosecutor called the defendant a liar, stated that defense counsel did not have a case, referred to the defendant as clearly a "murder two," and asked rural jurors whether they were going to let city lawyers make their decision.
State v. Graham, 59 Wn. App. 418, 798 P.2d 314 (1990).
Graham, 59 Wn. App. at 427, 429.
Graham, 59 Wn. App. at 427.
State v. Reed, 102 Wn.2d 140, 143-44, 684 P.2d 699 (1984).
State v. Jerrels, a case that Maxie cites, is distinguishable. In Jerrels, the prosecutor asked the defendant's wife whether she believed her children's claims that their father sexually abused them. Defense counsel never objected to the line of questioning, and the mother testified that she believed her children's accusations. The court of appeals held that the improper questions warranted reversal because `[a] mother's opinion as to her children's veracity could not easily be disregarded even if the jury had been instructed to do so.' But Jerrels is inapposite authority here because Maxie did not answer any of the questions at issue. Here, the prosecutor asked questions that were substantially identical to those at issue in Graham. Like the Graham court, we find that the prosecutor's conduct here, despite being admitted misconduct, is not comparable to that which occurred in Reed. Although the questions here were argumentative, they were not so flagrant or ill-intentioned that no instruction could have cured the resulting prejudice. To use Maxie's words, we find it unlikely that, `absent the improper questions the jury likely would not have convicted Maxie.'
State v. Jerrels, 83 Wn. App. 503, 925 P.2d 209 (1996).
Jerrels, 83 Wn. App. at 506-08.
In addition to the questions just discussed, Maxie claims that several other prejudicial questions warrant reversal. These questions were:
Q: Would you agree with the general proposition that if you are going to commit a crime and you are going to have a certain kind of victim that people aren't going to believe, people aren't going to think twice about, aren't going to take seriously, that a street kid is the perfect victim?
Q: As a general rule, Mr. Maxie, do you think people listen to a kid from the street or a boy scout? Who will they take seriously?
Q: Do you have any ill will towards [D.P.]?
Q: Do you think it took courage for her to come here and testify? Maxie argues that these questions were prejudicial because they bolstered D.P.'s credibility and they implied the prosecutor's belief in the truth of her testimony. We disagree. While these questions were irrelevant and perhaps argumentative, we find it unlikely that they prejudiced the verdict. Even if these questions were prejudicial, Maxie fails to show how an appropriate instruction could not have cured the resulting prejudice. Maxie asserts that another of the prosecutor's questions caused him prejudice because it constituted an impermissible comment on Maxie's guilt. The question asked Maxie whether it was true that Maxie's conduct had brought him to court. Maxie cites State v. Henderson
for the proposition that this question improperly expressed the prosecutor's personal belief regarding Maxie's guilt. In Henderson, the prosecutor objected to defense counsel's characterization of events as an `altercation.' As he objected, the prosecutor blurted out, `This was not an altercation. It was a robbery.'
But unlike in Henderson, the prosecutor's question here did not express his personal belief in Maxie's guilt. Rather, the question simply challenged Maxie's understanding of the circumstances that brought him to trial.
Maxie's final assertions of prosecutorial misconduct concern the prosecutor's closing argument. Specifically, Maxie contends that the prosecutor argued facts not in evidence when he said that D.P. knew she would be `picked up as a runaway' or could be `arrested as a runaway' if she complained about Maxie, and that the prosecutor violated a pretrial ruling when he argued that D.P. was `the perfect victim.'
At trial, D.P. testified that she feared going to jail or juvenile detention if she reported Maxie to the police. Maxie did not object to this testimony. In closing argument, the prosecutor argued the inference from D.P.'s testimony that she likely told the truth when she reported Maxie to the police. The prosecutor's argument referred only to D.P.'s subjective belief, to which she testified on direct examination; the argument did not refer to an arrest warrant or other matter not in evidence. Thus, the argument did not constitute misconduct.
Likewise, the prosecutor's argument that D.P. was `the perfect victim' did not constitute misconduct. Although Maxie argues on appeal that the trial court instructed the prosecutor not to refer to D.P. as `the victim,' the record shows that the trial court's only concern was to ensure that the prosecution's witnesses did not encroach upon the jury's role of deciding whether or not a crime had in fact occurred.
The prosecutor's use of the term `perfect victim,' in contrast, did not implicate the trial court's concern. On both occasions where the prosecutor proposed that D.P. was the perfect victim, the context reveals that the prosecutor simply argued the inference that D.P.'s status as a `street kid' made her a more likely victim. On the first occasion, the prosecutor asked Maxie on cross-examination whether `a street kid is the perfect victim.' The question was clearly argumentative, and the trial court sustained Maxie's objection. On the second occasion, the prosecutor again argued that D.P. was the perfect victim. Here, however, the prosecutor's argument was proper for the obvious reason that it occurred during closing argument. On neither occasion did the prosecutor violate a pretrial ruling, thus the prosecutor did not commit misconduct. Right to confront D.P. Maxie contends that the trial court erred when it excluded D.P.'s `runaway' arrest warrant from evidence. Maxie opposed the warrant's exclusion on the ground that it was relevant to her credibility, because D.P. failed to `take care' of it, as she told police officers she would. Maxie argues that the warrant's exclusion denied him his Sixth Amendment right to confront D.P. We disagree.
A defendant in a criminal case has a constitutional right to confront and cross-examine an adverse witness, but this right does not engender a right to introduce irrelevant evidence. Moreover, trial courts have discretion to allow or forbid inquiry on cross-examination into specific instances of conduct bearing upon the credibility of a witness. This court reviews a trial court's exclusion of evidence for abuse of discretion.
State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).
ER 608(b), and Comment.
State v. Lynch, 58 Wn. App. 83, 87, 792 P.2d 167 (1990).
Here, the trial court excluded D.P.'s warrant from evidence because it was irrelevant. The trial court reasoned that D.P.'s failure to `take care' of the warrant was not probative on the issue of her credibility. Although Maxie asserts that `[t]he evidence was undeniably relevant,' this bald assertion fails to satisfy his burden to show that the trial court's reasoning was manifestly unreasonable or based on untenable grounds. Maxie therefore fails to show that the trial court abused its discretion by excluding evidence of the arrest warrant.
Admission of `hearsay' evidence. At trial, the prosecution asked Officer Kilpatrick whether D.P. reported that Maxie's communication to her was of a sexual nature. Maxie objected to the question as inviting hearsay, but the trial court overruled this objection. Maxie argues that the trial court erred by admitting this testimony because it was hearsay and because it constituted a comment on Maxie's guilt.
Officer Kilpatrick's testimony did not contain hearsay, because the prosecution did not offer what D.P. reported to him for the truth of the matter it asserted. Rather, the prosecution offered D.P.'s statement through Officer Kilpatrick to explain why he ordered Maxie's detention. Thus, D.P.'s statement was offered for `its effect upon the hearer,' which means that it was not hearsay. For the same reason that the statement was not offered for its truth, the statement was not an improper comment on Maxie's guilt. The trial court therefore did not err by admitting the testimony.
5B Karl B. Tegland, Washington Practice: Evidence sec. 801.11, at 300-01; sec. 803.15 at 448-49 (4th ed. 1999).
Ineffective assistance of counsel. At trial, D.P. testified that she feared that the police would run her name on their computer. Maxie did not object to this testimony. On appeal, Maxie claims that his attorney's failure to object to D.P.'s testimony for lack of foundation denied him effective assistance of counsel. Maxie asserts that D.P.'s testimony lacked foundation because the prosecutor did not establish that D.P. had personal knowledge of a police computer system.
To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden of showing that (1) his counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment, and (2) that the deficient performance or counsel's errors were so serious as to deprive the defendant of a fair trial. When reviewing counsel's performance, there is a strong presumption that the performance was reasonable or effective. If trial counsel's performance can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance of counsel.
State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
The fact that D.P. was afraid that the police would run her name on their computer reflected negatively on her character, which in turn would tend to discredit her testimony. Thus, one may characterize the decision not to object as a legitimate trial tactic. Maxie's ineffective assistance argument therefore fails.
Warrantless misdemeanor arrest and suppression of evidence. Maxie argues for the first time on appeal that his warrantless misdemeanor arrest was illegal. Maxie contends that the arresting officers had probable cause to arrest him only for two misdemeanors, which did not involve physical harm, and which were not committed in the presence of the arresting officers. Consequently, Maxie argues, the trial court should have suppressed the evidence gathered in the search incident to his arrest. As a general rule, this court will not consider issues raised for the first time on appeal. An exception to this general rule exists where the appellant shows a `manifest error affecting a constitutional right." Here, Maxie bears the burden of showing that his warrantless arrest actually prejudiced his right to be free from unreasonable seizures, or, in other words, that there was no lawful basis to arrest him without a warrant.
RAP 2.5(a).
RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 333-34, 334 n2.
As the State notes, D.P. testified at trial that Maxie offered her money in exchange for sex, a fact which would have supported probable cause to arrest Maxie for patronizing a juvenile prostitute, a class C felony. Officer Kilpatrick testified at the pretrial hearing that D.P. had reported that Maxie had propositioned her for sex. Although Officer Kilpatrick did not testify whether D.P. told him that the proposition involved an offer of money, it is impossible for us to conclude that this was because D.P. did not report this fact to him. Rather, Officer Kilpatrick's omission of this fact could simply have been because the prosecutor did not inquire about it.
RCW 9.68A.100 (patronizing a juvenile prostitute is a class C felony); RCW 10.31.100 (warrantless felony arrests are authorized).
If Maxie had moved to suppress evidence based on his warrantless misdemeanor arrest, it is possible and even likely that the State would have offered additional testimony from Officer Kilpatrick that D.P. reported that the proposition involved an offer of money. We cannot, therefore, conclude that the State could not have shown a basis to support the legality of Maxie's warrantless arrest. Maxie therefore fails to show the existence of a manifest error, and we refuse to consider his new argument on appeal.
Cumulative error. Maxie argues that reversal is warranted on the theory of cumulative error. As the foregoing discussion has shown, however, Maxie has not shown any error except prosecutorial misconduct, which does not warrant reversal in this case. We therefore find no basis to reverse for cumulative error.
We affirm.
BECKER and AGID, JJ., concur.