In re Richmond

482 P.3d 971

In the MATTER OF the Personal Restraint of: Joseph Andrew RICHMOND, Petitioner.

No. 37057-7-III

Court of Appeals of Washington, Division 3.

FILED MARCH 18, 2021

OPINION PUBLISHED IN PART

Pennell, C.J.

¶ 1 The use of animal analogies at trial is problematic. Many animal comparisons operate as racist code. Others are simply dehumanizing. But there is no hard and fast rule. Not all animal analogies are inherently improper. When a particular analogy does not clearly convey an improper message, an appellate court should not be quick to find offense. Instead, deference is owed to the assessments of the trial court and counsel.

¶ 2 Joseph Richmond has filed a petition for relief from conviction, arguing for the first time that the State's prosecutor used an improper animal analogy during closing argument. Mr. Richmond fails to show the analogy was patently racist or dehumanizing. The analogy, which compared Mr. Richmond to a hornet's nest, was plausibly aimed at describing Mr. Richmond's erratic behavior.

Given this possible interpretation, and Mr. Richmond's lack of objection at trial, post-conviction intervention is unwarranted. Mr. Richmond's request for relief from conviction is denied.

BACKGROUND

¶ 3 Joseph Richmond killed Dennis Higginbotham by striking him in the head with a two-by-four wooden board. The State prosecuted Mr. Richmond with felony murder predicated on first degree assault. At trial, Mr. Richmond claimed he was acting in self-defense, arguing Mr. Higginbotham was coming at him with a knife. The State countered that Mr. Richmond was the initial aggressor. The State presented evidence showing Mr. Richmond was angry and irrational at the time of the assault. As such, his behavior was not consistent with a claim of lawful self-defense.

¶ 4 In explaining its case, the prosecutor used a hornet's nest analogy. The prosecutor asked the jury, "have you ever heard the analogy, don't poke a hornet's nest with a stick[?]" 6 Report of Proceedings (Feb. 9, 2016) (RP) at 1117, State v. Richmond , No. 34157-7-III (Wash Ct. App.). "Well, ladies and gentlemen, Joe Richmond is a hornet's nest. And you don't need a stick to poke him to set him off." Id . The hornet's nest analogy was repeated at various times throughout summation. In addition to referring to Mr. Richmond as a hornet's nest, the prosecutor described Mr. Richmond as "king of the nest, "king of the world," and "irrational." Id . at 1118-19, 1123-24. The prosecutor's comments did not inspire a defense objection. The prosecutor concluded their thoughts by arguing the "[d]efendant is charged with murder in the second degree and the state is asking you to find self-defense doesn't apply to the hornet's nest." Id . at 1134.

¶ 5 The jury convicted Mr. Richmond of felony murder, rejecting his self-defense claim. The conviction was upheld on appeal. State v. Richmond , 3 Wash. App. 2d 423, 437, 415 P.3d 1208 (2018).

¶ 6 Mr. Richmond has now filed a timely personal restraint petition (PRP). He argues for the first time that the hornet's nest analogy constituted prosecutorial misconduct. Mr. Richmond also makes several challenges to the court's jury instructions. In the published portion of this opinion we address Mr. Richmond's prosecutorial misconduct claim. Our analysis of the instructional issues is set forth in the unpublished portion of the opinion.

ANALYSIS

¶ 7 To succeed on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudice. In re Pers. Restraint of Glasmann , 175 Wash.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). When a claim of misconduct is not raised at trial, the defense must additionally show the prosecutor's actions were "so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." State v. Emery , 174 Wash.2d 741, 760-61, 278 P.3d 653 (2012). The hurdles to obtaining relief based on prosecutorial misconduct are purposefully high. Not every prosecutorial misstep merits remand. Deference is instead owed to the trial court's ability to oversee the administration of justice, defense counsel's judgment about whether an objection was worth raising, and a jury's ability to independently assess the merits of the case.

¶ 8 The first part of our prosecutorial misconduct analysis asks whether the State's conduct was improper. According to Mr. Richmond, animal analogies at trial are always inappropriate. He asks us to "take this opportunity to hold that a prosecutor's use of animal imagery to describe a defendant on trial has no place in closing argument." PRP at 15. We decline this invitation. Animal imagery can sometimes be improper, but not always. Context matters.

¶ 9 The most obvious problem with animal analogies is they can convey racist sentiments. We discussed this issue in State v. Barajas , 143 Wash. App. 24, 39, 177 P.3d 106 (2007). The Barajas prosecutor compared the defendant's conduct to that of a "mangie [sic], mongrel mutt." Id . These words tended to convey a derogatory message about someone being "mixed race." Id . As such, the prosecutor's argument had the capacity to cultivate juror bias and irrational thinking.

Such racially charged rhetoric is insidious misconduct. See McCleskey v. Kemp , 481 U.S. 279, 309 n.30, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) ("prosecutorial discretion cannot be exercised on the basis of race"). It can never be condoned.¹

¶ 10 Even when an animal analogy lacks racist connotations, it can send a dehumanizing message. Calling someone a snake or a rat conveys the idea that the person, regardless of race, does not merit full treatment as a human and, as a result, a jury need not be as concerned about the individual's rights or circumstances. Such derisive comments are improper. See State v. Embry , 171 Wash. App. 714, 754-55, 287 P.3d 648 (2012) (reference to group of defendants as a " ‘pack of wolves’ "); State v. Rivers , 96 Wash. App. 672, 673, 981 P.2d 16 (1999) (The prosecutor referred to the defendant and his associates as predators, hyenas, and jackals.); State v. Wilson , 16 Wash. App. 348, 357, 555 P.2d 1375 (1976) (The prosecutor improperly "referred to the victim as ‘that little angel’ and to the defendant by a declaration, ‘to call him a beast would insult the entire animal kingdom.’ ... ‘I say that he is not fit to be a member of the human race.’ ").

¶ 11 But not all human-animal comparisons are racist or dehumanizing. Some analogies are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as a bee. Other analogies are negative, though not in a particularly dehumanizing way. For example, calling someone a chicken has more to do with the anthropomorphism of gallinaceous birds than with human denigration. There are also analogies that are simply neutral. A politician who favors escalating military conflicts may be called a hawk; one with an opposite perspective being a dove. An official who is in the last portion of an elected term is a lame duck. An individual or group seeking to keep politicians (be they hawks, doves, lame ducks, or otherwise) accountable might be referred to as a watchdog.

¶ 12 As we recognized in Barajas , "it is common for both prosecutors and defense attorneys to make use of analogies in order to help the jury understand the law or the arguments of the parties." 143 Wash. App. at 40, 177 P.3d 106. There is no clear prohibition on the use of animal analogies as part of this endeavor. To the contrary, trial practice guides are known to suggest animal analogies as part of effective story telling techniques. See, e.g. , Tyron C. Moncriffe, Storytelling and the Art of Persuasion , THE CHAMPION , Nov. 2011, at 26, 28-29 (praising an analogy that characterizes the victim as a snake to explain self-defense); THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES 282 (3d ed. 1992) (suggesting analogizing a cooperating witness to a maggot who has infested a piece of fruit). Our case law defers to attorneys’ choices of rhetorical devices and allows analogies so long as they do not suggest a defendant should be considered less than human. See State v. Perry , 24 Wash.2d 764, 769-70, 167 P.2d 173 (1946).

¶ 13 Unless an analogy conveys racist sentiment or is otherwise dehumanizing, we should give breathing room for attorneys to connect with jurors and try their cases. In addition, if a particular analogy is ambiguous, our appellate review should be guided by a presumption of good faith. See State v. Thorgerson , 172 Wash.2d 438, 443, 258 P.3d 43 (2011) ("A prosecuting attorney ... presumptively acts with impartiality and in the interest of justice."); Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance."). When opposing counsel fails to object to an ambiguous animal analogy, we should be loath to second guess the proceedings and intervene.

¶ 14 Looking at the analogy here, nothing about a hornet's nest analogy places it outside the bounds of permissible trial argument. As Mr. Richmond concedes, the analogy carries no apparent racial implications. Nor is it particularly dehumanizing. Similar to what is true of lame duck or watchdog, the primary definition of a "hornet's nest" has to do with people, not animals: "a troublesome or hazardous situation" or "an angry reaction." MERRIAM-WEBSTER.COM DICTIONARY , https://www.merriam-webster.com/dictionary/hornet's% 20nest (last visited Mar. 12, 2021). While a hornet or hornet's nest is not an entirely positive comparison, the comparison appears to have more to do with the anthropomorphism of stinging wasps than an attempt to suggest a person compared to a hornet or a hornet's nest is less than human.

¶ 15 Nor did the hornet's nest analogy appear obviously improper when viewed in the context of Mr. Richmond's trial. The prosecutor appears to have invoked the...