State Of Wash. v. Greene

STATE OF WASHINGTON, Respondent,

v.ANTHONY JAMES GREENE, Appellant.

No. 38741-7-II

Court Of Appeals Of The State Of Washington Division II

SEPTEMBER 8, 2010

UNPUBLISHED OPINION

Van Deren, J.

Anthony James Greene appeals his convictions for communication with a minor for an immoral purpose, first degree child molestation, and two counts of second degree child rape. He argues that he is entitled to a new trial because the trial court abused its discretion when it admitted a statement he made to a detective asking about possible consequences of the crimes and when it allowed his wife, who was the victim's mother, to testify that Greene bargained with her for sex. Greene further argues that (1) the prosecutor committed misconduct, (2) the trial court abused its discretion in denying Greene's motion for a new trial, (3) his counsel was ineffective, and (4) cumulative error deprived him of a fair trial. Finding no error, we affirm.

FACTS

Greene married ELL's¹ mother in December 2004, and they had a son together in June 2005. Tensions began to run high between ELL, her mother, and Greene; and ELL asked to move out in March or April 2006.² On December 4, 2006, a school counselor reported to Child Protective Services that Greene had sexually assaulted ELL in March and April.

Cowlitz County Sheriffs Office Detective Ronald Broyles investigated the incidents; he met with Greene and informed Greene of his Miranda³rights. During the interview, Greene agreed to participate in a computerized voice stress analysis (CVSA). After administering the test, Broyles confronted Greene and told him that he did not believe that Greene had responded truthfully. Broyles's report stated in part:

I told him that I believed he wanted to do the right thing and tell me the truth. When I said this, I observed Greene shaking his head "yes". I told Greene that I was sure he wanted to get some counseling for this, so it would not happen again to another child. He told me, "I'm not saying I did anything, but what would happen if I had done this"?

Clerk's Papers (CP) at 100. In July 2007, the State charged Greene with communication with a minor for immoral purposes, second degree child molestation, and two counts of second degree child rape.

Before trial, Greene moved to exclude any statements "in the context of or connected with" the CVSA. CP at 16. Greene and the State agreed that the CVSA results would not beintroduced trial. The trial court ruled that any reference to the CVSA and any statement inextricably linked to the CVSA were inadmissible. The trial court also ruled that any statement made before, during, or after the CVSA, which did not refer to the CVSA, was generally admissible.

But the trial court ruled that (1) most of Broyles's statements made after the CVSA would not be admissible because the testimony was inextricably linked to the CVSA and (2) only Greene's statement, "'I'm not saying I did anything, but what would happen if I had done this?'" was admissible because it "was in response to a question regarding getting some counseling. I don't think that implicates the CVSA. I don't think--that the Defendant is in a position of having to bring in the CVSA with that. Everything else, I think, does." CP at 100; Report of Proceedings (RP) (July 9, 2008) at 43. When the State asked for clarification about the admissibility of the detective's statement, "'I told Greene that I was... sure he wanted to get some counseling for this so it would not happen again to another child," CP at 100, the trial court stated:

That question can't come in, because it does involve... the opinion, "I was sure he wanted to get some counseling for this," but the statement, "I'm not saying I did anything, but... what would happen if I had done this?" does not implicate the CVSA, and that statement can come in.

RP (July 9, 2008) at 45 (internal quotation marks omitted) (quoting CP at 100). The trial court reiterated that everything before the CVSA was admissible except for a question to Greene about his telling the truth.

During the State's direct examination, Broyles testified:

[State:] Did you tell him that you thought he should get counseling?

[Broyles:] Yes.

[State:] And how did he respond to you saying that?

[Broyles:] He shook his head "yes."

[State:] Did you bring up any consequences statements? That's what I'm referring to.

[Broyles:]... [H]e says, "I'm not saying that I did this, but if I had done it, what would happen to me?"

RP (July 14, 2008) at 92. Greene's attorney did not object to the State's question about counseling even though the trial court had expressly ruled that the question about counseling was not admissible. But following cross-examination, Greene moved for a mistrial because the detective misrepresented Greene's response to the detective's suggestion of counseling.

The State argued that the detective's mistaken testimony was not ill intentioned and suggested that Broyles retake the stand. After a discussion on the record about possible remedies, Greene and his attorney conferred and agreed on a correction to the testimony. Greene and his attorney conferred again at a break and, afterward, explained a more detailed resolution that they proposed:

I talked to my client about this, and what he wants to do is this: To fix this problem, he wants us to essentially go back and track what Detective Broyles put in his report. And, specifically what I'm referring to, and the Court has it in front of it, essentially elicit that the one time [Greene] shook his head "yes" was in response to the Detective's statement that he believed he wanted to do the right thing and tell the truth.

And, then, immediately following that is when, basically, we'll just leave it at this, that when he mentioned the idea of counseling, just counseling, period, that the defendant did not shake his head at that point, but rather made a statement, "I'm not saying I did anything, but what would happen if I had done this?" without waiving our previous objection to that statement itself, but we're mindful of the Court's ruling.

RP (July 14, 2008) at 105 (internal quotation marks omitted) (quoting CP at 100).

The trial court asked, "Well, there's a previous objection during the 3.5 as to the relevance of it, but in terms of the Motion for Mistrial... and the assessment of prejudice, are you agreeingthat this will fix that issue?" to which Greene's attorney responded, "If we do it along the lines that I just outline[d], Your Honor." RP (July 14, 2008) at 105-06. The State agreed that Greene could write out the questions for Broyles and accepted a draft of questions and answers from Greene that they agreed would correct the problematic testimony. Based on the State's acceptance of the "one-page transcript" that Greene and his attorney drafted and gave to the State, Greene withdrew his request for a mistrial ruling based on Broyles's mistaken testimony about Greene's answer. RP (July 14, 2008) at 107-08.

The testimony then proceeded.

[State]: Detective Broyles, when you mentioned counseling to the Defendant, did he nod his head "yes"?

[Broyles]: No.

[State]: Did he nod his head "yes" before this?

[Broyles]: Yes.

[State]: What was that in response to?

[Broyles]: That was in response to me making the statement that he wanted to do the right thing and tell me the truth.

[State]: When you testified earlier that he nodded his head when you mentioned counseling, was that a mistake on your part?

[Broyles]: Yes.

RP (July 14, 2008) at 109.

After trial, Greene moved for arrest of judgment and a new trial based, in part, on a new argument that the trial court improperly allowed admission of Broyles's testimony about counseling, characterizing it as both (1) improper opinion testimony and (2) prohibited by the ruling on the motion in limine. The trial court recognized that it had granted Greene's motion in limine to prohibit Broyles's testimony about suggesting Greene receive counseling. Nevertheless, it reconsidered its earlier decision and analyzed the alleged opinion testimony under Demery: ⁴

(1) The type of witness involved: The witness is a police officer.

(2) The specific nature of the testimony: The testimony was not the incourt expression of opinion during live testimony by the detective as [to] the Defendant's guilt[]. The testimony related to the pretrial interview process and as such the statement does not carry "any special aura of reliability."

(3) The nature of the charges: The charges involve allegations of rape, child molestation, and communication with a minor for immoral purpose.

(4) The type of defense: The defendant denied the allegations and the specific events.

(5) The other evidence before the trier of fact: The case turned primarily on the credibility of the victim and the Defendant as to the specific acts of sexual contact.

CP at 153. The trial court denied the motion for a new trial following the verdict because Greene did not (1) object or move for a mistrial based on Broyles's expression of an opinion of guilt, (2) request a curative instruction when the testimony was elicited, or (3) show any prejudice or that the trial's outcome would have differed.

Greene further argued that the trial court should not have allowed Broyles to testify about Greene's question about the consequences of the charges. The trial court also denied Greene's mistrial motion because Greene's question about possible punishment if he was guilty "was not inextricably linked to the CVSA, and it wasn't unfair to allow Detective Broyles to testify to [Greene]'s inquiry." CP at 153-54.

At trial, ELL testified that in October 2005, Greene took her hunting alone.⁵ On the drive home, he put on a compact disc (CD) by a standup comedian known for bawdy songs and racy humor. The CD included monologues about genitalia, masturbation, and sex. According to ELL, the CD prompted Greene to discuss masturbation and to give ELL, then 13 years old, tips abouthow to masturbate. Greene also told ELL that "he enjoyed having sex...