State v. Carte

534 P.3d 378

STATE of Washington, Respondent,

v.Edward Leroy CARTE, Jr., Appellant.

No. 83589-1-I

Court of Appeals of Washington, Division 1.

Filed August 21, 2023

Christopher Mark Petroni, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste W554, Seattle, WA, 98104-2362, for Respondent/

PUBLISHED OPINION

Mann, J. ¶1 Edward Carte Jr. appeals his conviction for two counts of second degree assault and felony harassment. Carte's primary argument is that the prosecutor improperly presented a "generic tailoring" argument—inviting the jury to draw an adverse inference based on Carte's constitutional right to appear and defend himself at trial. We agree that the prosecutor committed error by making a tailoring argument untethered to Carte's prior statements or testimony. But because Carte failed to object, and fails to demonstrate that the error was flagrant, ill intentioned, and uncurable, this argument is waived.

¶2 Carte also argues that the trial court erred in excluding several statements as hearsay, improperly admitted the victim's hearsay statement as an excited utterance, and that cumulative error deprived him of a fair trial. We disagree and affirm.

I.

¶3 Morgan Cooper-McWade is a single mother of two young children, M.C. and C.W. Cooper-McWade worked several jobs and struggled financially. Cooper-McWade met Carte through Facebook after he sent her a friend request. They eventually met in person and began seeing each other daily. At the time, Carte was living in a group home for recovering addicts.

¶4 Carte was at first "really supportive" of Cooper-McWade, assuring her that "[h]e could make the money problems go away ... [and] help with the kids." Carte moved into Cooper-McWade's home soon after. Although Cooper-McWade had reservations about the relationship, she also "needed the help ... badly."

¶5 Carte helped with childcare, but his promises of financial support were exaggerated. The relationship quickly deteriorated and they were soon having "a lot of really explosive fights." Carte was jealous and accused Cooper-McWade of having "something going on with somebody somewhere."

1. October 8, 2020.

¶6 On October 8, 2020, Cooper-McWade was scheduled to work until 9 p.m. while Carte watched her children. The pair fought throughout the day and the argument continued by text message while Cooper-McWade was at work. Cooper-McWade left work early when Carte sent her a text message that implied he was suicidal and had overdosed on prescription drugs.

¶7 When Cooper-McWade returned home she found Carte intoxicated and her children asleep in their room. When Cooper-McWade texted a friend about the situation, Carte demanded to know who she was texting and wrestled the phone away from her. When Cooper-McWade refused to unlock her phone, Carte commanded her to "[p]ack [his] shit," and then "pulled [her] up by [her] neck and pushed [her] towards the [bed]room to start packing his belongings."

¶8 Carte then began throwing his belongings at Cooper-McWade and repeatedly kicked and shoved her. Carte told Cooper-McWade that she made him angry and grabbed her by the neck. Carte laughed as Cooper-McWade, unable to breathe, tried to pry his hand off. Carte eventually released Cooper-McWade's neck and she went back to packing his things. Carte continued to verbally abuse Cooper-McWade throughout the evening, and a cycle of verbal abuse and choking continued around 5 to 10 times over the course of several hours. Each time Carte would strangle Cooper-McWade until she became "really frantic," and then he would release her before she lost consciousness. Carte told Cooper-McWade that he would kill her if she called the police. Cooper-McWade believed that Carte would kill her.

¶9 When Carte fell asleep, Cooper-McWade discreetly retrieved her phone and went to sleep in her children's room. She did not call the police because she stated she was afraid of what Carte might do. The next morning, Carte acted like nothing happened and told Cooper-McWade to just "forget about last night." Cooper-McWade left with her children and texted Carte to move out. She returned later with a male friend for protection.

¶10 The State charged Carte with second degree assault (count 1) and felony harassment (count 2) based on these events.

2. November 17, 2020.

¶11 Carte did not move back in with Cooper-McWade, but he would often spend time at her house to "try to fix things and hang out to make things better." At the time, Cooper-McWade had a close friend named Luciana Argueta. Carte was extremely jealous of Argueta, and because she was a lesbian, believed Cooper-McWade was cheating on him with her.

¶12 On November 17, 2020, Carte became irate after discovering Cooper-McWade texting with Argueta. Carte grabbed Cooper-McWade's phone and spat in her face several times. Carte also verbally abused Cooper-McWade calling her various names before leaving. Cooper-McWade called 911 and responding police arrived shortly after. Cooper-McWade was crying and appeared very frightened.

¶13 The State charged Carte with fourth degree assault (count 4) based on this event.

3. November 30, 2020.

¶14 Cooper-McWade and Argueta began a short romantic relationship in mid-November. The pair ceased seeing each other on November 24 after Argueta allegedly robbed and assaulted Cooper-McWade. Cooper-McWade reached out to confide in Carte. He moved back in shortly after. Despite the alleged assault, Cooper-McWade began speaking to Argueta again as well.

¶15 On November 30, Carte became "extremely upset" after finding Cooper-McWade on the phone with Argueta. Cooper-McWade hung up quickly, yet Carte grabbed the phone from her and demanded to know who she was talking to. Cooper-McWade refused to unlock her phone and Carte "dragged" her into the bedroom by her neck.

¶16 Carte began strangling Cooper-McWade with both hands. Cooper-McWade could not breathe and began "seeing stars." As he had done previously, Carte strangled her for a few seconds at a time, just "enough for [her] to panic." Cooper-McWade called out for her child, C.W., to help her during the incident. C.W. was woken by Cooper-McWade shouting his name and he recalled hearing "loud noises" and Cooper-McWade "saying stop."

¶17 Carte briefly calmed down and returned Cooper-McWade's phone. She left the bedroom and gave her phone to C.W., instructing him to hide and call for help. Carte reengaged with Cooper-McWade shortly after. C.W. hid in the laundry room and called 911.

¶18 C.W. told the 911 dispatcher that he needed help because "my mom's boyfriend is hitting my mom." Cooper-McWade and Carte could be heard arguing in the background, and Cooper-McWade could be heard crying in pain at one point. C.W. then told the dispatcher that he "can't talk" and hung up. Carte left the house after discovering that C.W. called 911. Several police officers responded to C.W.’s 911 call, forcing the front door open when nobody answered. Cooper-McWade and C.W. emerged from hiding in a back closet.

¶19 The police officers immediately saw that Cooper-McWade "had a very large black eye ... and ... various different red marks around her neck and on the side of her face." There were "little red marks" on Cooper-McWade's chest and what looked like a thumbprint on her chin. She identified several injuries inflicted by Carte and explained that many facial marks were caused by Argueta's earlier assault.

¶20 The State charged Carte with second degree assault (count 3) based on this event.

¶21 A jury convicted Carte of second degree assault and felony harassment based on the October 8 incident, and second degree assault based on the November 30 incident. Carte was acquitted of fourth degree assault based on the November 17 incident.

¶22 Carte appeals.

II.

¶23 Under both the United States and Washington Constitutions, a defendant has the right to "appear and defend in person," to testify on their own behalf, and to confront witnesses against them. U.S. CONST . amend. VI ; WASH. CONST. art. I, § 22.¹ Carte argues that the prosecution violated his constitutional rights during closing argument by inviting the jury to draw an adverse inference from his appearance at trial—specifically that Carte tailored his testimony based solely on his presence throughout the trial.

¶24 We agree that the prosecution committed error by making a tailoring argument untethered to Carte's prior statements or testimony. But because Carte failed to object, and fails to demonstrate that the error was flagrant, ill intentioned, and uncurable, this argument is waived.

A.

¶25 To establish prosecutorial misconduct during closing argument, a defendant bears the burden of proving that the prosecutor's statements were both improper and prejudicial. State v. Allen, 182 Wash.2d 364, 373, 341 P.3d 268 (2015). We consider the prosecutor's conduct in the context of the record and the circumstances at trial. State v. Thorgerson, 172 Wash.2d 438, 442, 258 P.3d 43 (2011).

¶26 We determine whether the defendant was prejudiced under one of two standards of review. State v. Emery, 174 Wash.2d 741, 760, 278 P.3d 653 (2012). If the defendant made a timely objection at trial, he must demonstrate that any improper conduct "resulted in prejudice that had a substantial likelihood of affecting the jury's verdict." Allen, 182 Wash.2d at 375, 341 P.3d 268. When a defendant fails to object at trial, however, "the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Emery, 174 Wash.2d at 760-61, 278 P.3d 653. To prevail under this heightened standard, the defendant must show that (1) no curative instruction could have eliminated the prejudicial effect and (2) there was a...