Opinion
No. 63423-2-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05519-8, Christopher A. Washington, J., entered April 22, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Becker and Schindler, JJ.
A party who objects to evidence on one ground at trial may raise a different ground for the first time on appeal only if the new ground amounts to manifest error affecting a constitutional right. Because Marley fails to demonstrate that her unpreserved evidentiary challenges amount to manifest constitutional error, and because her remaining arguments on appeal are either unreviewable or unpersuasive, we affirm her convictions for theft and false statements regarding Medicaid funds.
FACTS
Based on evidence that Beverly Marley misappropriated Medicaid payments and Social Security funds belonging to, or intended to support, her disabled niece, the State charged Marley with two counts of first degree theft and seven counts of making false statements regarding Medicaid payments.
At trial, the State's evidence established that Marley's niece, Paula Smith, has various disabilities and lived with Marley prior to the charging period. It was undisputed that Marley was the representative payee for Smith's Social Security benefits and that Marley signed an application requiring her to report any change in Smith's living arrangements and to use all Social Security funds for Smith's exclusive benefit. Marley also signed a contract with the Department of Social and Health Services (DSHS) to provide Medicaid funded services for Smith, including cooking, cleaning, and assistance with personal hygiene. Marley agreed to report any change in Smith's circumstances to DSHS.
It was also undisputed that Marley collected Smith's Social Security funds during the charging period and received Medicaid payments for services she allegedly provided to Smith during that period. The parties disputed, however, whether Smith was living with Marley or received any services or benefits from her during the charging period. Smith testified that she did not live with Marley, and received no services or benefits from her, during the charging period. She "bounced around," living for various periods with her friends Sarah Carr, Windy Farrington, and Danielle Jackson. Her friends corroborated that testimony.
During Jackson's direct-examination, the court allowed the prosecutor to ask Jackson whether her own daughter's disabilities affected her sensitivity to Smith's relationship with Marley:
[PROSECUTOR:] You mentioned earlier, Ms. Jackson, that you, yourself, have a daughter with special needs.
[WITNESS:] I do.
[PROSECUTOR:] Do you think that makes you have a heightened level of sensitivity with respect to how you sort of perceived Ms. Marley and her relationship with [Smith]?
[WITNESS:] Yes, definitely.
[PROSECUTOR:] Does that heightened level of sensitivity impact the information that you provided in this statement?
[WITNESS:] Yes.
[PROSECUTOR:] Does it?
[WITNESS:] (No audible response.)
[PROSECUTOR:] Do you stand by the time frames noted in here?
[WITNESS:] Uh-huh.
[PROSECUTOR:] How does it make you have a heightened level of sensitivity?
[DEFENSE COUNSEL:] Objection. Relevance.
[PROSECUTOR:] It's absolutely relevant.
. . . .
THE COURT: Well, I guess the witness can explain her perception of why this would increase her interest, I guess, in this matter.
[DEFENSE COUNSEL:] Your Honor, her interest is irrelevant. She's here to testify about dates, what she observed. Her sensitivity, her feelings, they don't have anything to do with the issues we are trying to get to the bottom of in this case.
THE COURT: You can answer the question.
[WITNESS:] Being that my daughter is disabled, I feel it's wrong for people to take advantage of people that are vulnerable.
. . . .
[PROSECUTOR:] Your feelings about how Ms. Marley may or may not have cared for [Smith], did that impact the accuracy of the information that you provided in this statement, ma'am?
[WITNESS:] Yes. Because [Smith] wasn't able to provide for herself other than the part-time job she had. She had no other income.
THE COURT: Listen to the question once again.
[PROSECUTOR:] Ma'am my question to you is . . . you wrote a statement out when you signed this statement?
[WITNESS:] Yes.
[PROSECUTOR:] You indicated that you were telling the truth; is that correct?
[WITNESS:] Correct.
[PROSECUTOR:] And so my question is: You've indicated that you have a heightened level of sensitivity because you have a special needs child, okay? And all I'm asking you is if that would impact whether or not you would have told the truth in this statement.
[WITNESS:] I did tell the truth.
(Emphasis added.)
Several DSHS employees provided additional corroboration for Smith's version of events. One of those employees, DSHS investigator Kathryn Baker, testified regarding statements she took from Smith, Carr, Farrington and Jackson. Those statements consistently placed Smith out of Marley's home during the charging period.
Marley and three of her relatives testified that Smith lived with Marley during the charging period. Marley's sister testified that Smith admitted fabricating her claims against Marley.
A jury convicted Marley as charged. She appeals.
DECISION
Marley first contends the trial court abused its discretion in allowing the prosecutor to ask Jackson about her "heightened level of sensitivity" to Smith's situation. She claims the testimony was irrelevant, unduly prejudicial, and improperly bolstered Jackson's credibility. Only the relevance claim is properly before us.
We review evidentiary rulings, including rulings on relevance, for abuse of discretion. State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009); Cobb v. Snohomish Cnty., 86 Wn. App. 223, 236, 935 P.2d 1384 (1997).
To preserve an issue for review, an objection must be timely and specific. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006). A party who objects to the admissibility of evidence on one ground at trial generally may not raise a different ground on appeal unless the latter is apparent from the context of the objection. State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986), overruled on other grounds by State v. Hill, 123 Wn.2d 641, 645-47, 870 P.2d 313 (1994); State v. Jones, 71 Wn. App. 798, 813, 863 P.2d 85 (1993). Contrary to Marley's assertions, the only timely objection raised below, and the only one apparent from the context, was defense counsel's argument that Jackson's sensitivity and heightened interest were irrelevant.
Although Marley's trial counsel did state that the prosecutor was bolstering Jackson's credibility with evidence of her daughter's disability, that statement was not made during the testimony at issue, but rather was made later in defense of questions counsel sought to ask Jackson on cross-examination. To the extent it was an objection to the earlier testimony, it was untimely.
Evidence is relevant if it tends to make a material fact more or less probable than it would be without the evidence. ER 401. "The threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible." State v. Darden, 145 Wash.2d 612, 621, 41 P.3d 1189 (2002). Here, the credibility of the State's witnesses and the accuracy of their memory were material issues at trial. Because Jackson's sensitivity to Smith's situation could affect the degree of attention she paid to it, and because minimal relevance is sufficient, we cannot say the court abused its discretion in overruling Marley's relevance objection.
Marley also contends that Jackson's testimony and/or the prosecutor's conduct in eliciting it violated her constitutional rights. Specifically, she contends the questions and testimony invaded the province of the jury and denied her a fair trial by bolstering Jackson's credibility and engendering sympathy for Smith and Jackson. But, Marley fails to explain why we should review these claims for the first time on appeal, and we see no basis to do so.
In general, a party attempting to raise a claim for the first time on appeal must demonstrate manifest error affecting a constitutional right. RAP 2.5(a). They must "identify a constitutional error and show how the alleged error actually affected [their] rights at trial." State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). Similarly, prosecutorial misconduct may be raised for the first time on appeal only if the party asserting it demonstrates flagrant and ill-intentioned misconduct resulting in incurable prejudice. State v. Kennealy, 151 Wn. App. 861, 891, 214 P.3d 200 (2009), review denied, 168 Wn.2d 1012, 227 P.3d 852 (2010). Whether viewed as claims of evidentiary error or prosecutorial misconduct, Marley's claims of constitutional error do not meet these requirements.
First, Marley fails to demonstrate either constitutional error or prosecutorial misconduct. She argues that the prosecutor's questions were improper, and Jackson's responses were constitutional error, because they bolstered Jackson's credibility and engendered sympathy for Smith and Jackson. In support, she cites United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) for the proposition that improper bolstering or vouching may jeopardize the fundamental fairness of a trial. But, Edwards was concerned with personal vouching by prosecutors and the tendency for jurors to be "unduly influenced by the prestige and prominence of the prosecutor's office." Id. Those concerns are not present here.
And, while Marley correctly points out that mere appeals to sympathy are improper, there is no impropriety if evidence allegedly generating sympathy is offered for a proper purpose. State v. Gregory, 158 Wn.2d 759, 808-09, 147 P.3d 1201 (2006) (questioning and argument about what victim had to endure to tell her story in court was not mere appeal to jury's sympathy but rather was proper response to attack on victim's credibility). Here, the questions and testimony had a proper purpose, i.e., to show why Jackson would have been particularly attentive to Smith's situation. We see no basis for concluding either that the prosecutor's questions were misconduct or that the testimony they elicited was an evidentiary error of constitutional magnitude.
Second, Marley has not shown the prejudice required to review her claims for the first time on appeal. The challenged testimony amounted to mere moments in a three-day, seventeen-witness trial in which Jackson was just one of many witnesses testifying on the central issue of Smith's location during the charging period. The prosecutor did not mention the challenged testimony in closing arguments and the court instructed the jury that "neither sympathy nor prejudice" could influence their verdict. See Gregory, 158 Wn.2d at 809 (noting curative effect of similar instruction where evidence and argument allegedly generated sympathy for the victim). In these circumstances, Marley cannot demonstrate either actual or incurable prejudice.
We reject Marley's related claim that the court "simply did not rule on, and effectively denied" her alleged objection to Jackson's subsequent testimony concerning her frustration in caring for her special needs child. This claim is based on a misreading of the record. The testimony at issue was elicited by the defense during Jackson's cross-examination, not by the State, and it was the State that objected, not the defense. To the extent Marley claims the court should have treated defense counsel's response to the State's objection as an objection to Jackson's previous testimony on direct, her claim fails. Counsel's response was not an objection, and even if it could be construed as such, it was untimely.
Marley raises additional claims in a pro se statement of additional grounds for review. She contends a DSHS worker testified that she did nothing wrong, that Smith testified she received all her funds, and that the Social Security checks at issue below were all returned to the Social Security Administration. The record directly contradicts each of these claims.
Marley also contends the trial court should have granted her request for substitute counsel because her attorney would not call certain witnesses on her behalf. But mere disagreements about trial strategy are insufficient to warrant appointment of substitute counsel. State v. Cross, 156 Wn.2d 580, 607-10, 132 P.3d 80 (2006). There must be a showing of good cause, such as "a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant." State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). Marley made no such showing below. The court did not abuse its discretion in denying her request for substitute counsel. Cross, 156 Wn.2d at 607 (decisions relating to attorney/client differences are reviewed for abuse of discretion).
Marley attached a number of witness statements to her statement of additional grounds. These statements were not part of the record below and are not properly before this court on appeal. RAP 10.3(a)(8). Accordingly, we grant the State's motion to strike the statements.
Affirmed.