                                                       RLlD
                                              COURT OF APPEALS D!V i
                                               STATE OF WASHINGTON

                                               2013 MAR-i* AH 10-- 27



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                DIVISION ONE
                      Respondent,
                                                No. 67406-4-1
                 v.
                                                UNPUBLISHED OPINION
VANESSA C. RODRIGUEZ,

                      Appellant.                FILED: March 4, 2013


       Dwyer, J. - Vanessa Rodriguez appeals from the judgment and sentence

imposed after a jury found her guilty ofassault in the third degree. She contends
that the trial court erred in admitting her statement without conducting a CrR 3.5

hearing and that the deputy prosecutor committed reversible misconduct during
closing argument. But Rodriguez waived her right to a CrR 3.5 hearing, and we
decline to review the alleged misconduct because Rodriguez failed to lodge a

contemporaneous objection on this basis. We therefore affirm.

                                         I


       At about 11:00 p.m. on October 20, 2010, Auburn Police Officers John
Postawa and Joshua Matt responded to a reported disturbance near the Meadow
Apartments. Upon arrival, the officers found a group of individuals, including
Vanessa Rodriguez, milling about in a courtyard. After a brief investigation, the
officers suspected that Rodriguez's boyfriend "Pee Wee" might have assaulted
her. Officer Postawa then attempted to talk to Rodriguez.
No. 67406-4-1/2



      Rodriguez, who was wearing only jeans and a bra, spoke loudly and used

exaggerated hand movements. She had bloodshot and watery eyes and smelled

of alcohol, and Officer Postawa believed she had been drinking or was

moderately intoxicated.

      Initially, Rodriguez cooperated with the questioning. When Officer

Postawa asked her about Pee Wee, however, she immediately became upset

and started yelling "Fuck you, fuck you." Rodriguez eventually jerked her arms

up and down, clenched her fists, and took "a lunging step" toward Officer

Postawa, leading him to believe she might assault him.

      At this point, Officer Postawa decided to restrain Rodriguez for hindering
his investigation. Rodriguez resisted as Officer Postawa and Officer Matt placed
her in handcuffs and continued to struggle and scream while Officer Postawa

escorted herto a nearby police car. Along the way, Officer Postawa let go of
Rodriguez when she tried to kick him, and she fell to the ground.
       Officer Postawa picked Rodriguez up and placed her down on the back
seat ofthe patrol car, with her legs outside. When Rodriguez resisted attempts
to place her legs inside, Officer Postawa went around to the other side of the car
and pulled on her shoulders, while Officer Matt attempted to push her legs. As
she lay on her back, Rodriguez kicked her legs "like she was peddling a bicycle."
At one point, Rodriguez "reared back her knee to her chest with her foot up" and
No. 67406-4-1/3



kicked Officer Matt in the face and hand, causing minor injuries. Ultimately, the

officers booked Rodriguez into jail.

       On the following morning, a detective contacted Rodriguez at the jail,

advised her that she was under arrest for assaulting an officer, and asked if she

would talk about the assault. Rodriguez immediately responded, "I was just

defending myself."

       The State charged Rodriguez with one count of assault in the third degree.

At trial, Rodriguez testified that she had been drinking before her arrest to

celebrate the release of a relative from prison. During the course of the evening,

Rodriguez's boyfriend and the relative got into a fight, which Rodriguez was

attempting to break up when the police arrived.

       Rodriguez acknowledged that she became upset and resisted the officers'

attempts to restrain her. She maintained that the officers pushed her against the
trunk of the patrol car while putting on the handcuffs, causing her to fall to the

ground, and then threw her into the back seat on her stomach, "hogtied with ...
my hands cuffed behind my back." She denied that she intentionally tried to kick
or hurt the officers.

       Rodriguez further claimed that she did not know about the assault charge
until the following morning in jail, when the detective informed her. During cross-

examination, the trial court permitted the deputy prosecutor to ask Rodriguez

about her statement to the detective. Rodriguez acknowledged that she told the
No. 67406-4-1/4



detective that she was just defending herself, but reiterated her claim that she did

not intend to assault the officers.

       The trial court instructed the jury on the defense of voluntary intoxication.

The jury found Rodriguez guilty as charged, and the court imposed a 32-day

standard range sentence.

                                           II


       Rodriguez first contends that the trial court erred in admitting her jailhouse

statement because the detective did not advise her of her Miranda1 rights and the

court failed to conduct a CrR 3.5 inquiry into the statement's admissibility. We

decline to address these contentions, however, because Rodriguez waived any

objection to the statement's admission.

       A CrR 3.5 hearing serves to protect constitutional rights. State v. Fanqer,
34 Wn. App. 635, 637, 663 P.2d 120 (1983). But "[t]he right to a CrR 3.5 hearing
is not itself ofconstitutional magnitude." Fanger, 34 Wn. App. at 637; see also
State v. Williams, 137 Wn.2d 746, 749-56, 975 P.2d 963 (1999). A party may

waive his or her right to a CrR 3.5 hearing both expressly and impliedly. Fanqer,
34 Wn. App. at 637-38 (defense counsel authorized to waive procedural matters
such as a CrR 3.5 hearing on behalf ofthe client). Avoluntariness hearing is not
required "'absent some contemporaneous challenge'" to the admission of the


     1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).
No. 67406-4-1/5



defendant's statement. Fanqer. 34 Wn. App. at 638 (quoting State v. Rice, 24

Wn. App. 562, 566, 603 P.2d 835 (1979)).

       Defense counsel, both orally and in writing, advised the trial court that a

pretrial CrR 3.5 hearing was unnecessary. The deputy prosecutor and defense

counsel then informed the court that a brief CrR 3.5 hearing might be necessary

if Rodriguez testified at trial and the State sought to impeach her with the

jailhouse statement. But when the State sought to introduce the statement

during Rodriguez's cross-examination, defense counsel objected only on the

ground that her direct testimony did not "ope[n] the door" to admission of the

statement. Defense counsel did not allege that the statement was involuntary,

object to the absence of a CrR 3.5 hearing, or raise any other objection to the

admission of the statement. By expressly acknowledging the potential availability

of a CrR 3.5 hearing and then failing to raise a timely challenge to the

voluntariness of the statement, defense counsel waived the right to a CrR 3.5

hearing. See Fanqer, 34 Wn. App. at 638; see also State v. Myers, 86 Wn.2d

419, 426-27, 545 P.2d 538 (1976); Rice, 24 Wn. App. at 567.

       Rodriguez's reliance on State v. Alexander, 55 Wn. App. 102, 776 P.2d

984 (1989), is misplaced. In Alexander, the trial court failed to conduct a CrR 3.5

hearing and admitted the defendant's custodial statement despite the

defendant's objection "on constitutional grounds." 55 Wn. App. at 103. The facts




                                            -5-
No. 67406-4-1/6



in Alexander are therefore clearly distinguishable from those present here. See

Williams, 137 Wn.2d at 752.

                                          Ill


       Rodriguez next contends that the deputy prosecutor committed reversible

misconduct during closing argument by relying on facts not in evidence and by

suggesting that the jury had to find that the police witnesses lied in order to

acquit her. A defendant alleging prosecutorial misconduct bears the burden of

establishing that the challenged conduct was both improper and prejudicial. State

v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). We generally review

misconduct claims in the context of the total argument, the evidence addressed,

the issues in the case, and the jury instructions. State v. Boehninq, 127 Wn.

App. 511,519,111 P.3d 899 (2005). But where, as here, the defendant fails to
object, we will not review the alleged error unless the defendant demonstrates

the misconduct was "so flagrant and ill intentioned that no curative instructions

could have obviated the prejudice engendered by the misconduct." State v.

Belqarde, 110Wn.2d 504, 507, 755 P.2d 174(1988).

       During closing argument, the deputy prosecutor discussed various factors

the jury could consider when assessing witness credibility. Among otherthings,

the deputy prosecutor argued:

              Personal interest in outcome, and I know we talked a little bit
       about this in voir dire as well. ... But regardless of whether the
       defendant is found guilty or not guilty, it's not going to change [the
No. 67406-4-1/7



      officers' lives] in any appreciable degree. . .. Still going to be at
      Auburn Police, still going to do their normal patrol, and it's not going
      to have any real bearing on their lives. The defendant, on the other
      hand, that's a different story, for very obvious reasons. She's
      facing a criminal charge. So that will affect her life.


      Rodriguez contends the deputy prosecutor improperly relied on facts not

in evidence. See State v. Jones. 71 Wn. App. 798, 808, 863 P.2d 85 (1993)

(closing arguments unsupported by the record are improper). When viewed in

context, however, the comments involved nothing more than a general,

commonsense observation and clearly fell within the wide latitude afforded the

deputy prosecutor to draw and express reasonable inferences from the evidence.
See State v. Brown. 132 Wn.2d 529, 566, 940 P.2d 546 (1997). Moreover, even

if there were some impropriety, a timely objection and curative instruction would
have neutralized any potential prejudice. See State v. Dhaliwal, 150 Wn.2d 559,
576-81, 79 P.3d 432 (2003).

      The deputy prosecutor also informed the jury:

       [Yjour job is to make that credibility assessment and decide
       whether defendant's story should be believed, or whether these two
       officers that have no dog in the fight, whose lives aren't going to be
       affected appreciably by the outcome of this case, would get up on
       the stand and lie to you.


We agree with Rodriguez that the deputy prosecutor's argument improperly
suggested the jury would have to find that the police witnesses were lying in
order to believe her testimony. See State v. Wright. 76 Wn. App. 811, 824-26,
No. 67406-4-1/8



888 P.2d 1214 (1995) (misconduct to argue that the jury must find the State's

witnesses are lying in order to acquit the defendant); State v. Barrow. 60 Wn.

App. 869, 875-76, 809 P.2d 209 (1991). But a curative instruction would have

prevented any potential prejudice arising from this single, brief instance of

misconduct. See Barrow. 60 Wn. App. at 876 (curative instruction could have

obviated prejudice resulting from closing arguments that the defendant had

effectively called the police officers liars and that in order to find the defendant

not guilty, the jury would have to believe the officers were lying). Rodriguez's
failure to object precludes further review.

                                          IV


         Finally, Rodriguez contends cumulative errors warrant reversal of her
conviction. But she has failed to satisfy her burden of demonstrating an

accumulation of errors sufficient to require a retrial. See State v. Yarbrouqh, 151

Wn. App. 66, 98, 210 P.3d 1029 (2009). The cumulative error doctrine does not

apply.


         Affirmed.




We concur:




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