Opinion
No. 38191-5-II.
October 13, 2009.
Appeal from the Superior Court, Clark County, No. 08-1-00763-4, Barbara D. Johnson, J., entered August 7, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
Edward J. Allen appeals his conviction of unlawful possession of cocaine, claiming that prosecutorial misconduct and ineffective assistance of counsel deprived him of a fair trial. Taken in context, we find that the prosecutor's questions and closing statements were improper but not flagrant and ill-intentioned misconduct and that defense counsel's failure to object was not ineffective assistance. We affirm.
A violation of RCW 69.50.4013(1).
Facts
On May 11, 2008, Vancouver Police Officer Robert O'Meara responded to a request for assistance at an ARCO station in Vancouver. There, O'Meara arrested Allen for criminal trespass and took him to the Clark County Jail. During the booking process, the booking officers discovered a four-inch glass smoking pipe in the inside pocket of Allen's black leather jacket. Allen immediately replied, "That's not mine, I don't know where that came from." Report of Proceedings (RP) at 111. Later testing showed that the pipe contained cocaine residue.
The State initially charged Allen with second degree criminal trespass and unlawful possession of methamphetamine but before trial, it filed an amended information charging
unlawful possession of cocaine. Through a pre-trial motion, Allen sought to prevent the State from introducing evidence about the criminal trespass charge. The court ruled:
I think I had suggested in chambers that there could be something of the nature of there had been an incident at the location where he's arrested that led to his arrest, and just something rather neutral of that. And then, if necessary, to get into some other part of what happened, I'd need to know more specifically what it is that —
RP 103-04.
The State then explained that introducing the reason for Allen's arrest was important because there were discussions between O'Meara and Allen that led to Allen's custodial arrest. In particular, one of O'Meara's reasons for arresting Allen was that he appeared intoxicated. The court responded:
THE COURT: Well, I haven't heard any showing so far that any of that would be relevant to the charge here which resulted from the search of the Defendant. So, at this point I'll exclude it. If it somehow comes up in the course of Defendant's testimony —
MR. PETERSON [Deputy Prosecutor]: Okay.
THE COURT: — it may become relevant at that point, but I haven't heard anything at this point that it seems to relate to the remaining charge of Possession of Cocaine.
All right. Are we ready for the jury for opening statement?
MR. DUNKERLY [Defense Attorney]: Your Honor, give me a second here, please. Yes, I think we're ready, Your Honor.
THE COURT: All right. Let's bring in the jury.
MR. PETERSON: Your Honor, I have one more question. What is Officer O'Meara specifically allowed to say about why the arrest occurred?
THE COURT: I think we were just going to say that an incident at whatever location it was led to the arrest of the Defendant. Any objection to —
MR. PETERSON: Can we —
THE COURT: — that?
MR PETERSON: — mention that it's a criminal trespass or not?
MR. DUNKERLY: No.
MR. PETERSON: Just incident?
THE COURT: I don't think that it's really necessary to go into it —
MR. PETERSON: Okay.
THE COURT: — since the charge has been dismissed. And that may cause to (inaudible) under uncharged or 404(b) type of evidence at that point.
MR. PETERSON: Okay.
MR. DUNKERLY: Thank you, Your Honor.
RP 105-06. Allen testified that he was wearing a leather jacket when O'Meara arrested him that he had just gotten back from a friend to whom he had loaned it two months earlier. He testified that this was the first time he had worn the jacket and did not know there was a smoking pipe in the pocket. During cross-examination, the State asked Allen why he was at ARCO. He explained:
I was gonna go up there and get a couple of things of gas and I was gonna get some milk, and like I said, the night before I was cooking, I was sautéing her some dinner for the next day was Mother's Day and I went up there to go get some milk and get a couple gallons of gas, `cause I was gonna make them breakfast that morning.
. . . .
I was basically cooking. So I left out the house about 15 minutes before I got up. I got up, went to go get some milk. I went to sleep about 2:30 that night. I got up early in the morning, `cause I had some stuff sautéing and I wanted to finish doing my little dinner. We didn't have no milk. So I said, (inaudible) run up here to the store and get some milk real fast, and — and then the incident happened, and that's what happened.
RP 153-55. The State then asked Allen more about his reason for going to ARCO:
MR. PETERSON: Okay. Did you go to the ARCO station to pick up any alcohol at all? Or just milk?
MR. ALLEN: What?
MR. PETERSON: Did you go to the ARCO station to pick up any alcohol at all?
MR. ALLEN: No.
MR. PETERSON: Okay. Did you go there to panhandle or anything else besides picking up milk?
MR. ALLEN: No.
RP 155.
During closing argument, the prosecutor argued there was more to the story about what happened at ARCO:
Officer O'Meara, remember, responded to an incident. Now you haven't heard a description of this incident. Okay. But the only thing I wanted to point out is that the Defendant states that he only went to ARCO to buy milk for Mother's Day. That's the only reason why he showed up. Okay. But Officer O'Meara responded to an incident that was occurring at the ARCO station, and his arrest of the Defendant — the reason why he took him to jail — was based upon that incident. Okay. It wasn't simply a buying of — buying milk for Mother's Day.
RP 171.
When discussing how to judge the credibility of the various witnesses, the prosecutor remarked:
Next factor is quality of the witness' memory while testifying. Okay. Do they give lots of detail that supports their assertions and what they're saying. Okay. Again, we have limited testimony from Officer O'Meara about there's — we can't talk about the incident, but the description of how it was found, how close he was to it, he wrote it right down when he heard the Defendant say, hey, it's not mine. Okay. He instantly wrote it down.
RP 177.
And finally, in his rebuttal argument, the prosecutor summarized:
Basically, what you have here, what it all boils down to it, you have a situation where the Defendant is involved in an incident, an incident that justifies an officer arresting him. This is not going to the store to buy milk. Okay. He's arrested for an incident, and he's searched at a jail, and he's found with a cocaine pipe in his pocket. He gives a story with almost no detail about some other guy and some other place, that somehow this pipe got into his pocket. Okay. Again, it's up to you to determine whether you believe that story or not. Okay.
RP 189.
The jury returned a guilty verdict and the court later imposed a standard range 45-day sentence. Allen appeals.
analysis
I. Prosecutorial Misconduct
Allen first claims that the prosecutor violated the court's motion in limine during cross examination when he asked Allen about the arrest and, again, in closing arguments when he repeatedly told the jury that there was more to the story than they had heard. He claims this flagrant misconduct discussed matters with the jury that were outside the evidence presented and introduced prejudicial, inflammatory evidence that denied him his right to a fair trial.
If a defendant fails to object to improper comments at trial, request a curative instruction, or move for a mistrial, we need not reverse unless the misconduct was so flagrant and ill intentioned that no curative instructions could have obviated the prejudice the misconduct engendered. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990) (quoting State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)). We must reverse for prosecutorial misconduct when there is a substantial likelihood that the argument affected the jury verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). The defense has the burden of proving such prejudice. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). This rule stems from the prosecutor's obligation "to ensure a verdict free of prejudice and based on reason." State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984).
Allen argues that the prosecutor's conduct was particularly egregious here because the underlying facts regarding the cocaine possession were undisputed and the only question before the jury was his credibility, which was essential to his unwitting possession defense. He argues that the State used cross-examination to introduce facts about his arrest that should not have been introduced and then suggested that because of these facts, Allen lied about why he was at ARCO. See State v. LaPorte, 58 Wn.2d 816, 365 P.2d 24 (1961) (prosecutor's remarks must be limited to the evidence and may not bring extraneous legal or factual matters before the jury).
He compares his case to State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). There, as here, the prosecutor suggested to the jury that there was more to the evidence than they had been told. Reversing, this court held:
In arguing that H.R.'s out-of-court statements were consistent with her statements at trial and that she had disclosed even more to Tomlinson, Detective Holladay, and Price, the prosecutor left the jury with the impression that these witnesses "had a great deal of knowledge favorable to the State which, but for the court's rulings, would have been revealed." State v. Alexander, 64 Wn. App. 147, 155, 822 P.2d 1250 (1992). And the pattern of reiterating these same arguments had the effect of telling the jury what H.R.'s statements were. See Alexander, 64 Wn. App. at 155. This repeated attempt to bolster H.R.'s trial testimony and credibility by instilling inadmissible evidence in the juror's minds was so flagrant as to constitute misconduct.
Boehning, 127 Wn. App. at 522-23.
The State responds that its line of questioning during cross-examination was appropriate in light of Allen's testimony about why he had gone to the ARCO station. In response to Allen's answer that he went to get gas and milk, the prosecutor asked Allen if he had gone to the ARCO station to get alcohol or to panhandle. Allen denied both suggestions. It was this discussion the prosecutor was referring to during closing argument when he told the jury that this was not a simple matter of Allen buying milk for Mother's Day; rather, he did something there that caused the ARCO manager to call the police and that eventually led to Allen's arrest.
We do not find reversible misconduct here. The prosecutor's questions and remarks pale in comparison to the misconduct in Boehning. In light of Allen's unwitting possession defense and the uncontested fact that the police found a cocaine pipe in Allen's jacket, Allen's credibility was central to his defense. The State had the right to question Allen's initial explanation that he went to ARCO to buy gas and milk. If he had some other motive, such as to buy alcohol or panhandle, the State was entitled to argue that his explanation was less forthcoming than he claimed.
We do find troubling the prosecutor's repeated attempts to suggest that Allen had a criminal purpose in going to ARCO. The only purpose the prosecutor could achieve with such a line of questions was to portray Allen as a bad actor and thus more likely to have known that he had a cocaine pipe in his pocket. Clearly, the State overstepped its bounds in repeatedly exploring Allen's motivation and in suggesting that there were parts of the story the jury would not hear but would show that Allen had another motive.
Nonetheless, we do not find the prosecutor's conduct flagrant and ill-intentioned. It was not improper for the prosecutor to ask questions and make arguments designed to impugn Allen's credibility; the only possible tactic the State could use in light of Allen's unwitting possession defense. The State also tried to show that Allen's claim that he lent his coat to someone was incredible, repeatedly questioning Allen about how many coats he owned, how often he lent them to people, and why he would lend out his favorite coat. In light of Allen's responses to these questions, the jury most likely disbelieved Allen's defense. We do not find that the State's positing that Allen went to ARCO with a criminal intent so infected the trial as to deny Allen a fair trial. After all, the jury heard that Allen was arrested for an incident so the jury knew that he had done more than buy milk and gas and the court allowed O'Meara to testify that Allen appeared intoxicated, smelled strongly of alcohol, and had blood shot eyes. In these circumstances, the prosecutor's questions and remarks likely had little if any effect on the jury's decision.
II. Effective Assistance of Counsel
Alternatively, Allen argues that counsel's failure to properly object to the prosecutor's improper questions and misstatements during closing arguments denied him his right to effective assistance of counsel. He argues that counsel should have objected to the prosecutor's argument (1) that there was more to Allen's arrest than they were told; (2) that Allen lied during his testimony about the facts of his arrest; and (3) that Allen lacked credibility because of it.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We begin with the presumption that counsel's assistance was effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122 (1986) (citing Strickland, 466 U.S. at 694). This presumption continues until the defendant shows in the record the absence of legitimate or tactical reasons supporting his counsel's conduct. State v. McFarland, 127 Wn.2d 322, 334-38, 899 P.2d 1251 (1995).
Allen's counsel's failure to object to the prosecutor's questions and closing remarks did not affect the trial outcome. While counsel may have been more diligent in challenging the prosecutor's attempts to introduce prejudicial matters, his failure to do so did not deprive Allen of a fair trial.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, J., concur.