Opinion
No. 51508-0-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-02325-4. Judgment or order under review. Date filed: 11/15/2002. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Angela J Kaake, King Co Pros Office, W-554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
When the seller in a buy-bust transaction refuses the buy money and angrily demands that the purchaser taste the rock cocaine provided by the seller, the prosecutor may argue at closing the reasonable inference that the seller was taking a precaution to insure the buyer was not an undercover officer. And to the extent that the prosecutor's closing argument could be viewed as references to "facts" not in the record, it was not so flagrant or ill intentioned that any prejudice could not have been obviated by a curative instruction. The prosecutor's closing argument does not warrant any relief on appeal and Carney's conviction for delivery of cocaine is affirmed.
FACTS
Eric Carney was charged with delivery of cocaine based upon a buy-bust operation. An undercover police officer nodded to Carney and asked if he had "any rock." Carney told the officer to follow him and asked "[h]ow much do you got?" The officer responded that "I got 40." Carney again told the officer to follow him. At the back of a convenience store, Carney turned away from the officer and pulled a baggie from his waist area. The baggie contained several whitish rocks.
Carney placed three rocks in the officer's hand. The officer held out pre-recorded buy money, but Carney refused to take it. Instead, Carney told the officer to "[t]aste it." The officer replied "No, I'm going to smoke it." Carney became nervous and angry and told the officer to "Stick it in your mouth." The officer declined and Carney became increasingly upset and mad and said "Put the shit in your mouth."
The officer threw the money at Carney and left the store. As an arrest team approached, Carney picked up the money, put it in his mouth and began to vigorously chew it. The arrest team arrested Carney and found a baggie in his navel containing several rocks of cocaine.
The trial judge sustained general objections to the officer's testimony that when Carney told him to taste the cocaine, the officer thought Carney was getting suspicious, and that as a police officer he was not going to taste the rock cocaine. When the officer began an explanation that "a lot of times when people are selling narcotics they will ask you to do that to make sure you're . . ." the court sustained an objection.
In closing, the prosecutor stressed the theme that jurors should use their common sense when considering any unanswered questions they may have. Particularly the prosecutor argued that it made common sense that when Carney asked the undercover officer to taste the rock cocaine, he was taking precautions to insure his purchaser was not an undercover officer and when he realized he was too late, he went with his gut instinct to get rid of the buy money by chewing it up:
Now, you may have a lot of questions that weren't answered for you, and the evidence just might not be able to answer all those questions. But again, you can use your common sense. I'm going to give you some ideas as to how to answer some of those questions that might be in your head right now.
First question, where is the money? What happened to that prerecorded Seattle Police Department money? Now, you heard the testimony of Officer Schweiger, that he saw the defendant with a wad of money crumpled up, put it in his mouth. You might be asking yourself why would somebody eat two nasty, dirty $20 bills, and I'll tell you why. I'll give you a suggestion why.
Seattle Police Department has been doing buy-bust operations in the downtown area for years. You've heard these officers testify they've been involved in thousands of these operations. Street dealers know that these operations go on, and they take chances that each transaction that they do is not a police officer. And they take precautions to insure themselves that it is not a police officer. And on February 20th the defendant took a chance and he lost.
He also took precautions. "Taste it." Because he knows that a police officer can't put drugs in his mouth. "Put it in your mouth." Officer Marlow, being a police officer, who can't and won't do that, said, "No, I'm just going to smoke it." Tries to blow it off. Tries to pass it off for his own safety. "Put the shit in your mouth."
But these precautions came too late. And when the defendant realized he was too late, when he saw Officer Johnson coming into the store, he had that money and went with his gut instinct. This all happened within three or four seconds. He's got the money in his hand. What does he do? Gut instinct says get rid of the evidence. I could throw it somewhere. I could try to hide it maybe at the candy counter, but then they might find it. What's the quickest way that I can get rid of this? Takes that money, shoves it in his mouth, starts chewing it up.
(emphasis added.)
There was no objection to the prosecutor's closing argument. The jury found Carney guilty of delivery of cocaine.
The jury also found Carney guilty of possession of cocaine with intent to deliver, but the trial court dismissed that count on a defense motion.
DECISION
Carney argues that the prosecutor improperly argued facts not in evidence because there was no testimony about drug dealers use of precautions to avoid dealing with undercover officers or that Carney knew a police officer would not put drugs in his mouth.
A prosecutor's arguments calculated to appeal to the jurors' passion and prejudice and encourage them to render a verdict on facts not in evidence are improper. It is the prosecutor's duty to "seek a verdict free of prejudice and based on reason." "[A] prosecutor may not make statements that are unsupported by the record and prejudice the [defense]." But, in closing argument, counsel may draw reasonable inferences from the evidence presented. Unless the defense objected to improper comments at trial and requested a curative instruction, or moved for a mistrial, reversal is not required unless the misconduct was so flagrant or ill intentioned that the prejudice could not have been obviated by a curative instruction.
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968).
State v. Jones, 71 Wn. App. 798, 808, 863 P.2d 85 (1993).
State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995).
State v. Belgarde, 110 Wn.2d at 507.
The record contains the undercover officer's testimony that Carney refused to take the buy money and angrily demanded that the undercover officer put the rock cocaine in his mouth. Although the trial court did not allow the undercover officer to testify about his suspicions, the prosecutor was not precluded from arguing reasonable inferences from this evidence. Evidence that a seller in the middle of a drug transaction refuses to take the buy money and angrily demands that the purchaser taste or put the drugs in his mouth supports the obvious and perhaps only reasonable inference that the seller is trying to flush out an undercover officer.
Cf. United States v. Castillo, 924 F.2d 1227, 1233 (2d Cir. 1991) ("We are equally confident that the purpose of forcing customers to snort cocaine — to flush out undercover police officers — was the most obvious, and indeed, perhaps only realistic explanation for the practice and certainly well within the reach of any juror's common sense.").
The prosecutor prefaced his challenged arguments as a "suggestion" based upon "common sense." But even if the key portion of the challenged argument might be read as presenting "facts" as if they had been admitted into evidence rather than as a reasonable inference, e.g. the officer "can't put drugs in his mouth" and that a police officer "can't and won't do that," there was no objection. Because it was a reasonable inference to argue that Carney was attempting to flush out an undercover officer, any deficiency in the form of the argument was not so flagrant and ill-intentioned that reversal is warranted.
We affirm.
SCHINDLER and APPELWICK, JJ., concur.