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State v. Florence

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1002 (Wash. Ct. App. 2007)

Opinion

No. 34597-8-II.

August 7, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03472-8, Beverly Grant, J., entered February 24, 2006.


Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.


Randy Florence appeals his conviction of delivering a substance in lieu of a controlled substance. We affirm.

Using a confidential informant, audio recordings, and video recordings, Tacoma police officers observed two individuals selling two quantities of what appeared to be controlled substances. Tacoma police officers later arrested these two individuals, one of whom was Randy Florence.

The State tested these two substances. One substance tested positive for cocaine, a controlled substance. The other substance tested positive for nicotinamide, an uncontrolled substance. Thereafter, on the day of trial, the State charged Florence with delivering a substance in lieu of a controlled substance.

At trial, the confidential informant testified that he purchased two quantities of what appeared to be a controlled substance from two individuals, one of whom was Florence. He claimed that he kept these substances separate by keeping them in different hands. And, while driving to a pre-arranged meeting place with Tacoma police officers, he kept the two substances in his hands instead of storing them in a cup holder or an ashtray. He even asserted that there was "[n]o chance" that he mixed up what was in his hands. 4 RP at 136. Once at the meeting place, the confidential informant provided a Tacoma police officer with these two substances. And the confidential informant identified for the police officer which individual had sold him which substance.

Among other things, Florence's counsel argued that the confidential informant was unreliable and not credible. Florence's counsel argued that the Tacoma police officers did not thoroughly search the confidential informant before the sale. And Florence's counsel argued that the confidential informant could have mixed up what was in his hands. Nevertheless, based in part on the laboratory tests and the confidential informant's testimony, the jury found Florence guilty as charged.

I. Prosecutorial Misconduct During Closing Arguments

Florence claims that the prosecuting attorney in this case committed misconduct "by misstating the fundamental standard of the burden of proof beyond a reasonable doubt and denigrating counsel for failing to disprove the prosecution's case." Br. of Appellant at 5. We disagree.

In closing argument, the prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983). But the prosecuting attorney's statements to the jury on the law must be confined to the law as set forth in the instructions given by the trial court. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). So far as improper argument is concerned, the defendant has the burden of establishing the impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). Reversal is not required if the error could have been obviated by a curative instruction that defense counsel did not request. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).

We review the allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given by the trial court. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Even if the prosecuting attorney's remarks are improper, reversal is not required if they were invited or provoked by defense counsel and they are in reply to defense counsel's acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86.

Finally, failure to object to an allegedly improper remark constitutes a waiver of error, unless the prosecuting attorney's remark was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Russell, 125 Wn.2d at 86. "In other words, a conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." Russell, 125 Wn.2d at 86.

Here, Florence argues that "the prosecutor misstated the standard of reasonable doubt in both initial closing argument and rebuttal closing argument, by telling the jury it was required to decide the case based solely upon the evidence [that] was admitted, not based upon a lack of evidence in the record." Br. of Appellant at 8. In his closing argument, the prosecuting attorney summarized the evidence and then stated:

This is the sum of the evidence that you have been presented with in this case. There is no doubt, reasonable or otherwise[,] that each and every one of the elements of the offense of unlawful delivery of material in lieu of a controlled substance has been satisfied.

You have now been instructed by the Court that taking this evidence into consideration and only the evidence that you have been presented with into consideration, you must deliberate and I ask you at this point that based upon the evidence that you have heard to return the only verdict that is supported by that evidence. To find the defendant guilty as charged of the crime of unlawful delivery of a material in lieu of a controlled substance. Thank you.

5 RP at 197-98.

In response to defense counsel's closing argument, wherein Florence attacked the credibility and the sufficiency of the State's evidence, the prosecuting attorney then stated:

Now, [defense counsel's] argument that the samples were mixed up somehow is problematic on another front. And to find the problem with the argument, ladies and gentlemen, you need to look no further than the instructions that the Judge handed to you yesterday afternoon.

Does everybody have their instructions? If you could turn to the very first page of your instructions and you need to go no further than the very first line. It is your duty as the jury to determine which facts have been proved in this case from the evidence produced in Court, from the evidence produced in Court.

. . . .

You see if you look further down that same instruction on the second page . . . you will see . . . that . . . the remarks, the arguments and the statements that [defense counsel] and I make, they are not evidence. The only evidence in this case ladies and gentlemen that you may consider pursuant to the Court's instructions comes from that chair, the videotape or the substance that was delivered to the [confidential informant] by Mr. Randy Florence that has been admitted. That's it.

You are instructed by the Court to disregard any remarks, statements or argument that is not supported by the evidence. The evidence which you may rely upon leads to only one conclusion and that is the testimony of three witnesses that there is no way those samples were mixed up and that the substance delivered by Mr. Randy Florence that appeared to everyone at the time of their delivery to be rock cocaine proved out to be something other than that. It turned out to be a material in lieu of crack cocaine. The evidence that you may rely upon in this case and it has been presented to you is clear.

And ladies and gentlemen, I charge you once again, as members of this jury, to uphold your honor is [to] rely upon the evidence that's been presented in this case and return the only verdict that is supported by that evidence and that is to find this defendant guilty as charged. Thank you.

5 RP at 213-16.

Florence did not object during the prosecuting attorney's arguments.

Florence contends that the prosecuting attorney's remarks are "problematic" because it relieved the State of its burden to prove guilt beyond a reasonable doubt. Br. of Appellant at 7. Instead of simply instructing the jury on the law, Florence contends that "the prosecution . . . effectively told the jurors that they should find that the prosecution's version of events was correct because there was no evidence presented to support anything else." Br. of Appellant at 10.

But, as the State notes, the prosecuting attorney did not "shift" or even "confuse" the State's burden of proof. Br. of Resp't at 8. Instead, the prosecuting attorney simply made a fair and pertinent reply to defense counsel's argument. Furthermore, a prosecuting attorney does not disparage a defendant's right to present a defense or demean defense counsel when he demonstrates that the evidence does not support defense counsel's theory. State v. Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990). When the credibility and the sufficiency of the State's evidence is at issue, a prosecuting attorney is permitted reasonable latitude in arguing inferences from the evidence. Harvey, 34 Wn. App. at 739. And, as an advocate, a prosecuting attorney is entitled to make a fair response to defense counsel's arguments. Russell, 125 Wn.2d at 87 (citing United States v. Hiett, 581 F.2d 1199, 1204 (5th Cir. 1978)). Thus, it was not misconduct for the prosecuting attorney to argue that the evidence did not support the defense theory. See Russell, 125 Wn.2d at 87.

Moreover, we note that before the closing arguments, the trial court read the instructions to the jury. Among other things, the trial court instructed the jurors:

It is your duty to determine which facts have been proved in this case from the evidence produced in court. It also is your duty to accept the law from the court, regardless of what you personally believe the law is or ought to be. You are to apply the law to the facts and in this way decide the case.

. . . .

The only evidence you are to consider consists ofthe testimony of the witnesses and the exhibits admitted into evidence . . . You will disregard any evidence that either was not admitted or that was stricken by the court.

. . . .

You are the sole judges of the credibility of the witnesses and of what weight is to be given the testimony of each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness to observe, the witness'[s] memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonablenessof the testimony of the witness considered in light ofall the evidence, and any other factors that bear on believability and weight.

The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.

CP at 22-23 (emphasis added). The trial court also instructed the jurors:

The defendant had entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff, and has the burden of proving each element of the crime beyond a reasonable doubt.

. . . .

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

CP at 24 (emphasis added).

After reviewing the allegedly improper comments in the context of the entire arguments, the evidence addressed in the arguments, and the instructions given by the trial court, the prosecuting attorney's remarks were not so flagrant and ill-intentioned that they caused an enduring and resulting prejudice. There is no substantial likelihood that the alleged prosecutorial misconduct affected the verdict. Thus, because Florence has not met his burden of establishing the impropriety of the conduct as well as its prejudicial effect, reversal is not required.

II. Ineffective Assistance of Counsel

Because we have held that the prosecutor's remarks here were not improper, defense counsel had no need to object to the prosecutor's remarks and request a curative instruction from the trial court. Thus, Florence fails to show that his defense counsel was ineffective.

Affirmed.

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., VAN DEREN, A.C.J., concur.


Summaries of

State v. Florence

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1002 (Wash. Ct. App. 2007)
Case details for

State v. Florence

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. RANDY FLORENCE, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 7, 2007

Citations

140 Wn. App. 1002 (Wash. Ct. App. 2007)
140 Wash. App. 1002