Opinion
No. 60618-2-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-12332-4, Michael Heavey, J., entered September 17, 2007.
Affirmed in part and remanded by unpublished opinion per Ellington, J., concurred in by Grosse and Becker, JJ.
UNPUBLISHED OPINION
A jury convicted Katherine Franklin of one count of delivery of methamphetamine and one count of possession of methamphetamine. Franklin contends she is entitled to a new trial because the record does not contain slides from a PowerPoint summary the prosecutor used in closing argument. The State concedes on appeal that slides as described in Franklin's proposed order to settle the record were shown to the jury during the trial. The record, as supplemented, provides a sufficient basis for review of Franklin's claim of prosecutorial misconduct in closing argument.
Because any impropriety in the arguments or accompanying slides could have been cured by an instruction, Franklin's claims of misconduct were waived by her failure to object. We thus affirm the conviction. We remand for correction of a scrivener's error in the judgment and sentence as to the date of the possession offense.
FACTS
King County Sheriff's detectives entered into an agreement with informant Stan Mariotti to "work off" drug charges. Mariotti knew Katherine Franklin from prior drug purchases and from an incident in which his girlfriend bought a car from Franklin, which Franklin later repossessed. With police listening to his side of a phone conversation, Mariotti arranged to meet Franklin at a gas station to sell him an "eight-ball" (an eighth of an ounce) of methamphetamine for $160.
Officers searched Mariotti, determined he had no contraband on his person, and gave him $160 in cash for which the serial numbers had been recorded. They observed Franklin drive to the gas station and walk into the store. In the passenger's seat of Franklin's car was another woman known to Mariotti as Stratton. Mariotti walked up and handed Stratton the buy money, and as Franklin returned to the car from the store, Stratton handed him approximately an eighth of an ounce of methamphetamine. Stratton then handed Franklin the buy money. Officers recovered the methamphetamine from Mariotti and found he had no other drugs or money.
Police arrested Franklin and Stratton. Franklin possessed $601 in cash, including the prerecorded buy money. The arresting officer also found a canister with more methamphetamine in Franklin's pocket. As he grabbed the canister, she quickly volunteered, "That's for personal use."
Report of Proceedings (July 10, 2007) at 41.
The State charged Franklin with one count of delivery and one count of possession of a controlled substance. Before trial, defense counsel moved in limine to suppress testimony by Mariotti that he had purchased methamphetamine from Franklin before. The trial court granted the motion, ruling that Mariotti would be allowed to testify that he had purchased drugs before and on this occasion had called Franklin, but he was not to say anything about buying drugs from her in the past. The trial court also granted Franklin's motion to suppress evidence of the additional cash beyond the $160 buy money that police recovered from her. The defense theory at trial was that the transaction did not involve Franklin, and that Mariotti was motivated by animus toward Franklin and his arrangement with police to identify Franklin as the dealer.
Before closing argument, the prosecutor showed defense counsel PowerPoint slides she intended to use in argument. Counsel did not object to any of the slides or ask for hard copies to be placed in the record. The prosecutor argued that the jury could infer that Franklin was well aware of what Stratton was doing, and that Franklin had a lot of money in her pocket when arrested. The defense made no objection.
The jury found Franklin guilty.
After Franklin filed her notice of appeal, Franklin's appellate counsel learned that the slides used in closing argument had not been made part of the record, and filed a motion under RAP 9.5 to supplement the record based on the memory of the defendant and her trial attorney. New trial counsel was appointed for Franklin, and the trial court conducted hearings.
Franklin recalled that one slide included a reference to prior drug sales and another referred to her possession of a very large amount of money. The trial prosecutor was unable to locate the computer file containing the slides she used in argument, but produced draft slides from her home computer, including one referring to "prior meth sales." Defense counsel, after a brief review of the freshly prepared transcript, said there appeared to have been no argument corresponding with the draft slide or with Franklin's memory of the slides.
Franklin proposed an order that the prosecutor's draft slide referencing "prior meth sales" had in fact been used, and that another slide had been used containing a reference to "very large sum of money" found on Franklin when she was arrested. Because the record reportedly contained no such argument, the prosecutor was unwilling to concede such slides had been used. Noting that it had no independent recollection of the slides, the court confirmed with defense counsel that it appeared the transcript contained no argument corresponding with the slides described in the proposed order, and declined to settle the record as Franklin requested.
Clerk's Papers at 79-80.
ANALYSIS Sufficiency of the Record
A defendant is constitutionally entitled to a record of sufficient completeness to permit effective appellate review of the defendant's claims. State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003). Sufficient completeness, however, does not necessarily mean a complete verbatim transcript. Id. A record is sufficient if it allows counsel to determine what issues to raise and "`place [s] before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise.'" Id. (quoting State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976)). The absence of a portion of the record does not require reversal unless the defendant can demonstrate prejudice. State v. Miller, 40 Wn.App. 483, 488, 698 P.2d 1123 (1985).
The arguments are somewhat convoluted. In her opening brief, Franklin contended that without a record of the content of the prosecutor's slides, she cannot make her claim of prosecutorial misconduct. Having had an opportunity to review the transcript of argument, the State now agrees that the argument corresponds with the draft slides and affidavits submitted at the RAP 9.5 hearings. Accordingly, the State now concedes that the record should be supplemented as proposed.
In reply, Franklin does not dispute the State's analysis of the record. Instead, she invokes the equitable doctrine of judicial estoppel to argue that the State should not be allowed to change its position now.
This is a strange argument. It is not entirely clear why Franklin rejects the State's concession, unless she believes her position is stronger if there is no record at all. Judicial estoppel precludes a party from seeking an advantage by changing its position in a court proceeding. See Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538-39, 160 P.3d 13 (2007). Franklin does not explain how the State's position is inconsistent, nor how its new position represents an advantage. Nor does she present a reasoned analysis of the factors and considerations that guide the application of the doctrine. Judicial estoppel will usually be inappropriate when a party's prior position was based on inadvertence or mistake. See id. at 539. The State's position below was based upon defense counsel's description of the transcript. There is nothing to indicate the prosecutor misled the court or seeks an unfair advantage. We decline to apply the doctrine under these circumstances.
We therefore accept as part of the record on review the draft slide that included the reference to "prior meth sales," and further accept Franklin's assertion that there was also a slide including a reference to her possession of "a very large sum of money" as well. As a result, Franklin is not prejudiced in presenting her argument of prosecutorial misconduct, and reversal because of the trial court's inability to settle the record is unnecessary.
Clerk's Papers at 76.
Id. at 80.
Prosecutorial Misconduct
To prevail on grounds of prosecutorial misconduct, a defendant must show improper conduct resulting in prejudice. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). Prejudice exists if there is a substantial likelihood that the prosecutorial misconduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). We examine allegedly improper statements in the context of the total argument, the issues, the evidence, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Even if comments are found to be improper, reversal is required only if there is a substantial likelihood the comments affected the jury's decision. State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984).
Generally, a defendant's failure to object to improper argument waives such a claim unless the statements are so flagrant and ill-intentioned as to cause an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Brown, 132 Wn.2d at 561. Reversal is not appropriate when the alleged prejudice might have been cured through an instruction following an objection that the defendant failed to make. Id.
Franklin suggests that the prosecutor's references to "prior meth sales" in argument and on the slide were flagrant and ill-intentioned in view of the pretrial order prohibiting Mariotti from testifying that Franklin had previously sold him drugs. See State v. Stith, 71 Wn. App. 14, 21-22, 856 P.2d 415 (1993) (flagrantly improper for prosecutor to refer to suppressed evidence of defendant's prior conviction for dealing drugs). But the prosecutor was not arguing that there was evidence of actual prior sales. Rather she suggested that from the way the transaction occurred, the jury could infer that Franklin was practiced in selling drugs and was a knowing accomplice to Stratton. Considered in context, if the references to prior sales violated the order in limine at all, they did not constitute an incurably flagrant violation. Accordingly, Franklin waived the claim of misconduct by failing to object to the argument and slide at trial.
The prosecutor pointed out that when Mariotti called Franklin and asked for "an eight-ball" she did not question his meaning, and that the cash exchanged was the street price for an eight-ball. She also pointed to the absence of conversation in the parking lot. RP (July 11, 2007) at 15.
The slide read as follows: "Top three reasons defendant knew substance sold was methamphetamine://Slang term./Correct amount/ Prior meth sales: Familiarity; Lack of detailed planning; No conversation about deal b/t Mariotti Stratton; Mariotti's specific testimony." Clerk's Papers at 76.
As Franklin acknowledges, when the prosecutor's argument appeared to veer in a direction focusing on the subject of Mariotti's prior experience with Franklin, the trial court sustained an objection and the prosecutor did not revisit the issue.
Similarly, the oral comment and slide references to Franklin having a lot of money did not constitute incurably improper arguments. The order in limine precluded reference to cash other than the $160 buy money. The references did not constitute unsworn testimony. While it can be debated whether $160 is a particularly large amount, any question would have been easily cured by an instruction, and we perceive no likelihood of prejudice in any event.
We see no basis for reversal in the prosecutor's remarks or the slides she used to illustrate those remarks.
Finally, Franklin contends, and the State properly concedes, that the judgment and sentence contains a scrivener's error as to the date of the possession offense that should be corrected by the trial court. State v. Moten, 95 Wn. App. 927, 929, 976 P.2d 1286 (1999).
We affirm the convictions. We remand for correction of the judgment and sentence as to the date of the possession offense.
WE CONCUR: