Opinion
No. 60156-3-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-00347-3, David A. Kurtz, J., entered May 21, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
A defendant who fails to object to an improper remark by the prosecutor waives the right to assert prosecutorial misconduct unless the remark was so "flagrant and ill intentioned" that it caused enduring and resulting prejudice that a curative instruction could not have remedied. Here, defense counsel failed to object to the prosecutor's remarks at trial, and any resulting prejudice could have been cured with a prompt instruction to the jury. We affirm.
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
The State charged Sean Marshall Hudson with possession of a controlled substance (cocaine) and driving while under the influence of intoxicating liquor and/or any drug.
A jury convicted Hudson on both counts. Hudson appeals.
PROSECUTORIAL MISCONDUCT
Hudson argues that the State committed misconduct by disparaging defense counsel's role and integrity by referring to defense arguments as the "kitchen sink defense" and stating that defense counsel was trying to "trip up" the jury. He argues that, in making these statements, the prosecutor argued facts not in evidence. He claims that these improper comments require reversal of the jury's verdict. We disagree.
A defendant claiming prosecutorial misconduct bears the burden to establish that the prosecutor's conduct was both improper and prejudicial. A prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence in closing argument. There is no misconduct where the prosecutor does no more than argue based on the facts in evidence or suggest reasonable inferences from the evidence. "Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions."
State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006).
State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
See State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985).
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
A prosecutor should refrain from personally attacking defense counsel, impugning the character of the defendant's lawyer, or disparaging defense lawyers in general as a means of imputing guilt to the defendant. Comments that permit the jury "to nurture suspicions about defense counsel's integrity" can deny a defendant's right to effective representation.
See State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984); United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980).
State v. Neslund, 50 Wn. App. 531, 562, 749 P.2d 725 (1988).
"Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request." The absence of a contemporaneous objection strongly suggests that the comments did not appear critically prejudicial to the defendant in the context of trial. Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Id.
Here, Hudson argues that the State committed misconduct by improperly arguing facts not in evidence and disparaging defense counsel's role and integrity by characterizing defense arguments as the "kitchen sink" defense and stating that defense counsel was trying to "trip up" the jury.
In closing arguments, defense counsel set forth numerous reasons for the jury to doubt Hudson's guilt. Counsel's vigorous defense challenged nearly every aspect of the State's evidence against Hudson and even called into question the credibility of one of the defense's own witnesses.
Defense counsel also variously described the reasonable doubt standard as follows:
If [the evidence] leaves you under a doubt of whether or not [Hudson] was under the influence of drugs, that's it.
. . . .
. . . You have a truly abiding belief that there's no question that man's guilty. If it's anything short of that, the tie goes to the defendant.
. . . .
Well, the law will make it easy for us, and that is if there's any doubt, not guilty is what the law requires.
Report of Proceedings (May 9, 2007) at 383-84, 394.
In the State's rebuttal argument, the prosecutor referred several times to defense counsel's arguments, characterizing them as "the kitchen sink defense." He stated:
Id. at 399, 400, 406, 410.
This is the blame game. This is called the kitchen sink defense in the practice of law. Throw everything out there and in a subtle way trip up the language a little bit. I counted it a couple times when Counsel said if there is any doubt at all, not guilty. That isn't the law. The law is if you have a reasonable doubt, but that is certainly thrown in to you, if you have any doubt at all.
Id. at 402.
The prosecutor repeatedly pointed out that defense counsel had used the phrase "any doubt" rather than "reasonable doubt." The prosecutor also suggested that the phrase "any doubt" was used "to trip you [the jury] up again[.]" He stated that counsel was hoping that the jurors would "lose sight of the real issues in the case" and that "he throws all of this at you in the hope that one of these will stick and it will be reasonable doubt."
Id. at 402-03.
Id. at 403.
Id. at 406.
Id. at 407.
Defense counsel made no objections to any of these remarks. The prosecutor's characterization of Hudson's argument as the "kitchen sink defense" was arguably a pejorative description of the defense's argument. But in the context of the issues of the case, defense counsel's closing argument, and the prosecutor's entire argument, it was not so flagrant and ill intentioned that a prompt instruction to the jury could not have cured any prejudice that may have been caused by the comment. Hudson's failure to object strongly suggests that the comments did not appear critically prejudicial to the defendant in the context of trial.
The prosecutor's statements that defense counsel had "trip[ped] up" the language of the reasonable doubt instructions were in response to defense counsel's imprecise statements regarding the law. The statements were not personal attacks on defense counsel. Hudson fails to show how the statements constituted misconduct or prejudiced his trial.
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:
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers' statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.
Clerk's Papers at 43.
Though Hudson also contends that the prosecutor introduced facts that were not in evidence, the statements were plainly arguments in response to defense counsel's closing arguments. They did not constitute new facts.
Because Hudson fails to show how the prosecutor's allegedly improper remarks prejudiced him, we need not address Hudson's argument regarding constitutional error.
PUBLIC TRIAL
On June 6, 2008, this court granted Hudson's motion to withdraw his assignment of error alleging that the trial court violated his right to a public trial.
We affirm the judgment and sentence.