Opinion
No. 35895-6-II.
May 6, 2008.
Appeal from a judgment of the Superior Court for Jefferson County, No. 06-1-00179-1, Craddock D. Verser, J., entered February 2, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Richard Hurn appeals his convictions of: (1) one count of refusal to give information to or cooperate with an officer and (2) one count of unlawful possession of a controlled substance — methamphetamine. We affirm.
FACTS
On October 28, 2006, Port Townsend police officers observed a pickup truck driving around the city. The officers checked the vehicle registration, finding that the registered owner, Richard Hurn, had a suspended license. The police officers moved behind the pickup truck, activated the emergency lights on their patrol car, and pulled the pickup truck to the side of the road.
Officer Matthew Krysinski approached the driver's side of the pickup truck and noticed that the driver was wearing "a blue bandana that covered his — from his nose down, and full-brimmed, kind of like a cowboy-style hat that was — had a brim all the way around it. It was pulled down pretty low, as well, so all I could see was his eyes." 2 RP at 92-93. Officer Krysinski asked to see the driver's hands, and then moved closer to the pickup truck. At this point, Officer Krysinski saw a "large-framed revolver that was in a holster, and the holster was unsnapped." 2 RP at 93. According to Officer Krysinski, this gun was within "a couple inches" of the driver's right hand. 2 RP at 93. Officer Krysinski immediately alerted his partner on the other side of the pickup truck, "[P]artner, I've got a gun." 2 RP at 96.
Officer Krysinski ordered the driver to raise his hands and slowly exit the pickup truck. Even though Officer Krysinski asked for the driver's name, the driver did not answer. Instead, the driver responded, "I want a lawyer." 2 RP at 97. After a minor scuffle, Officer Krysinski placed the driver in handcuffs. Eventually, the driver identified himself as Hurn, and Officer Krysinski informed him of his Miranda rights. Thereafter, the officers transported Hurn to jail, where other officers discovered a small amount of methamphetamine in his clothing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
By amended information, the State charged Hurn with: (1) one count of third degree driving while license suspended; (2) one count of refusal to give information to or cooperate with an officer; and (3) one count of unlawful possession of a controlled substance, namely methamphetamine.
At trial, Hurn moved to suppress all evidence after he requested an attorney. But the trial court denied his motion. Hurn pleaded guilty to one count of third degree driving while license suspended. And a jury found him guilty of both: (1) refusal to give information to or cooperate with an officer and (2) one count of unlawful possession of a controlled substance, namely methamphetamine. He appeals.
ANALYSIS I. Reasonable Doubt Instruction
Hurn argues that the trial court's "reasonable doubt" instruction was unconstitutional because it failed to give a clear instruction and it relieved the State of its burden. Br. of Appellant at 3. But during the appeal in this case, our Supreme Court considered this version of the "reasonable doubt" instruction and held it to be "constitutionally adequate." State v. Bennett, 161 Wn.2d 303, 315, 165 P.3d 1241 (2007).
II. Prosecutorial Misconduct
Hurn argues that the prosecuting attorney in this case committed misconduct by: (1) introducing inadmissible propensity evidence and emphasizing this evidence during closing argument and (2) expressing her personal opinion. Br. of Appellant at 9-13. We disagree. Hurn has not shown how his right to a fair trial was prejudiced.
In order to establish prosecutorial misconduct, Hurn must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). Prejudice is established where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)).
Hurn did not object to the prosecutor's questioning and arguments below. "A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so `flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied." Boehning, 127 Wn. App. at 518 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
Furthermore, we review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Boehning, 127 Wn. App. at 519. "A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." Boehning, 127 Wn. App. at 519. But a prosecutor may not make statements that are unsupported by the evidence and unfairly prejudicial to the defendant. Boehning, 127 Wn. App. at 519.
First, Hurn argues that the prosecutor improperly introduced evidence that he possessed a loaded firearm when stopped by the police. Without explanation, Hurn notes, "This information was unknown to the police at the time of their initial contact, and was inadmissible at trial." Br. of Appellant at 11. But in a motion in limine, the trial court already ruled that such evidence was admissible, agreeing with the State that it was "part of the basic fact-pattern as to why the officers did what they did when they did it." 1 RP at 71. And after reviewing the prosecutor's questioning, we hold that Hurn has not shown that the prosecutor's conduct was improper, let alone flagrant and ill intentioned.
Second, Hurn argues that during cross-examination the prosecutor improperly introduced evidence of: (1) two outstanding warrants for his arrest; (2) a negligent driving conviction; and (3) a DUI conviction. Again, without explanation, Hurn notes, "None of this information was admissible at trial." Br. of Appellant at 11.
But on direct examination, Hurn testified that he was "on guard" when the police officers approached his pickup truck. 3 RP at 204. He explained, "Well, it's scary when people come at you with their guns out. And really the only law I broke was I wasn't supposed to be driving." 3 RP at 205 (emphasis added). Before describing how the police officers arrested him, Hurn revealed, "And I'm going, oh, man. Okay. I've been here before." 3 RP at 205 (emphasis added). Then, in explaining this statement, Hurn said, " I got pulled over in a random stop by a [s]tate [p]atrolman, and then next thing I know I was thrown up against my [truck]." 3 RP at 206 (emphasis added).
The State argues that Hurn placed his character in issue and "opened the door" to being cross-examined about his character. But we do not need to go that far. Plainly, by testifying that he had been stopped by police before and that he was scared on this occasion, Hurn "opened the door" to his current state of mind. Thus, the State's evidence was admissible because it was relevant to Hurn's state of mind when the officers stopped him and approached his pickup truck. ER 401; see also State v. Renfro, 96 Wn.2d 902, 905-06, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982); State v. Jimerson, 27 Wn. App. 415, 421, 618 P.2d 1027, review denied, 94 Wn.2d 1025 (1980). We hold that Hurn has not shown that the prosecutor's conduct was improper, let alone flagrant and ill intentioned.
Third, Hurn argues that during closing argument the prosecutor improperly emphasized evidence of his prior experience with law enforcement officers and evidence that he possessed a loaded firearm when stopped by the police, thereby "implicitly inviting the jury to convict Mr. Hurn based on a propensity toward criminal activity." Br. of Appellant at 11. Arguably, Hurn is correct that it was improper for the prosecutor to comment, "[I]t's illegal to have a loaded weapon." 3 RP at 268. "Arguments concerning questions of law must be confined to the instructions given by the court." State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983), abrograted on other grounds by State v. Brown, 36 Wn. App. 549, 555-56, 676 P.2d 525, review denied, 101 Wn.2d 1024 (1984). Nevertheless, the comment was an isolated point in an extended discussion about the police officers' credibility. And Hurn has not shown how this single comment caused enduring and resulting prejudice that a curative instruction could not have remedied.
Hurn has taken these allegedly improper comments out of the context of the total argument.
Furthermore, we perceive no impropriety in the rest of the prosecutor's comments, as they were supported by admissible evidence. See Boehning, 127 Wn. App. at 519 ("A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury."). On cross-examination, Hurn admitted that: (1) the police had stopped him before; (2) the police had two outstanding warrants for his arrest; and (3) the firearm in his truck was always loaded. Furthermore, in response to observing the firearm in Hurn's pickup truck, the police officers testified that they drew their weapons, ordered Hurn to exit the pickup truck, and then searched him.
Thus, after reviewing the prosecutor's comments, we hold that Hurn has not shown that the prosecutor's conduct was so flagrant and ill intentioned as to cause enduring and resulting prejudice.
Fourth, Hurn argues that the prosecutor impermissibly expressed her personal opinion about the case. In general, a prosecutor may not express a personal opinion as to the credibility of a witness or the guilt of an accused. State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003). "Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a person opinion." Papadopoulos, 34 Wn. App. at 400. Standing alone, the prosecutor's comments could sound like an expression of personal opinion. See Papadopoulos, 34 Wn. App. at 400. But when judged in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions, it is apparent that the prosecutor was trying to convince the jury of certain ultimate facts and conclusions to be drawn from the evidence. See Papadopoulos, 34 Wn. App. at 400. The prosecutor was not, as Hurn suggests, expressing her personal opinion about his credibility or guilt.
Again, Hurn has taken these allegedly improper comments out of the context of the total argument.
After reviewing the prosecutor's comments in the context of the total argument, we agree with the State that the prosecutor was not expressing a personal opinion. We hold that Hurn has not shown that the prosecutor's conduct was improper, let alone flagrant and ill intentioned.
III. Ineffective Assistance of Counsel
Hurn argues that he was denied effective assistance of counsel when his counsel failed to object to the prosecutor's comments and failed to request a curative instruction. To establish ineffective assistance of counsel, Hurn must show that: (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Hurn must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, he must establish, "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Because we hold that all but one of the prosecutor's remarks here were not improper, Hurn's defense counsel had no need to object to the prosecutor's remarks and request a curative instruction from the trial court. And for the single, isolated remark that was improper, Hurn has not shown how his counsel's failure to object to it resulted in prejudice. Thus, Hurn 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.
VAN DEREN, A.C.J., PENOYAR, J., concur.