Opinion
No. 25605-7-III.
January 24, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 03-1-01202-9, Vic L. VanderSchoor, J., entered September 20, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Kulik, J., and Stephens, J. Pro Tem.
This appeal follows a conviction for possession of methamphetamine. At trial the prosecutor requested a recess to find and call a rebuttal witness. The judge denied the request. Later the prosecutor commented on the court's refusal to allow a rebuttal witness in front of the jury. Mr. Madrigal moved for a mistrial. The trial judge refused to grant a mistrial. We agree with the trial judge that the prosecutor's comment, even if misconduct, did not rise to a level to warrant a mistrial. And we affirm the conviction for possession of methamphetamine.
FACTS
The police stopped Jose Madrigal for an improper lane change. An officer discovered that his license had also been suspended. The police then placed Mr. Madrigal under arrest. The police searched the car incident to the arrest and discovered 20 grams of methamphetamine beneath a loose center console in the car. They took Mr. Madrigal to jail where an employee time stamped a personal property inventory sheet at 3:48 am.
The State charged Mr. Madrigal with unlawful possession of a controlled substance, methamphetamine. At trial the prosecutor objected to the admission of the personal property inventory sheet for lack of proper foundation and violation of hearsay rules. The trial judge admitted the inventory sheet into evidence.
The State then asked for an indefinite recess to locate the person responsible for the inventory sheet. This would have been a rebuttal witness for the State. The judge refused to recess the proceedings.
The judge later asked the State whether it had any rebuttal witnesses. The prosecutor stated in front of the jury: "Your Honor has excluded my rebuttal witness so, no." Report of Proceedings (RP) (Jan. 31, 2006) at 122.
Mr. Madrigal's attorney immediately requested a mistrial based upon the prosecutor's comment. The judge denied the mistrial. And the jury found Mr. Madrigal guilty of possession of methamphetamine.
DISCUSSION
Mr. Madrigal argues that the prosecutor's remark improperly invited the jury to base its verdict on speculation. And the trial judge abused his discretion by refusing to grant a mistrial. The State responds that the jury found Mr. Madrigal guilty because of the evidence presented and the drugs found in his car. It agrees that the prosecutor's comment may have been improper, but it urges that the comment did not affect the jury's verdict.
We review a judge's decision to deny a mistrial for prosecutorial misconduct for an abuse of discretion. State v. French, 101 Wn. App. 380, 385, 4 P.3d 857 (2000); State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967).
We review a prosecutor's remarks in "`the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.'" French, 101 Wn. App. at 385 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
The first inquiry is whether the prosecutor's comment was improper. State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1998). The State admits it was improper. We must decide, however, whether there is a substantial likelihood that the comment affected the jury. Id. The defendant must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). To establish prejudice resulting from prosecutorial misconduct, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. Belgarde, 110 Wn.2d at 508.
When the prosecutor's comment is viewed in "`the context of the total argument, the issues in the case, [and] the evidence addressed,'" the prosecutor's remark that its rebuttal witness was excluded by the judge did not create a substantial likelihood that the jury's verdict was affected. French, 101 Wn. App. at 385 (quoting Brown, 132 Wn.2d at 561). In other words, Mr. Madrigal has not shown a prejudicial effect. Roberts, 142 Wn.2d at 533.
The total argument and the evidence presented showed that 20 grams of methamphetamine were found in Mr. Madrigal's car. RP (Jan. 31, 2006) at 14. He gave inconsistent explanations for possessing the methamphetamine. RP (Jan. 31, 2006) at 15-18. The only evidence he presented was his own testimony and a time-stamped personal property inventory sheet from the jail. RP (Jan. 31, 2006) at 115-17.
A new trial is necessary only when a defendant has been so prejudiced that nothing short of a new trial will correct the mistake. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). That is not the case here. Russell, 125 Wn.2d at 85; Belgarde, 110 Wn.2d at 508.
We therefore affirm the jury's verdict for possession of methamphetamine.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
KULIK, J.
STEPHENS, J. Pro Tem.