Opinion
No. 35270-2-II.
October 16, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00730-0, Sally F. Olsen, J., entered August 23, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Ada Cecilia Moore appeals her conviction of unlawful possession of methamphetamine, arguing that (1) the prosecutor improperly expressed his personal opinion about her guilt in closing argument, (2) the trial court erred by failing to instruct the jury on unanimity, and (3) the charging instrument insufficiently set forth an essential fact of the charge against her. Finding no error, we affirm.
FACTS
Kitsap County law enforcement officers discovered a methamphetamine pipe, a scale, and a scale bowl containing methamphetamine in Ada Moore's home. Moore explained to them that the items did not belong to her, she did not know they were in the house, and two recent visitors must have left the items there. Because the items were in plain view, the officers arrested Moore and transported her to the Kitsap County Jail.
During an inventory search at the jail, the booking officer discovered a small baggie containing methamphetamine in Moore's pants pocket. Then, while the booking officer strip-searched Moore, another baggie containing methamphetamine fell out of her underwear.
The State charged Moore with one count of unlawful possession of a controlled substance. At trial, Moore denied that she knowingly possessed any of the methamphetamine that the police found.
Initially, the trial court failed to instruct the jury that to convict Moore, it had to unanimously agree on at least one of the specific instances of possession. While the jury was deliberating, the State asked the court to instruct the jury on unanimity if it found Moore guilty. The State proposed a special verdict asking the jury to unanimously find whether Moore possessed the methamphetamine at her house, in her pants pocket, or in her underwear.
After the jury found Moore guilty, the court instructed it to return to the jury room and to complete the special verdict form. The jury found that Moore possessed the methamphetamine that fell out of her underwear during the strip search, but it was unable to reach unanimous agreement as to the other two incidents.
Analysis I. Prosecutorial Misconduct
Moore argues that the prosecutor impermissibly expressed his personal opinion that she was guilty and told the jurors that defense counsel intended to trick them with her closing argument. She argues that the prosecutor's improper conduct denied her a fair trial.
During rebuttal closing argument, the prosecutor argued:
It might be natural for you, as jurors, to think that there is some real issue as to the defendant's guilt. Well, there is no issue as to the defendant's guilt. The defendant's guilt could not be any more clear.
When you are caught with meth in your house, when you are caught with meth in your pants, and when you are caught with meth in your underwear, you are guilty of the crime of possession of a controlled substance. . . .
Now, the defense has raised several points in their argument. There is a drug dog that apparently — we don't know anything about the training of the dog. There is videotape. Officer Valley wasn't there. I am really harping on these points, and I would suggest to you that they're red [herrings] and that the idea is to get you to [a]void looking at the big picture in this case, trying to get you to stare at a couple of trees and miss the forest. It's the oldest trick in the book.
Report of Proceedings (RP) (Aug. 15, 2006) at 52. Defense counsel then objected, arguing that the prosecutor's argument was improper. The trial court overruled the objection, stating, "It's argument. I will allow it." RP (Aug. 15, 2006) at 52.
A defendant claiming prosecutorial misconduct bears the burden of establishing that the prosecutor's conduct was both improper and prejudicial. State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). To establish prejudice, Moore must demonstrate a substantial likelihood that the alleged misconduct affected the jury's verdict. Korum, 157 Wn.2d at 650 (citing In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998)).
A prosecutor's statement that clearly expresses his personal opinion as to the defendant's guilt constitutes misconduct. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006) (citing State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). Moore argues that the prosecutor expressed his personal opinion that she was guilty when he said, "It might be natural [for the jury] . . . to think that there is some real issue as to [Moore's] guilt . . . there is no issue as to [Moore's] guilt [and her] guilt could not be any more clear." RP (Aug. 15, 2006) at 52. The prosecutor, however, then went on to explain that when police catch a person with methamphetamine in her house, in her pants, and in her underwear, she is guilty of possession of a controlled substance.
Moore relies on State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984), where the prosecutor argued in closing:
If I irritated [defense counsel], it is probably because I had all the goods. It must be very difficult to represent somebody like Gordon Reed when you don't have anything. . . . Let me do that again. Logic. You have A, and you take A and B and you get to C, a conclusion. The doctors have all their experience, their background. That's B. They asked Mr. Reed about the incident itself, and he tells him something. So you've got A, you've got B and you have got C, a conclusion. But since A is a liar, this guy couldn't tell the truth under torture. He has no idea what it is. . . .
If you think those comments are a little disparaging, it was done for a purpose. Just like much of all trial lawyers do — to shock you and make you think about that. Those doctors have to base what they say upon Gordon Reed, and he is a liar. He's a manipulator. We proved that beyond any doubt at all. . . . All the stuff about who was a good housekeeper or not was designed for one purpose. To show you beyond any doubt, to convince you absolutely, that he's a liar. Let's assume she was a bad housekeeper and she was promiscuous. Who appointed this guy as executioner? Not this jury. Then, he suggests to you that when he did this heinous crime in front of his children, that proves it's manslaughter. We ought to re-enact the death penalty just for this guy for doing that. . . .
Then, the final — the final insult to Anola Reed came from the eloquence of Don Taylor. The final insult to that poor woman, because Gordon Reed doesn't have her around any more, it should be manslaughter. Whew! That is like out of Captain Marvel. . . . The kids told you he hit her with the chair, and then he stabbed her. He knowingly assaulted her with a weapon or instrument likely to cause harm. He's a cold murder two. It's cold. There is no question about murder two.
Reed, 102 Wn.2d at 143-44 (emphasis omitted). The Supreme Court found these comments improper and prejudicial.
The prosecutor's statements of personal opinion here do not rise to the level of impropriety the court found in Reed. Here, the closest the prosecutor came to expressing his opinion was when he said that Moore's guilt "could not be any more clear." RP (Aug. 15, 2006) at 52. He then outlined the evidence that the police found methamphetamine in Moore's house, her pants pocket, and her underwear.
Misconduct does not occur unless it is clear and unmistakable that counsel is expressing a personal opinion, not arguing an inference from the evidence. McKenzie, 157 Wn.2d at 54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983)). Considered in context, the prosecutor was arguing that the evidence clearly established Moore's guilt. Moore has not shown clearly and unmistakably that the prosecutor was expressing his personal opinion rather than arguing inferences from the evidence.
Moore also maintains that the prosecutor improperly "told the jury that the defense closing argument was intended to `trick' them." Br. of Appellant at 8. Moore mischaracterizes the record. During rebuttal closing argument, the prosecutor categorized the defense closing argument regarding missing evidence as "the oldest trick in the book." RP (Aug. 15, 2006) at 52. He argued that the defense closing argument consisted of red herrings that the defense created to get the jury to focus on a "couple of trees and miss the forest." RP (Aug. 15, 2006) at 52.
We have held that the prosecutor's characterization of defense counsel's argument as "smoke" and "an attempt to confuse the evidence" was permissible. State v. Guizzotti, 60 Wn. App. 289, 298, 803 P.2d 808 (1991). In Guizzotti, the State charged the defendant with raping the victim on a boat in a harbor. Guizzotti, 60 Wn. App. at 291. During closing argument, defense counsel argued that the victim had not reported the rape to the harbor police or security patrol. Guizzotti, 60 Wn. App. at 298. On rebuttal, the prosecutor stated that no evidence showed that any harbor police or security officers were present to take a report and characterized defense counsel's argument as "a little bit of smoke . . . attempted to confuse the evidence." Guizzotti, 60 Wn. App. at 297. We found counsel's choice of words "unfortunate" but not reversible error because the prosecutor was pointing out that defense counsel raised unfounded points during closing argument. Guizzotti, 60 Wn. App. at 298.
The prosecutor's rebuttal argument here is similar to the prosecutor's argument in Guizzotti. During closing, defense counsel pointed out that (1) the State did not produce any evidence that a drug dog had alerted on Moore despite that a drug dog was in the car police used to transport her to jail, (2) the second officer present at Moore's residence did not testify, and (3) the State did not offer video tape from the strip search despite that it offered tape from the initial search at the jail. But neither party introduced evidence of the dog's training in drug detection. And Moore never denied that there were drugs in her underwear, her pants, and at her home; instead, she claimed only that she was unaware of the drugs in those locations. Finally, although police taped the initial search at the jail, the booking officer testified that strip searches are not videotaped because "it's more of a private matter." RP (Aug. 15, 2006) at 21-22. As in Guizzotti, the prosecutor here merely characterized defense counsel's tactic as the "oldest trick in the book" in an attempt to show that defense counsel raised unfounded points during her closing argument. RP (Aug. 15, 2006) at 52.
Because Moore fails to establish any impropriety in either of the prosecutor's comments, her prosecutorial misconduct claims fail. See Korum, 157 Wn.2d at 650 (a defendant claiming prosecutorial misconduct bears the burden of establishing that the prosecutor's conduct was both improper and prejudicial).
II. Jury Instruction — Unanimity
Where the evidence shows that the defendant committed several distinct criminal acts, but the State charges the defendant with only one count of criminal conduct, the jury must unanimously find which particular act constituted the crime charged. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988); State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). "To ensure jury unanimity in multiple acts cases, . . . the State [must] elect the particular criminal act upon which it will rely for conviction, or . . . the trial court [must] instruct the jury that all of them must agree that the [State has proved] the same underlying criminal act . . . beyond a reasonable doubt." Kitchen, 110 Wn.2d at 411 (citing Petrich, 101 Wn.2d at 572).
Here, the trial court did not initially instruct the jury on unanimity. While the jury was deliberating, the prosecutor alerted the trial court to the problem and offered a special verdict form and an accompanying unanimity instruction to use if the jury returned a guilty verdict. Defense counsel did not object to the wording of the special verdict and agreed that the court should submit the issue to the jury. After the jury returned a guilty verdict, the court read the special verdict to the jury and sent them out to deliberate on the specific incident. The special verdict form read, in relevant part, as follows:
This Special Verdict is to be answered only if the jury finds the Defendant guilty of
Possession of a Controlled Substance as charged in Count
I. We, the jury, return a special verdict by answering as follows —
1. Did the defendant possess State's exhibit number 1? [methamphetamine from pants pocket]
. Yes
. No
. No Unanimous Agreement
2. Did the defendant possess State's exhibit number 2? [methamphetamine found during strip search]
. Yes
. No
. No Unanimous Agreement . . .
3. Did the defendant possess State's exhibit number 3? [scale bowl containing methamphetamine]
. Yes
. No
. No Unanimous Agreement
Clerks Papers (CP) at 52-53 (emphasis omitted).
The jury found that Moore possessed the methamphetamine found during the strip search, but it could not unanimously agree on the other two incidents.
Moore does not challenge the wording of the special verdict or the delay in giving it to the jury. She argues only that the special verdict did not require the jury to find the appropriate incident beyond a reasonable doubt.
But the court did instruct the jurors that they had to unanimously agree on all the elements of the crime to convict Moore. And defense counsel did not ask the court to again instruct the jury on the requirement that it unanimously find all the elements. Moreover, the special verdict reminded the jurors of their need to be unanimous by the wording of the possible answers; they could answer "yes," "no," or "no unanimous agreement." Finally, defense counsel asked the court to poll the jurors after they answered the special verdict, which verified that they had in fact acted unanimously.
III. Defective Charging Document
Moore argues that the State's information did not contain the essential facts supporting the charge against her. She maintains that this lack of factual background deprived her of her constitutionally guaranteed right to know the nature of the crime charged. Specifically, Moore argues that the information did not identify the specific incident the State intended to rely on for a conviction.
Article I, section 22 of our state constitution provides: "[i]n criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation against him." To that end, CrR 2.1(a)(1) requires that an information "be a plain, concise and definite written statement of the essential facts constituting the offense charged." An information must allege facts supporting every element of the offense and is constitutionally adequate only if the State includes all of the crime's essential elements. State v. Pillatos, 159 Wn.2d 459, 482, 150 P.3d 1130 (2007); see also State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991) (the primary goal of the essential elements rule is to give notice to an accused regarding the nature of the crime that she must be prepared to defend against).
When, as here, the defendant challenges the charging document for the first time on appeal, we liberally construe the document in favor of validity. State v. Winings, 126 Wn. App. 75, 84, 107 P.3d 141 (2005) (citing State v. Tresenriter, 101 Wn. App. 486, 491, 4 P.3d 145 (2000)). Moreover, we distinguish between an information that is constitutionally deficient for failing to allege the essential elements of a crime and an information that is merely vague. State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552 (1989). The State may correct a merely vague information under a bill of particulars. Leach, 113 Wn.2d at 687. But a defendant may not challenge an information for vagueness on appeal if she failed to request a bill of particulars at trial. Leach, 113 Wn.2d at 687 (citing State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985)).
Here, for the jury to convict Moore, the State had to prove that on the date charged, Moore possessed methamphetamine. RCW 69.50.206(d)(2), .4013(1). The information alleged: "On or about May 10, 2006 . . . the . . . Defendant did possess a controlled substance, to-wit: Methamphetamine, including its salts, isomers, and salts of isomers; contrary to the Revised Code of Washington 69.50.4013 and 69.50.206(d)(2)." CP at 1.
Moore cites Leach, 113 Wn.2d 679, and State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965), to support her argument that the information did not contain the essential elements of the crime charged. Both cases are distinguishable.
In Leach, the information charging the defendant with public indecency omitted the fact that one of the alleged victims was under 14 years old, a fact that changed the crime from a misdemeanor to a gross misdemeanor. Leach, 113 Wn.2d at 690. The court held that the information omitted an essential element of the gross misdemeanor offense and that the State's failure to inform the defendant of the charge against him violated due process. Leach, 113 Wn.2d at 690.
In Royse, the information charged the defendant with second degree assault but did not state the felony that the defendant allegedly intended to commit in conjunction with the assault. Royse, 66 Wn.2d at 553. Before trial, the defendant twice requested a bill of particulars specifying the alleged felony. Royse, 66 Wn.2d at 553-54. The trial court denied both motions. Royse, 66 Wn.2d at 554. The case went to trial without the State having informed the defendant of the alleged felony he committed in conjunction with the assault. Royse, 66 Wn.2d at 554.
Unlike the charging documents in Leach and Royse, the information here alleged each essential element of the charged crime. And unlike the information in Royse, the information here stated the specific act constituting the offense: possessing methamphetamine. Thus, the information is not constitutionally deficient.
At most, the information is vague for not specifying which of the three alleged incidents the State intended to rely on, a defect the State could have remedied if Moore had asked for a bill of particulars. But since she did not, Moore cannot now argue that the information is unconstitutionally vague. See Leach, 113 Wn.2d at 687 (citing Holt, 104 Wn.2d at 320).
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. QUINN-BRINTNALL, J., concur.