Opinion
No. 54005-0-I
Filed: June 6, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-02721-5. Judgment or order under review. Date filed: 03/19/2004. Judge signing: Hon. Michael J Heavey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Bryant Morgan/Doc#817503 (Appearing Pro Se), Washington State Correction Center, A Upper 204 Imu, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Zachary Charles Wagnild, King County Prosecutors Office, W554 King County Courthouse, Seattle, WA 98104-7030.
Bryant Morgan appeals his conviction of first degree unlawful possession of a firearm. He argues that the prosecutor made improper remarks during closing argument which denied him a fair trial. He also asserts there was insufficient evidence to convict him because the State did not prove that he controlled or possessed a firearm. Although the prosecutor's remarks were improper, they were not irreparably prejudicial. And because substantial evidence demonstrated that Morgan was shot inside Gafor Abdul's car, the jury needed only to believe Abdul's testimony to convict Morgan of possessing the firearm. We affirm.
FACTS
At 4:00 a.m. on June 21, 2003, Gafor Abdul was driving his car in the Rainier Valley with Saing Thaopaset in the front seat. When Abdul stopped the car in a residential area, two men jumped into the backseat. According to Abdul, one of them pointed a gun at him and demanded his money and car keys. Abdul told the man he did not have any money, but that Thaopaset might, at which point the man turned his gun toward Thaopaset. Abdul then jumped out of the car and got into the backseat where he and Thaopaset, who was still in the front seat, struggled with the man for control of the gun. The other man in the backseat got out of the car and fled. During the struggle the gun went off twice, hitting a nearby house and shooting the foot of the armed man. The man then kicked Thaopaset and got out of the car, leaving the scene.
Abdul called 911 to report the incident, telling the dispatcher he had been shot. When police arrived, they discovered Abdul had not been shot. They took statements from Abdul, Thaopaset, and a nearby resident who heard gunshots and saw a man leaving the scene. Police did not find the two suspects, but they did recover two shell casings from the car's interior and blood samples from the backseat and floorboard. They never found the gun involved in the incident.
A short time later, Harborview Medical Center notified the police that a gunshot victim was at the hospital. Officer Juan Ornelas contacted the victim. The victim, later identified as Bryant Morgan, told Officer Ornelas he was the victim of a drive-by shooting that happened while he was waiting at a bus stop. Officer Ornelas confiscated Morgan's shoes after noticing that they had blood on them and a bullet was lodged in one of them. He also took a written statement from Morgan, but Morgan did not sign it.
Police later got a blood sample from Morgan, and DNA analysis concluded that Morgan's blood matched the blood from the shoes and from the backseat of Abdul's car. The State charged Morgan with two counts of first degree attempted robbery and one count of first degree unlawful possession of a firearm. At trial, the State presented testimony from Abdul, the witness who heard the gunshots, a forensic scientist, Officer Ornelas, and Officer Nicholas Carter, the first officer to respond to Abdul's 911 call. Defense counsel called its investigator, who testified to Abdul's varying accounts of why he and Thaopaset were driving around the area in question at 4:00 in the morning. Police and defense investigators were unable to locate Thaopaset after June 21, 2003, so he did not testify at trial. Morgan did not testify either.
Officer Carter testified that no drugs or drug paraphernalia were found at the crime scene. On cross-examination, defense counsel elicited that the police did not search either Abdul or Thaopaset, the incident occurred in a high narcotics traffic area, narcotics transactions frequently occur early in the morning, and that one common type of transaction involves a buyer picking up a dealer on Rainier Avenue or a side street and then driving to and parking on another side street to complete the transaction. Defense counsel also asked Officer Carter, `As a matter of fact you suspected possibly this was a narcotics transaction; did you not?' The State objected, and the trial court sustained the objection before Officer Carter could answer.
During his closing argument, defense counsel argued that this was a drug deal gone bad instead of an attempted robbery and that the responding police officer did not believe Abdul's story and neither should the jury. In his rebuttal argument, the prosecutor told the jury: Part of the difference between being a prosecutor and being a defense attorney is that I have the burden. I am the one that has to prove to you what happened, which means that when I argue, what I say has to be based on evidence, has to be based on facts which you have heard.
You haven't heard that from Mr. Todd. He has this theory, well, it was a drug transaction and one of those guys pulled out a gun and they shot my client.
I don't know where this comes from. I guess it is just the advantage of being able to make an argument simply out of whole cloth, which I don't have the luxury of doing, and which I don't want you to do.
I want you to consider the evidence. You can entertain, and you can join Mr. Todd in his fantasy world for a while.
(Emphasis added.)
Defense counsel objected without stating a basis for the objection and without requesting a curative instruction or a mistrial. The trial court sustained the objection. The jury was unable to reach a verdict on the attempted robbery counts, but found Morgan guilty of first degree unlawful possession of a firearm. The court sentenced Morgan to 48 months in prison. Morgan appeals.
DISCUSSION
Morgan argues that the prosecutor's remarks in closing amounted to prosecutorial misconduct requiring reversal because they impermissibly appealed to the jury's prejudice and deprived him of a fair trial. Because Morgan did not request a curative instruction, we must decide whether the remarks were in fact improper and, if so, whether they were `so flagrant and ill intentioned that [they were] prejudicial beyond cure.' The defendant has the burden of proving reversible prejudice. Reversal is only required when there is a substantial likelihood that the misconduct affected the jury's verdict.
State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993) (citing State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)), review denied, 123 Wn.2d 1030 (1994).
Id. (citing State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986)).
Id. (citing State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986)); State v. Henderson, 100 Wn. App. 794, 800, 998 P.2d 907 (2000).
Morgan argues that the prosecutor's remarks improperly appealed to the jury's emotions by implying that prosecutors are more honest than defense attorneys. The State argues that the prosecutor's remarks were not improper because defense counsel's closing argument invited the prosecutor's rebuttal, and the prosecutor `properly responded by pointing out that there was no evidence to support the defense attorney's argument.' It is true that a prosecutor's rebuttal argument may respond to arguments defense counsel has invited with his own arguments, but here defense counsel's closing argument did not justify the remarks at issue. The prosecutor's duty is "to seek convictions based only on probative evidence and sound reason'.' A prosecutor should not convey that defense counsel generally act in underhanded or unethical ways, and cannot malign any particular defense counsel absent specific evidence in the record.
The State also argues that Morgan's objection at trial was unclear. But Morgan's objection came immediately on the heels of several potentially improper remarks, and it was apparently clear to the trial court and the prosecutor which remarks were inappropriate since the court sustained the objection, and the prosecutor immediately stopped his discussion of the differences between defense and prosecuting attorneys.
State v. Gentry, 125 Wn.2d 570, 643-44, 888 P.2d 1105 (1995).
State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995) (quoting State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74 (1991)).
Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983).
Here, the prosecutor's rebuttal to defense counsel's closing argument went beyond questioning the feasibility of his drug deal theory or disagreeing with his assertion that the police officer did not believe Abdul's story. Instead, the prosecutor portrayed defense attorneys in general as having the `advantage of being able to make an argument simply out of whole cloth,' while commenting that he, as a prosecuting attorney, did not have that `luxury.' He then told the jury it could `join Mr. Todd in his fantasy world for a while.' Essentially, the prosecutor implied that prosecutors were inherently more believable than defense attorneys, thereby improperly disparaging defense attorneys in general and focusing on matters outside the evidence. Because these remarks were improper, we must decide whether they were so flagrant and ill-intentioned that they deprived Morgan of a fair trial.
After defense counsel first mentioned the police officer's opinion, the State objected, stating `That was never testified to at all.' The court stated `The jury is to disregard if there are facts that don't support it, but otherwise, it's fair argument. You may proceed.'
Morgan argues that the prosecutor's improper remarks were similar to those in several cases where courts found that prosecutorial misconduct unfairly prejudiced the jury's decision. But in those cases the remarks were far worse. For example, in State v. Reed, the prosecutor in his closing argument repeatedly called the defendant a liar, stated that defense counsel did not have a case, opined that the defendant was clearly a "murder two," and played to the jury's emotions by asking "Are you going to let a bunch of city lawyers come down here and make your decision? A bunch of city doctors who drive down here in their Mercedes Benz?" In Bruno v. Rushen, the prosecutor made several improper remarks throughout the trial, including the following during closing argument:
102 Wn.2d 140, 146, 684 P.2d 699 (1984).
Id. at 143. Defense counsel repeatedly objected, and moved to strike and for a mistrial. The trial court sustained the objections but denied the motions for mistrial. Id. at 144.
`There is a Judas syndrome at work here and the criminal justice system is the cathedral. And it's been a terrible sight to see it sullied the way it has been during this trial with the most blatant lies. But to complete that Judas syndrome the — the defense is the Judas in this case, and they have betrayed that system and there are thirty pieces of silver, or the $12,000 given over by the defendant to his counsel.'
721 F.2d 1193, 1194 (9th Cir. 1983). The Bruno court held that `the obvious import of the prosecutor's comments was that all defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client's involvement with the alleged crimes.' Id. (emphasis omitted).
And in United States v. Rodrigues, the prosecutor began his closing argument by remarking to the jury: `I think, having heard [defense counsel], you all must be feeling somewhat confused. . . . [defense counsel] has tried to deceive you from the start in this case about what this case is really about[,]' and the prosecutor went on to misinform the jury about an important element for four of the charges.
159 F.3d 439, 449 (9th Cir. 1998).
In contrast, in another case Morgan cited, State v. Negrete, we held that the prosecutor's remarks were improper but not irreparably prejudicial. There, in response to defense counsel's statements in closing argument that an undercover officer was a "trained liar" and a confidential informant was paid to "frame people," the prosecutor stated in rebuttal
72 Wn. App. 62, 863 P.2d 137 (1993), review denied, 123 Wn.2d 1030 (1994).
`I have listened with great interest to the comments of [defense counsel]. Two things come to mind: I have never heard so much speculation in my entire life in going into facts that weren't even presented into evidence. And the second is, he is being paid to twist the words of the witnesses by [the defendant].'
Id. at 66 (first alteration in original).
Defense counsel objected on the basis the prosecutor was arguing facts not in evidence, and the trial court sustained the objection. Defense counsel did not request a curative instruction or a mistrial. We held that this indicated a perceived lack of prejudice, and the trial court's jury instructions minimized the risk of prejudice. Based on the strength of the State's case and the isolated nature of the prosecutor's remarks, we concluded that the defendant did not establish a substantial likelihood that the remarks affected the jury's verdict.
Id. at 67.
The circumstances and remarks here were similar to those in Negrete. Defense counsel did not request a curative instruction or move for a mistrial, strongly suggesting that the remarks did not appear critically prejudicial in the context of the trial. The trial court's jury instructions and the isolated nature of the prosecutor's statements minimized any prejudice.
Id. (citing Swan, 114 Wn.2d at 661).
The court instructed the jury:
The only evidence you are to consider consists of the testimony of witnesses and the exhibits admitted into evidence. It has been my duty to rule on the admissibility of evidence. . . . You will disregard any evidence that either was not admitted or that was stricken by the court. . . .
. . . .
The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.
Morgan argues that here, unlike in Negrete, the State did not have a strong case. He contends that because the jury failed to convict him on the two attempted robbery counts, the case was so close that the prosecutor's remarks must have prejudiced the outcome. But the physical evidence on the firearm count was strong. Abdul gave a detailed, consistent account of the shooting itself. He testified that one of the two men in the backseat of Abdul's car had a gun and that man shot himself in the foot during a struggle. Morgan was shot in the foot around the same time of the incident in Abdul's car. Shell casings found in the car's interior and Morgan's blood in the backseat of Abdul's car demonstrated that Morgan was shot in the backseat of Abdul's car. At the hospital, Morgan lied to Officer Ornelas, telling him the gunshot wound came from a drive-by shooting at a bus stop. To convict Morgan of unlawful possession of a firearm, the jury needed only to believe Abdul's testimony that the person in the back of the car shot himself in the foot. If anything, the jury's failure to convict on the attempted robbery counts demonstrates that it did not discount defense counsel's arguments despite the prosecutor's improper remarks. Morgan has not demonstrated a substantial likelihood that the prosecutor's remarks affected the verdict. We hold that the prosecutor's remarks, although improper, did not deprive Morgan of a fair trial.
In his pro se brief, Morgan contends there was insufficient evidence to convict him of first degree unlawful possession of a firearm because no evidence supported the jury's finding that he was in actual or constructive possession of a firearm. He asserts that only the DNA evidence placed him in Abdul's car, and it was inadequate to also prove that he possessed a firearm. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits a rational trier of fact to find the elements of the crime beyond a reasonable doubt. We assume the truth of the State's evidence and all inferences that can reasonably be drawn from it. Circumstantial evidence and direct evidence are equally reliable. We defer to the trier of fact regarding a witness' credibility or conflicting testimony.
Morgan also contends that because possession of a firearm was an element of the attempted robbery charges, the State could not charge him separately with unlawful possession of a firearm. But unlawful possession of a firearm and attempted robbery are two separate crimes, even where possession of a firearm is an essential element of the attempted robbery charges. See RCW 9.41.040; RCW 9A.56.200. The State appropriately charged unlawful possession of a firearm as a separate crime.
State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To convict Morgan of first degree possession of a firearm, the jury had to find that `on or about June 21, 2003, [Morgan] knowingly had a firearm in his possession or control[.]' As stated above, there was ample evidence that Morgan was shot in the foot while in the back of Abdul's car. The jury needed only to believe Abdul's account of the shooting to find that Morgan shot himself in the foot, and therefore necessarily possessed or controlled a firearm. We hold that the evidence, viewed in the light most favorable to the State, permitted the jury to find that Morgan knowingly possessed or controlled a firearm.
RCW 9.41.040(1)(a). There was no dispute that Morgan had previously been convicted of a serious offense or that this incident took place in Washington.
We affirm.