Opinion
No. 53884-5-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-2-09348-1. Judgment or order under review. Date filed: 02/04/2004. Judge signing: Hon. Anita L Farris.
Counsel for Appellant(s), Richard Brock (Appearing Pro Se), 23516-27th Ave. N.E., Arlington, WA 98223.
Counsel for Respondent(s), Raymond Jay Walters, Attorney at Law, 1621 N 45th St, Seattle, WA 98103-6701.
Counsel for Other Parties, Brande Tanner (Appearing Pro Se), 1250 N. Wenatchee Ave, #251, Wenatchee, WA 98801.
During closing argument in Shane Nasi's trial for multiple charges related to the possession and sale of methamphetamine, the prosecutor said that defense counsel was a "magician" who had diverted the jury's attention away from the evidence against the defendant. And in response to the defendant's argument calling into question the credibility of a police detective's testimony, the prosecutor argued that the detective was telling the truth. Because the prosecutor's comparison of defense counsel to a magician was not objected to and the focus of the argument was on defense counsel's strategy, not her integrity, the remarks were curable. The prosecutor's argument about the credibility of the detective's testimony was restated after the trial court sustained a well-timed defense objection, and as finally stated was not an expression of personal opinion and was not misconduct. Accordingly, we affirm.
FACTS
In January 2003, Chris Grant contacted two Marysville Police Department detectives, told them he could arrange to purchase methamphetamine from Shane Nasi, and offered to work for the police as a confidential informant. Between January and May 2003, the police conducted multiple "controlled buys" from Nasi, and paid Grant $100 for each buy. In each case, officers watched Grant as he contacted Nasi by telephone, they searched him, and they gave him money to purchase the drugs. The police officers drove Grant to a meeting place and then, for those delivery counts for which Nasi was convicted, watched him interact with Nasi from a distance. Afterwards, the police picked Grant up, Grant gave them the drugs, and the police searched him again.
In one of the transactions, Nasi did not meet Grant at the arranged location. Grant was approached by a woman instead, and he purchased drugs from her. The jury acquitted Nasi of that count.
The police also executed search warrants on a motel room where Nasi was staying, and on Nasi's car. They found drugs in both locations. The State charged Nasi with five counts of delivery of methamphetamine based on each of the controlled buys, one count of possession of methamphetamine with intent to deliver based on the drugs found in the motel room, and one count of possession of methamphetamine based on the drugs found in the car.
At trial, eight police officers testified on behalf of the State. Neither Grant nor Nasi testified. The jury acquitted Nasi of one count of delivery for the occasion when a woman, instead of Nasi, completed the buy. On the charge of possession with intent to deliver (for the drugs in the motel room), the jury found Nasi guilty of the lesser-included charge of possession. The jury convicted Nasi as charged on the remaining counts. Magician Argument.
During rebuttal argument, the prosecutor told the jury a story about his experience during college of working as a musician on a cruise ship. He talked about a magician who also performed a show on the ship. Because he watched the magician's show every night from backstage and from different angles, he was able to see how most of the tricks were accomplished. But he described one particular trick that he could not figure out, even after seeing it performed every night. Finally, the magician showed him how he created the illusion.
The prosecutor then stated:
We have experienced the same thing in this case. We have, in the course of this trial, heard about a magician. Now the first thing that might spring to mind is that it might be Chris Grant, and that somehow, on five occasions, he was able to conjure up a baggie of methamphetamine when the officers weren't looking; that he was somehow able to, either with luck, as Ms. Mann suggested, or maybe just sheer magic, evade searches before and after the buy, five times; maybe sleight of hand, maybe palming it; maybe he practiced how he would hide it in his sleeve and take it out when they weren't looking.
That's not the magician I'm talking about. The magician I'm talking about that has entered the picture has been present throughout the course of the trial but has really entered the picture today.
That magician is Ms. Mann.
Realize what she has done in her closing argument and, actually, subtly, during the course of the trial. She has pointed over here to the fact that Chris Grant has a bad history, that he's broken his rules, that he was a drug dealer himself, that he has approached the officers to set up the deals. She's pointed over here; look at the differences in these maps about where people might have been parked. She's pointed over here; she said, Detective Maples, you know, how can we tell what really happened with the serial numbers here? She's pointed to the room; how do we even know this was Shane's room. There's no record that he was renting the room at the time.
Time and time again, she's diverted your attention to different places, all of the time taking your attention away from the focus of this case; and that's on what her client did, what the defendant did.
Report of Proceedings 1/28/2004 at 916-18.
Nasi claims that this comment denied him a fair trial by disparaging defense counsel and implying that counsel was attempting to trick and mislead the jury. But Nasi did not object to the prosecutor's statements below. A defendant who fails to object to an improper remark waives the right to challenge the remark unless it was so "flagrant and ill intentioned" that it causes enduring and resulting prejudice that a curative instruction could not have remedied. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Courts have generally disapproved this type of argument, but have concluded that reversal is unwarranted where the remarks focus on counsel's tactics, rather than on counsel's integrity. See State v. Guizzotti, 60 Wn. App. 289, 803 P.2d 808 (1991) (characterization of defense attorney's arguments as "smoke" was an unfortunate choice of words, but not error); State v. Crews, 923 S.W.2d 477, 482 (Mo.App. 1996) (remark that defense counsel behaved like a "magician" and distracted the jury did not "rise to the level of impropriety warranting a reversal"); Lindgren v. Lane, 925 F.2d 198 (7th Cir. 1991) (a single reference to defense counsel's closing argument being the "tricks" and "illusions" of a "magician" was not so egregious as to warrant reversal); Commonwealth v. Smith, 321 Pa. Super. 170, 467 A.2d 1307 (1983) (prosecutor's statements "Don't be fooled by the smokescreen defense. . . . Look at all the evidence. Don't be fooled" did not warrant reversal).
Before the prosecutor characterized the defense counsel as a magician, Nasi objected, saying, "this is not rebuttal." The court overruled the objection, on the prosecutor's assurance that he would soon reach the point of the story.
The prosecutor's argument here was a response to the closing argument of the defense, in which defense counsel pointed out various reasons why the informant was unreliable and focused on inconsistencies in the testimony of the police officers. While the prosecutor characterized these arguments as diversions, he did not suggest that defense counsel was deliberately trying to deceive the jury, and did not attack defense counsel's ethics, or malign the role of defense counsel. This case is, therefore, unlike the two cases that Nasi primarily relies on: Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983) and United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990). In Bruno, the prosecutor implied that the fact that the defendant retained counsel was indicative of his guilt and suggested that defense counsel is retained solely to lie, distort facts, and camouflage the truth. In Friedman, the prosecutor told the jury that while prosecutors see drug dealers "brought to justice," defense counsel is paid high fees to "try to get them off" and that defense counsel would make "any argument he can to get that guy off." 909 F.2d at 708-09. In both Bruno and Friedman, the prosecutor's arguments undermined the fundamental fairness of the adversarial system, thus, reversal was required. Bruno, 721 F.2 at 1195; Friedman, 909 F.2d at 709.
Because calling counsel a magician has negative connotations, we do not encourage the use of this metaphor. To protect the integrity of the adversarial system, prosecutors should be exceedingly careful, when commenting on defense counsel's strategy, not to improperly disparage defense counsel or defense counsel's role. But the prosecutor's remarks in this case were not so flagrant and ill intentioned such that a prompt objection and a curative instruction could not have cured any prejudice caused by the remarks.
Vouching Argument
In her closing argument, defense counsel discussed the testimony of one of the detectives regarding prerecorded buy money found in Nasi's wallet during the search of his motel room. One bill in Nasi's wallet matched the serial number of prerecorded buy money given to Grant, and another bill was a close match, but off by one digit. In his testimony, the detective said he shredded his original notes in which he recorded the serial numbers. The next day, the detective testified that he had recovered the notes, but that they were dated several months after the incident. Defense counsel argued: "I'm not suggesting that he's deliberately lying about this, but I am suggesting that he can be very firm and positive and sound entirely credible and not have any idea what he's talking about and not be a reliable witness." Report of Proceedings 1/28/04 at 894.
In rebuttal the prosecutor responded:
Frankly, I'm offended by that; and you should be, too. Do you think Detective Maples was lying when he was on the stand?
Now, Ms. Mann was careful after that allegation; she said, I'm not suggesting he's lying. But that's exactly what she was doing. And we all know better; we know that he wasn't up here lying to you.
Report of Proceedings 1/28/04 at 921.
After the court sustained the defendant's objection to this remark, the prosecutor said: "Let me rephrase that. You all know better. You heard Detective Maples testify. You can draw the conclusion from his testimony that he wasn't." Id. at 922.
Nasi claims that the prosecutor impermissibly vouched for the detective by offering his personal assurance of the detective's veracity and thereby denied him a fair trial.
"Where the prosecutor during closing argument gives a personal opinion on the credibility of witnesses, misconduct occurs." State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). However, prejudicial error does not occur unless it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion. State v. Swan, 114 Wn.2d 613, 664, 790 P.2d 610 (1990). It is not misconduct for the prosecutor to argue inferences from the evidence, including inferences as to why the jury should believe one witness over the other. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).
Particularly after the court sustained Nasi's objection and the prosecutor restated his argument, it is clear that the prosecutor was not expressing his personal opinion, but was urging the jury to draw the inference from the evidence that the detective was telling the truth when he testified. The argument, as finally stated after the well-timed defense objection, was not misconduct.
There having been no reversible error, we affirm the judgment and sentence.
GROSSE and BECKER, Concur.