Opinion
No. 52819-0-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-02807-8. Judgment or order under review. Date filed: 07/11/2003. Judge signing: Hon. George T Mattson.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Gregory Ed Oster Doc #745826 (Appearing Pro Se), Pine Lodge Pre-Release, P.O. Box 300, Medical Lake, WA 99022.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Craig Arthur Peterson, Attorney at Law, W 554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104-2385.
Gregory Oster contends that the deputy prosecutor committed reversible misconduct during rebuttal closing argument. But when viewed in context, the challenged comments involved reasonable inferences drawn from the evidence and a fair response to defense counsel's closing argument. Because there was no misconduct, we affirm Oster's conviction for one count of possession of methamphetamine.
After arresting appellant Gregory Oster on an unrelated matter, police officers found a glass pipe in his jacket pocket. The residue on the pipe was tested and found to contain methamphetamine. Oster was then charged with one count of possession of methamphetamine. At trial, he argued that his possession was unwitting. The jury found Oster guilty as charged, and he received a standard-range sentence.
On appeal, Oster contends that the deputy prosecutor committed reversible misconduct during closing argument by repeatedly referring to facts not in evidence. A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). This court reviews allegedly improper comments in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Moreover, because Oster did not object to any of the challenged comments, he has waived any error unless the misconduct was so flagrant and ill-intentioned that no curative instruction could have obviated the resulting prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Oster argues that the deputy prosecutor improperly informed the jury that he was a regular drug user, that the pipe was a well-used methamphetamine pipe and could be used only to smoke methamphetamine, and that drug users commonly leave residue in their pipes. He maintains that these were all assertions for which there was no evidentiary support. But Oster fails to acknowledge that all of the deputy prosecutor's challenged remarks were made during rebuttal closing argument, in response to defense counsel's arguments.
During closing argument, defense counsel offered the following comments in support of the claim that the small amount of methamphetamine residue on the pipe established that Oster's possession was unwitting:
It's a residue. Smoke makes black. When you use a pipe, it turns the pipe black. Do you know — I know now that the substance in this pipe is methamphetamine because somebody's tested it. When a drug user picks up a pipe and they smoke it, they do so with an intent to get high. They pay a lot of money for drugs. We know that by common experience because we know that drug users commit other offenses to support their habits. They take cars, write forged checks. They take money because drugs are expensive. This, according to the police officer, contained less than $5. It was such a small amount that, yeah, he unwittingly possessed methamphetamine. It's not rattling. If you're intending to get high, you're going to smoke as much as you can get out of the pipe in order to get high. So, yeah, he unwitting[ly] possessed methamphetamine.
And the next question becomes when. Well, you heard testimony from the officer and you heard testimony from the people in the booking room. He wasn't high when you got there. He didn't appear to be. He was cooperative. He didn't smoke in the car. He didn't smoke in the booking room. That would be really stupid. And he wasn't high when he was with the officer. So this took place some time in the past. Which means that the drugs he knew he was in possession of the state hasn't proven when that took place and it's not our job to do that.
. . .
You have to only believe that there's a real possibility that he's not guilty in order to acquit. My burden? After you've considered all of the evidence in the case, not just whether he testifies, all of the evidence, do you believe that it's more likely than not that he didn't think there was anything else left in that pipe? Is a drug user going to leave drugs in the pipe if they are trying to get high? Yeah, we've established that.
(Emphasis ours.) Report of Proceedings (June 24, 2003), at 32-34. Essentially, defense counsel suggested that because Oster was a drug user, he would have fully consumed any methamphetamine prior to his arrest and therefore would not reasonably have believed that anything remained in the pipe.
In rebuttal, the deputy prosecutor argued that based on the pipe's appearance, it was reasonable to infer that it was a "well used methamphetamine pipe used by somebody who knows what it is and has used it often" and that a regular drug user might knowingly leave some drugs in the pipe for consumption at a later time. The suggestion that Oster was a drug user was introduced by defense counsel herself. Viewed in context, the deputy prosecutor's remarks were not improper and fell within the wide latitude afforded the deputy prosecutor during closing argument to draw and express reasonable inferences from the evidence and to respond fairly to the arguments of defense counsel. See State v. Brown, 132 Wn.2d at 566.
Moreover, even if some of the comments could be considered improper, a curative instruction would have neutralized any resulting prejudice. The fact that defense counsel did not object to the deputy prosecutor's comments strongly suggests that they did not appear prejudicial in the context of the trial. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
In summary, the deputy prosecutor's comments were not improper and did not violate Oster's right to a fair trial.
Affirmed.
KENNEDY, COLEMAN and APPELWICK, JJ.