Opinion
No. 59503-2-I.
January 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05944-8, Richard D. Eadie, J., entered January 22, 2007.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Jarrell Lee Warren was arrested and charged with possession with intent to deliver cocaine. He had been observed behaving suspiciously police officers who were conducting surveillance of drug transactions at a busy intersection in downtown Seattle. In a search incident to arrest, officers found crack cocaine in Warren's pocket. Warren admitted that he had been released from jail the day before, and that he was under the supervision of the Department of Corrections at the time.
Following a CrR 3.5/3.6 hearing, the court ruled that Warren's pre-arrest statements were admissible.
At trial, the prosecutor asked about one of the arresting officer's experience, the training he had received, and the nature of his current assignments. The prosecutor then asked about the officer's service awards:
Q: In your law enforcement experience over the last number of years, what kind of work awards have you received?
A: I got Officer of the Year twice, and Officer of the Month a couple of times. Whatever.
Q: When is the last time you were Officer of the Year?
A: Last year.
Q: What does that mean?
A: I don't know. They give me a little thing that said I was Officer of the West Precinct. You get nominated. They go to other people that are nominated, and then they give it to you.
Defense counsel did not object to this exchange. The officer continued to testify about his training and experience, the street value of crack cocaine, drug paraphernalia, and the mechanics of a typical drug sale.
In closing argument, the prosecutor reminded the jurors that they were "the sole judges of the credibility of the witnesses." He then urged the jury to consider the experience of the officers who had testified, reminding the jury that the officers had over thirty years experience between them, had participated in thousands of drug arrests, and that one of them had been named Officer of the Year. Defense again did not object.
The jury convicted Warren of the lesser included offense of possession. The court imposed a sentence of 14 months confinement, followed by 9 to 12 months community custody.
STANDARD OF REVIEW
In determining whether a prosecutor's comments constitute misconduct, a reviewing court first decides whether such comments were improper and, if so, whether a substantial likelihood exists that the comments affected the jury. Failure to object to an improper argument constitutes a waiver of the claimed error unless the argument was so flagrant and ill-intentioned that it caused an enduring prejudice that could not have been neutralized by an admonition to the jury.
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
DISCUSSION
Prosecutorial Misconduct
Warren argues that the testimony elicited by the prosecutor regarding the officer's commendations and awards constituted prejudicial misconduct, and requires reversal. The State concedes that the testimony should not have been offered. But even if the testimony was improper, there was no objection. Therefore, we must determine whether the testimony was so flagrant and ill-intentioned that it caused enduring prejudice.
For guidance, we turn to State v. Smith, an opinion from this court cited by both parties.
67 Wn. App. 838, 841 P.2d 76 (1992).
Like Warren, Smith was arrested in downtown Seattle for possession of cocaine. As in the present case, the prosecutor asked the arresting officer what type of awards, certifications, or commendations he had received as a member of the Seattle police force. Over defense counsel's objection, the officer stated that he had been named Seattle Police Officer of the Year, and had received 15 commendations and merits. The prosecutor referred to the officer's commendations again during closing argument. On that occasion, defense did not object.
Smith, 67 Wn. App. at 840.
Smith, 67 Wn. App. at 840.
Smith, 67 Wn. App. at 841-42.
Smith, 67 Wn. App. at 842.
This court held that testimony about the officer's awards and commendations during trial appeared to be an attempt to improperly elevate the officer's character. Because the awards made the officer's truthfulness neither more nor less likely, they had no legitimate evidentiary purpose.
Smith, 67 Wn. App. at 845.
Smith, 67 Wn. App. at 845.
Nevertheless, this court was not persuaded that the outcome of the trial would have been different had the evidence of the awards and commendations not been allowed in. The jury could legitimately consider the officer's substantial training and experience in 2,000 drug arrests as a foundation for his testimony. This court saw no reason to believe that the evidence of commendations and awards caused the jury to give more credibility to the officer's testimony.
Smith, 67 Wn. App. at 845.
Smith, 67 Wn. App. at 845.
Smith, 67 Wn. App. at 845.
Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. The burden is on the defendant to show that the prosecutor's comments rose to the level of misconduct requiring a new trial.
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
State v. Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993).
In the present case, we find no reason to believe that the case would have ended differently had the officer's testimony not been admitted. As in Smith, the police officer's considerable training and field experience were properly before the jury. And, like that previous case, it is unlikely the jury was improperly influenced when one of the arresting officer's testified about his awards. The subject of the awards was an insignificant portion of the officer's testimony. The testifying officer himself minimized the awards, describing them as "whatever," and "a little thing," implying that they were awarded routinely.
Both the prosecutor and defense counsel told the jury that it was the sole judge of the credibility of each witness, and the jury was so instructed by the court.
Perhaps most notably, the jury declined to take up the prosecutor's request that it find Warren guilty of possession with intent to sell, but instead convicted him of the lesser included crime of possession. The implication is that the jury was not unduly swayed by the testimony the prosecutor adduced.
We hold that the statements were not so flagrant and ill-intentioned that they caused an enduring prejudice, and affirm. Findings of Fact and Conclusions of Law
At the time Warren filed his appellant's brief, the trial court had not yet entered written findings of fact and conclusions of law following pretrial suppression hearings. Warren argues that the court's failure to do so requires reversal and dismissal, or alternatively, remand for entry of written findings and conclusions. Shortly after Warren filed his brief, the court entered its findings. Consequently, we neither reverse nor remand.
Both CrR 3.5 and CrR 3.6 require that the court enter written findings of fact and conclusions of law following evidentiary hearings. While the primary purpose of requiring findings is to allow the appellate court to fully review the questions raised on appeal, the requirement also enables an appealing defendant to focus on issues arguably supported by the record and avoid pursuing issues obviously lacking merit.
CrR 3.5 (c); CrR 3.6 (b).
State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984).
State v. Head, 136 Wn.2d 619, 623, 964 P.2d 1187 (1998).
A trial court's failure to enter written findings of fact and conclusions of law requires a remand for entry of written findings and conclusions. Reversal is not a proper remedy absent a showing of prejudice. Findings of fact may, however, be submitted and entered while an appeal is pending if, under the facts of the case, there is no appearance of unfairness and the defendant is not prejudiced. The findings of fact and conclusions of law arising out of the pre-trial hearings in the present case were entered after the appellant's brief was submitted.
Head 136 Wn.2d at 623-24.
Head 136 Wn.2d at 624.
State v. Hillman, 66 Wn. App. 770, 773-74, 832 P.2d 1369 (1992).
The appellant's brief was received by this court on July 13, 2007. The findings of fact and conclusions of law were signed by the court on March 1, 2007, and were filed with the King County Court clerk's office on July 24, 2007.
The burden of proving any prejudice is on the defendant. This Warren has not done. Warren's counsel drafted the findings which were subsequently adopted, with modifications, by the court. A declaration filed by the State's trial counsel states that he did not discuss the substance of the appeal with anyone prior to the filing of the findings and conclusions. Warren has filed neither an amended brief nor a reply addressing the findings and conclusions as entered. There is no appearance of unfairness. Remand is not necessary because findings and conclusions have been entered. Dismissal is not an appropriate remedy because Warren has not shown prejudice.
Head 136 Wn.2d at 625.
Scrivener's Error in Judgment and Sentence
Warren was found guilty by a jury. However the judgment and sentence contains this paragraph, entered largely by hand:
The Court DISMISSES the amended Count(s) II of possession/cocaine and dismisses the greater charge in count I, PWI, without prejudice, and finds defendant guilty of the lesser included offense (possession) in count I.
Warren contends that the language following "without prejudice" is unnecessary and incorrect. Furthermore, he argues, it erroneously implies that he was convicted following a bench trial, or that it implies that the case rendered two convictions for possession of cocaine. He asks this court to remand to correct this scrivener's error.
The State concedes the error, while pointing out that it is immaterial whether the count was dismissed with or without prejudice because new filing of charges against Warren would be barred as double jeopardy. However, the State concedes, to the extent that the paragraph in question implies that it was the court that found Warren guilty, the judgment and sentence is incorrect.
We agree, and remand the case to correct the judgment and sentence.
AFFIRMED AND REMANDED.