Opinion
No. 23297-9-II Consolidated with No. 23298-7-II.
Filed: May 4, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 97-1-00481-4, Hon. Paula K. Casey, May 8, 1998, Judgment or order under review.
Counsel for Appellant(s), Linda J. Whitt, Attorney At Law, 1226 State Ave NE, Olympia, WA 98506.
Richard A. Woodrow, Attorney At Law, 2401 Bristol Ct SW, Olympia, WA 98502-6061.
Counsel for Respondent(s), Steven C. Sherman, Thurston Co Pros Office, 2000 Lakeridge Dr S.W. #2, Olympia, WA 98502-6009.
Dawnna and Mark Weight were convicted of various crimes relating to the operation of a methamphetamine lab in their residence. They appeal the trial court's rulings on suppression of evidence motions and the subsequent convictions. Finding no error requiring reversal, we affirm.
I. FACTS A. The Investigation
On March 20, 1997, Detective Fred Doughty of the Olympia Police Department went to Dawnna and Mark Weight's apartment to investigate Scott Solt for trafficking in stolen vehicles. Dawnna Weight had bailed Solt out of jail that morning and Solt shared an apartment with the Weights. When Detective Doughty arrived, Solt was with a person Doughty knew to be involved with methamphetamine.
While talking to Solt, a person living in the apartment above the Weights approached Detective Doughty and informed him that he had smelled strong chemical odors emanating from the Weights' apartment. Detective Doughty went to the informant's apartment but could smell nothing. Upon returning to the parking lot Detective Doughty saw Dawnna Weight leave her apartment with a large plastic garbage bag and walk past a dumpster to where Solt was working on a vehicle.
Detective Doughty asked Dawnna Weight what was in the bag and she said garbage. Appearing nervous, she broke off the conversation and began to walk back to her apartment. Detective Doughty smelled strong chemical odors emanating from either Dawnna Weight or the bag. As Dawnna Weight and Detective Doughty approached the entrance to the Weights' apartment, Doughty again smelled strong chemical odors, this time emanating from an open window of the apartment. Detective Doughty associated the chemical odors with the manufacture of methamphetamine.
B. Search and Frisk
Suspecting that the apartment contained a methamphetamine lab, Detective Doughty detained Dawnna Weight against her will from entering her apartment. A second officer, Aaron Jelcick, arrived at the scene at about this moment.
Detective Doughty handed Dawnna Weight over to Officer Jelcick and seized the bag. Officer Jelcick assessed the situation as dangerous. He felt he needed to control the detained Dawnna Weight and provide security from the direction of the apartment to his front and side and from the direction of Solt to his rear and side. Someone inside the apartment opened and shut the door quickly. Officer Jelcick testified that in his experience the presence of weapons is very common in arrests of this type. He testified that he felt it was important to search Dawnna Weight for the officers safety. During a pat down of Dawnna Weight, Officer Jelcick felt a number of hard objects that were not consistent with body parts, and that were located in places where females often hide weapons. Officer Jelcick found incriminating evidence on Dawnna Weight, including a baggy and glass vial containing what appeared to be by-products of methamphetamine production. Detective Doughty searched the garbage bag, where he found items used in manufacturing methamphetamine.
C. Search Warrant
Based on the smells, the frisk of Dawnna Weight, the search of the garbage bag, and interviews with some of the people present, Detective Jim Black of the Thurston County Narcotics Task Force obtained a telephonic search warrant to search the Weights' apartment. The police searched the apartment and eventually collected a tremendous amount of physical evidence consistent with the operation of a methamphetamine lab, including: (1) mason jars of a type often used as vessels for the production of methamphetamine; (2) industrial type glassware commonly seen in chemistry labs; (3) jars of iodine crystals used in the methamphetamine manufacturing process; (4) a plastic bag containing .10 grams of methamphetamine; (5) a plastic bag containing 1.7 grams of methamphetamine; (6) a plastic bag containing 3.5 grams of methamphetamine; (7) a bag of red phosphorous used in the methamphetamine manufacturing process; (8) a large metal spoon with burnt residue on it; (9) a syringe with liquid; (10) an electronic scale; (11) a portable scale; (12) two glass containers in the closet containing white ephedrine solids separating from their liquid base; (13) used coffee filters containing methamphetamine residue; (14) cans of solvents used in the methamphetamine manufacturing process; (15) lots of hypodermic needles; (16) notebooks belonging to Dawnna Weight containing phone numbers and business listings where histatabs and ephedrine can be purchased; and (17) a note in Mark Weight's wallet referring to scientific and chemical companies.
D. Pre-trial and Trial
The Weights had separate legal counsel at their joint trial. Dawnna Weight's attorney challenged the legality of her seizure and frisk as well as the search of the apartment. The trial court determined the safety frisk of Dawnna Weight was permissible, granted a defense motion 'to suppress evidence of the contents of the bag,' and found that the affidavit in support of the search warrant, even after striking the evidence found in the garbage bag, supported the magistrate's finding of probable cause. Clerk's Papers (Mark) at 6.
At trial Dawnna Weight took the witness stand; Mark Weight did not. Counsel for Dawnna Weight asked the State's expert witness where he had found two plastic bags with white powder. He responded that they were 'found in a garbage bag, which was outside the front door on the sidewalk.' Report of Proceedings Mar. 18, 1998 at 159. Neither defense attorney objected to the reference to the garbage bag but the court instructed the attorney to 'move on now.' Report of Proceedings Mar. 18, 1998 at 159.
Counsel for Mark Weight asked the State's expert witness where he had found the iodine. He responded that two containers were found in the apartment and one from the 'garbage bag on the front sidewalk.' Report of Proceedings Mar. 18, 1998 at 177. Neither defense attorney objected.
Counsel for Mark Weight asked the State's expert witness where he had found red phosphorous. He responded that he 'found a small plastic bag again in the garbage bag on the front sidewalk, containing red powder.' Report of Proceedings Mar. 18, 1998 at 177. Neither defense attorney objected.
The prosecutor again asked the State's expert witness where he found several items that were tested by the State. Again, he responded he found several items 'in a garbage bag on the front sidewalk.' Report of Proceedings Mar. 18, 1998 at 183-84.
Dawnna Weight's attorney moved for a mistrial when it was first thought that evidence that had been suppressed was inadvertently introduced by the State in its case-in-chief. The court concluded, and both defense counsel agreed, that investigators commingled evidence at the crime scene when they placed the evidence seized from Dawnna Weight into the garbage bag outside the apartment. The mistrial motion was denied. The record shows that the garbage bag seized from Dawnna Weight included empty Sudafede boxes, acetone, and lithium battery casings, and that none of these items were admitted at trial.
Mark Weight's attorney sought to show that Mark Weight was angry because incident to his arrest he was forced to strip down in front of others and shower against his will. There was evidence that the Weights' son, who was in the apartment, appeared ill; when asked whether Mark Weight appeared ill like the son, Detective Doughty replied, 'I would say that same type of illness, no.' Report of Proceedings Mar. 17, 1998 at 71. Defense counsel then asked, 'What type of illness?' Report of Proceedings Mar. 17, 1998 at 71. Detective Doughty replied:
Well, I don't know if you would say being under the influence of drugs is being ill or not. When your body is not responding normally and being affected by any normal illness, such as the flu or by chemicals or whatever, I would say it was a different type of illness. I have seen that same type of behavior, and it's very common to people under the influence of methamphetamine. That could be considered illness.
Report of Proceedings Mar. 17, 1998 at 71.
A witness for and friend of the Weights testified that the Weights had been soaking engine parts in the sink that morning, and, although she was not familiar with the production or packaging of methamphetamine, she had not seen or smelled anything out of the ordinary. During cross-examination the prosecutor asked, 'Isn't it true that you are convicted of Burglary II?' Report of Proceedings Mar. 18, 1998 at 220. The witness responded that she had pleaded not guilty and was found not guilty. The State's foundation for the question was said to be WAIS, a Washington State Patrol resource, that showed her as guilty and serving 60 days. Dawnna Weight's attorney objected to the impeachment and moved for a mistrial, arguing that the State had failed to comply with a pretrial discovery request. Mark Weight's attorney did not join in the objection and made no claim that the question violated a pretrial discovery request. The court ordered the State to verify whether there was such a conviction. If the verification was made it is not in the record.
The jury convicted the Weights of unlawful manufacture of a controlled substance, unlawful possession of ephedrine or pseudoephedrine, and unlawful possession of a controlled substance. Mark Weight and Dawnna Weight appeal their convictions separately; this court consolidated their appeals.
II. ANALYSIS A. Standard of Review
Dawnna Weight contends that the trial court erred when it found, based on Detective Doughty's suppression hearing testimony, that chemical smells emanated from the Weights' apartment. She argues that the testimony was contradicted by at least three other witnesses and that the trial court implicitly found that Detective Doughty lacked credibility.
A trial court's findings in a suppression hearing are reviewed under a clearly erroneous standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Where substantial evidence supports the trial court's findings, those findings are binding on appeal. 'Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.' Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993)). 'The trier of fact is in a better position to assess the credibility of witnesses, take evidence, and observe the demeanor of those testifying.' Hill, 123 Wn.2d at 646.
The trial court was in the best position to assess Detective Doughty's credibility as well as the credibility and opportunity of other witnesses to support or contradict him. There is a sufficient quantity of evidence in the record in the form of Detective Doughty's testimony to persuade a fair-minded, rational person that Detective Doughty smelled a strong chemical odor emanating from the Weights' kitchen window. The trial court made no explicit or implicit finding that Detective Doughty lacked credibility. Moreover, Detective Black also independently smelled the chemicals emanating from the Weights' apartment. It was the trial court's prerogative to believe Detective Doughty over the testimony of the other witnesses.
In his opinion denying the defense motion to suppress evidence, the trial court wrote that Detective Doughty recalls that the bag was dropped in a struggle with Mrs. Weight before Officer Jelcick began his pat-down search. That recollection is not supported by either Mrs. Weight or Officer Jelcick. Rather, it appears that Detective D[o]ughty was interested in the bag either because it contained drugs or weapons, and he wished to separate it from Mrs. Weight. Clerk's Papers (Mark) at 5.
B. Seizure
Dawnna Weight next contends that she was illegally detained. She argues that the officers lacked articulable suspicion that criminal activity was afoot.
On less than probable cause and without a search warrant a law enforcement officer may conduct an investigatory stop of an individual for the limited purpose of verifying or dispelling his or her suspicions that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994); State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984). To do so, an officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." City of Seattle v. Yeager, 67 Wn. App. 41, 46, 834 P.2d 73 (1992) (quoting Terry, 392 U.S. at 21), review denied, 121 Wn.2d 1027 (1993). 'Articulable suspicion is a substantial possibility that criminal conduct has occurred or is about to occur.' Yeager, 67 Wn. App. at 46.
An officer who recognizes by smell a substance that raises a substantial possibility that a crime is occurring may detain an individual to either sustain or dispel his or her suspicions. In Williams v. Department of Licensing, 85 Wn. App. 271, 932 P.2d 665 (1997), the smell of alcohol on a driver's breath was 'a specific fact that raise[d] a substantial possibility that the driver [was] in violation of drunk driving laws.' Williams, 85 Wn. App. at 279. In State v. Huff, 64 Wn. App. 641, 826 P.2d 698, review denied, 119 Wn.2d 1007 (1992), this court stated that 'probable cause to arrest the occupants of a car for possession of a controlled substance exists when a trained officer detects that the odor of a controlled substance is emanating from a vehicle.' Huff, 64 Wn. App. at 647 (emphasis added) (trained officer smelled methamphetamine, passenger made furtive gestures and lied about her identity); see also Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (noting that distinctive smell of a forbidden substance may be sufficient to justify issuance of search warrant).
In this case, Detective Doughty testified that he recognized the smell of methamphetamine and he associated the smell emanating from the Weights' apartment with the manufacture of methamphetamine. His justification for detaining Dawnna Weight is further bolstered by the citizen informant's complaint about chemical smells and the odor coming from Dawnna Weight or the garbage bag and her actions prior to contact. On these facts, Detective Doughty had a sufficient reasonable and articulable basis upon which to detain Dawnna Weight to either confirm or dispel his suspicions.
C. Frisk
Dawnna Weight contends that her weapons frisk was illegal because it was daylight, she did not make any threatening gestures, and Officer Jelcick's concern that weapons were often associated with narcotics trafficking was generalized and not specific.
The stop-and-frisk exception to the warrant requirement was set forth in Terry. A search under this exception permits an officer to stop and frisk an individual when (1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify a protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purpose. State v. Miller, 91 Wn. App. 181, 184, 955 P.2d 810, 961 P.2d 973, review denied, 136 Wn.2d 1016 (1998). The frisk for weapons is permissible if the officer 'has reasonable grounds to believe the person to be armed and presently dangerous.' State v. Broadnax, 98 Wn.2d 289, 293-94, 654 P.2d 96 (1982), abrogated on other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
The frisk of Dawnna Weight was permissible under the circumstances. First, as already stated, the initial stop was legitimate. No Washington court has held that an officer has a per se right to weapons frisk a person suspected of drug activity. But it is reasonable to believe that a person suspected of engaging at that moment in illicit drug activity may be carrying a weapon for protection. See, e.g., United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) (when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others); Peguese v. Commonwealth, 451 S.E.2d 412, 414 (Va. 1994) (upholding pat-down search of driver whose passenger had engaged in what appeared to be a drug transaction). Officer Jelcick articulated a concern for safety and, in light of the other circumstances including the presence of other known and unknown associates in the near vicinity, eliminating Dawnna Weight as a potential threat to the officers' safety would allay the officers' legitimate safety concerns.
Dawnna Weight relies on Broadnax in support of her contention that her frisk was based on generalized and not individualized suspicion and was, thus, illegal. Broadnax is distinguishable on its facts. In Broadnax, police officers executed a warrant to search a residence. The affidavit in support of the warrant stated that the detective had information that a 'male known as Clifford' had offered narcotics for sale from the residence within the previous 24 hours, but the warrant did not name any persons. Broadnax, 98 Wn.2d at 291. The informant was unnamed. Clifford Thompson answered the door and complied with a request to put his hands on his head. Nothing indicates that the officers believed that drug activity was going on at the time. Nothing corroborated their information about illicit drug activity and they mentioned 'no facts indicating a reasonable belief or suspicion that [the defendant] was armed or presently dangerous.' Broadnax, 98 Wn.2d at 295. Yet the officers frisked Thompson and found heroin. In holding that the frisk was illegal, the court said, 'the officers had no fear that [the defendant] was armed and had nothing to independently connect [the defendant] to the suspected illegal activity in the house.' Broadnax, 98 Wn.2d at 296.
In this case, it was not Dawnna Weight's mere presence that justified the search. The officers stated they reasonably suspected there was a methamphetamine lab in the Weights' apartment. They reasonably believed that Dawnna Weight — who was trying to enter the apartment — was engaged in illegal drug activity. They felt reasonably threatened by the unknown occupant in the apartment as well as Dawnna Weight's associates in the parking lot. Their suspicions of dangerous drug activity were not 24 hours old and not based on the allegations of an unnamed informant as in Broadnax. The officers were justified in patting down Dawnna Weight for their safety and in seizing the items found on her person.
D. Search Warrant
Dawnna Weight contends the affidavit did not justify issuance of a search warrant. She argues that, because Detective Black did not say he knew which smells were associated with methamphetamine manufacturing and gave no basis for determining the credibility of Seward, Borden, or Solt, the affidavit was insufficient to support the search warrant. The State argues that the trial court's decisions regarding the above matters fell within its discretion, and that the trial court's discretion was not abused.
We review a magistrate's determination that a warrant should issue under an abuse of discretion standard. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). 'An application for a search warrant should be judged in the light of common sense with doubts resolved in favor of the warrant.' Cole, 128 Wn.2d at 286.
'An affidavit demonstrates probable cause to search when it contains facts from which an ordinarily prudent person would conclude that a crime has occurred, and that evidence of the crime will be found at the place to be searched.' State v. Grannis, 84 Wn. App. 546, 552, 930 P.2d 327, review denied, 133 Wn.2d 1018 (1997). An affidavit with legally obtained facts demonstrating probable cause is sufficient, even where other facts set forth in the affidavit have been illegally obtained. State v. Smith, 110 Wn.2d 658, 671 756 P.2d 722 (1988), cert. denied, 488 U.S. 1042 (1989).
The affidavit does not state whether Detective Black believed or had reason to believe the individuals interviewed were credible. When probable cause depends on an informant's tip, the affidavit "must establish the basis of the informant's information as well as the credibility of the informant." Cole, 128 Wn.2d at 287 (quoting State v. Ibarra, 62 Wn. App. 695, 698, 812 P.2d 114 (1991)). Generally, both prongs (basis and credibility) must be satisfied. When one is not satisfied, 'independent police investigation that corroborates the tip can form the basis for probable cause.' Cole, 128 Wn.2d at 287.
In this case, the affidavit addresses the bases of the informants' knowledge. The informants were all in or around the Weights' apartment. Although the affidavit does not address the credibility of the informants, their statements can fairly be said to have been corroborated by independent police investigation including the smells around Dawnna Weight and her apartment, and the methamphetamine and related components found on her person including iodine, coffee filters, and powder that the officer recognized as consistent with the appearance of methamphetamine.
The facts in the affidavit, without considering those items the trial court suppressed, are sufficient to demonstrate probable cause to conclude that Dawnna Weight was operating a methamphetamine lab in her apartment. Although Detective Black did not directly state that he recognized the chemical smells as related to the manufacture of methamphetamine, his sworn telephonic affidavit, when read 'in the light of common sense with doubts resolved in favor of the warrant,' Cole, 128 Wn.2d at 286, states that he has substantial experience and training in recognizing methamphetamine.
E. Prosecutorial Misconduct
Mark Weight contends there was prosecutorial misconduct. He argues that the prosecutor: (a) impeached a defense witness with a prior burglary conviction that was, in fact, an acquittal; (b) argued in closing that the jury should consider the suppressed evidence; (c) impermissibly shifted the burden to him to prove reasonable doubt; and (d) infringed on his right to remain silent.
To prevail on a prosecutorial misconduct allegation, a defendant must show both improper conduct and prejudicial effect. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996) (citing State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993)). Prejudice is established by demonstrating a substantial likelihood that the misconduct affected the jury's verdict. Pirtle, 127 Wn.2d at 672; State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). The defendant 'bears the burden of establishing both the impropriety of the prosecutor's conduct and its prejudicial effect.' Furman, 122 Wn.2d at 455.
Absent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991), aff'd by McGinnis v. Blodgett, 67 F.3d 307 (1995), cert. denied, 516 U.S. 1160 (1996); State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990).
1. Impeachment of Defense Witness with Prior Conviction
Mark Weight contends the prosecutor committed misconduct when he impeached a defense witness and neighbor of the Weights with a prior conviction that was actually an acquittal. Mark Weight's contention is not borne out by the record. There is no finding that the question violated a pretrial discovery request. Moreover, there is no finding whether the State or the witness was factually correct. Even if it were misconduct, Mark Weight was not unfairly prejudiced by the testimony. The neighbor's testimony was on a collateral matter and was cumulative, and the jury was in a position to evaluate the credibility of the witness.
2. Reference to Suppressed Evidence
Mark Weight argues that the prosecutor committed misconduct during closing argument when he referred to suppressed evidence. But the prosecutor referred to the red phosporous and coffee filters with methamphetamine residue found on Dawnna Weight's person. Because this evidence was properly admitted and not the evidence that the court suppressed, the argument is without merit.
3. Improper Burden Shifting
Mark Weight argues that the prosecutor impermissibly shifted the burden of proof to him when, during closing, the prosecutor said that one defense applied only to the possession of methamphetamine and that the defendants, not the State, had the burden of proving 'it' by a preponderance. In context, it is fairly clear that 'it' referred to the defense of unwitting possession. Unwitting possession is a defense burden. State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982). This argument did not improperly shift the burden to Mark Weight.
4. Violation of Right to Remain Silent
Mark Weight argues that the prosecutor infringed on his right to remain silent when, during closing, the prosecutor argued that '[i]f the version of facts that Dawnna Weight gave are not reasonable, then there is no reasonable doubt, because that is the only other alternative that has been presented[,]' Report of Proceedings Mar. 18, 1998 at 305-06, and '[t]he defense has not explained what all of these chemistry supplies were doing in their house.' Report of Proceedings Mar. 18, 1998 at 309-10.
A prosecutor may argue reasonable inferences from the evidence presented. State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991). The prosecutor may attack a defendant's exculpatory theory. State v. Barrow, 60 Wn. App. 869, 872, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991). Under the 'missing witness' doctrine, the prosecutor may comment on the defendant's failure to call a logical competent witness whose production is peculiarly within control of the defense, whose testimony would corroborate a defendant's testimony, and whose testimony is not privileged, necessarily self-incriminating, unimportant, or cumulative. Blair, 117 Wn.2d at 486-87; State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990).
It is error, however, for a prosecutor to imply that a defendant has a duty to present exculpatory evidence. Barrow, 60 Wn. App. at 872. It is also error for a prosecutor to argue that to acquit a defendant the jury has to find that the State's witnesses are lying or mistaken. State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997). It is also error for the prosecutor to argue inferences that infringe on the defendant's right to remain silent. Blair, 117 Wn.2d at 491.
Mark Weight asserts that the prosecutor's arguments are like the arguments in Fleming, 83 Wn. App. 209. In Fleming, the prosecutor argued to the jury that in order to find the defendants not guilty of second degree rape the jury 'would have to find either that [the victim] has lied about what occurred in that bedroom or that she was confused.' Fleming, 83 Wn. App. at 213 (emphasis omitted). The prosecutor further argued that because there was no evidence the victim had fabricated the rapes or was confused the defendants were guilty and 'you . . . would expect and hope that if the defendants are suggesting there is a reasonable doubt, they would explain some fundamental evidence in this [matter].' Fleming, 83 Wn. App. at 214 (emphasis omitted). Citing the rule that 'it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken,' the court held that the prosecutor committed misconduct because he 'misstated the law and misrepresented both the role of the jury and the burden of proof.' Fleming, 83 Wn. App. at 213. The court concluded that the arguments led to burden shifting and an invasion of the defendants' right to remain silent. Fleming, 83 Wn. App. at 214.
The State, relying on State v. Barrow, State v. Blair, and State v. Wright, 76 Wn. App. 811, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995), responds that the arguments here were proper.
In Barrow, the defendant personally testified that he had taken a pipe from his brother and did not know there was cocaine residue on the pipe. Barrow, 60 Wn. App. at 871. His brother did not testify and no reason was given why he could not be produced. Barrow, 60 Wn. App. at 873. The 'prosecutor questioned whether the jury believed Barrow's testimony that he had taken the pipe from his brother, and then repeatedly asked 'Where is his brother' who could testify in Barrow's behalf.' Barrow, 60 Wn. App. at 871. The court, concluding the argument was not improper, held that the State may argue that a defendant's exculpatory theory is questionable where the defense testifies and fails to call an available witness who could have corroborated the defense's story.
We note that the holding in Barrow is questionable in that the brother's testimony may have been necessarily self-incriminating.
In Blair, the defendant testified that a business ledger found on him showed personal loans related to card games, not drug transactions. The names in the ledger were generally first names only. The prosecutor argued in closing that if the defendant was telling the truth he could have brought these debtors and creditors in to corroborate his story, and his failure to do so meant the jury could infer the ledger showed drug transactions and not gambling debt. Blair, 117 Wn.2d at 482-84. The court held that this was proper argument under the 'missing witness' doctrine. Blair, 117 Wn.2d at 492.
In Wright, the prosecutor argued that the jury would have to believe that the State's witnesses were mistaken in order to believe the defendant.
The defendant testified. Wright, 76 Wn. App. at 819, 824. The court noted that, where the parties present conflicting evidence where credibility of the witnesses is a central issue, such an argument is 'well within the 'wide latitude' afforded to the prosecutor 'in drawing and expressing reasonable inferences from the evidence." Wright, 76 Wn. App at 825 (quoting Hoffman, 116 Wn.2d at 95).
Mark Weight did not take the witness stand. In all three cases cited by the State, the defendant took the witness stand in his own defense. In closing argument, the prosecutor referred to the defense collectively. We address each comment separately. 'If the version of facts that Dawnna Weight gave are not reasonable, then there is no reasonable doubt, because that is the only other alternative that has been presented.'
In applying the law to the facts of this case it is important to highlight that Dawnna Weight took the witness stand and denied that any of the incriminating evidence found on her person or in her bedroom were hers. She also testified that the incriminating evidence came from Brandon Seward. Brandon Seward testified that none of the items belonged to him.
This argument misstated the law because it ignored the defense theory that there was insufficient evidence to show a methamphetamine manufacturing operation, for example, and testimony from Dawnna Weight's mother who said she saw nothing out of the ordinary that day. This argument impermissibly shifted the burden to Mark Weight because it implied to the jury that Mark Weight had to disprove the State's case.
There was, however, no objection and no request for a curative instruction. In most cases, the question is then whether the misconduct was so flagrant and ill-intentioned that no curative instruction could have obviated the prejudice to Mark Weight. In this case, we need not determine whether the misconduct rises to that level. Whether a curative instruction would have obviated any prejudice to Mark Weight does not effect the outcome of the case, since any prejudice was outweighed by the tremendous amount of evidence gathered in the Weights' small apartment. 'The defense has not explained what all of these chemistry supplies were doing in their house.'
This argument implied that Mark Weight had a duty to provide exculpatory evidence. Because Mark Weight did not take the witness stand, the State committed misconduct when it implied that Mark Weight's silence could be used against him.
Again, there was no objection and no request for a curative instruction. For the reasons discussed above, we need not determine whether this misconduct rises to the level of reversible error. Any prejudice that the prosecutor's misconduct may have caused was outweighed by the tremendous amount of evidence gathered in the Weights' apartment.
E. Ineffective Assistance of Counsel
Mark Weight contends that his trial counsel was ineffective. He argues that his defense counsel's conduct fell below an objective standard of reasonableness when he: (a) failed to object when suppressed evidence was introduced at trial; (b) failed to clarify with the court what evidence was excluded; (c) failed to object to questioning regarding the garbage bag; (d) never clarified what was in the garbage bag when it was taken from Dawnna Weight; (e) asked questions about the contents of the garbage bag; (f) failed to request a curative instruction or mistrial; (g) failed to call any witnesses; (h) failed to object to Detective Doughty's testimony that Mark Weight appeared under the influence of methamphetamine; and (i) failed to object to the prosecutor's closing argument. To show ineffective assistance of counsel, the defendant must show both deficient performance and prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). This court presumes that the defendant was properly represented, and '[d]eficient performance is not shown by matters that go to trial strategy or tactics.' Hendrickson, 129 Wn.2d at 77-78. Prejudice is shown where 'there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.' Hendrickson, 129 Wn.2d at 78.
1. Failure to Object to or Clarify Contents of Garbage Bag
The record shows that the items suppressed by the court were never introduced at trial. It is possible that defense counsel's performance was deficient when he allowed the jury to be potentially confused about the source of incriminating evidence found on Dawnna, i.e., it came from beneath her clothes not from the garbage bag she was carrying. But because the trial court did not suppress the items actually introduced into evidence, Dawnna Weight actually possessed the garbage bag, and there was abundant incriminating physical evidence found in the apartment, there is not a reasonable probability that, but for counsel's errors, the result of the trial would have been different.
2. Failure to Object to Doughty's Testimony
Mark Weight, relying on the facts in Hendrickson, asserts that his attorney was ineffective when he failed to object to Detective Doughty's testimony that Mark Weight appeared under the influence of methamphetamine.
In Hendrickson, the State elicited testimony from a chief deputy sheriff during the prosecution's presentation of the case that Hendrickson, who was on trial for selling cocaine, had prior drug-related convictions. Hendrickson, 129 Wn.2d at 77-78. The court, noting that the testimony would have generally been inadmissible under ER 609(a) and unable to discern a reason why Hendrickson's counsel would not have objected 'to such damaging and prejudicial evidence,' concluded that trial counsel's conduct was deficient. Hendrickson, 129 Wn.2d at 78-79.
This case is not like Hendrickson. The testimony was elicited by the defense, not the prosecution. And Mark Weight points to no authority, such as ER 403, that would have generally made such testimony inadmissible. Failure to object to the answer was not deficient representation.
ER 403 states in part: 'Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . .'
3. Failure to Request Curative Instruction or Mistrial
Mark Weight asserts, without citation to authority or legal argument, that his attorney failed to request a curative instruction or mistrial and failed to call any witnesses. 'In the absence of argument and citation to authority, an issue raised on appeal will not be considered.' American Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 7, 802 P.2d 784 (1991).
4. Failure to Object to Closing Argument
Mark Weight asserts that his attorney failed to object to the prosecutor's improper closing argument. Because the prosecutor made improper and potentially prejudicial arguments, Mark Weight's attorney's failure to object was deficient. The question, then, is whether there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.
There is no reasonable probability that, even with timely objections and curative instructions, the result of the trial would have been different.
For the above reasons, we affirm.
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.
WE CONCUR: SEINFELD, P.J., HOUGHTON, J.