Opinion
No. 23718-4-III.
November 2, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-03978-1, Michael P. Price, J., entered October 5, 2004.
Counsel for Appellant(s), Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Kulik, J.
Judith Ann Brandon was convicted of possession of marijuana with intent to deliver. Contending the prosecutor committed misconduct, the judge impermissibly commented on the evidence, her right to a speedy trial was violated, and she was denied effective counsel, she appeals. We affirm.
On July 19, 2001, Deputy Mark Smoldt, Detective James Wakefield, and two plainclothes officers arrived at Ms. Brandon's apartment in an ongoing marijuana delivery investigation. The officers hoped to contact her in order to find out the identity of her marijuana supplier. Ms. Brandon, who has multiple sclerosis (MS), had a prescription for medical marijuana for relief from MS-associated pain.
After approaching Ms. Brandon's open door and hearing her invite them in, Deputy Smoldt and Detective Wakefield entered the apartment. They read Ms. Brandon her constitutional rights, which she acknowledged and waived. Ms. Brandon, however, claims the officers did not read her those rights and only asked, before leaving, for a signature acknowledging that she had been read them. The officers then asked whether she had any controlled substances in the residence. Ms. Brandon responded that she did and, without prompting, retrieved a large bag of marijuana from her closet.
Deputy Smoldt testified he read Ms. Brandon a search consent form, which she acknowledged by signing. But Ms. Brandon said she signed this form when the officers were leaving after the search. The officers found a small bag of marijuana in her purse and a large triple beam scale in her closet. She said she was fronted the marijuana every week and sold it to pay her dealer and make money to support her daughter. Ms. Brandon disputes making these statements, claiming she just told the officers she had the marijuana only for personal, medical use.
Ms. Brandon was convicted of possession of a controlled substance with intent to deliver. This appeal follows.
She claims the prosecutor committed misconduct by discussing her previous convictions. If there was a "substantial likelihood" that the prosecutor's comments about Ms. Brandon's previous "trouble" prejudicially affected the jury, she may raise the issue despite her failure to object during trial. State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988). Although the Sixth Amendment and Const. art. 1, § 22 grant defendants the right to trial by an impartial jury, the right does not include the right to an error-free trial. State v. Latham, 100 Wn.2d 59, 66, 667 P.2d 56 (1983). If the defendant did not object to the prosecutor's conduct, the error is waived unless the remark was so flagrant and ill-intentioned that its prejudice could not have been neutralized by an admonition to the jury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
The court entered a pretrial order on motion in limine determining that Ms. Brandon's prior drug convictions were inadmissible. The State questioned her about her marijuana use, asking if she smoked or dealt marijuana prior to being diagnosed with MS. She replied, "I've been in trouble for that." Report of Proceedings (RP) at 241. Her attorney lodged no objection. In closing argument, the State mentioned Ms. Brandon's "trouble" as affecting her credibility. RP at 266-67.
Ms. Brandon argues that any mention of a past conviction violated the court's order on motion in limine and constituted misconduct. "`The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'" State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984) (quoting State v. Evans, 96 Wn.2d 119, 123, 634 P.2d 845, 649 P.2d 633 (1981)). Courts have also recognized the tentative nature of the motion in limine. "Although adherence to a pretrial order is generally helpful to the promotion of the orderly conduct of a trial, it must be remembered that the order is interlocutory in character and will be modified or abandoned according to the demands of justice." Latham, 100 Wn.2d at 65 (quoting Jordan v. Berkey, 26 Wn. App. 242, 611 P.2d 1382 (1980)). But once motions in limine are granted, "no objection is necessary to preserve the right to claim error if the evidence is nevertheless admitted." Latham, 100 Wn.2d at 72.
This court must first determine if the prosecutor's mention of Ms. Brandon's prior "trouble" was so prejudicial that the failure to object may be excused. When a defendant opens up a subject matter in her own defense, the cross examination may probe into the various phases of the subjects developed on direct. State v. Hayes, 73 Wn.2d 568, 571, 439 P.2d 978 (1968); State v. Solomon, 5 Wn. App. 412, 420, 487 P.2d 643, review denied, 80 Wn.2d 1001 (1971). The rule does not confine cross examination to the questions asked, but permits inquiry into the subjects discussed on direct. State v. Riconosciuto, 12 Wn. App. 350, 354, 529 P.2d 1134 (1974).
The parties agreed not to address Ms. Brandon's prior convictions with the prosecutor noting, "[a]s for the drug charges she has, unless she were to open the door I would not seek to admit those or discuss them and would instruct my law enforcement officers not to do so." RP at 44. The court confirmed the arrangement:
. . . [I]t's appropriate there be no discussion of the delivery as to Count 1 and counsel are essentially on the same page with me in terms of the previous drug charges unless the door was to be opened and, [prosecutor], I'm sure you'll take a minute, as you've just indicated, to chat with law enforcement to make sure that somehow that door doesn't inadvertently get opened.
RP at 45.
Ms. Brandon argues it was the prosecutor who introduced evidence of her prior convictions during his questioning. At trial, the following exchange occurred between the prosecutor and Ms. Brandon:
[Prosecutor]: I'll be much simpler. Did you smoke or deal marijuana prior to 1987?
[Ms. Brandon]: I have been in trouble for that, yes, sir.
RP at 241. She could simply have answered with a yes or no, but did not.
The prosecutor also discussed Ms. Brandon's "trouble" in closing:
All you have to do is believe what she said. She admitted — now she comes today and she gives explanations. They're not credible. They're not believable. She has no credibility at all.
You heard testimony she's been in trouble before. That also goes to her credibility. Think about it. And you can't convict her because of that. The instruction specifically tells you that. It affects her credibility. It's just not reasonable what she says. It's not believable. When you look at it all together, it's very, very clear what happened. What she was going to do and what she was doing.
RP at 266-67.
Ms. Brandon herself initially mentioned past "trouble." ER 609(a) permits admission of certain prior crimes if "elicited from the witness or established by public record during examination of the witness." But the word "trouble" as used by Ms. Brandon did not necessarily mean a prior crime or conviction. The order on motion in limine was not violated.
Even if improper, the prosecutor's conduct did not rise to the level of impropriety so flagrant and ill-intentioned that it caused such prejudice no curative instruction could have neutralized. Ms. Brandon's past "trouble" was briefly mentioned just twice in the entire trial. Because she has not shown a substantial likelihood that the jury verdict was prejudiced by the prosecutor's conduct, there was no reversible error.
She further contends jury instruction 7 constituted an impermissible comment on the evidence:
Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose.
RP at 253.
Jury instructions are reviewed to determine if they are correct as a matter of law. State v. Edwards, 92 Wn. App. 156, 164, 961 P.2d 969 (1998). "An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question." State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
Instruction 7 is not an unconstitutional comment on the evidence as it does not give the personal opinion of the judge. Indeed, the instruction properly states the law. In State v. Davenport, 33 Wn. App. 704, 657 P.2d 794 (1983), rev'd on other grounds, 100 Wn.2d 757, 675 P.2d 1213 (1984), the defendant made an identical challenge to the same instruction, arguing it was an unconstitutional comment on the evidence. Id. at 707. The court held that the instruction "correctly stated the law, and in cases where the fact of a prior conviction is elicited from the defendant, it may be given to insure that the jury does not consider such information for an improper purpose." Id. The court's instruction here was a proper statement of the law, used as a precaution to make sure the jury understood that Ms. Brandon's prior "trouble" was not to be used to establish her guilt. The court did not err by giving the instruction.
In her statement of additional grounds for review, Ms. Brandon claims her right to speedy trial was violated. But the record contains nothing that would shed light on the speedy trial issue. With respect to matters outside the record, her remedy is to bring a personal restraint petition. State v. King, 24 Wn. App. 495, 505, 601 P.2d 982 (1979).
Ms. Brandon also contends she was denied effective assistance of counsel because her attorney refused to accept a plea bargain on her behalf. At the sentencing hearing, she said the prosecutor took away a plea bargain before she had a chance to take it:
I know there was a plea bargain made, and then it was taken away. I don't understand why. You know, I think it's because my THC level didn't suit the prosecutor's — I don't know. If I would have had a chance, I would have taken the plea bargain.
RP at 301-02.
Other than her statement, there is nothing in the record to support Ms. Brandon's claim that, against her wishes, counsel had refused a plea bargain. This issue should thus be raised in a personal restraint petition. King, 24 Wn. App. at 505.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J., and KULIK, J., concur.