Opinion
No. 57161-3-I.
May 14, 2007.
Appeal from a judgment of the Superior Court for King County, No. 96-1-04843-3, Nicole Maclnnes, J., entered October 12, 2005.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Defendant Ardmore Canton III alleges prosecutorial misconduct. He contends that the prosecutor commented that in order to believe the defendant's version of the events, the jury would have to find the police officers were lying, that the prosecutor expressed a personal opinion regarding the defendant's guilt during closing argument, and that he speculated how a witness not present at trial would have testified. Canton also assigns error to the trial court's order that he submit to DNA testing. The State argues that Canton has waived his right to challenge the comments on appeal because he did not object to any of them at trial. The State concedes error as to the DNA testing.
We order the DNA test results expunged. On all other charges, we affirm.
FACTS
Defendant Ardmore Canton III was charged with one count of cocaine delivery with a school zone enhancement on July 2, 1996. A jury convicted him as charged on November 13, 1996. Canton failed to appear for his sentencing hearing on January 15, 1997. Eight years later, he turned himself in and had a sentencing hearing on October 12, 2005. Based on an offender score of zero, Canton was sentenced to 21 months of confinement. The court also ordered him to submit to DNA testing. Canton timely appeals.
On July 2, 1996, the Seattle Police Department conducted a buy-bust operation in the Pioneer Square area of Seattle. The officers involved included:
1) Officer John Brooks: undercover "buyer,"
2) Sergeant Douglas Vendergeissen: "buy" money supplier,
3) Officer James Stephens: arrest team,
4) Sergeant William Edwards: undercover mobile observation officer.
Around 3:50 p.m., Brooks was approached by Kenneth Dixon, a street level drug deal facilitator, referred to as a "cluck." Brooks told Dixon he was looking for two rocks of crack cocaine for $30. Dixon led Brooks to a bus shelter on Second Avenue where Canton was waiting. Dixon asked Canton if he had anything; Canton said that he did. Brooks, standing five feet away, saw that Canton had something in his hand. According to Brooks, Canton wanted to do the deal right away, but Dixon insisted that he wait because he did not want to get caught by the police.
With Sergeant Edwards watching, Brooks, Dixon and Canton rounded the corner to James Street. Edwards continued to observe while Brooks gave Canton a $20 bill and a $10 bill, part of the "buy" money supplied by Sergeant Vandergiessen. The serial numbers on this "buy" money had been noted and were kept on record with the police department. Canton gave Brooks a wadded up piece of paper. Brooks found two ivory-colored rocks, which later tested positive for cocaine. Brooks then gave the pre-arranged police signal of "good buy" to Edwards, who radioed for the arrest teams to move in.
Officer Stephens, receiving the description of Canton as a black man in overalls with no shirt, approached on his bicycle and arrested Canton as he walked eastbound on Yesler Way. Searching Canton incident to arrest, Stephens found $72 in cash, including the $10 and $20 bills with serial numbers that matched Brooks' assigned "buy" money. Stephens also found suspected cocaine on Canton. Shortly after the arrest, Brooks and Edwards identified the man that Stephens arrested as Canton. At the precinct, Brooks again identified Canton as the person who sold him cocaine.
ANALYSIS
I. Prosecutorial Misconduct
Canton argues that the prosecutor committed reversible misconduct by arguing that in order to believe Canton's version of the events, the jury would have to find that the police officers were lying. The State argues that Canton waived his right to challenge the comments on appeal because he did not object to them at trial. The State further contends that even if Canton did not waive his right to challenge the remarks, the prosecutor's comments were not reversible misconduct, because the prosecutor also suggested that the jury could believe Canton's version of the events if they found that the officers were mistaken. The State claims the remarks were appropriate in arguing inferences from the evidence and assessing credibility, and that the remarks were an appropriate response to Canton's suggestion that the officers were lying.
a. Relevant Testimony
At trial, Canton stated that on July 2, 1996, he was trying to get to the courthouse to clear up a warrant. He testified that after an encounter with Dixon, a stranger, he went across the street to First and Yesler and by the time he got almost to the corner of Occidental and Yesler he was tackled, knocked down, and handcuffed by Officer Stephens. Canton denied that Officer Stephens found any drugs on him — only money, a wallet, cigarettes, and keys. Canton admitted that when he was arrested by the officers, he was wearing the clothing that matched their description. On cross-examination, he denied handing drugs to Brooks, receiving money from Brooks, or even meeting Brooks. The prosecutor continued:
[The State:] So in your mind, these people [the police officers] have nothing against you, do they?
[Canton:] Not in my mind they don't have anything against me.
[The State:] You know of no ill will towards you from them.
[Canton:] I wouldn't say that. I don't know them. Not to my knowledge.
[The State:] Not to your knowledge. You know of no reason why they would somehow — and you're claiming you were set up, right?
Canton: Yes, I was.
The prosecutor then asked Canton about the suspected cocaine that was found on him during a search incident to arrest:
[The State:] . . . [W]hen you were searched incident to arrest, . . . Officer Stephens found [drugs] on you, didn't he?
[Canton:] No, he didn't.
[The State:] So if Officer Stephens was to come in and testify that, in fact, he did search you and found this, would that just be another part of a conspiracy to set you up?
[Canton:] It would be a lie.
[The State:] So this person who has no reason to lie, to your knowledge, would, in fact, be lying as would all the other people who have testified in this trial, is that right?
. . .
[The State:] So, Mr. Canton, you were in the area, you looked like, you were dressed like, and you had earrings that matched the description of somebody that allegedly sold cocaine to Officer Brooks on July 2nd of 1996, and you're sitting here and you're telling the jury with a straight face that it wasn't you. Is that essentially it?
[Canton:] It wasn't me. I never had any drugs on my person nor did I sell.
(emphasis added). The defense did not object to any of the above lines of questioning.
During closing argument, the prosecutor highlighted the jury instruction requiring the jury to assess the credibility of the witnesses, arguing that if Canton's story were true, either the police officers were lying or they were mistaken:
If you believe the defendant is not, and if his story is true that he was just walking down the street and he was the victim of this heinous act really by the Seattle police officers, and a number of them, that then certain things must also be true. One of two things must be true. One, that there was mistaken identity, and really it was Officer Brooks — in fact, it was somebody else to sell cocaine. Now, if that's true, let's play that out a little bit because certain other things have to be true.
Number one, Officer Brooks would have had to have identify the wrong person in court. He would have had to sit here under oath and say that's the man and that would not have been true. Number two, he would had to have identified the wrong person at the time of the scene. You remember his testimony. He said after the buy was made, what I did was I walked back to where the arrest was made and I identified the defendant. I said yeah, that's the guy, you have the right person. So he would have been wrong there as well.
Officer Stephens, who you heard testify on two different occasions, would have also had to have been wrong. The defendant says lying. And if the defendant's story is true, he would had to have been lying when he said this is the guy that I saw that day. Officer Stephens would have also had to be lying about the buy money that was recovered.
. . .
What also must have been true if the defendant's story is correct is that Sergeant Edwards came in, and with 17 years of experience and his thousands of arrest, sat here and said that's the guy, as the defendant said, lied about. He would have also had to have been lying that day when he identified the person as the right person because he said I saw the entire transaction and I saw him being arrested. Again, not true. All those things would have had to have been true if this story is to be believed.
The other possibility if the defendant's story is to be believed is equally ludicrous . . . they arrested the wrong person, who coincidentally enough looked exactly like this defendant and was dressed exactly like this defendant. It's beyond the realm — it goes beyond reason actually. That's what would have had to have happened.
Additionally, to make it more incredible, what would have also had to have happened is that this other person, who allegedly sold these drugs to Officer Brooks, after having risked criminal prosecution to make $30 for selling rock, would have had to have taken that money, the money recovered from the defendant, and given it to the defendant. It makes no sense.
Give his testimony the straight face test. Can you believe that with a straight face, any of that? It's ludicrous, it's insulting.
(Emphasis added.) The defendant did not object to any of the above.
b. Lack of Objection at Trial
When counsel does not object to a prosecutor's alleged misconduct, request a curative instruction, or move for a mistrial, appellate review of the prosecutor's conduct is precluded unless the misconduct was so flagrant and ill intentioned that no instruction could erase the prejudice engendered by it. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988); State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237, 749 P.2d 160 (1987). Reversal is required if unchallenged misconduct was so inflammatory that an instruction would not have cured it and if there is a substantial likelihood that the misconduct affected the jury's decision. Belgarde, 110 Wn.2d at 509-10; State v. Barrow, 60 Wn. App. 869, 876, 809 P.2d 209 (1991).
Here, the prosecutor's misconduct appears to be flagrant and ill-intentioned and requires our review despite the lack of objection below.
c. Standard of Review
In order to establish prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). "Prejudice is established only if there is a substantial likelihood [that] the instances of misconduct affected the jury's verdict." State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995) cert. denied 518 U.S. 1026 (1996). A prosecutor's remarks are not grounds for reversal if they were invited or provoked by defense counsel or are a pertinent reply to his or her arguments. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
d. Cross-Examination
Pointing out the important distinction between cross-examination and closing argument, this Court has examined them separately and has held:
it is generally impermissible to cross-examine a witness in order to elicit an opinion from the witness regarding the credibility of another witness' testimony. Thus, questions of one witness whether another is lying or not telling the truth are improper and constitute misconduct because they are designed to elicit testimony which is both irrelevant and prejudicial. However, where conflicts in the testimony make questions about the discrepancies relevant, questioning a witness about whether he or she believes another is mistaken is permitted. Where no such conflict exists, however, those questions are irrelevant, and objectionable.
We further hold that, where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State's witnesses are mistaken. This argument is not objectionable because it does no more than state the obvious and is based on permissible inferences from the evidence. It is misconduct, however, for a prosecutor to argue that, in order to believe a defendant, a jury must find that the State's witnesses are lying
State v. Wright, 76 Wn. App. 811, 825-26, 808 P.2d 1214 (1995) (emphasis added).
In this case, the prosecutor elicited Canton's opinion that the police officers were lying. He said "you're claiming you were set up, right?" Canton replied, "Yes, I was." A few questions later, the prosecutor said "So if Officer Stephens was to come in and testify that, in fact, he did search you and found this, would that just be another part of a conspiracy to set you up?" Canton replied, "It would be a lie." To this, the State said "So this person who has no reason to lie, to your knowledge, would, in fact, be lying as would all the other people who have testified in this trial, is that right?"
There is no question that in his first two questions, the prosecutor was clearly asking Canton to speculate and attempted to elicit Canton's opinion that they were lying. The prosecutor had enough, even before those questions, to simply contrast the two stories, not characterize them, and let the jury draw their own credibility conclusions. His third question went too far as another attempt to suggest that Canton was accusing the police officers of lying. By pursuing this line of questioning, the prosecutor committed misconduct clearly circumscribed by numerous decisions of the court. See State v. Green, 71 Wn.2d 372, 380-81, 428 P.2d 540 (1967); Wright, 76 Wn. App. at 821-22; State v. Carter, 74 Wn. App. 320, 331, 875 P.2d 1, review granted, 125 Wn.2d 1007 (1994); State v. Suarez-Bravo, 72 Wn. App. 359, 366-68, 864 P.2d 426 (1994); State v. Stith, 71 Wn. App. 14, 19-20, 856 P.2d 415 (1993); State v. Stover, 67 Wn. App. 228, 231, 834 P.2d 671 (1992); State v. Casteneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74 (1990) (finding prosecutorial misconduct when the prosecutor repeatedly suggested that the witness was saying that the police were lying); United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987) (reversing for prosecutorial misconduct because prosecutors are to avoid statements to the effect that "if the defendant is innocent, government agents must be lying."). Id. at 209.
e. Closing Argument
In State v. Fiallo-Lopez, this Court evaluated claims of misconduct during closing argument. There, the prosecutor said:
But, what you're left with is the testimony of a number of detectives who say exactly the same thing about those particular events . . . And if you question the officers' motives, if you think that the cops — to use a popular defense term, the cops are lying, ask yourselves, don't you think they would have done a much better job?
. . .
The fact is, they didn't. And the fact that they didn't and the fact that differences exist resulting from lapse[s] in time, and differences in perspective, and differences in training indicates that, in fact, everybody is telling the truth about their honest recollection about what happened. And those common threads cannot be disputed.State v. Fiallo-Lopez, 78 Wn. App 717, 729-30, 899 P.2d 1294 (1995).
Noting that prosecutors have wide latitude in closing argument to draw wide inferences from the evidence and present those inferences to the jury, this Court held that because the prosecutor was arguing that the facts supported the conclusion that the State's witnesses were being truthful, his remarks were not misconduct. Fiallo-Lopez, 78 Wn. App at 730-31. Cf. Wright, 76 Wn. App. 811, 824-26 (noting that "it is misconduct to argue that, in order to acquit a defendant or find him or her not guilty, the jury must find that the State's witnesses are either lying or mistaken").
During closing, the prosecutor said:
If you believe the defendant is not, and if his story is true that he was just walking down the street and he was the victim of this heinous act really by the Seattle police officers, and a number of them, that then certain things must be true. One of two things must be true. One, that there was mistaken identity and really . . . in fact, it was somebody else to sell cocaine. . . .
And if the defendant's story is true, he [Officer Stephens] would had to have been lying when he said this is the guy that I saw that day.
Here again, the prosecutor committed misconduct. He argued that in order to believe Canton's story, the jury had to find that the police were lying. Although he presents the possibility that the police were mistaken, he goes further than simply contrasting the stories — he characterizes them, suggesting that one must be a lie in order for the other to be true. Although prosecutors are afforded discretion in closing arguments, they are still precluded from arguing that to believe the defendant the jury must find that the State's witnesses are lying. Wright, 76 Wn. App. at 826. The prosecutor committed misconduct when he made this argument.
f. Prosecutor's Personal Opinion
Canton alleges that the prosecutor improperly offered his personal opinion during closing when he asked the jury to give Canton's testimony the "straight face test," referred to certain defense arguments as "ludicrous" and "insulting," and characterized Canton's version of events as "astounding," "[a]bsolutely ridiculous," and "[u]nbelievable." The State argues that these arguments were not a clear and unmistakable expression of the prosecutor's personal opinion, but instead, reasonable inferences from the evidence.
This Court views the prosecutor's closing arguments in the context of the total argument, and the issues and evidence presented. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Prosecutors have wide latitude to make arguments and draw inferences from the evidence. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003); State v. Brown, 132 Wn.2d 529, 565, 940 P.2d 546 (1997), cert. denied 523 U.S. 1007 (1998). Generally, it is improper for the prosecutor to express a personal opinion about the credibility of a witness and the guilt and innocence of the accused. State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003). However, misconduct only occurs when it is "clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Price, 126 Wn. App. 617, 653, 109 P.3d 27 rev. denied 155 Wn.2d 1018 (2005). When judged in the context of the whole argument and the totality of the evidence, "it is usually apparent that counsel is trying to convince the jury of certain ultimate facts and conclusions to be drawn from the evidence." Papadopoulos, 34 Wn. App. at 400.
Canton refers to State v. Reed to support his argument that the
prosecutor committed misconduct. State v. Reed,
102 Wn.2d 140, 684 P.2d 699 (1984). In Reed, the prosecutor:
clearly violated CPR DR 7-106(C)(4) by asserting his personal opinion of the credibility of the witness and the guilt or innocence of the accused. First, he called the petitioner a liar no less than four times. Next, the prosecutor stated that the defense counsel did not have a case, and that the petitioner was clearly a "murder two". Finally, he implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars.Id. at 145-46. The court noted that "[n]o one, not even the prosecutor, question[ed] the impropriety of these comments" and that defense counsel repeatedly objected, moved to strike, and moved for a mistrial. Id. at 145. The court held that the comments were improper and required reversal. Id. at 147-48.
Here, while the prosecutor's choice of words certainly implied that he did not believe the defendant he did not outright call him a liar, nor clearly express his opinion as to his guilt or innocence. His actions do not rise to the level of misconduct displayed in Reed. In this case, the prosecutor was trying to convince the jury of certain ultimate facts and conclusions to be drawn from the evidence. These comments do not constitute misconduct.
g. Harmless Error
A harmless error under the constitutional standard occurs if the reviewing "court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) cert. denied 475 U.S. 1020 (1986).
Altogether, in light of the overwhelming evidence against Canton, the flagrant and ill-intentioned misconduct of the prosecutor was nonetheless harmless error. The police officer testimony in this case was believable and was corroborated. There were at least two witnesses to the cocaine sale, and three police officers corroborated the unique description of Canton's appearance. The "buy money" serial numbers matched the numbers on the $10 bill and $20 bill found on Canton. The two rocks bought by Officer Brooks were confirmed as cocaine. The line of questioning that resulted in Canton's testimony that the police were lying was not so damaging that there is a reasonable probability that it affected the outcome of trial — a reasonable jury would have reached the same result in absence of the misconduct. Reversal is not required.
h. Presumption of Facts Not in Evidence
During closing, defense questioned why the State did not call Dixon, the drug deal facilitator, as a witness. In rebuttal, the prosecutor argued that the State's choice not to call Dixon to the stand did not create reasonable doubt, saying: "Counsel said where is Mr. Dixon, why didn't he testify. Why didn't this street level clucker, this facilitator who's probably a drug addict get up on the stand and say exactly what these police officers said."
Canton claims that the Prosecutor assumed facts not in evidence by implying that Dixon, who did not testify, would have told the same story as the officers. Canton cites only one case to support this argument. State v. Belgarde 110 Wn.2d 504, 508-09, 755 P.2d 174 (1988). In Belgarde, the prosecutor made inflammatory remarks equating the American Indian Movement (AIM) with Sean Finn of the IRA and "Kadafi." These accusations were based on the prosecutor's own personal recollection of the events at Wounded Knee. The court found that these statements were not based on any of the evidence in the record and were flagrantly made to appeal to the jury's passion and prejudice. Id. at 508.
In this case, the prosecutor's speculation as to what Dixon would have testified is also based on facts not in evidence — he could not have known the content of Dixon's testimony. However, defense counsel instigated these remarks by challenging the prosecutor's choice not to call Dixon. They were not flagrantly intended to instill passion and prejudice in the jury. In light of the whole argument, the remarks did not rise to the level of misconduct as those remarks in Belgarde.
II. DNA Testing
Canton argues, and the State concedes, that the sentencing court erred when it ordered Canton to submit to DNA testing. We agree, and find that Canton was not "still incarcerated" for his offense when he was sentenced for it July 2002, and did not need to submit to DNA testing. Accordingly, Canton meets the requirements of WAC 446-75-070 because he has lawful grounds for expungement. His DNA samples are ordered expunged.
CONCLUSION
Although the prosecutor went too far in eliciting Canton's opinion that the police officers were lying, the overwhelming evidence in the face of Canton's general denial cuts against any showing of prejudice. The misconduct was harmless error; Canton's conviction is affirmed. The sentencing court did err in ordering Canton to submit a sample of his DNA; we order that Canton's DNA samples be expunged.
For the court: