Opinion
66438-7-I
04-23-2012
STATE OF WASHINGTON, Respondent, v. DERRICK BENNETT THOMPSON, Appellant.
UNPUBLISHED OPINION
APPELWICK, J.
A court impermissibly comments on the evidence presented at trial only if the court's attitude toward the merits of the case is reasonably inferable from its remarks. The jury could not make such an inference from the court's comments in this case. Thompson also fails in his attempt to demonstrate either prosecutorial misconduct or ineffective assistance of counsel. We affirm his conviction for possession of cocaine with intent to deliver.
FACTS
On March 9, 2010, police conducting surveillance in the Pioneer Square area of Seattle observed Derrick Thompson engaging in what appeared to be hand to hand drug transactions. During a search incident to arrest, police found .2 grams of cocaine and $526 on Thompson's person, but no paraphernalia for drug use. The State charged him with possession of cocaine with intent to deliver.
Prior to trial, the court excluded evidence that the surveillance area was known for drug activity. The prosecutor could, however, elicit testimony that the location was a "high crime" area.
At trial, Seattle Police Officer Sonya Fry testified that she saw Thompson enter a park and walk up to three people. Fry said the three people had been "smoking crack cocaine" moments before. When asked how she knew they were smoking crack, Fry replied, "Well, normally right in front of Lazarus Day Center, there's a lot of people outside dealing crack cocaine." The prosecutor then asked if the pipe the people were using was something Fry "knew to be a crack pipe." Fry said, "Yes." She proceeded to explain what a crack pipe looks like, what the people were doing with the pipe, and why she concluded they were smoking crack in the crack pipe.
When Thompson joined the group, he pulled a baggie out from under his waistband, took an object out of the baggie, and placed it on someone's palm. The object looked like a "white rock." Fry suspected it was crack cocaine and notified the arrest team.
Officer Jonard Legaspi corroborated much of Officer Fry's testimony. He saw Thompson exchanging "what looked like [United States] currency and drugs." He testified that Thompson delivered "an unknown type of narcotics." When the transaction was done, Thompson tucked a plastic baggie inside his waistband and left the area. Police arrested him shortly thereafter.
Officer Legaspi searched Thompson incident to arrest. He found a baggie containing .2 grams of cocaine in his waistband and a total of $526 in small denominations in his pockets and wallet. Legaspi testified that small denominations are commonly used in street-level narcotics transactions and that .2 grams of cocaine is a "marketable amount" that "you can usually buy and sell on the streets of Seattle."
The jury convicted Thompson as charged. He appeals.
DECISION
Thompson first contends the trial court impermissibly commented on the evidence during the following evidentiary ruling:
[PROSECUTOR:] Now, two -- .2 grams of crack cocaine, how much would that generally go for on the streets?
[WITNESS:] Usually $20.
. . . .
[PROSECUTOR:] And is that a marketable amount? Is that an amount you can usually buy and sell on the streets of Seattle?
[WITNESS:] Oh, yes. It's easy to carry, and it's not too bulky. It's not like you are selling kilos out on the streets of Seattle.
[PROSECUTOR:] What does the average street deal go for?
[WITNESS:] Depending on --
[Defense Counsel]: I'd object. It's not relevant to this case.
THE COURT: What's the relevance?
[PROSECUTOR]: Should we have a sidebar, your Honor?
THE COURT: No, you can tell me. What are you trying to establish, the fact?
[PROSECUTOR]: This is a marketable amount of crack cocaine on the streets of Seattle that's bought and sold every day.
THE COURT: You have already established that with this witness. Why don't you move on to your next question.(Emphasis added.)
According to Thompson, the emphasized portion of this ruling told the jury "the prosecution had 'established'" the marketability of the cocaine and thus commented on the evidence. We disagree.
The Washington Constitution provides that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Const. art. IV, § 16. A court generally does not comment on the evidence simply by giving its reasons for a ruling. In re Det. of Pouncy, 144 Wn.App. 609, 622, 184 P.3d 651 (2008), aff'd, 168 Wn.2d 382, 229 P.3d 678 (2010). Rather, a comment on the evidence occurs only if the court's attitude toward the merits of the case is reasonably inferable from the court's statement. State v. Cerny, 78 Wn.2d 845, 855, 480 P.2d 199 (1971), vacated in part on other grounds by Cerny v. Washington, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d (1972).
Here, the court's attitude toward the merits of the case was not reasonably inferable from its ruling. The ruling merely conveyed the court's conclusion that the witness had already testified to the point the prosecutor was continuing to pursue with his questioning. This was not a comment on the evidence. See State v. Swan, 114 Wn.2d 613, 657-658, 790 P.2d 610 (1990) (court's ruling that it would "accept [proposed expert] as an expert on that subject" was not a comment on the evidence because the ruling offered no opinion as to the credibility, sufficiency, or weight of the expert's testimony and merely indicated that the requirements of ER 702 were satisfied); Cerny, 78 Wn.2d at 855-856 (court's statement that "'[t]he burden is on the state to tie this together'" followed by its ruling that "'the chain of evidence has been established'" was not a comment on the evidence). Compare State v. Lane, 125 Wn.2d 825, 835-38, 889 P.2d 929 (1995) (judge's remarks about a prosecution witness's early release was a comment on the evidence because it conveyed the judge's opinion on a fact relating to the witness's credibility); State v. Lampshire, 74 Wn.2d 888, 891-93, 447 P.2d 727 (1968) (judge's remarks in sustaining the prosecutor's objection was an impermissible comment because it conveyed his opinion about the defendant's testimony).
Even if the court's statement could be construed as a comment on the evidence, any error was cured. The court twice instructed the jury to disregard any statement that appeared to express the court's personal opinion about the case. We presume the jury followed these instructions. Cerny, 78 Wn.2d at 856. The court's isolated comment was therefore cured. See State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999) (any comment on the evidence was cured by instruction to disregard same); Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 141, 606 P.2d 1214 (1980) (isolated judicial comment "may be cured by an instruction").
The court orally instructed the jury as follows:
Thompson next contends the prosecutor committed reversible misconduct when, in violation of a pretrial ruling, he elicited testimony that the surveillance occurred in an area known for crack cocaine trafficking:
[PROSECUTOR:] Just talk a moment about these people that you observed smoking crack cocaine. Why is it that you think they were smoking crack cocaine?
[WITNESS:] Well, normally right in front of Lazarus Day Center, there's a lot of people outside dealing crack cocaine.
Thompson acknowledges that his trial counsel did not object and that any misconduct is not reviewable unless it was so flagrant and ill-intentioned as to be incurable. State v. Padilla, 69 Wn.App. 295, 300, 846 P.2d 564 (1993). He argues, however, that "[w]hether the prosecutor intentionally elicited this answer or failed to inform Officer Fry of the court's ruling, the testimony was a clear violation of the court's pre-trial order and constituted prosecutorial misconduct." (Emphasis added.) We disagree.
Even assuming the witness' testimony violated the court's pretrial ruling, that fact does not establish that the prosecutor committed misconduct, let alone flagrant and ill-intentioned misconduct. Thompson does not demonstrate, nor does the record suggest, that the prosecutor's question was ill-intentioned or designed to elicit a response violating the court's ruling. The prosecutor specifically asked the witness to "talk . . . about these people that you observed" and why the witness thought they were smoking crack cocaine. This question focused on what the witness observed, not on the area's reputation. When the witness strayed from the question, the prosecutor ignored the answer and immediately refocused the witness on what she observed. There was no misconduct. And, to the extent anything the prosecutor did could be characterized as misconduct, it was not so egregious as to be incurable.
Thompson does not argue the related, but analytically distinct, concept of trial irregularity arising from a witness' violation of a ruling in limine. See State v. Escalona, 49 Wn.App. 251, 253-56, 742 P.2d 190 (1987) (finding trial irregularity where witness referred to matter excluded by motion in limine); State v. Thompson, 90 Wn.App. 41, 45-47, 950 P.2d 977 (1998). (irregularity where witness violated order in limine).
Thompson argues in the alternative that his counsel was ineffective for failing to object to the testimony that violated the court's pretrial ruling. To prevail on this claim, Thompson must demonstrate both deficient performance and resulting prejudice. We strongly presume that defense counsel was effective, and Thompson must establish "the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" The decision of when or whether to object is generally a matter of trial tactics and only in egregious circumstances will the failure to object constitute ineffective assistance of counsel. See State v. Madison, 53 Wn.App. 754, 763, 770 P.2d 662 (1989).
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335.
State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)); McFarland, 127 Wn.2d at 335-36.
Thompson fails to demonstrate either deficient performance or prejudice. The officer's statement was isolated and the prosecutor did not mention it in closing argument. Defense counsel could have reasonably concluded that an objection calling attention to the statement would have done more harm than good. And, given the strength of the State's case, the evidence that the area was a high crime area and the evidence that the incident occurred outside a center offering drug and alcohol services, there is no reasonable probability that the officer's single reference to drug trafficking affected the outcome of the trial.
Thompson also contends his counsel should have objected to testimony that the people he approached were smoking crack cocaine in a crack pipe and that he provided them with "an unknown type of narcotics in exchange for money." Thompson claims all of this testimony was "based on mere guess, speculation, or conjecture" and violated the requirement in ER 602 that testimony be based on personal knowledge. Again, we disagree.
The testimony was not mere speculation or conjecture. Rather, the officers drew reasonable inferences from their observations, training, and experience. Police officers may testify to inferences or opinions if they are based on specialized training or experience and are helpful to jury. State v. Sanders, 66 Wn.App. 380, 386, 832 P.2d 1326 (1992) (inference drawn by officer based on absence of drug paraphernalia was not objectionable since it was based on officer's training and experience in drug transactions); State v. Francisco, 148 Wn.App. 168, 177, 199 P.3d 478 (2009) (trial court properly admitted detective's testimony that, based on his experience, drugs are usually sold, not given away). Thompson nowhere addresses this basis for admitting the officers' testimony.
The testifying officers in this case had extensive training and experience with narcotics and narcotics transactions.
Even if portions of the officers' testimony asserted inferences as fact and were objectionable on that basis, defense counsel could have reasonably concluded that an objection was unnecessary and counterproductive since the witnesses could, and ultimately did, clarify that their conclusions were not fact, but rather were inferences based on their training and experience. Furthermore, to the extent the witnesses did not clarify the nature of their testimony, defense counsel could do so during cross-examination and closing argument. In fact, defense counsel pointed out during cross-examination and argument that officer Legaspi did not actually see narcotics but was instead inferring that fact from movements consistent with a narcotics transaction. There is no showing of deficient performance. Nor is there any reasonable probability that the outcome would have been different had counsel objected.
Affirmed.
The law does not permit me to comment on the evidence in any way, and I will not intentionally do that. By a comment on the evidence, I mean some expression or indication from me as to my opinion on the value of the evidence or the weight to be given to it.
If it appears to you that I do comment on the evidence, you are to disregard such apparent comment entirely.Similarly, the court's written instructions stated in part:
It would be improper for me to express, by words or conduct, my personal opinion about the value of testimony or other evidence. I have not intentionally done this. If it appeared to you that I have indicated my personal opinion in any way, either during trial or in giving these instructions, you must disregard this entirely.