D rout ? OF Al TEP, T : L S E) I %` IS?Cti.1II 2013 DEC 20 i 0: 37 S r— OF 1 rr ,
l Pdii BY D TY l
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43333 -8 -II I Consolidated with No. 43433 -4 -II)
Respondent,
V.
DAVID DOYLE FLYNN, UNPUBLISHED OPINION
HUNT, J. — David Doyle Flynn appeals his jury trial conviction for unlawful possession of
a controlled substance ( methamphetamine) with intent to deliver. He argues that the State
committed misconduct when it misstated the burden of proof in closing argument; he also
assigns error to the trial court' s overruling his objection to the State' s rebuttal argument and
denial of his request for a curative instruction. In a pro se statement of additional grounds for
review' ( SAG), Flynn also ( 1) contends that the trial court erred in denying his CrR 7. 8 motion
to dismiss his conviction, ( 2) challenges several of the trial court' s CrR 3. 6 suppression hearing
findings of fact and conclusions of law, and ( 3) contends that his trial counsel provided
ineffective assistance on several grounds. Flynn' s SAG issues do not merit relief. Agreeing that
the State committed prejudicial misconduct in closing argument, however, we reverse Flynn' s 1 RAP 10. 10. Consolidated Nos. 43333 -8 -II and 43433 -4 -II
conviction for unlawful possession of a controlled substance with intent to deliver and remand
for retrial.
FACTS
I. TRAFFIC STOP; DWLS ARREST; METHAMPHETAMINE
On October 13, 2011, Thurston County Deputy Sheriffs Carrie Nastansky and Ben M.
Elkins were on patrol when they were unable to read the license plate of an oncoming vehicle
driven by David Doyle Flynn. Nastansky turned the patrol car to follow Flynn. Failing to signal 100 feet before the turn, Flynn turned his vehicle into a driveway, got out, and started walking
toward the residence. Meanwhile, Nastansky had activated the patrol car' s lights and followed
Flynn into the driveway. Originally intending to cite Flynn for failure to signal,2 the deputies arrested him for driving with a suspended driver' s license ( DWLS).
Incident to his arrest, the deputies searched Flynn' s person and his vehicle. They found
drug related materials, including baggies containing a substance that field tested positive for 3 methamphetamine; 50 or more small, unused baggies; and a digital scale. After being advised
rights, Flynn told Elkins that the methamphetamine was for his personal use. Miranda4
of his
II. PROCEDURE
State Flynn possession of a controlled substance, The charged with unlawful
methamphetamine, with intent to deliver. Flynn pleaded not guilty.
a RCW 46. 61. 305( 2).
3 The record is not clear about which items the deputies found in which places.
4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
2 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
A. Suppression Hearing 5 Flynn moved to suppress the evidence found on his person and in his vehicle, arguing
that ( 1) the traffic stop was pretexual, ( 2) the search of his person was- not permissible under
6 3) the vehicle search was impermissible under Arizona v. Gant.7 Flynn' s motion did Terry, and (
not identify exactly what evidence he wanted the trial court to suppress or where the deputies had discovered if. The State responded that Flynn " had two baggies of methamphetamine, many
empty baggies used for packaging controlled substances, and scales on his person "; but it did not
identify the evidence the deputies had found during the vehicle search or other evidence found
during the search of Flynn' s person. Clerk' s Papers ( CP) at 24. Nastansky, Elkins, and Flynn
testified at this hearing.
1. Nastansky' s testimony
At the suppression hearing, Nastansky testified that she had been on patrol with Elkins,
her field training officer, " look[ ing] for traffic stops and anything else that [ came] to [ her]
attention," and running license plates to see if there was " any reason for [ her] to be able to stop
the vehicle," such as the vehicle' s having been reported stolen or an expired registration.
Verbatim Report of Proceedings ( VRP) ( Dec. 19, 2011) at 8, 10. She had turned the patrol car
around to follow Flynn because she had been unable to read his vehicle' s license plate. Flynn
5 Flynn also moved to suppress his statements to the deputies. The trial court denied this motion. On appeal, Flynn does not challenge the trial court' s admission of his statements.
6 Terry v. Ohio, 392 U.S. 1, 30 -31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
7 Arizona v. Gant, 556 U. S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 ( 2009).
3 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
then " quickly accelerated and.turned into a driveway" without first activating his turn signal until he was about 25 feet from the driveway.. VRP ( Dec. 19, 2011) at 10. Nastansky observed
Flynn' s turn signal flash twice before he turned. She turned on her emergency lights as she
followed Flynn into the driveway, intending to initiate a traffic stop for failure to signal 100 feet
before turning. But Flynn got out of his vehicle and started walking towards the residence.
Elkins " yelled" at Flynn, who returned to the passenger side of his vehicle and started to
Flynn for his license, registration, and insurance. Flynn, smoke a cigarette. Nastansky asked
that his driver' s license was suspended. VRP who was " very nervous and fidgety," responded
Dec. 19, 2011) at 14. After confirming that Flynn' s license was suspended and that there were
also outstanding warrants for his arrest, Nastansky arrested him for driving with a suspended license.
When Nastansky searched Flynn' s person incident to his arrest, she found ( 1) " a larger
baggie containing several small, about two- by- two- inch sizes of ... baggies," these baggies were
unused, VRP ( Dec. 19, 2011) at 15; and ( 2) " another larger baggie containing a crystallized
substance" that she recognized as methamphetamine, VRP ( Dec. 19, 2011) at 17. She further
testified that she did not find a scale " on his person." VRP (Dec. 19, 2011) at 17.
2. Elkins' testimony
Elkins also testified that Flynn had failed to signal within 100 feet of his turn into the
driveway. VRP ( Dec. 19, 2011) at 40. Elkins similarly described the evidence that Nastankky
had found on Flynn' s person: ( 1) "[ a] few grams" of what was later determined to be
methamphetamine, and ( 2) small baggies commonly used to package methamphetamine " for sale
or use." VRP ( Dec. 19, 2011) at 45. Elkins also testified that he searched Flynn' s vehicle,
0 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
apparently incident to arrest; but he was not asked and did not mention what items he found in the vehicle. Similarly, Elkins did not mention where he had found the scale because neither counsel asked about it.
3. Flynn' s testimony
Flynn testified that immediately before his arrest, he had been driving around to find
some tires a friend had seen for sale on the side of the road and had pulled into the driveway to
ask about the tires. Flynn had seen the patrol car pass him and then turn around, at which point
he had been about to turn into the driveway. He could not recall "[ e] xactly when" he signaled
before turning into the driveway, but he stated that the signal " blinked a couple of times" before
he started to slow down for the turn. VRP ( Dec. 19, 2011) at 74. Flynn denied having seen the
patrol car' s flashing lights until he was out of his vehicle " just starting [ his] conversation with
the lady of the residence." VRP ( Dec. 19, 2011) at 74.
Flynn asserted that when he asked the deputies why they had pulled in behind him, they
did not mention his failure to signal; nor did they ticket him for failing to signal. He also
asserted that he was away from his vehicle with no access to it when the deputies approached him and that he did not consent to their searching his vehicle. Flynn admitted that he did not
have a valid driver' s license at the time of the stop,, that he had nine prior convictions for driving
without a license, and that he had two outstanding arrest warrants at the time of the stop. Flynn
also admitted that the officers had found drugs and the empty bags found on his person.
4. Argument and ruling
Flynn argued that the vehicle stop was improper, that it was a " fishing expedition" and a
pretexual stop, and that the trial court should suppress his statements and the evidence seized
E Consolidated Nos. 43333 -8 -II and 43433 -4 -11
from both his person and his vehicle. VRP ( Dec. 19, 2011) at 106. The State conceded that the
vehicle search was not lawful and, therefore, that any evidence seized from the vehicle was not
admissible. But the State argued that the stop was lawful to enforce traffic laws, that the search
of Flynn' s person was lawful incident to his arrest for DWLS, that the evidence seized from
Flynn' s person was admissible, and that his statements were voluntary and also admissible.
Neither party specifically identified for purposes of the suppression hearing what
evidence had been seized from Flynn' s person. The trial court orally suppressed the evidence
from the vehicle search, and ruled admissible the evidence from the personal search and Flynn' s
8; statements it noted that " discovery of [ the] drugs" was admissible, without mentioning any
other specific evidence. VRP ( Dec 19, 2011) at 119. One of the trial court' s later written
findings, however, stated that Nastansky had found the baggie containing the smaller baggies
and another bag " which contained methamphetamine" on Flynn' s person. CP at 44 ( Finding of
Fact ( FF) 1. 12).
B. Trial
At trial, Nastansky testified that after she and Elkins arrested Flynn, she searched Flynn
and found ( 1) a larger baggie containing 50 to 100 smaller, two -inch by two -inch plastic baggies;
2) two baggies of what appeared to be " residue powder "; ( 3) a glass pipe with " residue on it ";
8 The trial court did not mention the scale in the suppression order' s findings or conclusions of law. In light of Nastansky' s suppression hearing testimony that she did not find a scale on Flynn' s person, however, we infer that it must have appeared to the trial court that the scale was among the items seized from Flynn' s truck and, therefore, suppressed along with the other items from the truck.
n Consolidated Nos. 43333 -8 -II and 43433 -4 -II
and ( 4) a digital scale with " residue" on it. VRP ( Jan. 9, 2012) at 34, 36, 37. She also testified
Flynn had that he was carrying drugs. Flynn did not object to that during the search admitted
this testimony.
On cross -examination, Flynn attempted to impeach Nastansky with her contrary
suppression hearing testimony that she did not find the digital scale on Flynn' s person.
Acknowledging this previous contrary testimony, Nastansky responded that when she later read 9 her report, she realized she had found the digital scale on Flynn' s person. Nastansky further
testified, however, that she did not recall finding any cash, notes, or a cellular telephone on Flynn
when she searched him.
Elkins similarly testified that when Nastansky searched Flynn, she had found: ( 1)
several [ small, unused] plastic bag[ gie] s "; ( 2) three baggies " that had a little bit of residue with
them that [ was] consistent with methamphetamine"; ( 3) two more baggies containing " a shard
crystal substance" that field tested positive for amphetamines; and ( 4) a digital scale. VRP ( Jan.
9, 2012) at 78, 79. Elkins also testified that Flynn told him that the drugs were for his " personal
use." VRP ( Jan. 9, 2012) at 82. Elkins further stated that the items they found on Flynn' s person
were " consistent with the distribution of that product." VRP ( Jan. 9, 2012) at 82.
9 The State attached a copy of Nastansky' s October 13, 2011 incident report to its response to Flynn' s CrR 7. 8 motion. In that report, Nastansky states that she found the digital scale in the same pocket in which she found the two baggies containing a substance that later tested positive for methamphetamine.
7 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
On cross -examination, Elkins admitted that he had not mentioned the digital scale during
the previous hearing when counsel asked what items he had observed Nastansky find when she searched Flynn. Elkins explained, however, that no one had specifically asked him about the
digital scale. Elkins conceded, however, that drug users, as well as distributors, may also carry
scales.
3. Other testimony
The State' s forensic specialist testified that the substance found in the baggies and on the
scale was methamphetamine. Flynn called no witnesses.
4. Jury instructions
The trial court instructed the jury on unlawful possession of a controlled substance with
intent to deliver and, at Flynn' s request, the lesser included offense of simple unlawful
possession of a controlled substance. The trial court also instructed the jurors that it was their
to apply the law stated in the instructions and that they " must disregard any duty as court' s
remark, statement, or argument that is not supported by the evidence or the law in [ the court' s]
instructions. CP at 53 ( Jury Instruction 1).
The trial court instructed the jury about the State' s burden of proof and the reasonable
doubt standard as follows:
The defendant has entered a plea of not guilty. That plea puts in issue every element of each crime charged. The State is the plaintiff and has the burden ofproving each element of the crime beyond a reasonable doubt. The defendant
has no burden ofproving that a reasonable doubt exists as to these elements. A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a Consolidated Nos. 43333 -8 -II and 43433 -4 -II
reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If,from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
CP at 56 ( Jury Instruction 3) ( emphasis added). The trial court did not, however, instruct the jury
about the meaning of the phrase " abiding belief. "10 See CP at 56.
5. Closing arguments; verdict
In its closing argument, the State reiterated that it had the burden to prove every element
of the charged crime beyond a reasonable doubt. But it also repeatedly argued that there was no
evidence contradicting certain evidence. The State contended that the core issue was whether
there was evidence that Flynn intended to deliver the drugs. In particular, the State argued that
the scale and the unused baggies proved that Flynn possessed the drugs with intent to deliver.
The State further argued that Flynn had not presented any explanation for carrying the
baggies on his person other than the intent to deliver that their sheer number suggested:
So you' re being given a couple red herrings and I' d ask you to be very careful about following those red herrings, because the Defense —this evidence was found on his person. It was found on him. They have to have some way to explain —some out, some way to argue to you reasonable doubt. And I submit
that they' re doing that by trying to paint the officers as being inconsistent or making trying to point to evidence that isn' t there. But it isn' t mistakes, or
necessary. The bottom line is that Mr. Flynn had these things on his possession, on his person.There' s no indication that they were anybody else' s but his. There' s indication that he' s a meth user, but the big thing is these baggies. There' s a lot of them. They' re ready to be filled, and there' s no explanation why
you would have these ifyou weren' t going to deliver.
VRP ( Jan. 10, 2012) at 137 -38 ( emphasis added). Flynn did not object at this time.
io The parties' proposed instructions, if any, are not part of the record on appeal. Thus, we do not know whether either party asked the trial court to define " abiding belief' for the jury. Consolidated Nos. 43333 -8 -II and 43433 -4 -II
Instead, in his closing argument, Flynn challenged the State' s " red herring" 11 argument as
an attempt to shift the burden of proof to him:
Ladies and gentlemen, just because something smells fishy doesn' t make it a red herring. There are all kinds of things that smell. Red herrings are only one of them. And in this case, there is more than one explanation. And, you
know, the prosecutor was suggesting to you that the Defense has to explain something, trying to shift the burden over to our side, to explain and make up for some things that they couldn' t explain.
VRP (Jan. 10, 2012) at 139 ( emphasis added).
Flynn argued in closing that although the jury could convict him of the lesser included
offense of possession, the State had failed to show that he possessed the drugs with intent to
deliver and, therefore, the jury should acquit him of that charge. In support of convicting him of
only the lesser included possession offense, Flynn focused on the deputies' previous inconsistent
testimonies about whether they had found a digital scale on his person; and he argued that a drug
user may also carry scales and packaging for reasons not related to distribution, such as personal
use.
In rebuttal, the State denied attempting to shift the burden of proof to Flynn, reiterating
that it was required to prove each element of the offense beyond a reasonable doubt.
Nevertheless, the State again highlighted Flynn' s failure to provide an explanation for the empty
baggies found on his person:
There is still no reasonable explanation for these baggies. And this is the
smoking gun in this case. The Defense can explain away a lot of things, but there' s still no reasonable explanation why a [ drug] user would have these
baggies. And I would ask you to consider this evidence with a lot of importance. There' s no explanation. There' s no reasonable doubt.
11 VRP ( Jan. 10, 2012) at 137.
10 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
You have a jury instruction, which I don' t know that it' s extremely helpful, but it talks about reasonable doubt. [ Defense counsel] used a phrase, not the definition of reasonable doubt. A beyond a moral certainty," but that' s
reasonable doubt, according to jury instruction number three, is one for which a reason exists and may arise from the evidence or lack of evidence. It' s such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you' re satisfied beyond a reasonable doubt.
It doesn' t say anything about moral certainty. It does talk about an
abiding belief in the truth of the charge. And that' s tough language. That' s
abiding belief. What' s an abiding belief? I sometimes hear from a jury, well, we think you it did —this is after an acquittal. We think he did it; we just don' t think there is enough proof beyond a reasonable doubt. I submit to you, ifyou think he did it, that' s an abiding belief in the truth of the charge.
VRP ( Jan. 10, 2012) at 151 -52 ( emphasis added).
At this point, Flynn objected, arguing that the State had " misstate[ d] the jury instruction"
and " the law in the state of Washington" and that it was also attempting to shift the burden of
proof to the defense. VRP ( Jan. 10, 2012) at 152. Flynn asked the trial court to give a curative
instruction. The trial court responded:
I guess what I heard is [ the State] reading from the instruction on reasonable doubt, and I would ask the jury to look at that instruction when you attempt to understand the burden of proof in this case. In terms of shifting the burden here, I' ve heard a lot of argument. 1
haven' t heard anything from the State that asks the jury to shift the burden to the Defense. So I'm going to overrule the objection to that.
VRP ( Jan. 10, 2012) at 152 -53 ( emphasis added). The State continued its rebuttal as follows:
So ifyou have, an abiding belief in the truth of the charge, that means that you believe that he did it. You' ve heard all of the evidence, and after hearing all the evidence, if it' s your belief that he did this, you' ve got an abiding belief in the truth of the charge, the charge being possession with intent to deliver. If you believe, having heard the evidence, that you think he was planning to deliver this methamphetamine based on those baggies and the other evidence
11 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
and testimony, I' d ask you to come back with a verdict of guilty on the original charge, which is possession with intent to deliver. Thank you.
VRP (Jan. 10, 2012) at 153 ( emphasis added).
The jury found Flynn guilty of unlawful possession of a controlled substance with intent to deliver.
6. CrR 7. 8 motion
Pro se, Flynn filed a CrR 7. 8 motion to vacate his conviction on grounds of fraud,
misrepresentation, or misconduct of an adverse party based on the deputies' testimonies differing
between the suppression hearing and the trial. The trial court denied the motion. Flynn appeals
his conviction and the trial court' s denial of his CrR 7. 8 motion, which we have consolidated.
ANALYSIS
I. PROSECUTORIAL MISCONDUCT
Flynn argues that the State misstated the law and " minimized" the burden of proof when
it argued in closing that if the jury merely thought Flynn was guilty, that was an " abiding belief
in the truth of the charge." Br. of Appellant at 13. He further argues that this error was " further
exacerbated by the court' s somewhat cavalier response that implie[ d] that what the prosecutor argued is what the jury instruction says or means." Br. of Appellant at 13. We hold that the
created reversible prejudicial error: ( 1) the State' s scant evidence of following circumstances
intent to deliver; ( 2) the trial court' s overruling Flynn' s objection to the State' s closing argument
misstatement of reasonable doubt and attempt to shift the burden of proof (by asserting that the
defense had failed to provide " a reasonable explanation why a [ drug] user would have these
12 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
12; baggies ") and ( 3) closing argument as a whole, including Flynn' s objection and the trial
court' s response. Accordingly, we reverse Flynn' s conviction for possession of
methamphetamine with intent to deliver.
A. Standard of Review
A prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that
an accused receives a fair trial. See State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 ( 1968),
cent. denied, 393 U. S. 1096 ( 1969); State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899
2005). To prevail on a claim of prosecutorial misconduct, Flynn 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. Magers, 164 Wn.2d 174, 191, 189 P. 3d 126 ( 2008) ( quoting
State v. Hughes, 118 Wn. App. 713, 727, 77 P. 3d 681 ( 2003), review denied, 151 Wn.2d 1039
2004)). Flynn must demonstrate prejudice by proving that "` there is a substantial likelihood
that] the instances of misconduct affected the jury' s verdict. "' Magers, 164 Wn.2d at 191
alteration in original) ( quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P. 2d 245 ( 1995), cent.
denied, 518 U. S. 1026 ( 1996)).
A prosecutor' s argument misstating, minimizing, or " trivialize[ ing]" the law regarding
the burden of proof can be improper. See State v. Johnson, 158 Wn. App. 677, 685, 243 P. 3d
936 ( 2010), review denied, 171 Wn.2d 1013 ( 2011). But we review a prosecutor' s allegedly
improper remarks during closing argument " within the context of the prosecutor' s entire
argument, the issues in the case, the evidence discussed in the argument, and the jury
12 VRP (Jan. 10, 2012) at 151.
13 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
instructions." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003) ( citing State v. Brown,
132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997), cert. denied, 523 U. S. 1007 ( 1998)). We review for
an abuse of discretion a trial court' s ruling on alleged prosecutorial misconduct during closing
argument. State v. Stenson, 132 Wn.2d 668, 718, 940 P. 2d 1239 ( 1997), cert. denied, 523 U.S.
1008 ( 1998).
B. Misstatement of Law
Flynn argues that the State' s rebuttal argument misstated the law, in particular the
prosecutor' s misstating the reasonable doubt standard by explaining " an abiding belief in the
truth of the charge" as " if you think he did it, that' s an abiding belief in the truth of the charge."
VRP ( Jan. 10, 2012) at 151, 152. We agree with Flynn that the State' s analogizing an " abiding
belief' to merely " think[ ing]" the defendant is guilty is a serious misstatement of the law, VRP
Jan. 10, 2012) at 152, in that a person can " think" a defendant is guilty yet also understand that
the State has failed to prove all elements of the charged crime beyond a reasonable doubt.
Flynn also asserts that " the prosecutor' s misconduct minimized the State' s burden of
proof and in the process ensured that Flynn did not receive a fair trial." Br. of Appellant at 15.
But he fails to develop this argument like he did for his reasonable doubt misstatement argument.
We note, however, as defense counsel argued below in objecting to the State' s rebuttal argument,
that the prosecutor improperly shifted the burden of proof when he underscored to the jury that
Flynn had failed to offer an innocent explanation for his possession of so many baggies, which
the prosecutor further argued, therefore, proved Flynn' s intent to deliver beyond a reasonable
doubt.
14 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
C. Prejudice
We next address whether the prosecutor' s misstatements of the law were so prejudicial in
the context of the whole trial as to create a substantial likelihood that they affected the jury' s
verdict. Flynn contends that the prosecutor' s misstatements were exacerbated by the trial court' s
dismissive comments in overruling his objection and by its refusal to give the jury a curative
instruction. We agree.
Although Flynn admitted that he had drugs and baggies on his person, he never similarly
admitted any intent to deliver. Moreover, the State' s only evidence of intent to deliver was
circumstantial at best, limited to Flynn' s possession of multiple smaller, unused baggies and the
digital scale, about which the deputies had presented inconsistent testimonies, including an initial
denial that it had been found on Flynn' s person; and the officer who searched Flynn incident to
his arrest had found no other indicators of intent to sell drugs such as cash, notes, or cellular
telephone. This relative weakness of evidence of intent to deliver amplified the prejudice created
by the prosecutor' s misstatements of the law, in particular his ( 1) misstatement of what it takes
for a jury to have a reasonable doubt, and ( 2) repeatedly emphasizing that Flynn had failed to
offer evidence explaining certain evidence, such as possessing the baggies, a burden that the law
did not place on Flynn. See State v. Deer, 175 Wn.2d 725, 733, 287 P. 3d 539 ( 2012) ( " The
defendant bears no burden to disprove the elements of a crime. "), cert. denied, 133 S. Ct. 991
2013).
Other trial circumstances further amplified this prejudice. Although the trial court
instructed and the parties repeated that the State was required to prove each element beyond a
reasonable doubt, the State nevertheless strongly argued to the jury that they need only " think"
15 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
that Flynn was guilty in order to meet this required standard of proof. The trial court could have
cured these misstatements of the law with the cautionary instruction that Flynn requested, but it
did not do so. On the contrary, the trial court' s remarks while overruling Flynn' s objection
inadvertently suggested to the jury that the State' s arguments had been correct statements of the
law, when actually they had not.
We acknowledge the well - settled presumption that the jury followed the trial court' s
instructions, including the standard instruction given here that the jury should not take counsel' s
argument as statements of the law but rather should rely on the trial court' s written instruction.
State v. Russell, 125 Wn.2d 24, 84 -85, 882 P. 2d 747 ( 1994) ( citing State v. Swan, 114 Wn.2d
613, 661 -62, 790 P. 2d 610 ( 1990), cent. denied, 498 U. S. 1046 ( 1991)), cent. denied, 514 U.S.
1129 ( 1995). But here, the cumulative effect of the following circumstances created a substantial
likelihood that the prosecutorial misconduct affected the jury' s finding Flynn guilty of unlawful
possession of a controlled substance with intent to deliver, despite the trial court' s later proper
instructions: ( 1) the scant evidence of intent to deliver, ( 2) the prosecutor' s misstatements of the
law in closing argument, and ( 3) the trial court' s refusal to correct these misstatements and its
comments that it saw nothing wrong with the prosecutor' s characterization of the burden and 13 standard of proof. Therefore, we reverse Flynn' s conviction for possession with intent to
distribute.
13 If we presume that the jury followed the trial court' s instructions on the law, then it is reasonable to conclude that the jury also likely followed the trial court' s ratified version of the law presented by the prosecutor on these critical burden and standard of proof points.
16 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
ISSUES14
II. SAG
Flynn challenges the trial court' s CrR 3. 6 ruling, arguing that substantial evidence does
not support its findings of fact 1. 4, 1. 5, and 1. 14 and that the findings do not support conclusions
of law CL 2. 2, 2. 3, 2. 6, and 2. 8. We disagree.
We review a trial court' s denial of a CrR 3. 6 suppression motion to determine whether
substantial evidence supports the trial court' s challenged findings of fact and, if so, whether the
findings support the trial court' s conclusions of law." State v. Cole, 122 Wn. App. 319, 322 -23,
93 P. 3d 209 ( 2004). Substantial evidence is evidence in sufficient quantity to persuade a fair -
minded person of the truth of the finding. State v. Barnes, 158 Wn. App. 602, 609, 243 P. 3d 165
2010). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,
and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970
2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 ( 2004).
Flynn challenges the following CrR 3. 6 findings of fact:
1. 4 After turning around to catch up to the vehicle, Deputy Nastansk[ y] observed the vehicle accelerate, then turn into a private driveway. The vehicle' s
turn signal was not activated 100 feet prior to making the turn, and only blinked twice before turning;
14 Because we reverse Flynn' s conviction based on prosecutorial misconduct in closing argument, we need not address his SAG claim that the trial court erred in denying his CrR 7. 8 motion to vacate based on other alleged prosecutorial misconduct in offering the digital scale into evidence at trial. Similarly, we need not address his other SAG claim that trial counsel rendered ineffective assistance in refusing to investigate or to obtain evidence Flynn had discussed with him, failing to interview witnesses, and failing to object to admission of the scale into evidence.
17 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
1. 5 Deputy Nastansk[ y] activated her emergency lights prior to the driver exiting the vehicle;
1. 14 Neither Deputy Nastansky [ n] or Deputy Elkins was familiar with the defendant, or had any reason to suspect that he was engaged in criminal activity other than the traffic violation for failing to signal 100 feet prior to turning.
CP at 44. Nastansky' s and Elkins' suppression hearing testimonies support each of these
findings: Nastansky testified that ( 1) after she turned her patrol car around, Flynn accelerated
and turned into a driveway after activating his turn signal approximately 25 feet before the turn;
2) she activated her emergency lights just as Flynn was getting out of his car; and ( 3) she knew
nothing about Flynn when she and Elkins stopped him, which testimony Elkins corroborated.
Furthermore, there was no evidence that, at the time of the traffic stop, either deputy suspected
Flynn of any criminal activity, other than his failure to signal properly. That Flynn' s suppression
hearing testimony differed to some degree ( on the factual issue of where the digital scale was
found) does not undermine the trial court' s findings of fact about the officers' reasons for the
leave credibility determinations to the trial See Thomas, 150 stop because we witness court.
Wn.2d at 874 -75.
Flynn also challenges four of the trial court' s conclusions of law. First, he challenges
conclusion of law 2. 2: " Deputy Nastan[ s] ky had reasonable suspicion to stop the defendant for
violating RCW 46. 61. 305." CP at 45. RCW 46. 61. 305( 2) provides:
A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.
Finding of fact 1. 4 —that Nastansky observed Flynn failed to signal at least 100 feet before the
turn— supports this conclusion of law.
18 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
Second, Flynn challenges conclusion of law 2. 3: " The defendant was required to stop, to
himself his current address, pursuant to RCW 46. 61. 021." CP at 45. RCW identify and give
46. 61. 021 ( 1) provides, " Any person requested or signaled to stop by a law enforcement officer
for a traffic infraction has a duty to stop "; and RCW 46. 61. 021( 3) provides that anyone an officer
stops to investigate for a traffic infraction " has a duty to identify himself or herself and give his
or her current address" if the officer requests such information. The findings of fact, especially
finding of fact 1. 14, establish that the deputies stopped Flynn for a traffic infraction; thus, the
law required Flynn to stop and to provide his address and identification.
Third and fourth, Flynn challenges conclusion of law 2. 6, " The deputies' search of the
defendant' s person was a valid search incident to arrest "; and conclusion of law 2. 8, " Deputy
traffic stop of the defendant was not a pretext stop." CP at 45. Flynn contends that Nastansky' s
because the officers admitted that they were looking for reasons to pull over vehicles, their
stopping his vehicle was pretextual and the resulting search incident to arrest was therefore not
valid. Neither the law nor the facts support this contention. An illegal pretextual stop is one
made to " accomplish an impermissible ulterior motive." State v. Ladson, 138 Wn.2d 343, 354,
355 -56, 979 P. 2d 833 ( 1999). An officer can, however, conduct an investigative stop " if the
arresting officer can attest to specific and objective facts that provide a reasonable suspicion that
the person stopped has committed or is about to commit a crime, "15 based on what the officer
knew at the start of the stop. State v. Lee, 147 Wn. App. 912, 917, 199 P. 3d 445 ( 2008), review
denied, 166 Wn. 2d 1016 ( 2009). Here, the findings support the trial court' s conclusions that the
is State v. Hopkins, 128 Wn. App. 855, 862, 117 P. 3d 377 ( 2005).
19 Consolidated Nos. 43333 -8 -II and 43433 -4 -II
16 deputies lawfully stopped Flynn for a traffic infraction and then lawfully arrested him for
driving without a valid driver' s license.
We reverse the unlawful possession of a controlled substance with intent to deliver
conviction and remand for retrial.
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 in accordance with RCW
2. 06. 040, it is so ordered. 7
AY a'
Hunt, J.
16 That the deputies were on routine patrol, running vehicle plates, and " looking for any reason to pull a vehicle over," did not make this stop unlawful under the circumstances here. SAG at 6.