FILED
February 4, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30892-8-111 Respondent, ) ) v. ) ) ROSE MARIE FAIRLEY, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. - Rose Fairley appeals her conviction of second degree burglary,
arguing that prosecutorial misconduct during closing argument denied her a fair trial.
The State concedes that the prosecutor's statement about which Ms. Fairley complains
was likely error but argues that the statement-to which no timely objection was made-
was not flagrant, ill-intentioned, or prejudicial.
The ill-considered statement by the prosecutor was curable had an objection been
made. We affmn.
FACTS AND PROCEDURAL BACKGROUND
Late one evening Colin Dunbar received a call notifying him that the burglar
alarm at the Spokane church where he served as pastor had been set off. Thinking a No. 30892-8-111 State v. Fairley
church member might have tripped the alarm, he drove to the church to investigate rather
than immediately call police. He went inside and called out several times, asking who
was there and offering help. Receiving no response, he went to the basement and again
loudly called out. After calling out approximately six times, he heard a sound that led
him to believe that someone, while not responding to him, was inside. At that point he
called the police.
Police arrived, including one officer with the K-9 unit who had a police dog with
him. From the main entry of the church, the officer announced his presence and warned
that if anyone inside did not come out, the dog would be sent in. After calling out twice
and receiving no response, the officer sent in the dog, which found Ms. Fairley and a
male companion in the basement. Both were arrested.
Ms. Fairley told the arresting officer that she was stranded from Walla Walla and
was looking for money to get back home. She and the man with her, whom she had met
at a bus stop, had been walking through the neighborhood when they came upon the
church. She had heard churches provide assistance to the needy and thought someone at
the church might help her. She tried the handle on a door on the side of the building and
found it unlocked, so she and her companion went inside, planning to stay in the
basement until someone arrived in the morning.
Ms. Fairley admitted that the burglar alarm had sounded after they entered and her
male companion had done something to the alarm box. Pastor Dunbar showed officers
No. 30892-8-111
State v. Fairley
that the alarm box and panel for the sprinkler system were damaged, wires were pulled
out, the circuit breaker panel had been opened, and some of the breakers had been
improperly turned off. It was later determined that $250 in damage had been done. Ms.
Fairley admitted that she did not have permission to be inside the building and she knew t J no one at the church.
I The State charged Ms. Fairley with second degree burglary. At trial, the
I prosecutor argued during closing that Ms. Fairley entered the church intending on "self
help" by committing theft, or at minimum, malicious mischief. Report of Proceedings
! (RP) at 93-95. In the course of arguing that the facts support a reasonable belief that her
intent was to commit theft, he told the jury:
Is it reasonable that she wanted to commit theft, they want to silence the alarm and continue on to do theft, get some money from the church[?] 1, as a representative ofthe State, say it is probably reasonable because she had so many opportunities to say, Okay, I am here; this is the reason I am here. Instead, she was hiding, because she knew that they got interrupted doing a burglary.
RP at 101 (emphasis added). Defense counsel did not object to the prosecutor's
argument. The jury found Ms. Fairley gUilty. She appeals.
ARGUMENT
The sole assignment of error on appeal is to the prosecutor's argument invoking
his status as "a representative of the State."
No. 30892-8-111 State v. Fairley
A fair trial is a fundamental liberty secured by the Sixth and Fourteenth
Amendments to the United States Constitution and article I, section 22 of the Washington
State Constitution. Estelle v. Williams, 425 U.S. 501, 503,96 S. Ct. 1691,48 L. Ed. 2d
126 (1976). Prosecutorial misconduct may deny a defendant's constitutional right to a
fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). It is grounds
for reversal if the prosecuting attorney's conduct was both improper and prejudicial in the
context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App.
713, 727, 77 P.3d 681 (2003). The defendant bears the burden of proving both. State v.
Emery, 174 Wn.2d 741,756,278 P.3d 653 (2012).
When defense counsel fails to object to alleged improper conduct it constitutes a
waiver of any prosecutorial misconduct unless the remark was so flagrant and ill
intentioned that no curative instruction would have obviated the prejudice it created.
State v. O'Donnell, 142 Wn. App. 314,328, 174 P.3d 1205 (2007). To prevail on appeal,
a defendant who did not object in the trial court must show that "(1) 'no curative
instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct
resulted in prejudice that'had a substantial likelihood of affecting the jury verdict.'"
Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 P.3d
43 (2011)).
"'A [flair trial certainly implies a trial in which the attorney representing the state
does not throw the prestige of his public office ... and the expression of his own belief of
No. 30892-8-III State v. Fairley
guilt into the scales against the accused.'" State v. Monday, 171 Wn.2d 667, 677, 257
P.3d 551 (2011) (alterations in original) (internal quotations marks omitted) (quoting
State v. Case, 49 Wn.2d 66, 71, 298 P.2d 500 (1956)). The State concedes that the
prosecutor's statement was "likely error." Br. ofResp't at 2. We would characterize it as .
"clearly error." The outcome on appeal turns on whether a timely objection and request
for instruction would have cured any prejudice.
Ms. Fairley asks us to conclude that a prosecutor's disregard of a well-established
rule is flagrant and ill-intentioned conduct per se, and that the rule against exploiting the
position of representative of the State during closing argument is a well-established rule.
Br. of Appellant at 7 (citing State v. Anderson, 153 Wn. App. 417, 433-34, 220 P.3d 1273
(2009) (Quinn-Brintnall, J., concurring in the result)). We agree that the rule against
exploiting the position of representative of the State is well established. But we will not
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FILED
February 4, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30892-8-111 Respondent, ) ) v. ) ) ROSE MARIE FAIRLEY, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. - Rose Fairley appeals her conviction of second degree burglary,
arguing that prosecutorial misconduct during closing argument denied her a fair trial.
The State concedes that the prosecutor's statement about which Ms. Fairley complains
was likely error but argues that the statement-to which no timely objection was made-
was not flagrant, ill-intentioned, or prejudicial.
The ill-considered statement by the prosecutor was curable had an objection been
made. We affmn.
FACTS AND PROCEDURAL BACKGROUND
Late one evening Colin Dunbar received a call notifying him that the burglar
alarm at the Spokane church where he served as pastor had been set off. Thinking a No. 30892-8-111 State v. Fairley
church member might have tripped the alarm, he drove to the church to investigate rather
than immediately call police. He went inside and called out several times, asking who
was there and offering help. Receiving no response, he went to the basement and again
loudly called out. After calling out approximately six times, he heard a sound that led
him to believe that someone, while not responding to him, was inside. At that point he
called the police.
Police arrived, including one officer with the K-9 unit who had a police dog with
him. From the main entry of the church, the officer announced his presence and warned
that if anyone inside did not come out, the dog would be sent in. After calling out twice
and receiving no response, the officer sent in the dog, which found Ms. Fairley and a
male companion in the basement. Both were arrested.
Ms. Fairley told the arresting officer that she was stranded from Walla Walla and
was looking for money to get back home. She and the man with her, whom she had met
at a bus stop, had been walking through the neighborhood when they came upon the
church. She had heard churches provide assistance to the needy and thought someone at
the church might help her. She tried the handle on a door on the side of the building and
found it unlocked, so she and her companion went inside, planning to stay in the
basement until someone arrived in the morning.
Ms. Fairley admitted that the burglar alarm had sounded after they entered and her
male companion had done something to the alarm box. Pastor Dunbar showed officers
No. 30892-8-111
State v. Fairley
that the alarm box and panel for the sprinkler system were damaged, wires were pulled
out, the circuit breaker panel had been opened, and some of the breakers had been
improperly turned off. It was later determined that $250 in damage had been done. Ms.
Fairley admitted that she did not have permission to be inside the building and she knew t J no one at the church.
I The State charged Ms. Fairley with second degree burglary. At trial, the
I prosecutor argued during closing that Ms. Fairley entered the church intending on "self
help" by committing theft, or at minimum, malicious mischief. Report of Proceedings
! (RP) at 93-95. In the course of arguing that the facts support a reasonable belief that her
intent was to commit theft, he told the jury:
Is it reasonable that she wanted to commit theft, they want to silence the alarm and continue on to do theft, get some money from the church[?] 1, as a representative ofthe State, say it is probably reasonable because she had so many opportunities to say, Okay, I am here; this is the reason I am here. Instead, she was hiding, because she knew that they got interrupted doing a burglary.
RP at 101 (emphasis added). Defense counsel did not object to the prosecutor's
argument. The jury found Ms. Fairley gUilty. She appeals.
ARGUMENT
The sole assignment of error on appeal is to the prosecutor's argument invoking
his status as "a representative of the State."
No. 30892-8-111 State v. Fairley
A fair trial is a fundamental liberty secured by the Sixth and Fourteenth
Amendments to the United States Constitution and article I, section 22 of the Washington
State Constitution. Estelle v. Williams, 425 U.S. 501, 503,96 S. Ct. 1691,48 L. Ed. 2d
126 (1976). Prosecutorial misconduct may deny a defendant's constitutional right to a
fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). It is grounds
for reversal if the prosecuting attorney's conduct was both improper and prejudicial in the
context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App.
713, 727, 77 P.3d 681 (2003). The defendant bears the burden of proving both. State v.
Emery, 174 Wn.2d 741,756,278 P.3d 653 (2012).
When defense counsel fails to object to alleged improper conduct it constitutes a
waiver of any prosecutorial misconduct unless the remark was so flagrant and ill
intentioned that no curative instruction would have obviated the prejudice it created.
State v. O'Donnell, 142 Wn. App. 314,328, 174 P.3d 1205 (2007). To prevail on appeal,
a defendant who did not object in the trial court must show that "(1) 'no curative
instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct
resulted in prejudice that'had a substantial likelihood of affecting the jury verdict.'"
Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 P.3d
43 (2011)).
"'A [flair trial certainly implies a trial in which the attorney representing the state
does not throw the prestige of his public office ... and the expression of his own belief of
No. 30892-8-III State v. Fairley
guilt into the scales against the accused.'" State v. Monday, 171 Wn.2d 667, 677, 257
P.3d 551 (2011) (alterations in original) (internal quotations marks omitted) (quoting
State v. Case, 49 Wn.2d 66, 71, 298 P.2d 500 (1956)). The State concedes that the
prosecutor's statement was "likely error." Br. ofResp't at 2. We would characterize it as .
"clearly error." The outcome on appeal turns on whether a timely objection and request
for instruction would have cured any prejudice.
Ms. Fairley asks us to conclude that a prosecutor's disregard of a well-established
rule is flagrant and ill-intentioned conduct per se, and that the rule against exploiting the
position of representative of the State during closing argument is a well-established rule.
Br. of Appellant at 7 (citing State v. Anderson, 153 Wn. App. 417, 433-34, 220 P.3d 1273
(2009) (Quinn-Brintnall, J., concurring in the result)). We agree that the rule against
exploiting the position of representative of the State is well established. But we will not
disregard the defendant's obligation to make a timely objection where prejudice can be
cured. If misconduct occurs, "the trial court must be promptly asked to correct it.
Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is
adverse, use the claimed misconduct as a life preserver on ... appeal." Jones v. Hogan,
56 Wn.2d 23,27,351 P.2d 153(1960).
Ms. Fairley argues, as she must, that prejudice from the prosecutor's statement
was incurable. We disagree. The statement was, frankly, odd. The interjection by the
prosecutor of his status came across as a nonsequitur; it was not persuasive. It has been
No.30892-8-II1 State v. Fairley
observed that the failure to make an objection or request a curative instruction in response
to argument by a prosecutor strongly suggests that the argument did not appear unduly
prejudicial to a defendant in the context of trial. E.g., State v. Swan, 114 Wn.2d 613, 661,
790 P.2d 610 (1990). We are satisfied that was the case here. No possible problem was
created by the statement that an objection, with or without a request for a curative
instruction, would not have cured. The prosecutor's statement was so clearly
objectionable yet so marginally effective that the defense probably made a strategic
judgment not to object.
Affirmed.
A majority of the panel has determined that 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.
Sidrloway, J.
WE CONCUR:
Korsmo, C.J.
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