State v. Jackson

150 Wash. App. 877
Court of Appeals of Washington·Decided June 23, 2009·No. No. 37585-1-II·Published·Cited by 95 cases

Opinion

Quinn-Brintnall, J.

¶1 Elijah Jackson appeals his convictions and sentence for felony driving while under the influence (DUI), first degree driving while license suspended, and obstructing a law enforcement officer. He argues that the prosecutor committed misconduct and his sentence is erroneous for various reasons. We accept the State’s concession that no evidence supported the sentencing court’s findings that Jackson was on community custody when he committed the current offenses or that he committed six prior offenses. We affirm Jackson’s conviction, vacate his sentence, and remand for resentencing.

[882] FACTS

¶2 On November 29, 2007, Washington State Patrol Trooper Allen Nelson stopped a car for erratic driving. Nelson later testified that Jackson drove the car, was intoxicated, and acted violently toward Nelson and another officer. At trial, however, Jackson’s girl friend, Rose Greene, testified that she drove the car and Jackson was merely sitting in the driver’s seat after she had pulled over to vomit. Nelson arrested Jackson, and two other officers later testified that he appeared intoxicated when he was in jail.

¶3 The State charged Jackson with DUI (count I), first degree driving while license suspended (count II), and obstructing a law enforcement officer (count III). The jury found Jackson guilty on all counts. The sentencing court concluded that Jackson’s offender score was eight and imposed the maximum term of 60 months of confinement.

¶4 Jackson appeals.

ANALYSIS

Prosecutorial Misconduct

¶5 Jackson first argues that the prosecutor committed misconduct during closing arguments by (1) vouching for witnesses’ credibility, (2) shifting the burden of proof to the defense, (3) commenting on Jackson’s invocation of his right to not testify, (4) asking the jury to convict unless it found the State’s witness committed perjury, and (5) expressing a personal opinion about the veracity of Greene’s testimony. He also argues that the cumulative effect of these errors prejudiced his right to a fair trial. We disagree.

¶6 In order to establish prosecutorial misconduct, a defendant must prove that the prosecutor’s conduct was improper and that it prejudiced his right to a fair trial. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 [883] (2003)). A defendant can establish prejudice only if there is a substantial likelihood that the misconduct affected the jury’s verdict. Carver, 122 Wn. App. at 306 (quoting Dhaliwal, 150 Wn.2d at 578). We review a prosecutor’s comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Carver, 122 Wn. App. at 306 (citing Dhaliwal, 150 Wn.2d at 578). If defense counsel fails to object to the prosecutor’s statements, then reversal is required only if the misconduct was so flagrant and ill intentioned that no instruction could have cured the resulting prejudice.1 State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988).

A. Vouching

¶7 Jackson argues that the prosecutor committed misconduct by improperly vouching for the veracity of police officers’ testimony. It is improper for a prosecutor to personally vouch for a witness’s credibility. See State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). “Prosecutors may, however, argue an inference from the evidence,” and this court will not find prejudicial error “unless it is ‘clear and unmistakable’ that counsel is expressing a personal opinion.” Brett, 126 Wn.2d at 175 (quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)).

¶8 Here, it was a key jury question whether to believe the police officers, who testified that the events they witnessed led them to believe that Jackson drove the car, or [884] to believe Greene, who testified that she drove the car. The prosecutor’s relevant closing argument follows:

The first thing that I want to address regarding this evidence is credibility. It is one of the first instructions that the judge has provided you in your packet. It is your duty as members of the jury to determine the credibility of each witness. Some of the things that you [’re] asked to consider are for example the quality of the witness’s memory while testifying; the manner of the witness while testifying; any personal interests that the witness might have in the outcome or the issues; or any bias or prejudice that a witness might have.
Let’s think about that for just a moment. In the State’s case you heard testimony from [four] law enforcement officers. These are officers, who have been trained, extensively, every single one of them had considerable experience.
One of the things that they are trained to do is observe and to report those observations accurately. Every single one of them did so and every single one of them corroborated the other’s testimony. There were not any inconsistencies there.

Report of Proceedings (RP) (Mar. 13, 2008) at 39-40 (emphasis added). The prosecutor then detailed the trial evidence and concluded:

[Office again, when you go back into that jury room think about everything that you heard over the last day and a half, and think about what makes sense to you. Four officers all very accurate with the same testimony, all corroborate one another. Yes, only one of them actually saw the vehicle in motion. Does that make a difference though? No. Because his testimony was accurate and true.

RP (Mar. 13, 2008) at 48 (emphasis added).

f 9 In the argument above, the prosecutor did not vouch for the police officers’ credibility. We look at the entire argument instead of, as Jackson suggests, viewing the highlighted snippets of argument out of context. Carver, 122 Wn. App. at 306 (citing Dhaliwal, 150 Wn.2d at 578). In context, the prosecutor reminded the jury that it is the sole judge of credibility. He then outlined which evidence (and [885] reasonable inferences from the evidence) could support the jury’s conclusion that the officers were credible and Jackson’s witness was not. This is not vouching. See Brett, 126 Wn.2d at 175. Moreover, the argument, to which Jackson did not object, is certainly not flagrant and ill-intentioned misconduct. See Belgarde, 110 Wn.2d at 508.

B. Burden of Proof

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State v. Jackson, 150 Wash. App. 877 (Wash. Ct. App. 2009).

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