State v. Jones

183 P.3d 307
Court of Appeals of Washington·Decided April 29, 2008·No. 34471-8-II·Published·Cited by 12 cases

Opinion

183 P.3d 307 (2008)

STATE of Washington, Respondent,
v.
Richard Maurice JONES, Jr. aka Rickey Maurice Jones, Appellant.

No. 34471-8-II.

Court of Appeals of Washington, Division 2.

April 29, 2008.

*309 Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

*310 George Oscar Darkenwald, Edward Gene Holm, Attorney at Law, Thurston County Prosecuting Attorney, Olympia, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 Based on a confidential informant's (CI) tip, the Thurston County Narcotics Task Force set up a controlled buy targeting Richard Jones. Jones approached the CI, who was waiting in his car, and gave him a small bag of cocaine in exchange for money. The CI then met the Task Force officers and immediately handed them the small bag of cocaine. Thereafter, the State charged Jones with one count of unlawful delivery of a controlled substance. At trial, neither the CI nor Jones testified. But the State played for the jury a body wire recording and a video tape recording of the drug buy. The State also provided the jury with a transcript of the body wire recording. The jury found Jones guilty as charged. He appeals, arguing (1) prosecutorial misconduct, (2) insufficient evidence, and (3) that the CI was not credible. We hold that the prosecutor's repeated misconduct cumulatively deprived Jones of a fair trial and accordingly reverse and remand for retrial.

FACTS

Background

¶ 2 Based on a tip from a CI, the Task Force set up a controlled drug buy targeting Jones. Officer Dale Elliott described the drug buy:

The plan this day was to give [the CI] $850. We were going to equip him with a body wire or recording device. Then we were going to set him near the barber shop where he was working. And he would make a phone call to Mr. Jones, and the arrangement would be made to purchase the narcotics. He would wait, and Mr. Jones was hopefully going to show up and make a purchase.

Report of Proceedings (RP) (Feb. 21, 2006) at 32.

¶ 3 Before the drug buy, Officer Elliott thoroughly searched the CI for drugs, finding none. And Officer Adam Seig thoroughly searched the CI's car for drugs, again finding none. The officers equipped the CI with a body wire and then gave him the buy money. From a nearby location, Officer Mike Aalbers recorded the events with a video camera.

¶ 4 The CI drove his car to the barber shop and parked it in the parking lot. Before Jones arrived, a man approached the CI's car and asked him for a haircut. The CI told the man that he was busy.

¶ 5 Officers Elliott and Seig observed the CI and the man during this conversation. Despite the unanticipated contact with someone other than Jones, they continued with the scheduled drug buy. Elliott and Seig testified that they continued with the buy because the man who had asked for a haircut did not lean into the CI's car window, exchange anything with the CI, or put anything into the CI's car. Neither Elliott nor Seig searched the CI or the car after the unanticipated contact with the man who had asked for a haircut.

¶ 6 Thereafter, the CI called Jones and arranged to meet at another location. The CI told Officer Elliott that he was going to drive about a block to another parking lot. Elliott and Seig followed the CI, both observing that he made no contact with anyone else.

¶ 7 After the CI parked his car in the parking lot, a car approached him. Jones exited his car and entered the CI's car. Officer Elliott testified, "Both people were bent down in conversation. I could see an exchange. I couldn't see what was exchanged, but I could see an exchange." RP (Feb. 21, 2006) at 45.

¶ 8 After the exchange, the CI drove his car back to the original parking lot. Again, Officers Elliott and Seig followed him, both observing that he made no contact with anyone else. When the CI exited his car, he immediately handed Elliott a small bag of cocaine.[1] Seig then searched the CI's car for drugs and found none.

*311 Procedure

¶ 9 The State charged Jones with one count of unlawful delivery of cocaine, a controlled substance. At trial, neither the CI nor Jones testified. Officers Elliott and Seig testified as set out above, and the State played for the jury the body wire recording and the video tape recording of the purported drug buy. The State also provided the jurors with copies of the body wire recording transcript.

¶ 10 The jury found Jones guilty as charged. By special verdict, the jury found that Jones had unlawfully delivered a controlled substance within 1,000 feet of a school bus route stop. Based on Jones's offender score of five, the trial court sentenced him to 60 months of confinement. Jones appeals.

ANALYSIS

Prosecutorial Misconduct

¶ 11 Jones asks us to review whether numerous cumulative errors deprived him of his right to a fair trial. Every prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that an accused receives a fair trial. State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969); State v. Boehning, 127 Wash.App. 511, 518, 111 P.3d 899 (2005). We hold that the prosecutor's conduct in this case violated that duty and deprived Jones of his right to a fair trial.

¶ 12 In order to establish that he is entitled to a new trial due to prosecutorial misconduct, Jones must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. Boehning, 127 Wash. App. at 518, 111 P.3d 899. Prejudice is established where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003) (quoting State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)). But a defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so "`flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied." Boehning, 127 Wash.App. at 518, 111 P.3d 899 (quoting State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995)).

¶ 13 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. Boehning, 127 Wash. App. at 519, 111 P.3d 899. "A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." Boehning, 127 Wash.App. at 519, 111 P.3d 899.

¶ 14 Jones argues that four instances of prosecutorial misconduct occurred during his trial.

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