State v. Perkins

983 P.2d 1177, 97 Wash. App. 453
CourtCourt of Appeals of Washington
DecidedSeptember 16, 1999
Docket17874-9-III
StatusPublished
Cited by4 cases

This text of 983 P.2d 1177 (State v. Perkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perkins, 983 P.2d 1177, 97 Wash. App. 453 (Wash. Ct. App. 1999).

Opinions

Bkown, J.

A Yakima County jury found Randall Perkins guilty of possessing methamphetamine. He argues for the first time on appeal that he was denied a fair trial because the prosecutor argued improperly about his criminal record and facts not in evidence. We disagree, and affirm.

FACTS

On January 31, 1998 at 5:45 a.m., Yakima Police Officer Brian Dahl saw Mr. Perkins near a pickup truck parked with its hood open in a convenience store parking lot. Of[455]*455ficer Dahl became suspicious because he saw activities typical for people involved in the drug trade in an area known for drug activity.

Yakima County Sheriffs Deputy Chad Peterschick joined Officer Dahl. Eventually they observed Mr. Perkins drive away in the truck. Deputy Peterschick stopped Mr. Perkins for a traffic infraction, then arrested him after learning he was driving with a suspended license. The deputy searched the truck’s cab incident to the arrest and found hypodermic needles, a sealer, three knives, and five grams of methamphetamine stuffed into a boot. The truck was filled with various car parts and items described later as junk or garbage.

After being advised of his rights and waiving them, Mr. Perkins told the officer he did not know the drugs and drug paraphernalia were in the truck. He claimed to have just picked the truck, fixed it so it would drive, and was in the process of checking it to see if it was operational. Mr. Perkins explained that the truck belonged to someone else and had been left unattended for months.

Mr. Perkins was charged with possessing methamphetamine. At trial, the State produced evidence, without objection, that Mr. Perkins’ “driver’s status was suspended in the third degree and he had six fails to appear in his driver’s record.” The State also produced evidence of the significance of the drug paraphernalia found in the truck’s cab.

Mr. Perkins testified consistently with his statement given at the scene but added other contradictory detail when presenting his unwitting possession defense. Mr. Perkins’ counsel asked him on direct: “Do you have a criminal record?” Mr. Perkins answered: “Yes, I do. I have been in trouble up until some years back, and I have even been to an institution. But I have learned. I have paid my dues and I’m trying now.” During the State’s cross-examination, Mr. Perkins replied “Yes” to the question: “Now, Mr. Becker asked you about your criminal history; is that right?” The State continued: “Okay. And you said you did have a crim[456]*456inal record; is that right?” Again, Mr. Perkins agreed. Then the State presented evidence of convictions for theft in 1989 and taking a motor vehicle in 1993. Mr. Perkins tried to minimize these convictions by attempting to explain them. The State then moved on to other subjects.

During closing argument, after discussing the doubtful likelihood of leaving the contraband unattended in the truck, the State argued without objection:

Finally, you have got the boot. Well, the boot is located. There’s no reason to believe he didn’t know the boot was there. But the boot is sitting there and it contains an awful lot of drugs. Five grams worth. This is not a trace amount, what we call residue in the trade. This is five grams worth of methamphetamine. We didn’t get into street values so I’ll not talk about that, but this is not just a tiny amount you would not be aware of.

The State also argued without objection:

We know that the defendant has a criminal record. You know that two of those crimes, two felonies involving theft, which are crimes involving dishonesty which is why we can talk about those offenses, were committed by the defendant. He admits them. This is a guy who steals, and this is a guy who takes vehicles. Says he was convicted for stealing his own. You can believe that if you want. This is not a person to be believed.

The jury found Mr. Perkins guilty as charged. He appealed.

ANALYSIS

The issue is whether without objection below the trial court erred by entering a judgment of guilt against Mr. Perkins and concluding he received a fair trial when considering the prosecution’s (1) argument mentioning Mr. Perkins’ criminal record, and (2) argument of facts claimed to be outside the record.

Normally a party may not seek review of an error [457]*457raised for the first time on review. RAP 2.5(a). Nevertheless, Mr. Perkins argues he was denied a fair trial, in effect urging us to exercise our discretion to review under RAP 2.5(a)(3). See State v. Alexander, 64 Wn. App. 147, 150-51, 822 P.2d 1250 (1992). Some discussion is warranted. The defendant “bears the burden of establishing the impropriety of the prosecuting attorney’s comments as well as their prejudicial effect.” State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). We review the prosecutor’s alleged improper argument “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

Even if improper, the argument “does not constitute prejudicial error unless the appellate court determines there is a substantial likelihood the misconduct affected the jury’s verdict.” State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999), cert. denied, 120 S. Ct. 285 (1999). “If the defendant fails to object to an improper remark it is considered waived unless the remark is ‘so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.’ ” Id. (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998)). “Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request.” Brown, 132 Wn.2d at 561 (quoting Russell, 125 Wn.2d at 85).

The premise of Mr. Perkins’ claim of improper argument is based upon the foundation that the State by mentioning facts not in the record inappropriately put Mr. Perkins’ “criminal record” before the jury. However, the facts show Mr. Perkins placed that specific information before the jury during his direct testimony. “Do you have a criminal record?” Mr. Perkins answered: “Yes, I do. I have been in trouble up until some years back, and I have even been to an institution. But I have learned. I have paid my dues and I’m trying now.”

[458]*458The State, on cross-examination, was free to inquire about matters raised on direct, and did so. “And you said you did have a criminal record; is that right?” Upon Mr. Perkins’ agreement to this question, the State simply impeached Mr. Perkins by pointing out the two most recent crimes of dishonesty curried from among the six found in his criminal history. It is worth mentioning that all six would have been automatically admissible under ER 609(a)(2). See State v. Jones,

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State v. Perkins
983 P.2d 1177 (Court of Appeals of Washington, 1999)

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983 P.2d 1177, 97 Wash. App. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perkins-washctapp-1999.