State v. Ramos

263 P.3d 1268
Court of Appeals of Washington·Decided October 17, 2011·No. 65213-3-1·Published·Cited by 36 cases

Opinion

263 P.3d 1268 (2011)

STATE of Washington, Respondent,
v.
Antonio RAMOS, Appellant.

No. 65213-3-1.

Court of Appeals of Washington, Division 1.

October 17, 2011.

*1269 Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Hilary A. Thomas, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.

*1270 SCHINDLER, J.

¶ 1 Antonio Ramos appeals his conviction of unlawful delivery of cocaine. Ramos contends prosecutorial misconduct during cross examination and closing argument violated his constitutional right to a fair trial. Because there is a substantial likelihood that prosecutorial misconduct affected the jury's verdict, we reverse and remand for a new trial.

FACTS

¶ 2 Lance Tatum works as a paid informant for the Northwest Regional Drug Task Force in Whatcom County (Task Force). Tatum receives $100 for each drug transaction he arranges for the Task Force.

¶ 3 Tatum testified that he obtained the telephone number for Antonio Ramos through a mutual friend. Tatum said that he called Ramos several times in order to establish a relationship and they "talked about everything." At some point, Tatum discussed purchasing cocaine with Ramos. Tatum testified that after Ramos agreed to sell him a quarter of an ounce of cocaine for $400, he contacted Task Force Detective Glen Slick.

¶ 4 On March 25, 2009, Tatum called Ramos to arrange a time and place to purchase cocaine. Detective Slick listened to the call. Detective Slick testified that the man Tatum called had a Hispanic accent and identified himself as "Tony." Tatum told Tony that he had $400 and wanted to purchase a quarter of an ounce of cocaine. Tony told Tatum to meet him at the house he was working on located on Noon Road. After Detective Slick instructed Tatum that the meeting had to take place in the parking lot at Sunset Square Shopping Center (Sunset Square), Tatum insisted on meeting Ramos in the parking lot near Round Table Pizza at Sunset Square. There are approximately 40 different businesses and restaurants at Sunset Square, including Round Table Pizza, the Cost Cutter grocery store, Rite Aid, and Kmart, as well as a movie theater and a bank.

¶ 5 Detective Slick testified that before Tatum called Tony, the Task Force had made arrangements for police surveillance and videotaping the drug transaction in the parking lot near Round Table Pizza.

[Prosecutor:] At the time you had that conversation had you a site planned for the control buy?
[Detective Slick:] Yes. We wanted to do it out there in the Cost Cutter, Rite Aid, Round Table Pizza parking lot complex. It's a good open parking lot and it's part of being a control purchase, it's a location we picked so we can surveil it.

Detective Slick also testified that the Task Force planned to use Tatum after March 25 to arrange additional drug transactions with Tony.

The plan was to further the case, do a second control purchase followed by a third, possibly a fourth. Ultimately, after conducting a series of control purchases, make either a probable cause arrest or establish where he is residing and possibly do a search warrant if we could locate a house or additional information.

¶ 6 At around noon on March 25, Tatum parked his green Ford Escort in the parking lot near Round Table Pizza and the Cost Cutter grocery store. Twenty or 30 minutes later, a man driving a blue van parked next to the Ford Escort. Detective Brent Hanger videotaped Tatum getting into and out of the van. The police officers could not see the facial features of the man inside the van. Tatum testified that he gave the man, he later identified as Ramos, $400 in prerecorded cash for a quarter of an ounce of cocaine. A couple of minutes later, Tatum got out of the van and drove to another location in the Sunset Square complex to meet Detective Slick. Tatum gave Detective Slick the cocaine he had purchased. Detective Slick paid Tatum $100.

¶ 7 Meanwhile, the police videotaped Ramos going into the Cost Cutter grocery store. As Ramos was walking into the grocery store, he greeted a man and a woman standing outside. Approximately 15 minutes later, Ramos came out of the grocery store, got into the van, and drove away.

¶ 8 After March 25, Tatum was unable to contact Ramos. On July 31, the State *1271 charged Ramos with one count of unlawful delivery of cocaine in violation of RCW 69.50.401(2)(A). Ramos entered a plea of not guilty.

¶ 9 Tatum, Detective Slick, and the other Task Force members who participated in the controlled drug transaction at Sunset Square on March 25 testified at trial. Tatum identified Ramos as the person who sold him cocaine on March 25. Tatum conceded he had been previously convicted for theft.

¶ 10 The court admitted the videotapes into evidence and the State played the videotapes for the jury. The first video clip shows Tatum getting into the van and getting out of the van. The glare from the sun and a red truck block the view of the man in the van. However, Detective Colin Bertrand testified that he recognized Ramos and was certain that he was in the van with Tatum. The second video clip shows Ramos walking out of the Cost Cutter grocery store and getting into the blue van. Officer Hanger testified that he recognized the man and woman Ramos talked to outside the grocery store from "an investigation."

¶ 11 Detective Slick testified that he did not determine who owned the blue van. Detective Slick also conceded that the police did not investigate the cell number Tatum used to call Ramos, or whether Ramos used prerecorded buy money to pay for the food he purchased at the Cost Cutter grocery store.

¶ 12 Ramos testified. Ramos said that on March 25, he was working at a house located on Noon Road. Ramos said that he had done stucco work for 30 years and earns between $60,000 and $70,000 a year. Ramos admitted using drugs but denied selling drugs to Tatum.

¶ 13 Ramos said that he made arrangements the day before to have his friend Dave pick him up at the house on Noon Road and drive him to the Cost Cutter grocery store at Sunset Square to get lunch. Ramos is Hispanic and approximately 50-years-old with a beard and long, black hair. Ramos described Dave as approximately 32-years-old with long, black hair and a beard.

¶ 14 Ramos testified that after Dave dropped him off at the Cost Cutter grocery store, he went inside to buy lunch. Ramos said that when he returned, the van was in the parking lot, Dave was not in the van, but the keys were in the ignition. Ramos assumed Dave had gone to a nearby pub in Sunset Square. Ramos testified that he drove the van to the pub to pick up Dave, and then Dave drove him back to work at the house on Noon Road.

¶ 15 During cross examination, the prosecutor asked Ramos how much money he earned in 2008. In response, Ramos admitted that he was in prison in 2008 "for drugs" and was jail in 2007 for possession of hydrocodone. Ramos also admitted meeting Dave while incarcerated at the Whatcom County Jail. The prosecutor asked Ramos a number of questions about the drug history of the man and the woman he talked to outside the Cost Cutter grocery store. Over repeated objections, the prosecutor also asked Ramos whether people who use drugs "sometimes sell drugs ... to support their habit."

¶ 16 At the beginning of closing argument, the prosecutor urged the jury to act on behalf of the community and stop Ramos from continuing to sell cocaine at Sunset Square.

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State v. Ramos, 263 P.3d 1268 (Wash. Ct. App. 2011).

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