State v. Abdul Gore

• Decision Date: 11 March 2020
• Docket Number: 51514-8-II,51704-3-II
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. JERMAINE LARON ABDUL GORE, Appellant, In the Matter of the Personal Restraint of: JERMAINE LARON ABDUL GORE, Petitioner.

STATE OF WASHINGTON, Respondent, v. JERMAINE LARON ABDUL GORE, Appellant, In the Matter of the Personal Restraint of: JERMAINE LARON ABDUL GORE, Petitioner.

Nos. 51704-3-II, 51514-8-II

Court of Appeals of Washington, Division 2

March 11, 2020

UNPUBLISHED OPINION

Lee A.C.J.

A jury originally convicted Jermaine Laron Abdul Gore of first degree unlawful possession of a firearm, two counts of unlawful possession of a controlled substance with intent to deliver, and first degree rendering criminal assistance. We reversed all convictions except the first degree unlawful possession of a firearm conviction and remanded for resentencing. State v. Gore, No. 48960-1-II (Wash.Ct.App. July 11, 2017) (unpublished) http://www.courts.wa.gov/opinions/pdf/489601.pdf.

Gore now appeals his sentence for first degree unlawful possession of a firearm following this court's remand for resentencing, arguing that there is a scrivener's error on his judgment and sentence. In a supplemental brief, Gore also argues that the sentencing court failed to conduct a comparability analysis on a prior federal conviction included in his offender score and that he received ineffective assistance of counsel when counsel failed to challenge the inclusion of the prior federal conviction. In a statement of additional grounds (SAG) for review, Gore contends that there is another scrivener's error on his judgment and sentence, his criminal history wrongly states that a prior offense was an adult conviction, the prosecutor engaged in misconduct regarding one of Gore's prior offenses and engaged in misconduct during resentencing, he received ineffective assistance of counsel, there was judicial bias there was a Brady^[1] violation, the warrant was defective and the charging documents were defective. In his consolidated personal restraint petition (PRP), Gore challenges his first degree unlawful possession of a firearm conviction, alleging numerous instances of prosecutorial misconduct at trial and cumulative error.

We affirm Gore's sentence, but remand for correction of the scrivener's errors on his judgment and sentence. We deny Gore's PRP.

FACTS

A. Background Facts

In 2015, while investigating a drive-by shooting, law enforcement learned that a suspect, Alexander Kitt, would be dropped off at a particular treatment facility in Tacoma. Soon after the drop off, officers stopped a vehicle that had been observed dropping Kitt off at the treatment facility. The officers approached the vehicle, which contained three occupants; Gore was sitting in the driver's seat, Gore's son was sitting behind Gore in the back seat, and a third man was sitting in the back seat on the passenger side.

A records check revealed that there were no outstanding warrants for Gore, but his son was suspected in a shooting. Officers impounded the vehicle and searched it, finding Gore's cell phone, a bag of crack cocaine, a bag containing crystal methamphetamine, and a loaded .38 caliber revolver.

B. Charges

In 2016, the State charged Gore with first degree unlawful possession of a firearm; unlawful possession of a controlled substance, cocaine, with intent to deliver; unlawful possession of a controlled substance, methamphetamine, with intent to deliver; and first degree rendering criminal assistance. The date of the unlawful possession of a firearm offense was May 5, 2015.

C. Trial

During trial, Gore's wife, Monique Gore, testified for the defense. The prosecutor asked Monique^[2] about text messages in her husband's phone regarding drug transactions. Monique responded, "[L]ooking at these messages this is not a good situation, but at the same time that does not paint-that does not give a reasoning to paint a completely bad picture of my husband nor myself." 5 Verbatim Report of Proceedings (VRP) (Apr. 11, 2016) at 544. Monique went on to testify that the firearm located in Gore's vehicle belonged to her, and she purchased it at a yard sale.

D. Closing Arguments

During closing arguments, the prosecutor argued:

You know, [Monique] said something that was actually truthful yesterday. When confronted with text messages that reflected the defendant passing along a pill customer to his wife and when confronted with a series of text messages where the defendant and his wife were looking to buy Percocet so that the wife could give them to some unknown female, what did [Monique] say? She said, "Well, these are bad. This paints a bad picture, but it's not the whole truth. That's not all of who we are." And that was probably a truthful statement. I am sure that there is good in [Monique] and Mr. Gore. This trial is not about that. This trial is about holding the defendant accountable for the choices he made, and that's what this evidence has shown; that he made some choices dealing drugs, carrying guns, rendering criminal assistance, choices for which he must be held accountable in your verdicts.

6 VRP (Apr. 12, 2016) at 609-10. Gore did not object.

Relating to Monique's testimony, the prosecutor further argued:

Finally, [Monique's] story, and I use story and I mean story. Look, everyone understands what [Monique] was trying to do. She loves her husband. Got it. But it was a whopper, it's nonsense. This idea that I bought a gun at a yard sale, didn't get the receipt, or a receipt, didn't get the purchasing paperwork, didn't get any evidence to corroborate that sale . . . . Wouldn't you expect [Monique], if her story were true, to do everything possible to back up that story, to prove that that story was true . . . ? Because the story is nonsense, because the story is made up, and the fact that the story is made up is, in and of itself, all of the evidence you need in this case.

Let's be clear about something. The defendant has no burden of proof. They don't have to put on any witnesses. But once they do, once they call a witness, that evidence, that testimony is subject to the same exacting scrutiny as the state's evidence, and that evidence can be just as damning as anything the state presented to you. So when you've heard a story that doesn't pass the straight-face test. When you've heard a story that's clearly a lie, you know for a fact that that's now the defendant's gun and his drugs, because the only reason she's lying to you is to protect him.

6 VRP (Apr. 12, 2016) at 627-28. Gore did not object.

Relating to the burden of proof, the prosecutor argued:

Now, I want to talk about the crimes and I want to talk about the evidence in this case, but before we do that, let's talk about the state's burden of proof. It is proof beyond a reasonable doubt. Everyone's heard it. Everyone understands it. We all know through TV and movies and civic conversations that when the government levies a criminal charge against someone, they have to prove it beyond a reasonable doubt. But what does that mean in its application? You may go back and struggle with that concept, because we don't make decisions in our lives by proof beyond a reasonable doubt. We don't make decisions and say I did that and I'm convinced that that was the right decision beyond a reasonable doubt.

So what does it mean? A few things for you to keep in mind. One, it's not proof beyond all doubt. Surely we could say to you, you must be convinced beyond all doubt, but we all know almost anything beyond all doubt. There are certain things you will always have left lingering, certain unanswered questions. You may have doubts about this fact or that fact, but the question for you is whether you're convinced beyond a reasonable doubt. Your doubts become reasonable when they persist, looking at all the evidence, big pictures. That's when you have a reasonable doubt when that doubt persists, when you think about things in the big picture concept.

6 VRP (Apr. 12, 2016) at 610-11. Gore did not object.

Relating to Gore's original unlawful possession of cocaine and unlawful possession of methamphetamine charges, the prosecutor questioned Gore's claim that someone else put the controlled substances in Gore's car and argued:

[T]he apple didn't far [sic] too far from the tree.

. . . .

. . . Is it really a coincidence that Mr. Gore's own nephew is also dealing drugs. [sic] You wonder where the nephew learned it from. Is it any coincidence that the nephew, Alexander Kitt, and the defendant may very well associate and hang out, and that the defendant may very well have taught him or they may very well have shared secrets or trade practices, and that Alexander Kitt or Jermaine Gore learned from the other that Crown Royal bags, which come with any bottle of Crown Royal liquor, is a great way and an easy way to store your drugs. So the fact that Mr. Kitt has the same type of bag that the defendant has for keeping his drugs really tell us very, very little.

6 VRP (Apr. 12, 2016) at 689-90. Defense counsel later requested a mistrial, arguing the "apple" comment in addition to other arguments regarding Gore hindering the drive-by shooting investigation were improper. The trial court denied the motion for a mistrial.

Also during closing arguments, the prosecutor used a PowerPoint presentation. The prosecutor asked the trial court if it wanted to "review it beforehand." 6 VRP (Apr. 12, 2016) at 607. The trial court declined. The PowerPoint included slides showing pictures of a murder scene, firearms, and drugs. There was also a slide that stated, "Defendant is Guilty" and below these words the prosecutor listed the charges against Gore. PRP Response at App. B. And there was a separate slide referring to the circumstantial evidence against Gore that stated "Monique Gore's 'story.'" PRP Response at App. B. Gore did not object to the PowerPoint presentation.

E. Verdict and Appeal

The jury found Gore guilty as charged. Gore appealed.

We reversed...