State v. Blair

• Decision Date: 19 September 1991
• Docket Number: No. 57669-6,57669-6
• Citation: 117 Wn.2d 479,816 P.2d 718
• Parties: STATE of Washington, Respondent, v. Daniel Richard BLAIR, Petitioner.
• Court: Washington Supreme Court

Page 479

117 Wn.2d 479

816 P.2d 718

STATE of Washington, Respondent, v. Daniel Richard BLAIR, Petitioner.

No. 57669-6.

Supreme Court of Washington En Banc.

Sept. 19, 1991.

Washington Appellate Defender Ass'n, Eric Broman, Seattle, for petitioner.

David S. McEachran, Whatcom County Prosecutor, Mac D. Setter, Chief Criminal Deputy, Bellingham, for respondent.

BRACHTENBACH, Justice.

Defendant Daniel R. Blair challenges his conviction for unlawful delivery of a controlled substance, arguing that the prosecutor committed reversible error by commenting, during closing argument, on defendant's failure to call particular witnesses. The Court of Appeals agreed that error occurred, but held that reversal was not required because defendant did not object and the comments were not so flagrant and ill intentioned that a curative instruction would not have neutralized their effect. State v. Blair, noted at 58 Wash.App. 1068 (1990). We conclude the prosecutor's comments did not constitute error and therefore reverse the Court of Appeals on this issue. We affirm defendant's conviction.

The charges against defendant resulted from an undercover police operation. An undercover police officer, "Lenny", had purchased cocaine from a certain woman on several occasions. On March 7, 1988, the woman contacted the detective through his telepager. The detective called the number displayed on the telepager and spoke with the woman. She told the detective that she knew where she could get an ounce of cocaine at a very low price, $1,400. The detective met the woman at a restaurant and gave her this amount in $50 bills, which he had previously photocopied. When the woman went to get the cocaine, she was followed by a police surveillance team to a street near defendant's rooming house in Bellingham. There was a brief break in the surveillance. The woman was then followed to her own home, where she stayed a short time, and then back to the restaurant where the detective was waiting and the transaction was completed.

The woman was arrested for delivery of a controlled substance. A search warrant was executed at her home very early on March 8, 1988. Some cocaine was recovered from a coat pocket, where she said it would be, and other drug use items and paraphernalia were recovered. She waived her constitutional rights and agreed to talk to law enforcement officers. She also testified in support of a telephonic warrant to search defendant's room at the apartment house on Indian Street, where she said she obtained the cocaine sold to the detective.

Defendant was home when the warrant was executed that same night. During the search of defendant's room, sheets of paper with handwritten notations on them were seized. Defendant was searched, and the $1,400 in prerecorded bills was found in his pocket. Defendant also had over $10,000 additional in cash on him. The police found a small quantity of cocaine and some drug paraphernalia in defendant's room. The undercover detective noted that the telephone number displayed on a public phone in the rooming house was the same telephone number displayed on his telepager when the woman contacted him.

Defendant was arrested and charged with one count of possession (of the cocaine found in his room) and one count of unlawful delivery of a controlled substance (of the 1 ounce of cocaine delivered to the woman). During the course of his trial, the sheets of paper found in defendant's room were described by a prosecution witness as "crib" notes or sheets, of a kind commonly found at locations where drugs are sold and constituting a "crude business ledger." Report of Proceedings, at 162. Some of the sheets of paper contain lists of people, generally first names only, with numbers across from the names. Exhibit 8A.

The woman testified that she rode with her husband and parked near defendant's house. She testified she gave the money she received from the detective to "Dan" and received 1 ounce of cocaine. She then rode to her house, where she removed a half gram, then delivered the remainder to "Lenny".

Defendant testified, and admitted that a couple of the notations involved "drug dealings" but denied selling cocaine for a profit. He admitted to use of drugs on a daily basis, and to purchasing cocaine for his friends and providing it in social settings. He testified that most of the names and numbers on the sheets of paper represented personal loans and amounts owed him from card games. He testified that some notations related to travel arrangements, rent, and a medical appointment.

Defendant explained the large amount of cash he carried by testifying that he was receiving state money under an alcoholics assistance program, and he did not want the State to know about the large sum of cash he carried, which he claimed to have won gambling. He was also concerned that disclosure of the money might affect his pending application for supplemental social security.

Defendant denied selling the woman the 1 ounce of cocaine she delivered to the detective. He admitted that he agreed to use the $1,400 to buy cocaine for her, but had not done so at the time he was arrested. Defendant argued that the woman was a drug dealer, but he was not.

Defendant called one of the people listed on the slips of paper. This witness testified he had accompanied defendant to Reno and saw him with a large amount of money which defendant said he won. This witness also testified that references to him on the slips of paper concerned personal loans.

In closing argument, the prosecutor referred to the slips of paper found in defendant's room and said:

Count the names up, and if he's telling you the truth, then he knew that all those people or those he could find, since he was arrested in March of '88, through today--better part of a year later--can clarify what he told you, and those people weren't brought in to tell you those were gambling debts for you to evaluate the contents of their testimony or their demeanor.

Report of Proceedings, at 396. The prosecutor also said:

But ask yourselves that if this were true that these were gambling debts and you were in the defendant's shoes and you knew who all these people were and the police were saying, "These look like crib sheets. It's the stuff we see, all those aspects. Some of them we can't figure out, but these lists of names, dollars, and those amounts--quarters, eighths, whatever--that's what we see all the time," wouldn't the first thing that would cross your mind be to bring in the friends that he says he loaned money to, say, "Joe, I need you to come in"?

And if Joe doesn't want to come in, he'd want to subpoena him and Sam and Fred and Paul and everybody else that's on that list and say, "Well, what's this for?" "Well, it's a gambling debt." And if he didn't do that, couldn't you infer that their answer wouldn't have been, "It was a loan. It's a gambling debt"?

Report of Proceedings, at 396-97.

Defense counsel did not object to this argument, but did tell the jury that defendant had no obligation to present any evidence. In rebuttal, the prosecutor remarked:

Why not put or bring them all in and settle the matter?

There's a reason for that, and the reason is simple. He couldn't bring those people in to say what he wanted them to say. He couldn't bring people in to say that, "Yeah, I bought dope from him, cocaine." If he could have, he would have; it's that simple.

Report of Proceedings, at 412-13.

Following his conviction on one count of possession and one count of delivery of a controlled substance, defendant appealed the conviction for delivery. He argued, among other things, that the prosecutor's remarks were improper. The Court of Appeals agreed, but held that error was not reversible. We granted defendant's petition for review.

Defendant argued to the Court of Appeals that the prosecutor's closing remarks regarding defendant's failure to call as witnesses persons whose names appeared on the slips of paper constituted prosecutorial misconduct for two reasons. First, defendant maintained, the remarks about failure to call witnesses in his behalf denied him a fair trial by shifting the burden of proof to him. Second, defendant argued that the prosecutor's remarks during rebuttal about defendant not being able to bring in witnesses who would say they bought dope from defendant constituted improper reference to facts not in evidence or improper reference to uncharged crimes.

The Court of Appeals held that the prosecutor's comments about defendant's failure to call the people whose names were on the pieces of paper constituted prosecutorial misconduct. The court relied upon State v. Traweek, 43 Wash.App. 99, 715 P.2d 1148, review denied, 106 Wash.2d 1007 (1986), and reasoned that the prosecutor's comments were improper because they carried the inference that the defendant had a duty to present evidence of his innocence if that evidence was available to him. State v. Blair, cause 23967-8-1 (Aug. 23, 1990) slip op., at 13.

In Traweek, the defendant did not take the stand. During closing argument, the prosecutor remarked that defendant did not have to take the stand, but that did not mean that defense counsel could not put on other witnesses. Counsel continued by asking why there had not been any explanations by defense. The Court of Appeals first said that it was for the court, not the prosecutor, to instruct the jury on defendant's right not to testify. Second, the court concluded that a defendant has no duty to present any evidence, citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and the prosecutor's comments improperly suggested that the defendant had a duty to call witnesses and prove his innocence. Traweek, 43 Wash.App. at 107, 715 P.2d 1148.

In analyzing the present case as it did, the Court of Appeals did not consider the opinion in State v. Contreras, 57 Wash.App. 471, 788 P.2d 1114, review denied, 115 Wash.2d 1014, 797 P.2d...