State v. Jackson

Decision Date23 June 2009
Docket NumberNo. 37585-1-II.,37585-1-II.
Citation209 P.3d 553,150 Wn. App. 877
PartiesSTATE of Washington, Respondent, v. Elijah F. JACKSON, Appellant.
CourtWashington Court of Appeals

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Brian Patrick Wendt, Clallam County Prosecuting Attorney's Office, Port Angeles, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 Elijah Jackson appeals his convictions and sentence for felony driving while under the influence (DUI), first degree driving while license suspended, and obstructing a law enforcement officer. He argues that the prosecutor committed misconduct and his sentence is erroneous for various reasons. We accept the State's concession that no evidence supported the sentencing court's findings that Jackson was on community custody when he committed the current offenses or that he committed six prior offenses. We affirm Jackson's conviction, vacate his sentence, and remand for resentencing.

FACTS

¶ 2 On November 29, 2007, Washington State Patrol Trooper Allen Nelson stopped a car for erratic driving. Nelson later testified that Jackson drove the car, was intoxicated, and acted violently towards Nelson and another officer. At trial, however, Jackson's girl friend, Rose Greene, testified that she drove the car and Jackson was merely sitting in the driver's seat after she had pulled over to vomit. Nelson arrested Jackson, and two other officers later testified that he appeared intoxicated when he was in jail.

¶ 3 The State charged Jackson with DUI (count I), first degree driving while license suspended (count II), and obstructing a law enforcement officer (count III). The jury found Jackson guilty on all counts. The sentencing court concluded that Jackson's offender score was eight and imposed the maximum term of 60 months of confinement.

¶ 4 Jackson appeals.

ANALYSIS
Prosecutorial Misconduct

¶ 5 Jackson first argues that the prosecutor committed misconduct during closing arguments by (1) vouching for witnesses' credibility, (2) shifting the burden of proof to the defense, (3) commenting on Jackson's invocation of his right to not testify, (4) asking the jury to convict unless it found the State's witness committed perjury, and (5) expressing a personal opinion about the veracity of Greene's testimony. He also argues that the cumulative effect of these errors prejudiced his right to a fair trial. We disagree.

¶ 6 In order to establish prosecutorial misconduct, a defendant must prove that the prosecutor's conduct was improper and that it prejudiced his right to a fair trial. State v. Carver, 122 Wash.App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003)). A defendant can establish prejudice only if there is a substantial likelihood that the misconduct affected the jury's verdict. Carver, 122 Wash.App. at 306, 93 P.3d 947 (quoting Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432). 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. Carver, 122 Wash.App. at 306, 93 P.3d 947 (citing Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432). If defense counsel fails to object to the prosecutor's statements, then reversal is required only if the misconduct was so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice.1 State v. Belgarde, 110 Wash.2d 504, 508, 755 P.2d 174 (1988).

A. Vouching

¶ 7 Jackson argues that the prosecutor committed misconduct by improperly vouching for the veracity of police officers' testimony. It is improper for a prosecutor to personally vouch for a witness's credibility. See State v. Brett, 126 Wash.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). "Prosecutors may, however, argue an inference from the evidence" and this court will not find prejudicial error "unless it is `clear and unmistakable' that counsel is expressing a personal opinion." Brett, 126 Wash.2d at 175, 892 P.2d 29 (quoting State v. Sargent, 40 Wash.App. 340, 344, 698 P.2d 598 (1985)).

¶ 8 Here, it was a key jury question whether to believe the police officers, who testified that the events they witnessed led them to believe that Jackson drove the car, or to believe Greene, who testified that she drove the car. The prosecutor's relevant closing argument follows:

The first thing that I want to address regarding this evidence is credibility. It is one of the first instructions that the judge has provided you in your packet. It is your duty as members of the jury to determine the credibility of each witness. Some of the things that you['re] asked to consider are for example the quality of the witness's memory while testifying; the manner of the witness while testifying; any personal interests that the witness might have in the outcome or the issues; or any bias or prejudice that a witness might have.

Let's think about that for just a moment. In the State's case you heard testimony from [four] law enforcement officers. These are officers, who have been trained, extensively, every single one of them had considerable experience.

One of the things that they are trained to do is observe and to report those observations accurately. Every single one of them did so and every single one of them corroborated the other's testimony. There were not any inconsistencies there.

Report of Proceedings (RP) (Mar. 13, 2008) at 39-40 (emphasis added). The prosecutor then detailed the trial evidence and concluded:

[O]nce again, when you go back into that jury room think about everything that you heard over the last day and a half, and think about what makes sense to you. Four officers all very accurate with the same testimony, all corroborate one another. Yes, only one of them actually saw the vehicle in motion. Does that make a difference though? No. Because his testimony was accurate and true.

RP (Mar. 13, 2008) at 48 (emphasis added).

¶ 9 In the argument above, the prosecutor did not vouch for the police officers' credibility. We look at the entire argument instead of, as Jackson suggests, viewing the highlighted snippets of argument out of context. Carver, 122 Wash.App. at 306, 93 P.3d 947 (citing Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432). In context, the prosecutor reminded the jury that it is the sole judge of credibility. He then outlined which evidence (and reasonable inferences from the evidence) could support the jury's conclusion that the officers were credible and Jackson's witness was not. This is not vouching. See Brett, 126 Wash.2d at 175, 892 P.2d 29. Moreover, the argument, to which Jackson did not object, is certainly not flagrant and ill-intentioned misconduct. See Belgarde, 110 Wash.2d at 508, 755 P.2d 174.

B. Burden of Proof

¶ 10 Next, Jackson argues that the prosecutor impermissibly shifted the burden of proof to the defense. Specifically, he points to the prosecutor's arguments that (1) "there was not a single shred of testimony in this case to corroborate [Greene's] story" and (2) the jury should compare Jackson's evidence with the State's evidence. RP (Mar. 13, 2008) at 41. A prosecutor may commit misconduct if he mentions in closing argument that the defense did not present witnesses or explain the factual basis of the charges or if he states that the jury should find the defendant guilty simply because he did not present evidence to support his defense theory. State v. Fleming, 83 Wash. App. 209, 215, 921 P.2d 1076 (1996), review denied, 131 Wash.2d 1018, 936 P.2d 417 (1997); State v. Traweek, 43 Wash.App. 99, 106-07, 715 P.2d 1148, review denied, 106 Wash.2d 1007 (1986), overruled on other grounds by State v. Blair, 117 Wash.2d 479, 816 P.2d 718 (1991).

¶ 11 Here, the prosecutor did not commit misconduct. Instead, he explained that the jury was the sole judge of credibility and outlined numerous reasons why it should find the State's witnesses more credible than Jackson's witness, Greene. He mentioned, for instance, that Greene was in a romantic relationship with Jackson, she admitted she was drinking alcohol on the night of the alleged crime, and the events to which she testified seemed very unusual and did not make sense. The prosecutor also mentioned that no evidence corroborated Greene's testimony, while four police officers corroborated each other's testimony. The mere mention that defense evidence is lacking does not constitute prosecutorial misconduct or shift the burden of proof to the defense. See Fleming, 83 Wash.App. at 215, 921 P.2d 1076; Traweek, 43 Wash.App. at 106-07, 715 P.2d 1148. The prosecutor in this case clearly explained to the jury that the State had the burden of proof. He did not imply that Jackson was required to provide evidence nor that the jury should find Jackson guilty based on his decision to present only one defense witness.

¶ 12 Further, the prosecutor did not invite the jury to simply compare Jackson's evidence with the State's evidence. Instead, the prosecutor argued that the jury should compare evidence only to determine whether Greene was credible, not to determine whether the State met its burden of proof. The jury instructions permit such comparison for credibility purposes. They read:

You are the sole judges of the credibility of each witness.... In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things he or she testifies about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all the other evidence; and any other factors that affect your evaluation or belief of a witness or your...

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