State v. Jones

• Decision Date: 29 April 2008
• Docket Number: No. 34471-8-II.,34471-8-II.
• Citation: 144 Wn. App. 284,183 P.3d 307
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Richard Maurice JONES, Jr. aka Rickey Maurice Jones, Appellant.

183 P.3d 307

144 Wn. App. 284

STATE of Washington, Respondent, v. Richard Maurice JONES, Jr. aka Rickey Maurice Jones, Appellant.

No. 34471-8-II.

Court of Appeals of Washington, Division 2.

April 29, 2008.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

George Oscar Darkenwald, Edward Gene Holm, Attorney at Law, Thurston County Prosecuting Attorney, Olympia, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 Based on a confidential informant's (CI) tip, the Thurston County Narcotics Task Force set up a controlled buy targeting Richard Jones. Jones approached the CI, who was waiting in his car, and gave him a small bag of cocaine in exchange for money. The CI then met the Task Force officers and immediately handed them the small bag of cocaine. Thereafter, the State charged Jones with one count of unlawful delivery of a controlled substance. At trial, neither the CI nor Jones testified. But the State played for the jury a body wire recording and a video tape recording of the drug buy. The State also provided the jury with a transcript of the body wire recording. The jury found Jones guilty as charged. He appeals, arguing (1) prosecutorial misconduct, (2) insufficient evidence, and (3) that the CI was not credible. We hold that the prosecutor's repeated misconduct cumulatively deprived Jones of a fair trial and accordingly reverse and remand for retrial.

FACTS

Background

¶ 2 Based on a tip from a CI, the Task Force set up a controlled drug buy targeting Jones. Officer Dale Elliott described the drug buy:

The plan this day was to give [the CI] $850. We were going to equip him with a body wire or recording device. Then we were going to set him near the barber shop where he was working. And he would make a phone call to Mr. Jones, and the arrangement would be made to purchase the narcotics. He would wait, and Mr. Jones was hopefully going to show up and make a purchase.

Report of Proceedings (RP) (Feb. 21, 2006) at 32.

¶ 3 Before the drug buy, Officer Elliott thoroughly searched the CI for drugs, finding none. And Officer Adam Seig thoroughly searched the CI's car for drugs, again finding none. The officers equipped the CI with a body wire and then gave him the buy money. From a nearby location, Officer Mike Aalbers recorded the events with a video camera.

¶ 4 The CI drove his car to the barber shop and parked it in the parking lot. Before Jones arrived, a man approached the CI's car and asked him for a haircut. The CI told the man that he was busy.

¶ 5 Officers Elliott and Seig observed the CI and the man during this conversation. Despite the unanticipated contact with someone other than Jones, they continued with the scheduled drug buy. Elliott and Seig testified that they continued with the buy because the man who had asked for a haircut did not lean into the CI's car window, exchange anything with the CI, or put anything into the CI's car. Neither Elliott nor Seig searched the CI or the car after the unanticipated contact with the man who had asked for a haircut.

¶ 6 Thereafter, the CI called Jones and arranged to meet at another location. The CI told Officer Elliott that he was going to drive about a block to another parking lot. Elliott and Seig followed the CI, both observing that he made no contact with anyone else.

¶ 7 After the CI parked his car in the parking lot, a car approached him. Jones exited his car and entered the CI's car. Officer Elliott testified, "Both people were bent down in conversation. I could see an exchange. I couldn't see what was exchanged, but I could see an exchange." RP (Feb. 21, 2006) at 45.

¶ 8 After the exchange, the CI drove his car back to the original parking lot. Again, Officers Elliott and Seig followed him, both observing that he made no contact with anyone else. When the CI exited his car, he immediately handed Elliott a small bag of cocaine.¹ Seig then searched the CI's car for drugs and found none.

Procedure

¶ 9 The State charged Jones with one count of unlawful delivery of cocaine, a controlled substance. At trial, neither the CI nor Jones testified. Officers Elliott and Seig testified as set out above, and the State played for the jury the body wire recording and the video tape recording of the purported drug buy. The State also provided the jurors with copies of the body wire recording transcript.

¶ 10 The jury found Jones guilty as charged. By special verdict, the jury found that Jones had unlawfully delivered a controlled substance within 1,000 feet of a school bus route stop. Based on Jones's offender score of five, the trial court sentenced him to 60 months of confinement. Jones appeals.

ANALYSIS

Prosecutorial Misconduct

¶ 11 Jones asks us to review whether numerous cumulative errors deprived him of his right to a fair trial. Every prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that an accused receives a fair trial. State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969); State v. Boehning, 127 Wash.App. 511, 518, 111 P.3d 899 (2005). We hold that the prosecutor's conduct in this case violated that duty and deprived Jones of his right to a fair trial.

¶ 12 In order to establish that he is entitled to a new trial due to prosecutorial misconduct, Jones must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. Boehning, 127 Wash. App. at 518, 111 P.3d 899. Prejudice is established where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003) (quoting State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)). But a defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so "`flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied." Boehning, 127 Wash.App. at 518, 111 P.3d 899 (quoting State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995)).

¶ 13 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. Boehning, 127 Wash. App. at 519, 111 P.3d 899. "A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." Boehning, 127 Wash.App. at 519, 111 P.3d 899.

¶ 14 Jones argues that four instances of prosecutorial misconduct occurred during his trial. He contends that the prosecutor (1) played an inadmissible portion of the body wire recording for the jury, (2) improperly bolstered the credibility of the CI and Officer Elliott during closing argument, (3) improperly cross-examined Elliott about why he thought the CI did not testify, and (4) asserted in closing argument that the CI did not testify because he was afraid of Jones. We hold that playing the inadmissible portion of the body wire recording was an inadvertent error that does not rise to the level of prosecutorial misconduct, but we hold that the three other instances constitute misconduct that cumulatively deprived Jones of a fair trial.

A. Playing Body Wire Recording

¶ 15 First, Jones argues that the prosecutor committed misconduct when she ignored the trial court's order that portions of the body wire recording could not be played to the jury. Relying on State v. Stephans, 47 Wash.App. 600, 604, 736 P.2d 302 (1987), Jones claims that this "[n]oncompliance with court orders constitutes misconduct." Br. of Appellant at 8. We disagree.

¶ 16 Before trial, the trial court ruled that the State could play an excerpt from the body wire recording to the jury but could not include any reference to future heroin buys contained in the tape.² During trial, the State gave jurors copies of the body wire transcript with the excluded evidence redacted³ and then played an excerpt from the body wire recording to the jury. But the State inadvertently failed to stop the recording before the CI told Jones, "My buddy wants heroin if you can do it." Ex. 8 at 8. The State stopped the recording before Jones answered.

¶ 17 Jones immediately requested a sidebar conference. The trial court heard argument, but it allowed the State to proceed. At the end of the day, the trial court allowed Jones to make a record of the objection he had made during the sidebar conference.⁴ Jones objected to the excerpt of the body wire recording, arguing, "[T]he jury has heard this recording of at least the [CI] asking my client if he can get heroin.... I don't believe—you've already ruled that inadmissible. At this point I ask for a mistrial." RP (Feb. 21, 2006) at 96-97.

¶ 18 The State responded that it had made a mistake by not stopping the recording soon enough. The State told the trial court that it could give a limiting instruction to the jury, although "it would kind of highlight that area." RP (Feb. 21, 2006) at 97. Nevertheless, the State noted that the jury did not hear Jones's answer to the CI's request, and noted that "it's harmless in this case because it's not on the transcript. You were listening to the transcription as well, Your Honor. You didn't hear it. And we didn't [hear a] response by Mr. Jones." RP (Feb. 21, 2006) at 97.

¶ 19 The trial court agreed with the State and denied Jones's motion for a mistrial. From our review of the record, it is clear that the State's actions were inadvertent, not in "flagrant disregard" of the trial court's ruling. Moreover, the State's mistake could not have affected the jury's verdict because the State redacted this brief, inadmissible portion from the jurors' copies of the transcript that was admitted as exhibit 8. Thus, Jones...