State v. Loughbom

Citation9 Wn.App.2d 1015
Decision Date04 June 2019
Docket Number35668-0-III
CourtCourt of Appeals of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. GREGG A. LOUGHBOM, Appellant.

9 Wn.App.2d 1015


No. 35668-0-III

Court of Appeals of Washington, Division 3

June 4, 2019



Gregg Loughbom appeals his convictions for controlled substance violations. We affirm.


Mr. Loughbom was charged with three felony drug trafficking offenses after he distributed drugs to a confidential informant. He exercised his right to a jury trial and the State presented testimony from several witnesses, including the informant and two investigating law enforcement officers.

The informant testified that he had arranged to purchase drugs from Mr. Loughbom through a friend named "Kevin." 2 Report of Proceedings (RP) (Oct. 18, 2017) at 139. The informant testified that for the first transaction he went to Mr. Loughbom's garage and purchased $30 worth of methamphetamine directly from Mr. Loughbom. On the second occasion, the informant obtained painkillers through an intermediary named "Wanda." Id. at 130-31. This transaction took place at Wanda's apartment. Although Wanda had supplied the informant with the drugs, the informant knew Mr. Loughbom was involved because Mr. Loughbom showed up after the exchange to collect the buy money. During his testimony, the informant stated that he started working with law enforcement after being charged with two crimes.

The two law enforcement officers described their investigation of Mr. Loughbom and their work with the informant. The officers discussed the process of the controlled buys and the substances procured by the informant. The officers also described what they saw during their surveillance of the informant on the dates of the two transactions. At the time of the first buy, the officers saw the informant going in and out of a residential garage.[1] Although the officers did not see Mr. Loughbom at that time, they did observe his truck. Id. at 117, 119, 161. For the second transaction, the officers followed the informant to an apartment complex. Again, the officers did not see Mr. Loughbom. Nor did they see his truck. However, the day after the second exchange, Mr. Loughbom was observed driving his truck and entering the residence that had been the location of the first transaction. Id. at 160.

The jury convicted Mr. Loughbom of delivery of methamphetamine and conspiracy to do the same. He was acquitted of the charge alleging he delivered painkillers. Mr. Loughbom appeals his convictions.


Prosecutorial misconduct

Mr. Loughbom claims the prosecutor committed misconduct by (1) repeatedly mentioning the "war on drugs" throughout trial and (2) referencing Mr. Loughbom's right to silence during summation. Because no misconduct objections were voiced at the time, Mr. Loughbom must establish that the prosecutor's comments were so flagrant and ill intentioned that they caused an enduring prejudice that could not be neutralized by a curative instruction. In re Pers. Restraint of Phelps, 190 Wn.2d 155, 165, 410 P.3d 1142 (2018). This burden has not been met.

War on drugs comments

Mr. Loughbom identifies five times that the State referenced the war on drugs:

1. Voir dire: In questioning the jury venire, the prosecutor engaged jurors in the following discussion:

Now, kind of getting into a little bit about the nature of this case, this, as mentioned, [the judge] stated this involves two counts of Delivery of a Controlled Substance and one count of Conspiracy to Deliver a Controlled substance Are there any among you who believe that we have a drug problem in Lincoln County? Wow, okay. Just about everything
Is there anyone who feels that we don't? Just so I can eliminate the-
THE JUROR: It's not that I don't. It's-I'm just very new to the area and I don't know.
[THE PROSECUTOR]: Okay. Okay. That's fine.
Anyone else who thinks we don't have a problem in the area or-or don't have one? Okay.
So nearly-pretty much everyone except No. 25.

2 RP (Oct. 18, 2017) at 52-53. This line of questioning was immediately followed by questions about the jurors' positions regarding decriminalization of marijuana.

2. Opening statement:

The prosecutor began his statement by informing the jurors, "The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole." Id. at 87.

3. Witness testimony:

During direct examination of one of the law enforcement officers, the prosecutor asked for an explanation of how confidential informants come to work with the police. The officer responded:

Various ways. . . . [S]ometimes we deal with confidential informants that are not under [a quid-pro-quo agreement] they just come in because they want to change or help fight the drug problem that we have in our county, most of the time, though, it's somebody that has charges that is willing to help us with furthering our investigations.

Id. at 103-04.

4. Summation:

During closing argument, the prosecutor returned to his theme from opening, commenting: "The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole." 1 Narrative Report of Proceedings (Oct. 18, 2017) at 183.

5. Rebuttal:

During rebuttal argument, the prosecutor responded to defense counsel's criticisms of the informant, explaining:

[L]aw enforcement cannot simply pick and choose their [confidential informants] to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.

2 RP (Oct. 18, 2017) at 168.

The State's repeated references to the war on drugs were imprudent, but ultimately fell short of misconduct. The use of a loaded term such as the "war on drugs" is problematic because it may suggest that the jury's role is not merely to weigh the evidence and decide guilt, but to play a part in the government's larger effort to eradicate illegal drugs. See State v. Echevarria, 71 Wn.App. 595, 598-99, 860 P.2d 420 (1993). Fortunately, that is not what happened here. The State's references to the war on drugs were not made in the context of arguing why the jury should convict. Instead, the State appears to have mentioned the war on drugs in order to deflect potential anti-government bias. From the context, it appears the prosecutor sought to address concerns about why the government might be involved in the unsavory business of undercover drug buys and the use of criminal informants. It also appears that, during voir dire, the prosecutor wanted to examine whether any potential jurors were opposed to the government's drug policy. It would have been better for the State to address these concerns without referring to the war on drugs. Nevertheless, the State's comments did not inflame the jury's passions against Mr. Loughbom.

The absence of any objection to the State's references to the war on drugs affirms our view that the comments "did not appear critically prejudicial to [the defense] in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Nevertheless, had Mr. Loughbom and his attorney perceived something untoward, a curative instruction would have been sufficient to address potential prejudice. See, e.g., United States v. Beasley, 2 F.3d 1551, 1559-60 (11th Cir. 1995) (curative instruction sufficient to offset prejudice caused by prosecutor's "clearly improper" appeal to a war on drugs). Mr. Loughbom's claim that the State committed misconduct by appealing to the passions of the jury through its references to the war on drugs does not warrant reversal.

Comment on the right to silence

Mr. Loughbom contends the prosecutor improperly commented on the right to silence[2] by making the following statement during rebuttal:

And, finally, Gregg Loughbom didn't deny anything. [Defense counsel] had stated that Gregg Loughbom denied being any part of this or denied being at these locations. That's not true. Gregg Loughbom didn't deny anything. He didn't testify and there was no evidence that he ever denied-no evidence presented that he ever denied anything.
Now, I'm not suggesting that you can use his silence against him. Of course not. There's an instruction against that. I'm merely suggesting that at no time did Gregg Loughbom ever deny that as she has presented in her arguments.

2 RP (Oct. 18, 2017) at 170.

We do not find anything improper in these statements. "[P]rosecutors are entitled to respond to defense counsel's arguments." Phelps, 190 Wn.2d at 167. This is what appears to have happened.[3] After defense counsel apparently suggested Mr. Loughbom had affirmatively denied being part of the controlled buys, the prosecutor simply pointed out that this was a mischaracterization of the record. Given the nature of the alleged mischaracterization, the prosecutor's comments necessarily touched on Mr. Loughbom's right to silence. But because there was no indication that the prosecutor was attempting to use Mr. Loughbom's silence to the State's advantage or to "suggest to the jury that the silence was an admission of guilt," the prosecutor's statements were not improper. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996), overruled on other grounds by Salinas v. Texas, 570 U.S. 178, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). Ineffective assistance of counsel

To establish a claim of ineffective assistance of counsel, Mr. Loughbom must show both that his trial counsel's performance was deficient and, but for the deficient performance, there is a reasonable probability the trial's outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Failure to meet either prong of...

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