IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69949-1-1
Respondent,
DIVISION ONE
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UNPUBLISHED OPINION f? ^
OLLIE FANIEL RICHARD, CO .-e--or
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Appellant. FILED: December 23, 2013 ^ 5e£
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Per Curiam. Ollie Richard appeals his conviction for possession of
methamphetamine. He contends the prosecutor committed misconduct when, in
response to defense arguments that "we know" the police plant drugs on
innocent people, he asked the jurors to consider their experiences with police,
that they depend on them, and that the officers patrol on their bicycles even in
the rain. We affirm.
FACTS
On November 11, 2011, police arrested Richard on an outstanding
warrant and discovered methamphetamine during a search of his person incident
to arrest. The State charged him with violating the Uniform Controlled
Substances Act, chapter 69.50 RCW.
At trial, the State presented testimony of three officers and a forensic
scientist. Richard testified in his defense. He denied possessing drugs and
accused the police of arresting him for drugs that were in their possession, not
his.
During closing argument, defense counsel argued in part:
Common sense and experience? Yeah, sure. We know
from common sense and experience that the officers in question
were working a proactive unit - in other words looking for things -
No. 69949-1-1/2
looking for things to do - and what Mr. Richard described to you,
ladies and gentleman, is proactivity on the part of the officers. They
huddled. Voila. the substance appeared.
It may be disturbing but based on what we know from our
common experience, indeed these things happen.
This is what really happens out there.[1]
In rebuttal, the following exchange occurred:
[Prosecutor]: Just because Mr. Richard said that on the
stand does not mean you have to accept it because you are the
sole judges of the credibility of witnesses.
It is not just Officer Hatzenbuehler being accused here, it is
all three of them. It is all three officers, and I submit to you, using
your common sense, your reason, your life experiences, you
depend upon these people every day. Every time it rains those
patrol officers are on their bicycles --
[Defense Counsel]: Objection, that is improper at this point,
Your Honor.
[The Court]: Mr. Hamilton, if you could move on?
[Prosecutor]: We ask you to reject that testimony. He had
the drugs, he was caught, and it is drugs. It was tested by the lab
and it was confirmed. Thank you.[2]
A jury convicted Richard as charged. He appeals.
ANALYSIS
Richard contends the prosecutor's rebuttal arguments amounted to
misconduct. To prevail on a claim of prosecutorial misconduct, the defendant
must establish "that the prosecutor's conduct was both improper and prejudicial
1(Emphasis added.)
2(Emphasis added.)
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in the context of the entire record and the circumstances at trial."3 Otherwise
improper remarks "are not grounds for reversal if they were invited or provoked
by defense counsel and are in reply to his or her acts and statements, unless the
remarks are not a pertinent reply or are so prejudicial that a curative instruction
would be ineffective."4
Here, the challenged remarks were made in direct response to defense
counsel's argument that "[c]ommon sense and experience" indicate that police
officers conspire to plant drugs on innocent people. The prosecutor called on the
jury to consider other common experiences with police, including their
dependability and devotion to duty. These remarks were a direct and arguably
pertinent response to Richard's argument.
But even assuming the remarks were not pertinent, Richard cannot
establish prejudice. Improper remarks are prejudicial only if there is a substantial
likelihood that the instances of misconduct affected the verdict.5 Richard asserts
that the prosecutor's remarks were "highly charged" and an attempt "to arouse
the sympathies and fears of the jurors . . . ." We disagree with this
characterization. The prosecutor's comments were relatively benign, especially
in comparison to defense counsel's accusations of police misconduct.
3 State v. Thorgerson. 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal
quotations marks omitted) (citing State v. Magers. 164 Wn.2d 174, 191, 189 P.3d
126 (2008)).
4 State v. Lewis. 156 Wn. App. 230, 240, 233 P.3d 891 (2010) (citing State v.
Warren. 165 Wn.2d 17, 30, 195 P.3d 940 (2008); State v. Russell. 125 Wn.2d 24,
86, 882 P.2d 747 (1994).
5 Thorgerson. 172Wn.2d at 442-43 (Quoting Magers. 164Wn.2d at 191).
No. 69949-1-1/4
Importantly, the remarks were extremely brief and the court instructed the jury to
disregard remarks not supported by the evidence and to base their decision on
the facts and the law, not on sympathy. We presume that juries follow the court's
instructions.6 In these circumstances, there is no substantial likelihood the
remarks affected the verdict.7
Affirmed.
FOR THE COURT:
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6 State v. Southerland. 109 Wn.2d 389, 391, 745 P.2d 33 (1987).
7 State v. Warren, 134 Wn. App. 44, 69, 138 P.3d 1081 (2006) (holding that
isolated comments are not likely to affect verdict).