IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 78802-7-I
Respondent, )
)
v.
) UNPUBLISHED OPINION
ROBERT ANDERSON, )
) FILED: March 9, 2020
Appellant.
VERELLEN, J. — Robert Anderson appeals his convictions for possession of
methamphetamine with intent to deliver and bail jumping. He asserts that reversal
is required because the trial court admitted improper police opinion testimony and
because the prosecutor vouched for the officers’ credibility during closing
arguments. We conclude that the officers’ testimony did not invade the province of
the jury. Even if the prosecutor improperly vouched for the credibility of the police
witnesses, there is no reasonable probability that the error affected the outcome of
the trial. Anderson also fails to establish he is entitled to a new trial based on
cumulative error. Therefore, we affirm.
FACTS
On the evening of January21, 2016, Sergeant Jay Taylor and Sergeant Jeff
Hendrickson of the Everett Police Department contacted Robert Anderson on
No. 78802-7-1/2
Smith Avenue in Everett, near the Men’s Gospel Mission. The officers stopped
Anderson on a search warrant,1 placed him in handcuffs to execute the search,
and read him his Miranda2 warnings. During the search, officers located a plastic
soap box in a small zipper pocket in the left leg of Anderson’s pants. Inside the
soap box, officers discovered several loose cigarettes and 14 small plastic bags
containing a crystalline substance that was later identified as methamphetamine.
The officers also recovered a cell phone from Anderson’s jacket pocket. The
phone contained multiple text messages discussing the sale and purchase of
controlled substances.
Sergeant Taylor arrested Anderson and transported him to the Snohomish
County Jail. Sergeant Taylor testified that when they arrived at the jail, Anderson
spontaneously admitted that he was selling drugs to make a little money before
going to a commercial trucking school.
On October 11, 2017, the State charged Anderson with one count of
possession of a controlled substance (methamphetamine) with intent to
manufacture or deliver. After Anderson failed to appear for his omnibus hearing,
the State filed an amended information adding one count of bail jumping.
Because the State anticipated Anderson would argue the drugs were for
personal use and not delivery, it moved to allow police officers to testify in their
expert capacity based on their training and experience regarding the
1 Reference to the search warrant was suppressed at trial.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 10 Ohio Misc. 9 (1966).
2
No. 78802-7-113
characteristics and behaviors of typical drug dealers and drug users. The defense
sought to restrict officers from opining that Anderson was a drug dealer predicated
on the number of calls on his phone, the high drug crime rate in the area,
Anderson’s lack of paraphernalia or other signs of being a non-user, or that the
amount of methamphetamine seized in the baggies found on Anderson was
consistent with amounts used by people on the streets in the area. The court
ruled that the police officers could indicate whether they believed Anderson was
under the influence, but it disallowed “general testimony as to whether someone
does or does not look like a meth user.”3 The court reserved ruling on other
individual issues pending testimony, but cautioned that ‘the focus of the State’s
case needs to be on the defendant’s conduct and the evidence that they obtained
• . . and not too much generalizing because that can certainly be objectionable.”4
At trial, the State asked Officer Taylor about his “training [and] experience
as far as recognizing indicators that would indicate a drug user.”5 Defense
counsel objected that such testimony was barred by the court’s pretrial rulings, but
the court disagreed and allowed Officer Taylor to answer. The State then elicited
the following testimony:
Q: What are some of the indicators that you’ve been trained and
in your career, over the course of your career, that would
indicate a drug user?
~ Report of Proceedings (RP) (July 23, 2018) at 18.
~ Id. at 20.
51d.at 113.
3
No. 78802-7-1/4
A: A drug user in—so common to the drug users that I have run
into during my employment at Everett, they will have typically
some kind of drug paraphernalia on them for the use of
whatever substance it is. [T]hey may have a quantity of
. . .
that substance on them. Typically, a fairly small or not a high
dollar amount because a user is typically using the substance
and not hoarding it or storing it for any reason, so they’ll go
through it. So those would be the two main things, I’d say.
. . .
Q: O.K. And have you been trained in differentiating between a
drug user versus a drug dealer?
A: Yes.
Q: O.K. And what is that training [and] experience?
A: . . So it’s kind of the training part of it, and then seeing in
. .
real life the difference, you typically are going to see a larger
quantity of a substance. It’s going to be packaged differently
as opposed to a user. If they buy a package, it will be one
package; whereas a dealer typically wiII—~61
Defense counsel again objected on the ground that Officer Taylor’s testimony was
“going towards the issue that the jury has to find.”7 The court sustained the
o bjection/
The State then asked Officer Taylor, ‘And in the course of your career, are
there certain indicators . . . which would indicate to you the difference in a drug
user and drug dealer?8 Defense counsel again objected. This time, the court
61d.at 113-15.
Hd.at 115.
8k1.at 115-16.
4
No. 78802-7-115
ruled, “In terms of in a general sense, I’ll allow some limited testimony, but I don’t
want to go too far down this road, counsel.”9
The State next asked Officer Taylor, “What are some of the signs that you
would look for?,” and Officer Taylor responded, “Quantity, method of packaging,
amount of money, measuring equipment, communication equipment for setting up
deals.”1°
The State later asked Sergeant Taylor how often individuals use their true
name in setting up a drug transaction. The court sustained defense counsel’s
objection:
Well, I mean, he certainly testified and I did allow it in terms of
some signs with respect to amount and packaging and that sort of
thing, and I do think that’s probably maybe beyond the province of
what somebody might know or not know. But in terms of. whether . .
someone’s using the correct name and that that means it’s a drug
dealer as opposed to a drug user, that sort of thing, I’m not
convinced that that’s relevant testimony.[11]
The following day, the State called Officer Oleg Kravchun to testify as an
expert on drug transactions based on his training and experience. Defense
counsel argued that such testimony was unnecessary because the jury could
evaluate the factual evidence in the case based on its ordinary experience and
knowledge. The court ruled that Officer Kravchun could educate the jury regarding
9Id.at 116.
~° Id.
ki. at 145.
5
No. 78802-7-1/6
“what is typically involved in a drug transaction”12 but cautioned that the officer
could not be asked to opine whether the facts of this case fit that profile. Officer
Kravchun then testified regarding how drugs are typically packaged in a drug
transaction, the range of amounts sold, how methamphetamine is typically
ingested, and how drug transactions are set up.
Anderson testified at trial. He denied telling Officer Taylor that he was
selling drugs to make money. Rather, he said that he was living at the Everett
men’s shelter and trying to earn money working as an unloader at Atlas Van Lines
while he renewed his truck driver’s license. He testified that the pants he was
wearing on the evening he was arrested were borrowed from another man at the
shelter. As for the text messages showing drug dealing conversations on his
phone, he explained that he often allowed other people to borrow it.
The jury convicted Anderson as charged. Anderson appealed.
ANALYSIS
Police Officers’ Testimony
Anderson contends that reversal is required because the trial court allowed
Sergeant Taylor and Officer Kravchun to offer improper opinions on guilt that
infringed on his constitutional right to an impartial jury. We disagree.
Trial courts “must be accorded broad discretion to determine the
admissibility of ultimate issue testimony.”13 ER 704 provides that “[t]estimony in
~d.at 188.
13 City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).
6
No. 78802-7-1/7
the form of an opinion or inferences otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.”
“[T]estimony that is not a direct comment on the defendant’s guilt or on the
veracity of a witness, is otherwise helpful to the jury, and is based on inferences
from the evidence is not improper opinion testimony.”14 However, “[nb witness,
lay or expert, may testify to his opinion as to the guilt of the defendant, whether by
direct statement or inference.”15 “In addition, inferential testimony that leaves no
other conclusion but that a defendant is guilty cannot be condoned, no matter how
artfully worded.”16 “Such testimony is unfairly prejudicial to the defendant because
it invades the exclusive province of the jury.”17
Generally, a police officer testifying as an expert is permitted to make
reasonable inferences based on the evidence and the officer’s training and
experience.18 “An opinion as to the guilt of the defendant is particularly prejudicial
and improper where it is expressed by a government official, such as a sheriff or a
police officer.”19 “The determination of whether testimony constitutes an
14 State v. Cruz, 77 Wn.App. 811, 814, 894 P.2d 573 (1995) (quoting ki. at
578).
15 State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).
16 Cruz, 77 Wn. App. at 814.
17 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007).
18 State v. Them, 138 Wn.2d 133, 148, 977 P.2d 582 (1999).
19 State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992).
7
No. 78802-7-1/8
impermissible opinion as to the defendant’s guilt depends on the particular
circumstances of each case.”2°
Police officer testimony regarding typical criminal activity is not necessarily
impermissible. In State v. Cruz, where the defendant was charged with delivery of
heroin, the trial court permitted a police officer to testify about “typical” heroin
transactions.21 In closing, the prosecutor argued that Cruz’s actions fit the
detective’s description of the typical transaction.22 The appellate court held that
the detective’s testimony did not constitute an impermissible opinion on guilt
because it “did not amount to a directive telling the jury what result to reach on the
issue of Cruz’s guilt or innocence.”23
Here, as in Cruz, the record does not support Anderson’s assertion that the
police officers’ testimony regarding drug users and drug transactions amounted to
an impermissible opinion on guilt. They testified only in general terms based on
their training and experience. They did not opine, either directly or by inference,
that Anderson’s actions were consistent with typical drug transactions with which
they were familiar. “The fact that an opinion encompassing ultimate factual issues
supports the conclusion that the defendant is guilty does not make the testimony
an improper opinion on guilt.”24
20 Cruz, 77 Wn. App. at 814-15.
2177 Wn.App. 811, 813-14, 894 P.2d 573 (1995).
22 Id. at 814.
Id. at 815.
24 Heatley, 70 Wn. App. at 579.
8
No. 78802-7-1/9
Anderson likens his case to State v. Farr-Lenzini, but that case is
distinguishable.25 The State charged Farr-Lenzini with attempting to elude a
pursuing police vehicle.26 When the State asked the pursuing police officer to give
his opinion “as to what the defendant’s driving pattern exhibited,” the officer
responded that the driver “was attempting to get away from me and knew I was
back there and refusing to stop.”27 Division Two of this court held that the officer’s
testimony about Farr-Lenzini’s state of mind violated her right to a jury trial
because it constituted an opinion about the intent element of the offenses.28 Here,
in contrast, the police officers did not draw a conclusion for the jury regarding
whether the facts of Anderson’s case met an element of the charged offense.
Anderson further asserts that by the time Officer Kravchun testified, the
court came to realize that the State’s case was impermissibly based on profiling
testimony and responded by more tightly restricting the proper bounds of the
police testimony. He contends that this response demonstrates the impropriety of
Sergeant Taylor’s testimony. The record does not support this assertion. The
court consistently ruled that the State could elicit general educational testimony
regarding drug use and drug sales, but not that the facts of this case were
consistent with those characteristics or with an intent to deliver. In applying this
2593 Wn. App. 453, 970 P.2d 313 (1999).
26 Id. at 458.
27 Id.
28 ~ at 463-64.
9
No. 78802-7-1/10
principle, the court frequently reserved ruling on individual issues pending
testimony. This approach was proper.
Closing Argument
Anderson contends a new trial is required because the State committed
prosecutorial misconduct during closing argument. “The propriety of a
prosecutor’s conduct is ‘reviewed in the context of the total argument, the issues in
the case, the evidence addressed in the argument, and the instructions given.”29
“In closing argument, a prosecutor is afforded wide latitude to draw and express
reasonable inferences from the evidence.”30 To prevail on a claim of prosecutorial
misconduct, the defendant bears the burden of establishing that the conduct was
both improper and prejudicial.31 To establish prejudice, the defendant must show
“a substantial likelihood that the misconduct affected the jury verdict.”32 “Any
allegedly improper statements should be viewed within the context of the
prosecutor’s entire argument, the issues in the case, the evidence discussed in the
argument, and the jury instructions.”33
29 State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012) (quoting
State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994)).
30 Id.
31 State v. Thorgerson, 172 Wn.2d 438, 460, 258 P.3d 43 (2011).
32 State v. Hecht, 179 Wn. App. 497, 319 P.3d 836 (2014).
~ State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
10
No. 78802-7-I/il
In his closing argument, defense counsel sought to cast doubt on Officer
Kravchun’s and Sergeant Taylor’s memory of events. In rebuttal closing
argument, the prosecutor stated:
PROSECUTOR: So consider this. There are two versions you’ve
heard. Any of them make sense of all of this
evidence? So think about what the defendant is
saying. Think about what the officers are saying.
Who has the personal interest in this case? Who
has the stakes?
DEFENSE: Your Honor, I’m going to object. It’s reversing the
burden of proof. Suggesting the defendant has—
COURT: It’s argument. . [T}hey have the instructions in
. .
terms of how they’re to apply the testimony of
witnesses.
PROSECUTOR: It says you are to consider any personal interest,
any bias or prejudice, consider who has the stakes
when you consider the credibility. The defendant
would have you believe that these officers who
don’t know him, who’s just doing their job assigned
to this anticrime team, assigned to this 36 to 3700
block of Smith Avenue, made this whole thing up,
put their careers on the line, put their reputations
on the line for him.
DEFENSE: I’m going to object. That’s not the argument that I
made.
COURT: Overruled, counsel.[34]
The State asserts the prosecutor’s remarks were not improper because
jurors can reasonably infer that an officer would not risk consequences to his
~ RP (July 25, 2018) at 386-87.
ii
No. 78802-7-1/12
career and reputation for fabricating a story and testifying to it during trial. This
argument is troubling.
A prosecutor commits misconduct by personally vouching for the credibility
of a witness.35 Improper vouching occurs when the prosecutor expresses a
personal belief in a witness’s credibility or refers to evidence not presented at trial
to support a witness’s testimony.36 It is improper for prosecutors to bolster a police
witness’s good character even if the record supports such argument.37
State v. Jones is instructive.38 There, the prosecutor argued that a
confidential informant who did not testify was credible because the police officers
would not have risked their careers by using an unreliable informant:
And how much sense does it make to you that. any narcotics
. .
detective would put their own reputation on the line? Their own
credibility? Their own integrity of their investigation? Their very
livelihood on the line for one silly person who is duping or snookering
them somehow?139]
The appellate court held that these statements improperly bolstered the officer’s
credibility “by using facts not in evidence, namely, that police . . . would suffer
professional repercussions if they used an untrustworthy informant.”40
~ State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010).
36 Id.
~ State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 (2008).
38 144 Wn. App. 284, 183 P.3d 307 (2008).
~ Id. at 293.
40 ki. at 293-94.
12
No. 78802-7-1/13
Here, the prosecutor similarly urged the jury to find that the testifying
officers were credible because they would not jeopardize their careers by giving
false testimony. And defense counsel did not assert in closing that the officers
gave false testimony; he merely questioned the accuracy of their recollections.
The prosecutor’s arguments were problematic.
But, where the defense fails to object to an improper statement, the error is
waived unless the statement is “so flagrant and ill-intentioned that it causes an
enduring and resulting prejudice that could not have been neutralized by a curative
instruction to the jury.”41 The State contends Anderson failed to preserve the issue
because he did not object on the basis that the argument presented facts outside
the record or that it bolstered the police officers’ credibility. Anderson asserts that
he sufficiently preserved the issue by objecting on the basis that the State
reversed the burden of proof and mischaracterized his closing argument.
Even assuming that Anderson’s objections were sufficient to preserve the
error, we conclude that reversal is not required because Anderson has not
demonstrated a substantial likelihood of prejudice. At the time of arrest, Anderson
was carrying a small box containing 14 identically-packaged bags of
methamphetamine in the pants he was wearing. The pants fit him and matched
the sweatshirt he was wearing. Anderson’s phone also contained multiple threads
of text messages showing conversations about drug dealing. Ample physical
41 Statev. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
13
No. 78802-7-1/14
evidence corroborated the police officers’ testimony. There is no reasonable
probability that the prosecutor’s improper argument materially affected the
outcome of the trial.
Cumulative Error
Anderson asserts that the cumulative effect of the improper opinion
testimony and the prosecutorial misconduct entitle him to a new trial. The
cumulative error doctrine “applies when a combination of trial errors denies the
accused a fair trial, even when any one of the errors taken individually would be
harmless.”42 Anderson was affected by only one error, and he failed to
demonstrate prejudice. He is therefore not entitled to a new trial.
Affirmed.
Jr’
WE CONCUR:
/
42 State v. Salas, I Wn. App. 2d 931, 952, 408 P.3d 383 (2018).
14
State Of Washington v. Robert Anderson
Combined Opinion