State v. Dixon

Hunt, J.

¶31 (dissenting and concurring) — I concur in the majority’s reversal of Dixon’s bail-jumping conviction and their remand for dismissal with prejudice. But I respectfully dissent from the majority’s reversal of Dixon’s methamphetamine possession conviction based on prosecutorial misconduct for two reasons. First, except for one remark5 in its rebuttal closing argument, the State mentioned Dixon’s failure to call her passenger as a witness solely in response to her having “opened the door” in her closing argument. Second, even if the State’s remarks were improper, they do not warrant reversal because Dixon fails to show that they were “so flagrant and ill-intentioned” that a curative instruction could not have remedied any undue prejudice. And Dixon failed to request a curative instruction.

I. Prosecutorial Misconduct Standards

¶32 To establish a claim of prosecutorial misconduct, an appellant must show that the prosecutor’s comments were *60both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). If established, prosecutorial misconduct warrants reversal where there is a substantial likelihood that the improper conduct affected the jury. Id. But defense counsel’s failure to object to prosecutorial misconduct constitutes waiver on appeal unless the misconduct is “ ‘so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice’ ” incurable by a jury instruction. Id. (internal quotation marks omitted) (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)). Such is not the case here.

¶33 Some improper prosecutorial remarks can touch on a constitutional right but still be curable by a proper instruction to the jury. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001). If, as here, defense counsel failed to request a curative instruction, we are not required to reverse. Fisher, 165 Wn.2d at 747 (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). Moreover, even if improper, a prosecuting attorney’s remarks do not require reversal when “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 he ineffective.” State v. Gentry, 125 Wn.2d 570, 643-44, 888 P.2d 1105 (1995) (emphasis added). Again, such is not the case here.

H. Invitation and Provocation

¶34 The State mentioned nothing about a missing witness in its closing argument. Rather, it was Dixon’s counsel who, in closing argument, first asserted, “[Dixon’s passenger] had the means and the opportunity to put [the drugs] in Ms. Dixon’s purse.” Report of Proceedings (RP) (Mar. 12, 2008) at 65. Dixon’s counsel further asserted:

There was an unknown person in the car. We don’t know enough about that person because, like the officer said, he was still learning and he did not get enough information about this person to tell us . . . what [this person] was doing while Ms. Dixon was being arrested.

*61RP (Mar. 12, 2008) at 66. By introducing Dixon’s alibi theory in closing argument, her counsel implicitly invited the State to reply. The State was entitled to respond to Dixon’s new “alibi” defense, which she raised just before the case was to go to the jury.

¶35 Thus, it was only after Dixon raised the specter of her passenger’s having planted the drugs in Dixon’s purse that the State responded in rebuttal closing argument:

Why didn’t [Dixon] bring that passenger in to testify for her? . . . And if that passenger had anything at all to say, don’t you think that [Dixon] would have contacted him?
That passenger - what they’re suggesting is that passenger put the drugs in her purse.

RP (Mar. 12, 2008) at 69. Especially in light of Dixon’s having opened the door and invited these remarks, Dixon fails to show that these remarks were so flagrant and ill-intentioned as to require reversal. Gentry, 125 Wn.2d at 643-44.

¶36 Furthermore, Dixon neither objected to these remarks nor requested a curative instruction. Therefore, Dixon is not entitled to reversal of her conviction unless she can meet her burden of demonstrating that the State’s comments were so prejudicial as to be incurable by instruction. In my view, she fails to meet this burden.

III. No Incurable Prejudice

¶37 I agree with the State’s concession that the following portion of the prosecutor’s closing argument was an improper comment on Dixon’s constitutional right to remain silent:6 “Did [Dixon] make any statement that ‘[Dixon’s passenger] put that in [her] purse’? No. We didn’t hear any of that testimony.” RP (Mar. 12, 2008) at 69. Nevertheless, as I noted earlier, a timely requested proper instruction *62may cure even an improper prosecutorial remark implicating a defendant’s constitutional right. See Smith, 144 Wn.2d at 679. Again, Dixon fails to demonstrate prejudice requiring reversal from this remark or from the remarks responding to her raising the issue of a missing exculpatory witness.

¶38 First, Dixon failed to object to the prosecutor’s remarks at trial. As I earlier noted, Dixon must therefore prove that these remarks were incurable by a jury instruction. Fisher, 165 Wn.2d at 747. Here, Dixon failed to request such a curative instruction. Therefore, the lack of a special curative instruction does not require us to reverse her conviction. Id.

¶39 Second, the prosecutor’s remarks were not prejudicial in light of the State’s evidence against Dixon. Dixon admitted the purse containing the drugs belonged to her. The arresting officer found the purse within arm’s reach of Dixon and testified that Dixon had control over the purse. Dixon was jittery and extremely nervous at the time of the arrest. Dixon’s passenger denied ownership of the drugs. The arresting officer kept Dixon’s passenger within his line of vision during the entire stop and arrest, and he saw no placement of anything by the passenger in Dixon’s purse.

¶40 Moreover, the trial court did give instructions to the jury that ameliorated any prejudice to Dixon that might have flowed from the prosecutor’s remarks. The trial court instructed the jury that (1) the lawyers’ statements were not evidence, (2) the jury must disregard any statement or argument not supported by the evidence, (3) Dixon was presumed innocent and that presumption continued throughout the trial unless the jury found the presumption overcome by the State’s evidence beyond a reasonable doubt, (4) the State bore the entire burden of proving its case, (5) Dixon bore no burden to prove reasonable doubt, and (6) the jury could not use the fact that Dixon had not testified to infer guilt or to prejudice her in any way. We presume the jury followed these instructions. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).

*63¶41 Given the strength of the State’s evidence and the court’s instructions to the jury, there is no substantial likelihood that the prosecutor’s comments caused any prejudice to Dixon that could not have been cured by a curative instruction or materially affected the outcome of the trial. Accordingly, I concur in the majority’s reversal of Dixon’s bail-jumping conviction and remand for dismissal with prejudice. But I dissent from the majority’s reversal of her methamphetamine possession conviction, which I would affirm.

See section III, infra.

“No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.