State v. Perkins

Schultheis, C.J.

(dissenting) — The majority opinion *461fairly and accurately sets forth the facts material to the case. However, I disagree with its application of the law and, therefore, must respectfully dissent.

As noted in the majority opinion, Randall Perkins did not object to the prosecutor’s closing argument of which he now complains. However, both parties admit the remark was improper. When there is no objection to an improper remark, it is considered waived unless the remark is “ ‘so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.’ ” State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999) (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998)), cert. denied, 120 S. Ct. 285 (1999).

In its closing the State commented:

We know that the defendant has a criminal record. You know that two of those crimes, two felonies involving theft, which are crimes involving dishonesty which is why we can talk about those offenses, were committed by the defendant. He admits them. This is a guy who steals, and this is a guy who takes vehicles. Says he was convicted for stealing his own. You can believe that if you want. This is not a person to be believed.

It is possible this remark merely informed the jury that Mr. Perkins had prior convictions that were not explained to them at trial. It is also possible, and indeed probable, that the jury inferred that Mr. Perkins’ criminal history also included at least one prior drug conviction. Either way, the remark appears to be intentionally used to mislead the jury into speculating as to the nature of the crimes not mentioned. This tactic introduced facts to the jury that were not in evidence, which prejudiced Mr. Perkins’ case to the extent that no curative instruction could have neutralized the damage. Mr. Perkins does not have any type of drug conviction in his record; therefore, the prosecutor’s statement is wholly improper. Given the facts of this case, I do not agree with the majority’s determination that Mr. Per*462kins received a fair trial. Accordingly, I would reverse and remand for a new trial.

Review denied at 140 Wn.2d 1006 (2000).