State v. Jackson, No. 22552-6-III (WA 6/21/2005), 22552-6-III

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Unpublished Opinion

STATE OF WASHINGTON, Respondent and Cross-Appellant, v. ROBERT TYRONE JACKSON, Appellant.

No. 22552-6-III

Court of Appeals of Washington, Division Three, Panel Eight.

Filed: June 21, 2005

Appeal from Superior Court of Spokane County. Docket No. 03-1-01152-6. Judgment or order under review. Date filed: 11/14/2003. Judge signing: Hon. Tari S Eitzen.

Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.

Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.

BROWN, J.

A jury found Robert T. Jackson guilty of delivering cocaine. On appeal, Mr. Jackson contends the evidence was insufficient to sustain a guilty verdict, and prosecutorial misconduct prejudiced his case.¹ The State cross-appeals, contending the court erred in finding Mr. Jackson indigent and declining to impose a drug penalty. Pro se, Mr. Jackson raises issues of ineffective assistance of counsel, prosecutorial misconduct, and fair trial. Finding no error except the failure to impose the drug penalty, we affirm in part, and reverse in part.

FACTS

In a retrial, Mr. Jackson was found guilty of delivery of cocaine for events allegedly taking place on March 20, 2003. The trial court heard defense motions, including a motion to continue, to exclude Detective Kevin Langford from sitting at the counsel table, to exclude reference to nicknames, gang monikers, gangs or mugshots, and to exclude reference to prior drug offenses. The State stipulated it would not refer to `gang' or `gang moniker{s}' at trial. Report of Proceedings (RP) (Oct. 20, 2003) at 11. The court allowed reference to Mr. Jackson as `LD' or `Little LD.' RP (Oct. 20, 2003) at 16-18. One of the issues at trial was misidentification, based upon possible confusion with Mr. Jackson's taller brother. In addition, the State stipulated not to refer to prior drug convictions unless the defense opened the door. The court denied Mr. Jackson's motions to continue and to prohibit Detective Langford from sitting at the counsel table.

At trial, Dan McCollum (described variously as a cooperating individual or confidential informant (CI)) testified he telephoned a person later found to be Mr. Jackson's brother, known as `{Tall} LD,' and arranged to buy cocaine at the corner of Diamond and Regal in Spokane. RP (Oct. 20, 2003) at 142. Mr. McCollum related he met Mr. Jackson near the designated location and gave him $50 in exchange for cocaine. Mr. McCollum testified he returned to the patrol car and gave the cocaine to Detective Langford. Mr. McCollum identified Mr. Jackson at trial. During his testimony, Mr. McCollum gave inconsistent accounts of his controlled-buy history. He failed to recall specific details of the alleged transaction, but he was sure of his identification of Mr. Jackson.

The State presented testimony from Sergeant Keith Cummings, who testified to arranging a controlled buy between an individual known as `LD' and the CI. RP (Oct. 20, 2003) at 108-111. Sergeant Cummings testified he observed a `hand-to-hand exchange' between the CI and another person, described as a black male, about 25 years old, medium build and about 5'7 or 5'8. RP (Oct. 20, 2003) at 113. While Sergeant Cummings did not see money or drugs exchanged, he did not believe the exchange to be consistent with a handshake, as suggested by Mr. Jackson. Sergeant Cummings conceded he `couldn't see enough facial features to identify' Mr. Jackson as the individual he observed, but felt his size and stature were consistent with the person he observed. RP (Oct. 20, 2003) at 121.

Detective Dan Ervin testified he conducted a strip search of the CI prior to the controlled buy to ensure the CI did not introduce any contraband. Detective Ervin testified he lost sight of the CI and did not personally observe the alleged drug transaction. However, he related surveillance units indicated contact had been made.

During Detective Langford's redirect testimony, the prosecutor asked how investigators obtained Mr. Jackson's photo for the photomontage. He responded that they had the `nickname LD; we have intelligence files.' RP (Oct. 21, 2003) at 187. The court sustained a defense objection but declined to strike the question and answer.

At the conclusion of the State's case, Mr. Jackson unsuccessfully moved to dismiss for insufficiency of evidence.

During closing arguments, the prosecutor partly argued:

Now, Detective Langford, Detective Ervin and Sergeant Cummings testified that throughout this entire ordeal Mr. McCollum was under the view of the Spokane Police Department, trained observers; that nothing unusual other than the fact that the exchange took place in a different area . . .; that they observed him constantly. Mr. McCollum was under observation.'

RP (Oct. 21, 2003) at 205. Further, the prosecutor argued:

Ladies and gentlemen, use your experience. Every handshake in every culture involves eye contact. You don't look at your feet. You look at the person when you are doing a greeting. That's a reasonable inference, not a cultural difference.

RP (Oct. 21, 2003) at 217. The defense did not object to either statement.

Mr. Jackson was found guilty as charged. At sentencing, defense counsel again unsuccessfully moved for arrest of judgment based on evidence insufficiency.

In requesting leniency and a below range sentence, defense counsel related Mr. Jackson has worked in landscaping, telemarketing, as a cook and in construction, and has goals to be a counselor. And, Mr. Jackson had a job waiting for him through his father. The judge was impressed that Mr. Jackson was always very articulate and intelligent, and noted that he had the ability to do anything he wanted to do. Over the State's objection, and without any additional findings, the judge made a finding of indigency and waived the $2,000 drug fine under chapter 69.50 RCW.

Mr. Jackson appealed. The State cross-appealed the drug fine denial, contending no factual basis existed for finding Mr. Jackson indigent.

ANALYSIS

A. Evidence Sufficiency

The issue is whether sufficient evidence supports Mr. Jackson's guilty verdict for delivery of cocaine.²

In an evidence sufficiency challenge, we treat the State's evidence as true and draw all reasonable inferences from all the evidence in favor of the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The conviction will not be overturned if a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We defer to the trier of fact to weigh evidence and resolve conflicting testimony. State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)).

Mr. Jackson was charged with delivery of a controlled substance under RCW 69.50.401(A)D-F. Mr. Jackson contends the evidence was insufficient to show he delivered cocaine because the detectives involved did not see drugs or money exchanged. However, Sergeant Cummings testified he observed someone engaged in a hand-to-hand exchange with the CI, although the Sergeant could not identify Mr. Jackson as the other party or see any items exchanged.

Further, the CI testified he arranged to buy cocaine with Mr. Jackson's brother and bought crack cocaine for $50 from Mr. Jackson on March 20, 2003. After engaging in the transaction, the CI immediately delivered a quantity of cocaine to Sergeant Cummings, which he claims to have purchased from Mr. Jackson. The CI identified Mr. Jackson in court as the person delivering the drug to him. When the CI's testimony and the corroborating testimony are taken as true, the jury had sufficient evidence before it to believe Mr. Jackson delivered cocaine.

Mr. Jackson contends the CI was unreliable due to inconsistencies in his testimony. However, we do not disturb these types of credibility and weight determinations on appeal. See State v. Young, 83 Wn.2d 937, 938, 523 P.2d 934 (1974) (a conviction will not be overturned based on conflicting testimony where the State's evidence provided a rational basis for a guilty verdict).

In sum, the evidence is sufficient to find Mr. Jackson delivered cocaine.

B. Prosecutorial Misconduct

The issue is whether the prosecutor's comments during trial and closing argument prejudiced Mr. Jackson's right to a fair trial.

Mr. Jackson bears the burden of establishing the argument was both improper and prejudicial. State v. Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993). Prejudice requires a substantial likelihood that the misconduct affected the jury's verdict. Id. (citations omitted). Such statements are examined `in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' Id. Generally, failure to timely and specifically object to an improper remark constitutes a waiver of the objection unless the remark is so `flagrant and ill-intentioned' that it causes prejudice that could not have been neutralized by an admonition to the jury. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996).

Mr. Jackson contends the prosecutor committed misconduct by making a gang reference at trial in violation of the State's pretrial stipulation not to refer to gang or gang monikers. During Detective Langford's redirect testimony, while arguably responding to cross-examination testimony, suggesting the CI may have had a role in placing Mr. Jackson's photo in the montage, the prosecutor asked how investigators obtained Mr. Jackson's photo for the montage. Detective Langford answered that they had his nickname from `intelligence files.' RP (Oct. 21, 2003) at 187. The court sustained a defense objection to the line of questioning but declined to strike the question and answer. A reference to `intelligence files,' without more, is not a gang reference....