      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 68829-4-1


                     Respondent,                       DIVISION ONE


             v.



LITTERTORY DEANDRE MCCALL,                             UNPUBLISHED


                     Appellant.                        FILED: November 18. 2013




       Cox, J. - Littertory McCall challenges his judgment and sentence, claiming

that the prosecutor made improper statements during closing argument and

rebuttal and that this misconduct requires reversal. Because McCall fails to show

that the statements, to which he failed to object below, were incurable by a

proper instruction or prejudicial, we disagree and affirm.

       The State charged McCall with one count of delivery of cocaine, one count

of possession of cocaine with intent to deliver, one count of possession of

marijuana with intent to deliver, and one count of bail jumping.

       At trial, the State presented testimony from four Seattle police officers.

These officers testified that on April 1, 2012, they were working on a narcotics

"buy/bust" operation. A "buy/bust" operation is where undercover police officers

attempt to buy street-level narcotics and then, if successful, the seller is

immediately arrested.

       Two of the four officers were working undercover. One testified that

McCall gave him crack cocaine in exchange for prerecorded twenty-dollar bills.

The second testified that he observed the exchange.
No. 68829-4-1/2



      The other two officers were part of the arrest team. One testified that

when he arrested McCall, he found the prerecorded twenty-dollar bills and a rock

of cocaine in McCall's pocket and a second rock of cocaine on the ground. The

other testified that he recovered a backpack that contained marijuana.

      McCall testified on his own behalf. He testified that the undercover officer

handed him twenty-dollar bills, instructed him to give the money to another man,

and then walked away. He denied giving the officer any cocaine, and he denied

possessing cocaine. McCall testified that the cocaine was planted on him during

the arrest. He testified that he planned to smoke the marijuana.

      During closing argument, the prosecutor explained the reasonable doubt

standard as follows:

      So, it doesn't require that you have not one shred of doubt that
      there's some scenario that's hypothetically possible under which he
       might not have done it. No. It asks, do you believe he did it, and is
      there a reasonable doubt? Is there a reasonable scenario or
       reasonable explanation for how it might have happened that
       he didn't commit the crime? So, when you're deliberating, think
       about that. Is it reasonable to think that he didn't do it? Is there a
       reasonable probability that this—that it didn't happen, and that is
       what the—the test requires. If you believe it's true, if you believe
       the charge is true, and that belief is going to stay with you, then you
       are satisfied beyond a reasonable doubt, and it is your duty to
       return a verdict ofguilty.111
And in rebuttal, the prosecutor stated:

       And if you have doubts, ask yourself, is that a reasonable
       doubt? Is it reasonable to think that that other scenario
       happened? And that is how you have to analyze these cases.[2]


       1 Report of Proceedings (March 2, 2012) at 439 (emphasis added).

       2]d at 464 (emphasis added).
No. 68829-4-1/3



       McCall failed to object to either of the above parts of the

prosecutor's arguments.

       The jury found McCall not guilty of possession of marijuana with intent to

deliver. It could not agree on a verdict of cocaine possession with intent to

deliver or on bail jumping. The jury found McCall guilty of delivery of cocaine.

       McCall appeals.

                         PROSECUTORIAL MISCONDUCT

       McCall argues that the prosecutor "shifted the burden of proof by arguing

that, to acquit, the jury must find a 'reasonable explanation' of how McCall did not

commit the offense." He contends that this argument is no different from the "fill

in the blank" argument that courts have consistently repudiated. McCall argues

that this misconduct requires reversal. Because McCall fails to establish that the

prosecutor's arguments could not have been cured by an instruction and that

they were prejudicial, we disagree.

       Prosecutorial misconduct is grounds for reversal if the prosecutor's

conduct was both improper and prejudicial.3 "The court reviews a prosecutor's
conduct in the full trial context, including the evidence presented, the total

argument, the issues in the case, the evidence addressed in argument, and the

jury instructions."4




       3 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011).

       4 State v.Calvin.      Wn. App.       , 302 P.3d 509, 516 (2013) (citing
Monday. 171 Wn.2d at 675).
No. 68829-4-1/4



       Courts have consistently held that it is improper for a prosecutor to use a

"fill in the blank" argument during closing argument.5 A "fill in the blank"
argument is when a prosecutor implies that the "jury must be able to articulate its

reasonable doubt by filling in the blank."6 This type ofargument is improper
because it subtly shifts the burden of proof to the defense.7
       Once a defendant establishes that a prosecutor's statements are

improper, a reviewing court determines whether the defendant was prejudiced

under one of two standards of review.8 If the defendant objected at trial, "the
defendant must show that the prosecutor's misconduct resulted in prejudice that

had a substantial likelihood ofaffecting the jury's verdict."9 But if the defendant
failed to object at trial, "the defendant is deemed to have waived any error,

unless the prosecutor's misconduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice."10




       5 See e.g.. State v. Emery. 174 Wn.2d 741, 759, 278 P.3d 653 (2012);
State v. Walker. 164 Wn. App. 724, 730-31, 265 P.3d 191 (2011); State v.
Johnson. 158 Wn. App. 677, 684-85, 243 P.3d 936 (2010); State v. Veneqas.
155 Wn. App. 507, 523-24, 228 P.3d 813 (2010).

       6 Emery. 174 Wn.2d at 760.



       8kL

       9 Id. (citing State v. Anderson. 153 Wn. App. 417, 427, 220 P.3d 1273
(2009)).

       10 ]o\ at 760-61 (citing State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d
1239(1997)).
No. 68829^-1/5



       Under this latter "heightened" standard, the defendant must show that: "(1)

'no curative instruction would have obviated any prejudicial effect on the jury' and

(2) the misconduct resulted in prejudice that 'had a substantial likelihood of

affecting the jury verdict.'"11
       "Reviewing courts should focus less on whether the prosecutor's

misconduct was flagrant or ill intentioned and more on whether the resulting

prejudice could have been cured."12 The question is '"has such a feeling of
prejudice been engendered or located in the minds of the jury as to prevent a

[defendant] from having a fair trial?'"13 Even flagrant misconduct can be cured.14
       The supreme court considered a "fill in the blank" argument in State v.

Emery.15 There, during closing argument, the prosecutor stated:

       [l]n order for you to find the defendant not guilty, you have to ask
       yourselves or you'd have to say, quote, I doubt the defendant is
       guilty, and my reason is blank. A doubt for which a reason exists.
       If you think that you have a doubt, you must fill in that blank.[16!




       11 Id, at 761 (quoting State v. Thorgerson. 172 Wn.2d 438, 455, 258 P.3d
43(2011)).

       12 Id, at 762.
       13 Id. (quoting Slatterv v. City of Seattle. 169 Wash. 144, 148, 13P.2d464
(1932)).

       14 Id. at n.13 (citing State v. Warren. 165Wn.2d 17,27, 195 P.3d 940
(2008)).

        15 174 Wn.2d 741, 278 P.3d 653 (2012).

        16 Id. at 750-51.
No. 68829-4-1/6



       The court concluded that the prosecutor's statements, while improper, did

not "engender[ ] an incurable feeling of prejudice in the mind of the jury."17
Rather, they had the potential to confuse the jury about its role and the burden of

proof.18 The court stated that had there been an objection at trial, "the court

could have properly explained the jury's role and reiterated that the State bears

the burden of proof and the defendant bears no burden."19 It stated that "[s]uch
an instruction would have eliminated any possible confusion and cured any

potential prejudice . . . ."20
       The Emery court also stated in a footnote that it determined that the

defendants also could not show a substantial likelihood that the statements

affected the jury's verdict.21 In so concluding, it noted that the prosecutor clearly
and repeatedly stated that the State bears the burden of proof, that the State's

case was very strong, and that the jury instructions stated a proper definition of

reasonable doubt, explained the defendant has no burden, and directed jurors to

disregard argument not supported by the law in the instructions.22




        17 jd at 762.

        18Jp\at763.
        19 jd, at 764.

        20 Id,
        21 Id, at n.14.

        22 Id.
No. 68829-4-1/7



       Overall, the court concluded that the defendants could not demonstrate

that the improper statements were incurable or prejudicial.23
       Here, we need not decide whether the prosecutor's arguments subtly

shifted the burden of proof to the defense by asking if there is "a reasonable

scenario or reasonable explanation for how it might have happened that [McCall]

didn't commit the crime."24 Assuming, without deciding, that it did, McCall fails to
show that the argument was either incurable by an instruction or prejudicial.

       Because McCall did not object at trial, he must establish prejudice under

the heightened standard. McCall cannot show either requirement.

       First, McCall fails to show that no curative instruction would have obviated

any prejudicial effect on the jury. Like the statements in Emery, the statements

here were not inflammatory.25 Rather, they arguably had the potential to confuse
the jury about its role and about the burden of proof. If there had been an

objection at trial, the court could have provided a curative instruction to the jury.

This would have eliminated any confusion and cured any potential prejudice.

       Second, McCall also fails to show a substantial likelihood that the

statements affected the jury's verdict. During closing argument, the prosecutor

clearly stated that the State has the burden of proof. Further, the jury instructions

told the jury to "disregard any remark, statement, or argument that is not

supported by the evidence or the law in [the] instructions." The instructions


       23 Jd, at 765.
       24 Report of Proceedings (March 2, 2012) at 439.
       25 See Emery. 174 Wn.2d at 763.
No. 68829-4-1/8



reiterated that the State has the burden of proof and that the defendant has no

burden. We presume that the jury followed the court's instructions.26
       In sum, McCall fails to show that the prosecutor's statements, even if

improper, were incurable or prejudicial.

       McCall relies on State v. Johnson, for the proposition that "fill in the blank"

arguments "trivialized the degree of certainty the jury should have to convict. . .

."27 But, in Johnson. Division Two of this court did not make that observation

about "fill in the blank" arguments.28 Rather, the comment was related to other
improper statements.29 Thus, this argument is not helpful.
       Next, McCall argues that incurable prejudice is shown when the case

hinges on credibility and the prosecutor's arguments could serve as the deciding

factor. But Emery also involved credibility determinations, and there, the

supreme court held that potential prejudice was curable by instruction.30 As
discussed above, McCall fails to show that any prejudice was incurable by

instruction. Thus, his argument is not persuasive.




       26 Anderson. 153 Wn. App. at 432.
       27 Brief ofAppellant at 8-9 (citing State v. Johnson. 158 Wn. App. 677, 243
P.3d 936 (2010)).

       28 Johnson. 158 Wn. App. at 684.

       29 jd, at 684-85.
       30 Emery. 174 Wn.2d at 764.


                                           8
No. 68829-4-1/9



       Finally, McCall relies on State v. Walker for the proposition that prejudice

can result from the prosecutor's repetition of improper arguments.31 But, in
Walker, the prosecutor "made the improper comments not just once or twice, but

frequently" and emphasized them with PowerPoint slides.32 Further, the
prosecutor in Walker utilized several other improper arguments in addition to "fill

in the blank" arguments.33 The court considered the cumulative effect ofthese to
conclude that additional instructions would not have cured their effect.34

       Here, in contrast, there was just one type of argument at issue, and it was

utilized once in closing and once in rebuttal. Additionally, as discussed above,

courts look to the entire context of the argument, the issues, the evidence, and

the instructions to determine prejudice.35 Looking at the entire context ofthe
argument, McCall fails to establish prejudice.

       We affirm the judgment and sentence.

                                                           Csh. J.
WE CONCUR:




%dL)rrtb*y                                        fcwJ
       31 Brief of Appellant at 11 (citing Walker. 164 Wn. App. at 738).           co     £3^;
                                                                                   ;rr,   wn;
       32 Walker, 164 Wn. App. at 738.                                             —"     ~" ,—


       33 Id, at 729.                                                              Z      5'5
                                                                                   CD


       34 jd, at 726, 729, 737-39.

       35 Calvin. 302 P.3d at 516 (citing Monday. 171 Wn.2d at 675).

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