      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
STATE OF WASHINGTON,                        )         No. 74824-6-1
                                            )
                      Respondent,           )         DIVISION ONE
                                            )
             V.                             )
                                            )
DANTE URELL PIGGEE,                         )         UNPUBLISHED
                                            )
                     Appellant.             )         FILED: June 19, 2017
                                            )


       Cox, J. — At issue in this appeal is whether the trial court abused its

discretion in denying Dante Piggee's motion for a mistrial based on alleged

prosecutorial misconduct during opening statement at trial. Because the trial

court did not abuse its discretion, we affirm.

       Police stopped Piggee while he was driving in Seattle. After he gave the

police another person's driver's license, police arrested him for driving with a

revoked license. While searching his person incident to arrest, they discovered

several plastic bags of heroin.

       The State charged Piggee with violating the Uniform Controlled

Substances Act by possessing heroin, driving with a suspended or revoked

license, and identity theft.

       During opening statements, the prosecutor commented on the quantity of

heroin found in Piggee's possession. The prosecutor, said that it was "not just a
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small amount, not just a user amount, it's about[150 grams of heroin." The

transcript has a typographical error where it states "350 grams," instead of"50

grams."2

       Defense counsel moved for a mistrial, arguing that the prosecution had

implied that Piggee was guilty of possessing the heroin with intent to deliver it.

The trial court denied the motion but instructed the State not to ask witnesses

about the quantity of heroin one would possess for personal or commercial use.

       In closing argument, defense counsel conceded that some of the

substance found on Piggee was heroin. The jury found Piggee guilty of violating

the Uniform Controlled Substances Act and driving with a suspended or revoked

license. The trial court entered its judgment and sentenced on the jury verdict.

       Piggee appeals.

                                MISTRIAL MOTION

       Piggee argues that he was denied his right to a fair trial when the

prosecutor argued uncharged and more serious crimes in her opening statement.

This argument is couched in terms of alleged prosecutorial misconduct that was

the basis of his unsuccessful motion for mistrial below. We hold that the trial

court did not abuse its discretion in denying his motion.

       A trial court may grant a new trial "when it affirmatively appears that a

substantial right of the defendant was materially affected ...[by m]isconduct of



       1 Report of Proceedings(September 16, 2015) at 225.

                                      also Clerk's Papers at 5; Report of
       2 Brief of Respondent at 3 n.2; see
Proceedings(September 16, 2015) at 228.


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the prosecution."3 We review for abuse of discretion the trial court's order

denying a new trial on the basis of prosecutorial misconduct.4

       To show prosecutorial misconduct, the defendant must show the

"'prosecutor's conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial.'"5

                                Improper Argument

       Piggee argues that the prosecutor made an improper argument in opening

statements. We disagree.

       The prosecution should confine opening statements "to a brief statement

of the issues of the case, an outline of the anticipated material evidence, and

reasonable inferences to be drawn therefrom."6 In presenting this statement, the

prosecutor should avoid laygument and inflammatory remarks."7 The

prosecutor should instead "seek a verdict free of prejudice and based on

reason."5

       A prosecutor's comment may be improperly inflammatory when it

threatens to provoke a jury's passion regarding drug crimes. State v. Echevarria9


       3 CrR   7.5(a)(2).

       4 State   v. Dawkins, 71 Wn. App. 902, 906, 863 P.2d 124 (1993).

       5 Statev. Magers, 164 Wn.2d 174, 191, 189 P.3d 126(2008)(quoting
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003)).

      6 State    v. Campbell, 103 Wn.2d 1, 15-16, 691 P.2d 929 (1984).

       7 State   v. Kroll, 87 Wn.2d 829, 834-35, 558 P.2d 173(1976).

       8 State   v. Huson, 73 Wn.2d 660, 663,440 P.2d 192(1968).

       9 71   Wn. App. 595, 860 P.2d 420 (1993).


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is instructive. In that case, the State charged William Ramos Echevarria with

delivering cocaine.10 In opening statement, the prosecutor had repeatedly

referred to the war on drugs." He "remarked that the jurors knew from the news

the identities of the 'commanders' and 'generals' of the war on drugs."12 He

spoke of how the "'enlisted men" in this war "bec[a]me involved in drugs 'for the

power or the money or the greed or peer pressure."13 He made coded

references to the Vietnam and Gulf Wars, stating that the latter provided "a good

example of how to fight a war.. . (.1 The one thing we have learned is the way to

successfully fight a war is to know who your enemy is, to have a strategy and a

direct approach."14 The prosecutor implied that the anti-drug police team that

investigated Echevarria had adopted such a strategy and approach.

       This court characterized such language as "egregious misconduct."15 As

"a deliberate appeal to the jury's passion and prejudice," it "set the tone for the

entire trial."16 This court concluded that the statements asked the jury to convict




       I° Id. at 596.

       11   Id.
       12   Id.

       13   Id.

       14   Id. at 597.

       15   Id. at 598.

       16   Id.


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"not on basis of the evidence, but, rather, on the basis of fear and repudiation of

drug dealers in general."17

       It is also improper for the prosecution to reference uncharged crimes in an

opening statement. The supreme court addressed such a reference at length in

State v. O'Donne11.18 In that case, the State charged Joseph and John O'Donnell

for murdering two police officers.18 The O'Donnells had criminal records for

burglary and robbery.2° The prosecutor highlighted the uncharged crimes in

opening statement, stating that "in view of the other burglaries and the records

that will show from the evidence, the [S]tate is going to ask you to hang these

two men."21

       The supreme court concluded that such language violated several basic

principles of our criminal justice system.22 It presented inadmissible propensity

evidence, invited the jury to impose death for crimes other than those charged,

and unconstitutionally required the defendants either testify or "rest under the

imputation" of the other collateral crimes.23




       17   Id. at 599.

       18   191 Wash. 511, 71 P.2d 571 (1937).

       19   Id. at 512.

       2° Id. at 513.

       21   Id.

       22   Id.

       23   Id.


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       Here, the prosecutor, in opening statement, characterized the heroin

found on Piggee as "not just a small amount, not just a user amount, it's about

050 grams of the heroin."24

       Defense counsel moved for a mistrial. She argued that such language

"suggested that Mr. Piggee committed a crime greater than that which he is

charged with."25 She characterized it as "opinion testimony" suggesting that

Piggee could have been charged with the greater crime of possession with intent

to deliver.26

       The trial court denied the motion but "instruct[ed] the State not to ask any

questions of witnesses regarding opinions about. . . what quantity one might

possess for personal use versus what quantity one might possess for other

reasons."27 But the court also stated that the prosecution witnesses could

describe what "they took and they can describe how it's packaged" so long as the

jury was not led to speculate about delivery.28

       The prosecutor's comment is not improper because it is unlike those in

Echevarria and O'Donnell. Unlike in Echevarria, the prosecution made no

inflammatory reference to the dangers of the drug trade or the character of those

involved. And unlike in O'Donnell, the comment did not impute guilt for


       24   Report of Proceedings (September 16, 2015) at 225.

       25   Id. at 227.

       26 Id. at 229.

       27   Id. at 230.
       28   id.



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possession with intent to deliver, require Piggee to testify in response, or admit

improper evidence. It was, rather, a characterization of the amount of drugs as

neither "small" nor for a "user."

       This was not misconduct.

                                       Prejudice

       Piggee next argues that the prosecutor's comment prejudiced the result at

trial. We disagree.

       In order to show prejudice, the defendant must show a "substantial

likelihood exists that the improper statements affected the jury's verdict."29

Piggee does not explain why the comment was prejudicial, except to state

without elaboration that a "cautionary instruction could not have cured the

prejudice to Mr. Piggee."3° Such a remark, without more, does not satisfy his

burden.

       Further, the record strongly suggests that the jury would have convicted

Piggee of possession regardless of the comment. Defense counsel conceded in

closing argument that "[s]omething in [bags belonging to Piggee] is heroin, but

not everything in here has been established to be heroin."31 The statute under

which Piggee was charged requires that the defendant possess a controlled

substance in any quantity.32 And the jury instructions did not require the jury to


       29   Maciers, 164 Wn.2d at 191.

       30   Appellant's Opening Brief at 7.

       31   Report of Proceedings(September 17, 2015) at 411.
       32   RCW 69.50.4013.
No. 74824-6-1/8


find that Piggee possessed a specific quantity. In sum, Piggee cannot show a

substantial likelihood that the comment at issue affected his verdict.

       We affirm the judgment and sentence.

                                                           Gux,T.
WE CONCUR:




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