                                                                             FILED

                                                                      February 4, 2014

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )      No. 30892-8-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
ROSE MARIE FAIRLEY,                             )      UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       SIDDOWAY, J. - Rose Fairley appeals her conviction of second degree burglary,

arguing that prosecutorial misconduct during closing argument denied her a fair trial.

The State concedes that the prosecutor's statement about which Ms. Fairley complains

was likely error but argues that the statement-to which no timely objection was made-­

was not flagrant, ill-intentioned, or prejudicial.

       The ill-considered statement by the prosecutor was curable had an objection been

made. We affmn.

                     FACTS AND PROCEDURAL BACKGROUND

       Late one evening Colin Dunbar received a call notifying him that the burglar

alarm at the Spokane church where he served as pastor had been set off. Thinking a
No. 30892-8-111
State v. Fairley


church member might have tripped the alarm, he drove to the church to investigate rather

than immediately call police. He went inside and called out several times, asking who

was there and offering help. Receiving no response, he went to the basement and again

loudly called out. After calling out approximately six times, he heard a sound that led

him to believe that someone, while not responding to him, was inside. At that point he

called the police.

       Police arrived, including one officer with the K-9 unit who had a police dog with

him. From the main entry of the church, the officer announced his presence and warned

that if anyone inside did not come out, the dog would be sent in. After calling out twice

and receiving no response, the officer sent in the dog, which found Ms. Fairley and a

male companion in the basement. Both were arrested.

       Ms. Fairley told the arresting officer that she was stranded from Walla Walla and

was looking for money to get back home. She and the man with her, whom she had met

at a bus stop, had been walking through the neighborhood when they came upon the

church. She had heard churches provide assistance to the needy and thought someone at

the church might help her. She tried the handle on a door on the side of the building and

found it unlocked, so she and her companion went inside, planning to stay in the

basement until someone arrived in the morning.

       Ms. Fairley admitted that the burglar alarm had sounded after they entered and her

male companion had done something to the alarm box. Pastor Dunbar showed officers

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    No. 30892-8-111 

    State v. Fairley 



    that the alarm box and panel for the sprinkler system were damaged, wires were pulled

    out, the circuit breaker panel had been opened, and some of the breakers had been

    improperly turned off. It was later determined that $250 in damage had been done. Ms.

    Fairley admitted that she did not have permission to be inside the building and she knew
t
J   no one at the church. 


I          The State charged Ms. Fairley with second degree burglary. At trial, the 




I   prosecutor argued during closing that Ms. Fairley entered the church intending on "self­

    help" by committing theft, or at minimum, malicious mischief. Report of Proceedings


!   (RP) at 93-95. In the course of arguing that the facts support a reasonable belief that her

    intent was to commit theft, he told the jury:

                   Is it reasonable that she wanted to commit theft, they want to silence
           the alarm and continue on to do theft, get some money from the church[?]
           1, as a representative ofthe State, say it is probably reasonable because she
           had so many opportunities to say, Okay, I am here; this is the reason I am
           here. Instead, she was hiding, because she knew that they got interrupted
           doing a burglary.

    RP at 101 (emphasis added). Defense counsel did not object to the prosecutor's

    argument. The jury found Ms. Fairley gUilty. She appeals.

                                            ARGUMENT

           The sole assignment of error on appeal is to the prosecutor's argument invoking

    his status as "a representative of the State."




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No. 30892-8-111
State v. Fairley


       A fair trial is a fundamental liberty secured by the Sixth and Fourteenth

Amendments to the United States Constitution and article I, section 22 of the Washington

State Constitution. Estelle v. Williams, 425 U.S. 501, 503,96 S. Ct. 1691,48 L. Ed. 2d

126 (1976). Prosecutorial misconduct may deny a defendant's constitutional right to a

fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). It is grounds

for reversal if the prosecuting attorney's conduct was both improper and prejudicial in the

context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App.

713, 727, 77 P.3d 681 (2003). The defendant bears the burden of proving both. State v.

Emery, 174 Wn.2d 741,756,278 P.3d 653 (2012).

       When defense counsel fails to object to alleged improper conduct it constitutes a

waiver of any prosecutorial misconduct unless the remark was so flagrant and ill

intentioned that no curative instruction would have obviated the prejudice it created.

State v. O'Donnell, 142 Wn. App. 314,328, 174 P.3d 1205 (2007). To prevail on appeal,

a defendant who did not object in the trial court 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.'"

Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455,258 P.3d

43 (2011)).

       "'A [flair trial certainly implies a trial in which the attorney representing the state

does not throw the prestige of his public office ... and the expression of his own belief of

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No. 30892-8-III
State v. Fairley


guilt into the scales against the accused.'" State v. Monday, 171 Wn.2d 667, 677, 257

P.3d 551 (2011) (alterations in original) (internal quotations marks omitted) (quoting

State v. Case, 49 Wn.2d 66, 71, 298 P.2d 500 (1956)). The State concedes that the

prosecutor's statement was "likely error." Br. ofResp't at 2. We would characterize it as .

"clearly error." The outcome on appeal turns on whether a timely objection and request

for instruction would have cured any prejudice.

       Ms. Fairley asks us to conclude that a prosecutor's disregard of a well-established

rule is flagrant and ill-intentioned conduct per se, and that the rule against exploiting the

position of representative of the State during closing argument is a well-established rule.

Br. of Appellant at 7 (citing State v. Anderson, 153 Wn. App. 417, 433-34, 220 P.3d 1273

(2009) (Quinn-Brintnall, J., concurring in the result)). We agree that the rule against

exploiting the position of representative of the State is well established. But we will not

disregard the defendant's obligation to make a timely objection where prejudice can be

cured. If misconduct occurs, "the trial court must be promptly asked to correct it.

Counsel may not remain silent, speculating upon a favorable verdict, and then, when it is

adverse, use the claimed misconduct as a life preserver on ... appeal." Jones v. Hogan,

56 Wn.2d 23,27,351 P.2d 153(1960).

       Ms. Fairley argues, as she must, that prejudice from the prosecutor's statement

was incurable. We disagree. The statement was, frankly, odd. The interjection by the

prosecutor of his status came across as a nonsequitur; it was not persuasive. It has been

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No.30892-8-II1
State v. Fairley


observed that the failure to make an objection or request a curative instruction in response

to argument by a prosecutor strongly suggests that the argument did not appear unduly

prejudicial to a defendant in the context of trial. E.g., State v. Swan, 114 Wn.2d 613, 661,

790 P.2d 610 (1990). We are satisfied that was the case here. No possible problem was

created by the statement that an objection, with or without a request for a curative

instruction, would not have cured. The prosecutor's statement was so clearly

objectionable yet so marginally effective that the defense probably made a strategic

judgment not to object.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




                                              Sidrloway, J.

WE CONCUR: 




Korsmo, C.J.


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