No. 46606-2-I.The Court of Appeals of Washington, Division One.
Filed: April 30, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 99-1-00834-7, Hon. Jeffrey M. Ramsdell, May 2, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Stacie A. Summerhill, 516 3rd Ave, Seattle, WA 98104-2312.
PER CURIAM.
Anthony Gibson was found guilty of unlawful possession of cocaine and marijuana. He argues that the trial court erred in denying his motion for a mistrial after the State made reference to testimony the court had excluded in a motion in limine. We affirm.
FACTS
Anthony Gibson was arrested and charged with unlawful possession of cocaine and possession of 40 grams or less of marijuana. During the jury trial, the prosecutor questioned one of the arresting officers about statements Gibson had made during the arrest. In the course of the testimony, the following exchange occurred:
Prosecutor: What did he say?
Officer: Well, he said that when we’re at the patrol car, and Officer Dornay was searching him, he said that it was no big deal, it was just marijuana and that’s only a misdemeanor.
Prosecutor: Did he say that in response to any questions?
Officer: No.
Prosecutor: Okay. Anything else that you recall he said, prior to getting to the precinct?
Officer: Yeah. Excuse me[?]
Prosecutor: Anything other than what’s been addressed in limine?
Defense: Your Honor, I’m going to object.
Court: Sustained.
Defense: Move to strike.
Court: It’s stricken. The jury will disregard Counsel’s reference.
Prosecutor: That’s fine.
Officer: Yeah, I think that was the only other I’m not sure.
Prosecutor: The statement about it’s marijuana, it’s just a misdemeanor?
Officer: Yes.
Report of Proceedings (Sept. 9, 1999) at 242-43.
Outside the presence of the jury, defense counsel moved for a mistrial, arguing that the reference to the motion in limine suggested to the jury that there were other statements that were suppressed or excluded and was so prejudicial that a mistrial was the only remedy. The court denied the motion, noting that the testimony made no reference to anything that would have prejudiced Gibson.
DISCUSSION
Denial of a motion for a mistrial is reviewed under an abuse of discretion standard. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514
(1994). An abuse of discretion occurs only when `no reasonable judge would have reached the same conclusion.’ Johnson, 124 Wn.2d at 75
(quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). A mistrial is required only when a defendant has been so prejudiced by a trial irregularity that only a new trial can ensure that the defendant will be tried fairly. Johnson, 124 Wn.2d at 76. On appeal, appellate courts determine whether mistrial should have been granted by considering (1) the seriousness of the trial irregularity; (2) whether the trial irregularity involved cumulative evidence; and (3) whether a proper instruction to disregard cured the prejudice against the defendant. Johnson, 124 Wn.2d at 76.
In this case, the prosecutor improperly referred to a matter in limine. Defense counsel immediately objected and moved to strike, and the trial court promptly instructed the jury to disregard the reference. A jury is presumed to follow the court’s instructions. State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). The trial irregularity was not serious; at worst, it suggested that statements made by Gibson had been excluded from evidence. While Gibson fears the jury assumed any excluded evidence to be prejudicial, nothing in the question so indicated. Moreover, the court found that the other arresting officer, who was more directly involved with the arrest, gave testimony that left no impression that statements had been suppressed or excluded.
The instruction to disregard cured any prejudice. The trial court did not abuse its discretion in denying Gibson’s motion for mistrial. Affirmed. FOR THE COURT: