STATE v. HARGROVE, 3 Wn. App. 688 (1970)

477 P.2d 187

THE STATE OF WASHINGTON, Respondent, v. GEORGE ALLEN HARGROVE, Appellant.

No. 608-40883-1.The Court of Appeals of Washington, Division One. — Panel 2.
November 30, 1970.

[1] Appeal and Error — Review — Issues Not Raised in Trial Court — Conduct of Counsel. Misconduct of the prosecutor which can be cured by an instruction is waived if no such instruction is requested. [See 5 Am.Jur.2d, Appeal and Error § 624.]

Appeal from a judgment of the Superior Court for King County, No. 49436, Theodore S. Turner, J., entered January 31, 1969.

Affirmed.

Prosecution for robbery and assault. Defendant appeals from a conviction and sentence.

McBride Sayre and Matt Sayre, for appellant (appointed counsel for appeal).

Charles O. Carroll, Prosecuting Attorney, and Paul M. Acheson, Deputy, for respondent.

WILLIAMS, J.

Defendant appeals from a judgment entered upon the verdict of a jury convicting him of three counts of robbery and one of second-degree assault. His assignments of error claim misconduct of the prosecutor and ineffectual representation by his defense counsel.

The crimes were committed in a grocery store which previously had been robbed several times. This fact, alleged to be highly prejudicial, was referred to in the prosecutor’s opening statement and developed further in the state’s case in chief. No objection was made to the comment in the opening statement nor to the introduction of the evidence. No curative instruction was requested. It is this failure to object or request a curative instruction which forms the basis for the allegation that appellant was not afforded effective representation.

[1] The misconduct of the prosecutor, if misconduct it was, was not so flagrant that an instruction given by the court could not have cured it. Appellant’s failure to ask for

Page 689

a corrective instruction waived the objection. State v. Huson, 73 Wn.2d 660, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096
(1969); State v. Berkins, 2 Wn. App. 910, 471 P.2d 131 (1970).

We believe from an examination of the entire record that appellant was effectively represented and received a fair and impartial trial. State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344
(1969).

The judgment is affirmed.

HOROWITZ, A.C.J., and FARRIS, J., concur.