STATE v. ISHENGOMA, 46069-2-I (Wash.App. 5-21-2001)

No. 46069-2-I.The Court of Appeals of Washington, Division One.
Filed: May 21, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 99-1-05687-2, Hon. Ronald Kessler, January 21, 2000, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

James R. Dixon, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, 320 Central Building, Seattle, WA 98104.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Andrea R. Vitalich, W554 King Co Courthouse, 516 Third Avenue, Seattle, WA 98104.

PER CURIAM.

Gregory Ishengoma appeals his conviction of possession of cocaine, arguing for the first time on appeal that the prosecutor improperly and prejudicially commented upon his exercise of his right to remain silent. Though the argument that Ishengoma was a `savvy communicator’ who would have protested his innocence if he had been questioned did refer to his silence, it was a proper reply to defense counsel’s argument discussing Ishengoma’s silence and the failure of police to question him. Alternatively, even if the reference to Ishengoma’s silence was improper it was not beyond cure by instruction and any claim of error was therefore waived by lack of objection. We accordingly affirm.

FACTS
Bicycle patrol officers saw a group of people including Ishengoma standing near a fountain. Ishengoma had both hands outstretched. Others in the group placed cash in Ishengoma’s left hand while he held an object in his cupped right hand. As the officers approached, Ishengoma looked surprised and put the money in his pocket while placing the small object in a nearby planter. Others in the group departed hastily. The officers told Ishengoma to keep his hands in sight, but he put his left hand in his pocket. He scooted away from the officers while glancing repeatedly toward the planter where he had put the object. One of the officers found a green ring box in the planter. The box contained rocks of crack cocaine.

At trial, Ishengoma, who is originally from Zimbabwe, testified that he was talking with an acquaintance when the police suddenly appeared. They simply told him that he looked like he had a lot of money and then arrested him for no reason. In response to questions from defense counsel, he testified that he said nothing to the officers and the officers asked him no questions. He denied placing anything in the planter and denied that the ring box or the cocaine belonged to him. During closing argument defense counsel explained Ishengoma’s apparent nervousness during the arrest:

The reason Mr. Ishengoma is nervous is, first of all, he’s dealing with a policeman. And secondarily, I think there’s some problem going on with the intercultural communication between Mr. Ishengoma and the law enforcement officer.

Counsel also argued that the police investigation at the scene was inadequate because they asked no questions of anyone, including Ishengoma.

In this vein, defense counsel suggested the following hypothetical conversation:

Now, if Mr. Ishengoma were really out there dealing, you would expect the law enforcement officer to say, `Oh, by the way bud, what are you doing here?’

In rebuttal, the prosecutor responded to the communication problem argument and referred to what Ishengoma might have said to the officer:

Defense counsel also argues that the nervousness is due to a communication problem between an African like the defendant and a white officer. You saw the defendant testify on the stand. You saw how savvy he was when he was trying to answer my questions. Did he have any problems communicating? If the officer was asking him what was going on, do you think he would have any problem communicating to the officer and telling him, `I wasn’t doing anything? Why didn’t you talk to the other people? Why don’t you arrest some of the other people around? I don’t know what’s going so?’ (sic) Nothing like that came out. He’s a very savvy communicator. The reason why he was nervous is again because he was caught.

The jury returned a guilty verdict.

DECISION
Ishengoma contends the prosecutor committed misconduct when he argued that Ishengoma was a `savvy communicator’ who would have protested his innocence to the officers if they had asked him what was going on. Ishengoma argues that the remarks impermissibly commented on his constitutional right to remain silent and so prejudiced him that he was denied a fair trial. We view the challenged remarks `in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.’[1] When, as here, the defendant does not object, request a curative instruction, or move for a mistrial, `appellate review of the prosecutor’s conduct is precluded unless it was misconduct so flagrant and ill intentioned that no instruction could erase the prejudice engendered by it.’[2] In a criminal proceeding, `the State may not elicit comments from witnesses or make closing arguments relating to a defendant’s silence to infer guilt from such silence.’[3] `A comment on an accused’s silence occurs when the State uses the evidence to suggest guilt.’[4]

The State argues that the challenged argument was appropriate because the prosecutor was using Ishengoma’s pre-arrest silence for impeachment. The State may use pre-arrest silence to impeach a testifying defendant’s credibility without improperly commenting on the exercise of his right to remain silent.[5] But Ishengoma testified that he was not nervous when he was arrested, so this argument did not specifically impeach his testimony. And as to impeaching the defense theory generally, “[o]nly if the prior silence were somehow inconsistent with the later offered defense would the prior silence have any relevance for impeachment purposes.”[6] Ishengoma’s defense that he was not involved with the recovered cocaine was not inconsistent with his failure to deny guilt when he was not questioned or even confronted with evidence against him. Any impeachment value was too remote to justify a comment on silence.

The State also argues that the challenged argument was a permissible reply to defense argument.[7] We agree. Defense counsel criticized police for failing to question Ishengoma. Counsel also speculated that an intercultural communication problem caused Ishengoma’s apparent nervousness. These arguments implied that if questioned and without communication difficulties Ishengoma would have protested his innocence and the police would have accepted his reasonable denials. While a prosecutor normally may not refer to a defendant’s failure to deny guilt, here it was a fair reply to argue that Ishengoma was perfectly capable of making such explanations but did not because he was nervous about the cocaine he had tried to discard in the planter.

Alternatively, even if we assume that the comments exceeded a pertinent reply, we would affirm because any impropriety here could have been cured by an instruction. Ishengoma likens his case to State v. Easter and State v. Keene. In Easter, a police officer testified that the defendant initially ignored him but then changed his attitude when the officer told him that he would be placed under arrest or could submit to a voluntary blood test; the officer further testified that the defendant was a `smart drunk.’[8] The officer defined `smart drunk’ as meaning Easter was evasive and silent when questioned, and was trying to hide evidence of intoxication. During closing argument, the prosecutor repeatedly labeled the defendant a `smart drunk.’[9] On appeal, the Court held that such testimony and argument prejudicially violated the defendant’s right to silence.

In Keene, a detective testified that the defendant did not return any of her phone calls and had missed an appointment with her.[10] Then, during closing arguments, the State argued, “[the detective] never heard from [the defendant] again. It’s your decision if those are the actions of a person who did not commit these acts.” On appeal, this Court found that the detective and the prosecutor impermissibly and prejudicially commented on Keene’s pre-arrest silence. But this case, involving only argument, is unlike Easter and Keene where the State improperly produced evidence of silence and exacerbated the problem with improper argument. Other cases Ishengoma cites similarly involved either improper evidence alone or improper evidence combined with improper argument.[11] Here, the prosecutor introduced no evidence of silence and did not make the type of direct pejorative comments on silence involved in Easter and Keene.

The defense introduced the subject of silence. Ishengoma testified on direct examination that he was asked no questions and said nothing. Defense counsel even referred to Ishengoma’s right to remain silent in his closing argument to explain why he had not provided Ishengoma’s notes to the prosecution. Improper comments regarding silence can be cured by instruction when they are references to facts already before the jury.[12] And here, the degree to which the prosecutor’s remarks are merely a reply to defense counsel’s argument, even if not rendering them proper, also minimizes potential prejudice.[13]

Accordingly, we conclude that even if the prosecutor’s remarks were improper, Ishengoma’s failure to object to the challenged remarks waives objection on appeal. We therefore affirm the conviction.